Kevin Miles v. Charles Ryan , 691 F.3d 1127 ( 2012 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KEVIN ARTICE MILES, 
Petitioner-Appellant,
No. 10-99016
v.
CHARLES L. RYAN, Director,  D.C. No.
4:01-cv-00645-RCC
Arizona Department of
OPINION
Corrections,
Respondent-Appellee.

Appeal from the United States District Court
for the District of Arizona
Raner C. Collins, District Judge, Presiding
Argued and Submitted
February 16, 2012—San Francisco, California
Filed August 27, 2012
Before: Susan P. Graber, Marsha S. Berzon, and
Richard C. Tallman, Circuit Judges.
Opinion by Judge Graber;
Partial Concurrence and Partial Dissent by Judge Berzon
9797
9800 MILES v. RYAN
COUNSEL
Sean Bruner, Law Office of Sean Bruner, Ltd., Tucson, Ari-
zona, for the petitioner-appellant.
Jonathan Bass, Assistant Attorney General, Criminal
Appeals/Capital Litigation Section, Tucson, Arizona, for the
respondent-appellee.
OPINION
GRABER, Circuit Judge:
Petitioner Kevin Artice Miles appeals the district court’s
denial of his habeas petition, brought pursuant to 28 U.S.C.
§ 2254. Petitioner challenges only his capital sentence; he
does not challenge his underlying felony murder conviction,
arising from his role in a car-jacking.1 Petitioner argues that
1
Petitioner briefed several additional issues that the district court
declined to certify for appeal. Most of those issues relate to sentencing, but
one challenges the conviction. We have examined all the uncertified
issues, and none meets the standard for granting a certificate of appeala-
bility. See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (stating that a
MILES v. RYAN 9801
his counsel was ineffective at sentencing because she failed to
focus on Petitioner’s drug addiction (rather than on intoxica-
tion), enlisted an unqualified expert, and failed to investigate
Petitioner’s social history thoroughly enough.
We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and
2253, and we affirm.
FACTUAL AND PROCEDURAL HISTORY
A. The Crime
On an afternoon late in 1992, Petitioner was standing on a
street corner in Tucson, Arizona, with Levi Jackson and Ray
Hernandez. Jackson was carrying a pistol that the three of
them had just obtained together; he had told Petitioner and
Hernandez of his plan to commit a car-jacking. Specifically,
according to Petitioner’s post-arrest statement to the police,
Jackson had told them that he was “gonna get somebody’s
car, take ‘em off in the middle of the desert, and shoot ‘em.”
At the time, Jackson and Hernandez were both 16 years old.
Petitioner was 24 years old.
When Patricia Baeuerlen drove up and stopped at the cor-
ner, Jackson approached her car and asked for “a light.” When
she turned to reach her cigarette lighter, Jackson pointed the
weapon at her and told her to move over. He unlocked the car
to allow Petitioner and Hernandez to enter and sit in the rear.
While Jackson drove the car out to the desert, Hernandez held
the pistol, but Petitioner also held it at some point. They drove
Baeuerlen out of the city, into the desert, and stopped at a dirt
court should grant a certificate of appealability only when a habeas peti-
tioner has demonstrated “that reasonable jurists could debate whether (or,
for that matter, agree that) the petition should have been resolved in a dif-
ferent manner or that the issues presented were adequate to deserve
encouragement to proceed further” (internal quotation marks omitted)).
9802 MILES v. RYAN
road. There, Jackson told Baeuerlen to get out of the car and
take off her shoes and jacket. She obeyed. After taunting and
harassing Baeuerlen for five to ten minutes, Jackson suddenly
shot her in the chest. Baeuerlen died as a result of the gunshot.
According to testimony presented at trial and sentencing,
Jackson—not Petitioner—shot Baeuerlen as he and Petitioner
were walking away from Baeuerlen and returning to the car.
Throughout the ordeal, starting with the drive to the desert,
Baeuerlen was pleading for her life.
After the shooting, Jackson, Petitioner, and Hernandez
drove away. According to Petitioner’s post-arrest statement,
he thought that Baeuerlen was still alive when they left her in
the desert. No one sought help for Baeuerlen. Later the same
day, Petitioner used Baeuerlen’s ATM card, and a PIN that he
had found in her belongings, to take money out of her bank
account. The next day, Petitioner drove Baeuerlen’s car to
Phoenix, where he went shopping at malls, exchanged
Baeuerlen’s children’s Christmas presents for other goods,
and went drinking with old friends. Petitioner told those
friends about the murder, insisting that he did not pull the trig-
ger, but smiling and laughing as he related the events.
B. Arrest and Interrogation
In the early hours of the following morning, that is, the sec-
ond day after the murder, police arrested Petitioner in Chan-
dler, Arizona, following a high-speed chase in Baeuerlen’s
car. The police found Baeuerlen’s ATM card, credit card,
jewelry, and other personal items in his possession. Later that
morning, Tucson detectives began a tape-recorded interroga-
tion that lasted about five hours. During the interrogation,
Petitioner initially explained his possession of the car by tell-
ing the detectives two different stories, neither of which
placed him at the scene of the murder. But, after several hours
of interrogation, Petitioner admitted to his involvement in the
murder. Specifically, he admitted to knowing of Jackson’s
plan to car-jack and shoot someone, to participating in obtain-
MILES v. RYAN 9803
ing the pistol with Jackson and Hernandez, to holding the
weapon at some point during the drive out to the desert, and
to watching Jackson shoot Baeuerlen.
C. Trial and Sentencing
Soon after Petitioner’s arrest, Barbara Sattler was appointed
as his counsel and represented him through trial and sentenc-
ing. After a jury convicted Petitioner of first-degree felony
murder, dangerous kidnapping, and dangerous armed robbery,2
the trial court reviewed a pre-sentence report (“PSR”) and
held a sentencing hearing.
The PSR states that the crime occurred at around 1:30 p.m.
and that Petitioner reported having used crack cocaine “four
or five hours earlier” and not having slept the night before.
The PSR also contains statements from Petitioner that he
expected to get money from the car-jacking and that he
wanted to commit another robbery with the pistol. The PSR
repeats Petitioner’s assertions that he did not believe that
Jackson would kill Baeuerlen and that Petitioner thought that
Jackson would have killed him if he had tried to stop the mur-
der.
The social history section of the PSR contains the follow-
ing information. Petitioner was adopted at the age of 4
months. His adoptive mother was an alcoholic who neverthe-
less maintained employment, eventually rising past jobs as a
waitress and cook to become a nursing home administrator.
Although Petitioner is black, his adoptive mother was white,
which caused some degree of social problems; those problems
grew worse when Petitioner and his mother moved to a more
affluent neighborhood. Petitioner found a way to fit in by
becoming a “class clown” and by playing basketball. Indeed,
despite poor grades, he graduated from high school and won
a basketball scholarship to a Bible college, but he dropped out
2
As noted, none of these convictions is at issue here.
9804 MILES v. RYAN
of college after only a week. Petitioner later served in the
Navy, where he was disciplined for substance abuse and
assault before receiving an other-than-honorable discharge.
He also married and had a child, though he later grew apart
from his wife and began using drugs. His wife eventually left
him, leading him to be evicted from their apartment. A month
later, his mother died, and his drug habit grew worse.
At the sentencing hearing, Sattler called an expert, Dr. Mar-
tin Levy, Ph.D., to discuss Petitioner’s drug use. Dr. Levy is
a clinical psychologist who had evaluated Petitioner during a
two-hour session. Dr. Levy testified that Petitioner reported
using crack cocaine the night before the car-jacking. In partic-
ular, Dr. Levy testified that Petitioner’s “mental state was
compromised by intoxication . . . with cocaine.” (Emphasis
added.) Dr. Levy also testified that Petitioner’s description of
his mental state during the crime suggested a state of “disasso-
ciat[ion],”3 which was consistent with Petitioner’s reported
drug use.
The prosecutor objected to Dr. Levy’s testimony on the
ground that it lacked foundation. The sentencing judge agreed
and determined that, because Dr. Levy had insufficient
knowledge of when and in what quantities Petitioner used
drugs, he could not testify with specificity as to Petitioner’s
level of impairment or judgment at the time of the crime.
Nevertheless, in Sattler’s closing argument, she reiterated her
position that Petitioner was “under the influence of drugs and
alcohol that day.”
Sattler focused only briefly on Petitioner’s social history at
3
Dr. Levy’s testimony and reports use the terms “disassociation” and
“dissociation” interchangeably. “Dissociation” is a “[s]eparation of psy-
chologic experiences and events that are normally related, leading to a dis-
tortion of experience and of the meaning of personal and interpersonal
events.” Robert J. Campbell, M.D., Campbell’s Psychiatric Dictionary
289 (9th ed. 2009).
MILES v. RYAN 9805
sentencing. Two character witnesses testified about his back-
ground and his nonviolent nature.4 Indeed, Sattler’s closing
arguments characterize him as a relatively normal person—
one who graduated from high school, who usually maintained
gainful employment, who served in the military and com-
pleted most of his term of service, who married, and who had
a child—but who made some mistakes after his wife left and
his mother died.
Ultimately, the trial judge sentenced Petitioner to death by
lethal injection.5 In so doing, the trial judge cited three aggra-
vating factors:6 (1) that Petitioner had previous convictions for
three separate crimes of violence (armed robberies), (2) that
Petitioner committed the car-jacking in pursuit of pecuniary
gain, and (3) that the murder was committed in an especially
cruel manner.7 The trial court also noted that the murder was
senseless, in that it was unnecessary to the escape of Peti-
tioner and his accomplices.
4
In addition, Sattler planned to call Petitioner’s estranged wife to testify
but did not do so because Petitioner had objected. Similarly, she planned
to call two other character and background witnesses, but they were
unavailable because of a medical emergency. At sentencing, Sattler made
a statement on the record to document those circumstances.
5
The conviction, sentencing, and appeal to the Arizona Supreme Court
all took place before the Supreme Court decided Ring v. Arizona, 536 U.S.
584 (2002), which requires a jury to determine all facts relating to eligibil-
ity for capital punishment. Ring “does not apply retroactively to cases
already final on direct review.” Schriro v. Summerlin, 542 U.S. 348, 358
(2004).
6
The trial judge relied on an additional aggravating factor—that the
murder was committed in an especially heinous manner—but the Arizona
Supreme Court reversed on that point. See State v. Miles, 918 P.2d 1028,
1035-36 (Ariz. 1996).
7
To support the cruelty finding, the trial judge found that Baeuerlen
“suffered prolonged mental anguish and uncertainty as to her fate,” as
demonstrated by Petitioner’s own account of her “crying, screaming in ter-
ror, and begging for her life.”
9806 MILES v. RYAN
In mitigation, the trial judge rejected most of the potential
mitigating factors. He rejected the contention that Petitioner
was only a minor participant in the crime. The trial judge also
rejected unforeseeability8 of the murder and Petitioner’s age
as mitigating factors. As to expressions of remorse, the trial
judge found them insincere and, in any event, outweighed by
the aggravating factors listed above:
The court finds that the defendant’s expression of
remorse was insufficient to outweigh the aggravating
circumstances of this case. No remorse was evi-
denced when the defendant went to Phoenix, after
the murder, in the car of Miss Baeuerlen, to party
with his friends. No remorse was evidenced when
the defendant was captured by the Phoenix Police.
No remorse was evidenced when the defendant, a
day after the murder, was able [to] laugh when
detailing the murder . . . to a boyhood friend in Phoe-
nix.
The trial judge rejected the possibility of rehabilitation,
finding no evidence to support it. He went on to note that,
even if he were to find a possibility of rehabilitation, that
would not outweigh the aggravating factors. The trial judge
also found that Petitioner’s cooperation with the police was
purely self-interested and not sufficient “to establish a miti-
gating circumstance or to outweigh the aggravating circum-
stances.”
The trial judge did consider mitigation arising from the
nature of the murder conviction—felony murder, rather than
pre-meditated murder—but found it insufficient to outweigh
the aggravating factors. The trial judge also considered Peti-
8
The trial judge went on to note that Petitioner could not have been sur-
prised by the killing in view of his accomplice’s statement, before the
crime, that he was “gonna get somebody’s car, take ‘em off in the middle
of the desert, and shoot ‘em.”
MILES v. RYAN 9807
tioner’s reputation for nonviolence but did not find it suffi-
cient to outweigh the aggravating factors, especially in view
of Petitioner’s recent commission of three armed robberies.
Finally, of particular significance to this appeal, the trial
judge rejected any drug-related mitigation, stating:
The court finds that there is no credible evidence that
the defendant’s capacity was impaired or that drugs
or alcohol had impaired the defendant’s thinking or
actions at the time of the crimes in question. . . . The
testimony offered by the defendant, from Doctor
Levy, Ph.D., as to impairment, was without adequate
foundation, and considered by the court to be with-
out value.
D. Post-Conviction Relief Proceedings
On direct appeal, the Arizona Supreme Court affirmed the
conviction and capital sentence. State v. Miles, 918 P.2d 1028
(Ariz. 1996). Petitioner did not petition for certiorari to the
United States Supreme Court, but he did file a state court peti-
tion for post-conviction relief (“PCR”) under Rule 32 of the
Arizona Rules of Criminal Procedure. The Arizona Superior
Court denied Petitioner’s PCR petition, rejecting his ineffec-
tive assistance of counsel claims on the merits. With respect
to Sattler’s failure to focus on addiction, the state court con-
cluded both that Sattler’s performance was not deficient and
that Petitioner failed to demonstrate prejudice. With respect to
the other two claims in this case, the state court concluded
only that Sattler’s performance was not deficient—it made no
determination as to prejudice. The Arizona Supreme Court
denied the petition for review of the PCR decision.
Before denying Petitioner’s PCR petition, the Arizona
Superior Court, however, ordered an evidentiary hearing. In
preparation for that hearing, Petitioner underwent more exten-
sive psychological testing. Dr. Joseph Geffen, Ph.D., a clini-
9808 MILES v. RYAN
cal psychologist, prepared a report describing Petitioner as
using drugs to “self-medicat[e]” and as having resorted to
crime because of “his perceived need for drugs without which
he cannot cope.” Dr. Levy had described Petitioner’s drug use
similarly, as self-medication, in his pre-sentence evaluation,
but did not connect Petitioner’s motivation for his crimes to
a need to acquire drugs.
In preparation for the state hearing, Petitioner’s counsel
hired an investigator to probe further into his social history.
The investigator produced a detailed report, containing infor-
mation gleaned from interviews with many people who knew
Petitioner and his mother during his youth. The additional his-
tory confirms that Petitioner’s mother was an alcoholic and
suggests that she may also have used heroin, or at least social-
ized with those who did. The investigation revealed that his
mother worked as a prostitute and perhaps ran her own
whorehouse out of her home. When Petitioner was approxi-
mately 11 years old, his mother began work at a nursing home
(and may have given up prostitution); there, she rose to
become an administrator, a position she held until Petitioner’s
last year of high school, when she was fired for drinking on
the job. Additionally, the report characterized Petitioner’s
hometown of Winslow, Arizona, as being segregated, corrupt,
and rife with prostitution, crime, drugs, and gambling. The
investigation confirmed that Petitioner and his mother suf-
fered at least some alienation due to their mixed-race house-
hold.
The additional social history also suggests that Petitioner’s
mother was an “extremely protective mother” who made him
the center of her life. She was “infatuated” with her son and
“coddle[d]” him. She slept in the same bed as Petitioner until
he was 14 years old. She “read to him constantly and sang to
him when she fed him,” past an age considered “normal” by
a friend. The additional social history reveals that, although
Petitioner’s mother disciplined him by spanking him with a
hairbrush when he was 4 or 5 years old, she later discontinued
MILES v. RYAN 9809
the practice and did not physically abuse him.9 She bought
Petitioner “everything he wanted” and, when he developed
buck teeth, for which other children teased him, she arranged
for him to get braces.
The additional social history report went on to discuss Peti-
tioner’s relationships with his community. He went to church
twice a week for Bible study until at least his junior high
school years, receiving a ride from a local bus ministry. When
he was in junior high school, his basketball coach frequently
drove him home from practices. He became good friends with
a local family, spending a great deal of time at their home;
indeed, they treated him like their own child. Notably, he
remained in contact with members of that family well into
adulthood—two of them were character witnesses at his sen-
tencing hearing. According to those two witnesses, Petitioner
stayed in touch with them after leaving Winslow and visited
them to introduce his wife. One of the witnesses was a close
friend when she and Petitioner were both living in Tucson;
she was present for the birth of his daughter.
The additional social history investigation also looked into
Petitioner’s high school years, during which he played on the
basketball team and earned a varsity letter in his senior year,
helping to win the state championship. He had a close-knit
group of five friends, and he was popular with girls.
9
Petitioner now disputes this finding and recently filed an affidavit stat-
ing that his mother routinely physically abused him when he was between
the ages of 4 and 14 years old by beating him with “belts, extension cords,
paddles, switches, and her fists.” Because this evidence was not before the
state court, however, we may not consider it. See Cullen v. Pinholster, 131
S. Ct. 1388, 1398 (2011) (holding that “review under [28 U.S.C.]
§ 2254(d)(1) is limited to the record that was before the state court that
adjudicated the claim on the merits”).
9810 MILES v. RYAN
E. Federal Habeas Proceedings
In late 2001, Petitioner filed this habeas corpus petition
pursuant to 28 U.S.C. § 2254. The district court granted Peti-
tioner’s request for appointment of an investigator and a doc-
tor, and the court later granted requests for more funds for
mitigation specialists.
Under the district court’s order, Dr. Geffen, who had exam-
ined Petitioner during the state post-conviction proceedings,
examined him again and prepared another report. In his
report, Dr. Geffen stated that, after learning about “modern
methods of evaluating mitigation factors in death penalty
cases,” years after his initial evaluation of Petitioner, he
thought that he “had not done as complete an evaluation as
possible.” Dr. Geffen further concluded: (1) that Petitioner
was “experiencing an altered state of mind at the time of
[Baeuerlen’s] murder;” (2) that, “[a]lthough physically pres-
ent, [Petitioner] was emotionally and mentally ‘not there’ in
terms of his awareness and appreciation of events around him,
due to a dissociative state of mind, during which the event
appeared to him as unreal and disconnected from him;” (3)
that Petitioner’s “substance abuse at the time was part of a
lifelong adjustment problem which resulted in a severe state
of depression, and that the drugs served the purpose of numb-
ing his perceptions after some catastrophic losses and per-
sonal failures, including the loss of his mother and of his
marriage and family and job, almost simultaneously, rather
than being an isolated recreational act;” and (4) that Petition-
er’s “altered mental state met the criteria for statutory mitiga-
tion, since he was not capable of conforming to the lawful
requirements due to his impaired mental state.”
Around the same time, Petitioner was also examined by Dr.
Wm. Michael Cochran, M.D. Dr. Cochran concluded that, “at
the time of his participation in the crime(s) on December 7,
1992, [Petitioner] was using alcohol, crack cocaine and mari-
juana addictively” and that Petitioner’s “participation in the
MILES v. RYAN 9811
robbery of [ ] Baeuerlen was primarily motivated by his
addictions, and their consequent monetary obligations to sat-
isfy the attendant ‘needs’ for continued use.”10
In 2004, the district court granted, in part, Petitioner’s
motion for an evidentiary hearing by allowing depositions of
Sattler and Phyllis Howell (Sattler’s trial investigator). But
the district court ultimately determined that an evidentiary
hearing was “neither warranted nor required because Peti-
tioner ha[d] not alleged facts which, if proved, would entitle
him to relief.” The district court then denied Petitioner’s peti-
tion, certifying only the issues discussed in this opinion. Peti-
tioner timely appealed, and we have jurisdiction pursuant to
28 U.S.C. § 2253. After oral argument and submission of the
case, the Supreme Court issued its decision in Martinez v.
Ryan, 132 S. Ct. 1309 (2012), and we ordered supplemental
briefing to address the effect, if any, of Martinez on the certi-
fied issues in this case.
STANDARDS OF REVIEW
We review de novo a district court’s denial of habeas cor-
pus relief. Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir.
2004).
Our review of the underlying state court decisions, on the
other hand, is more limited. Because Petitioner filed his
§ 2254 habeas petition after April 24, 1996, his petition is
governed by the Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat.
1214. Lambert v. Blodgett, 393 F.3d 943, 965 (9th Cir. 2004).
Under AEDPA, we must defer to a state court’s decision with
respect to any claim that was adjudicated on the merits unless
the adjudication of the claim:
10
After Pinholster, the AEDPA standard of review prevents us from
relying on Dr. Cochran’s report or Dr. Geffen’s last report because the
state court did not consider that evidence.
9812 MILES v. RYAN
(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 evidence presented in the State court proceeding.
28 U.S.C. § 2254(d).
Under § 2254(d)(1), a state court’s decision involves an
“unreasonable application” of clearly established federal law
if it “identifies the correct governing legal principle from [the
Supreme Court’s] decisions but unreasonably applies that
principle to the facts of the prisoner’s case.” Holland v. Jack-
son, 542 U.S. 649, 652 (2004) (per curiam) (internal quotation
marks omitted).
DISCUSSION
When applying AEDPA’s standards, we review the “last
reasoned decision” by a state court addressing the issue at
hand. Robinson, 360 F.3d at 1055 (internal quotation marks
omitted). Here, the last reasoned opinion addressing the
claims presently before us—whether counsel performed inef-
fectively at sentencing—is the Arizona Superior Court’s Min-
ute Entry, which denied Petitioner’s PCR petition.
Clearly established Supreme Court precedent provides a
framework for examining Sixth Amendment ineffective assis-
tance of counsel claims. See Strickland v. Washington, 466
U.S. 668 (1984). To establish ineffective assistance of counsel
under Strickland, a prisoner must demonstrate both: (1) that
counsel’s performance was deficient, and (2) that the defi-
cient performance prejudiced his defense. Id. at 688-93. We
may address these prongs in whichever order we deem most
efficient. Id. at 697.
MILES v. RYAN 9813
The first prong of the Strickland—test—deficient
performance—requires a showing that counsel’s performance
“fell below an objective standard of reasonableness,” id. at
688, or was “outside the wide range of professionally compe-
tent assistance,” id. at 690. The test is “highly deferential,”
evaluating the challenged conduct from counsel’s perspective
at the time in issue. Id. at 689. This inquiry should “begin
with the premise that ‘under the circumstances, the challenged
action[s] might be considered sound trial strategy.’ ” Cullen
v. Pinholster, 131 S. Ct. 1388, 1404 (2011) (alteration in orig-
inal) (quoting Strickland, 466 U.S. at 689), rev’g Pinholster
v. Ayers, 590 F.3d 651 (9th Cir. 2009) (en banc). Under this
objective approach, we are required “to affirmatively enter-
tain” the range of possible reasons counsel might have pro-
ceeded as he or she did. Id. at 1407.
The second prong of the Strickland test—prejudice—
requires the petitioner to demonstrate a “reasonable probabil-
ity that, but for counsel’s unprofessional errors, the result of
the [trial] would have been different.” 466 U.S. at 694. “A
reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id. Further, as with any claim of
constitutional error in a federal habeas case applied to state
prisoners, an additional, essentially overlapping, harmless
error standard applies: “whether the constitutional error ‘had
substantial and injurious effect or influence in determining the
[outcome].’ ” Ybarra v. McDaniel, 656 F.3d 984, 995 (9th
Cir. 2011) (quoting Brecht v. Abrahamson, 507 U.S. 619, 637
(1993)), petition for cert. filed, ___ U.S.L.W. ___ (U.S. May
29, 2012) (No. 11-10652).
The state court applied Strickland—the correct rule—in
analyzing Petitioner’s claims.11 On habeas review, Petitioner’s
11
The state court identified the Strickland legal standard without citing
that particular case; rather, the state court cited only Arizona Supreme
Court decisions. But those state court decisions, in turn, explicitly cite and
adopt Strickland. See State v. Vickers, 885 P.2d 1086, 1090 (Ariz. 1994);
State v. Nash, 694 P.2d 222, 227 (Ariz. 1985).
9814 MILES v. RYAN
claims amount to a contention that the state court misapplied
Strickland, so those claims fall squarely under § 2254(d)(1).
See Knowles v. Mirzayance, 129 S. Ct. 1411, 1414-15 (2009)
(evaluating an ineffective assistance of counsel claim under
§ 2254(d)(1)); Cheney v. Washington, 614 F.3d 987, 990 (9th
Cir. 2010) (same).
Our review of an ineffective assistance of counsel claim
under § 2254(d)(1) and Strickland is “doubly deferential.”
Knowles, 129 S. Ct. at 1420. The issue “is not whether [we]
believe[ ] the state court’s determination under the Strickland
standard was incorrect but whether that determination was
unreasonable—a substantially higher threshold.” Id. (internal
quotation marks omitted).
With that framework in mind, we evaluate Petitioner’s
claims.
A. Addiction as a Mitigating Factor
[1] Petitioner first argues that, during sentencing, Sattler
unreasonably failed to focus on his drug addiction. We dis-
agree. Sattler’s decision to rely on Dr. Levy and to focus on
other mitigating factors, such as depression, rather than on
addiction, was a matter of strategy.12 Sattler’s arguments at
sentencing support our conclusion. Her chosen tack—
characterizing Petitioner as a relatively normal person who
was suffering from depression—evinces a desire to avoid
painting Petitioner as a drug addict. At the very least, Sattler’s
argument at sentencing raises the possibility that she was
motivated by such a strategy, which is all that Pinholster
requires. 131 S. Ct. at 1404-07. Because Sattler’s decision not
12
Sattler’s deposition supports our conclusion, but after Pinholster, we
may not consider that evidence under the AEDPA standard of review. 131
S. Ct. at 1400 (“[E]vidence introduced in federal court has no bearing on
§ 2254(d)(1) review.”). Accordingly, we do not rely on Sattler’s deposi-
tion.
MILES v. RYAN 9815
to focus on drug addiction appears to have been motivated by
reasonable strategic concerns, that decision is deserving of
great deference under Strickland and Pinholster. See Turner
v. Calderon, 281 F.3d 851, 876 (9th Cir. 2002) (“The choice
of what type of expert to use is one of trial strategy and
deserves ‘a heavy measure of deference.’ ” (quoting Strick-
land’s statement regarding deference due to counsel’s investi-
gative decisions, 466 U.S. at 691)).
[2] Petitioner also argues that Sattler’s representation was
deficient because her sentencing arguments discussed intoxi-
cation rather than addiction. Sattler’s decision to avoid assert-
ing that Petitioner suffered from an addiction, while focusing
instead on lingering intoxication from the use of crack
cocaine, could be seen as inconsistent with a strategy of paint-
ing Petitioner as a normal person; if counsel thought that drug
use made Petitioner appear less deserving of sympathy, one
might think that she would have tried to avoid mentioning
drugs at all. But counsel’s strategy and decision are reason-
able when viewed from her perspective at the time of trial, as
Strickland requires us to do. Petitioner discussed his crack
cocaine use in his confession, and it was mentioned in the
PSR, so Sattler had to address it somehow.
[3] Moreover, Petitioner was sentenced in 1993. As
recently as 1998, the Arizona Supreme Court was routinely
rejecting addiction as a mitigating factor unless the defendant
could show intoxication at the time of the crime. See, e.g.,
State v. Greene, 967 P.2d 106, 117 (Ariz. 1998) (“To hold
that a motivation to kill fueled in part by a desire for drugs is
mitigating would be anomalous indeed.”); State v. Williams,
904 P.2d 437, 453 (Ariz. 1995) (“Without a showing of some
impairment at the time of the offense, drug use cannot be a
mitigating circumstance of any kind.” (citing State v. White,
815 P.2d 869, 882 (Ariz. 1991))); State v. Wood, 881 P.2d
1158, 1176 (Ariz. 1994) (“We further believe Defendant’s
impulsive personality and history of substance abuse merit lit-
tle, if any, independent consideration in mitigation. As noted,
9816 MILES v. RYAN
Defendant was not under the influence of any intoxicating
substance at the time of the murders.” (emphasis added) (cit-
ing State v. Bible, 858 P.2d 1152, 1209 (Ariz. 1993))). But see
State v. Gallegos, 870 P.2d 1097, 1113-15 (Ariz. 1994) (find-
ing error in trial court’s failure to consider history of sub-
stance abuse as a nonstatutory mitigating factor). For that
reason, too, counsel would have had to emphasize intoxica-
tion.
[4] It was only recently, in 2010, that we disapproved the
Arizona Supreme Court’s treatment of addiction, in a habeas
review of Williams, 904 P.2d 437. Williams v. Ryan, 623 F.3d
1258, 1270 (9th Cir. 2010). Given the state of Arizona law at
the time of trial, Sattler would have been operating under the
assumption that intoxication was the only viable means of
explaining Petitioner’s drug use to the sentencing judge. And
the evidence did not rule out some sort of lingering
intoxication—Dr. Levy discussed it in his report.13 Seen from
this perspective, Sattler’s strategy did not fall outside the wide
range of professional competence or below an objective stan-
dard of reasonableness.14
[5] Even if Sattler had been deficient in failing to focus on
addiction, we see no prejudice, the second prong of the Strick-
13
Dr. Levy’s report discusses Petitioner’s condition at the time of the
crime as “coming down” from crack cocaine use the previous night and
notes that Petitioner was dissociated from the events. At trial, Dr. Levy
testified that this state is common among drug users.
14
To be sure, in Williams, we wrote: “The decision of the Arizona
Supreme Court that drug use could not be considered as a mitigating factor
‘of any kind,’ is contrary to the Supreme Court’s consistent decisions in
capital cases beginning more than a decade before Williams’ [1992]
trial.” 623 F.3d at 1270 (emphasis added). Nevertheless, as Petitioner’s
brief acknowledges, under Arizona law at the time of his trial, addiction
was not a recognized form of mitigation. Thus, although she could have
relied on existing United States Supreme Court decisions to challenge the
Arizona practice of ignoring the mitigating value of addiction, her strategy
merits deference under Strickland.
MILES v. RYAN 9817
land standard. In assessing prejudice, we consider the mitigat-
ing effect of Petitioner’s drug addiction and how it would
have altered the balancing of aggravating and mitigating fac-
tors discussed at sentencing. See Porter v. McCollum, 130 S.
Ct. 447, 453-54 (2009) (per curiam) (“To assess th[e] proba-
bility [of a different sentence], we consider the totality of the
available mitigation evidence—both that adduced at trial, and
the evidence adduced in the habeas proceeding—and reweigh
it against the evidence in aggravation.” (internal quotation
marks omitted) (brackets omitted)).
[6] As noted above, Petitioner’s case involved significant
aggravating factors, none of which would be affected by
addiction. For many of the proposed mitigating factors
(remorse, rehabilitation, cooperation), the trial judge made
two findings—(1) that the evidence was insufficient to estab-
lish the mitigating factor in the first place; and (2) that even
if the mitigating factor were established, it would be insuffi-
cient to outweigh the aggravating factors. It is highly unlikely
that a finding of addiction as a mitigating factor would have
tipped the scales where none of the other proposed mitigators
did. Indeed, addiction could be characterized as merely
another element of social history, which the sentencing judge
considered and found insufficient to outweigh the aggrava-
tors. As stated by the district court:
The sentencing judge considered Petitioner’s life cir-
cumstances but found them insufficient to warrant
leniency. There is no reasonable probability that
focusing on Petitioner’s crack cocaine addiction, as
opposed to the reasons that led to the addiction,
would have changed the sentencing outcome.
[7] Under AEDPA, the state court’s decision denying this
portion of Petitioner’s ineffective assistance claim must stand.
The state court did not apply Strickland unreasonably. See
Harrington v. Richter, 131 S. Ct. 770, 785 (2011) (“A state
court must be granted a deference and latitude that are not in
9818 MILES v. RYAN
operation when the case involves review under the Strickland
standard itself.”); cf. id. at 789 (“Rare are the situations in
which the wide latitude counsel must have in making tactical
decisions will be limited to any one technique or approach. It
can be assumed that in some cases counsel would be deemed
ineffective for failing to consult or rely on experts, but even
that formulation is sufficiently general that state courts would
have wide latitude in applying it.” (internal quotation marks
omitted)).
“Surmounting Strickland’s high bar is never an easy task.”
Id. at 788 (internal quotation marks omitted). Because Sat-
tler’s decision not to focus on addiction as a mitigating factor
was strategic and because Petitioner was not prejudiced as a
result, he fails to meet the Strickland standard here.
B. Qualifications of Expert
Petitioner next argues that Sattler’s preparation of Dr. Levy
was deficient. The sentencing court did not allow Dr. Levy to
testify as to Petitioner’s drug use because of a lack of
foundation—Dr. Levy did not know how often Petitioner had
been using drugs, or in what quantities. He did not even know
if, or for how long, Petitioner had slept between the time he
ingested drugs and the time he committed the crime.
Although Sattler’s strategy—to focus on intoxication rather
than addiction—was reasonable, she may have failed to
implement it appropriately. But even if that failure represents
performance so deficient as to meet the standards applicable
when we review a Strickland claim under AEDPA—a ques-
tion we do not decide—Petitioner still fails to demonstrate
prejudice. On this point, the state court made no determina-
tion on the merits, so we must review de novo. See Porter,
130 S. Ct. at 452 (“Because the state court did not decide
whether Porter’s counsel was deficient, we review this ele-
ment of Porter’s Strickland claim de novo.”). Significantly,
the sentencing judge was aware of Petitioner’s drug use—the
MILES v. RYAN 9819
PSR, which quoted some of Dr. Levy’s opinions, contained
information about Petitioner’s “coming down” from crack
cocaine used the night before the crime, as well as a diagnosis
that Petitioner was in a “disassociated” state. The excluded
testimony would have added very little more.
Furthermore, as the district court noted, even if Dr. Levy
could have testified as to the effect of Petitioner’s drug use on
his mental state, that testimony would have been of limited
value in view of: (1) Petitioner’s “acknowledgment that he
was not under the influence of drugs or alcohol at the time of
the offense”; and (2) Dr. Levy’s other testimony that “regard-
less of his drug abuse Petitioner knew the difference between
right and wrong and was capable of walking away from the
offense, thus negating any finding of significant impairment
under A.R.S. § 13-703(G)(1).”15 It is not reasonably probable
that Dr. Levy’s excluded testimony would have influenced the
sentencing judge because, even if the judge had considered
Petitioner’s drug use to be a form of reduced, nonstatutory
intoxication, the mitigating effect of that condition would
have been insufficient to outweigh the aggravating factors
outlined and discussed above. Consequently, Petitioner’s inef-
fective assistance of counsel claim, regarding the qualifica-
tions of Dr. Levy, fails on the prejudice prong of Strickland,
reviewed de novo.
C. Investigation of Social History
[8] Finally, Petitioner argues that Sattler’s performance
was deficient because she failed to investigate mitigating cir-
cumstances thoroughly enough. Strickland itself involved a
claim of ineffective assistance for failure to investigate miti-
gating circumstances. For that reason, Strickland is an espe-
cially good starting point for analyzing Petitioner’s claim that
Sattler failed to investigate sufficiently his social history. The
15
Section 13-703 (1993) has since been renumbered as Arizona Revised
Statutes section 13-751 (2011).
9820 MILES v. RYAN
Supreme Court outlined the standards governing counsel’s
duty to investigate as follows:
[S]trategic choices made after thorough investigation
of law and facts relevant to plausible options are vir-
tually unchallengeable; and strategic choices made
after less than complete investigation are reasonable
precisely to the extent that reasonable professional
judgments support the limitations on investigation.
In other words, counsel has a duty to make reason-
able investigations or to make a reasonable decision
that makes particular investigations unnecessary. In
any ineffectiveness case, a particular decision not to
investigate must be directly assessed for reasonable-
ness in all the circumstances, applying a heavy mea-
sure of deference to counsel’s judgments.
. . . And when a defendant has given counsel reason
to believe that pursuing certain investigations would
be fruitless or even harmful, counsel’s failure to pur-
sue those investigations may not later be challenged
as unreasonable.
Strickland, 466 U.S. at 690-91 (emphasis added).
In Pinholster, the Supreme Court provided more guidance,
overturning an opinion in which we had drawn, from other
recent Supreme Court cases, a “constitutional duty to investi-
gate, and the principle that it is prima facie ineffective assis-
tance for counsel to abandon their investigation of the
petitioner’s background after having acquired only rudimen-
tary knowledge of his history from a narrow set of sources.”
131 S. Ct. at 1406 (citation, internal quotation marks, and
brackets omitted). In the decision that Pinholster reversed, we
had explained that we “could not ‘lightly disregard’ a failure
to introduce evidence of ‘excruciating life history’ or ‘night-
marish childhood.’ ” Id. (quoting Pinholster, 590 F.3d at 684).
MILES v. RYAN 9821
In reversing us, the Court in Pinholster explained Strick-
land:
“No particular set of detailed rules for counsel’s con-
duct can satisfactorily take account of the variety of
circumstances faced by defense counsel or the range
of legitimate decisions . . . .” Strickland itself
rejected the notion that the same investigation will
be required in every case. It is “[r]are” that constitu-
tionally competent representation will require “any
one technique or approach.”
Id. at 1406-07 (alteration in original) (citations omitted)
(quoting Strickland, 466 U.S. at 688-89, 691, and Richter, 131
S. Ct. at 788-89).
Here, Sattler’s actions are a reasonable implementation of
her strategy—made explicit in her closing arguments at
sentencing—to characterize Petitioner as a relatively normal
person who made serious mistakes after his wife left and his
mother died. Cf. Strickland, 466 U.S. at 672-74 (finding that
counsel’s strategy—claiming “no significant history of crimi-
nal activity” and arguing that the defendant “should be spared
death . . . because [he] was fundamentally a good person who
had briefly gone badly wrong in extremely stressful circum-
stances” arising from “his inability to support his family”—
was professionally reasonable, justifying a failure to investi-
gate and present background information that might under-
mine those claims).
[9] Sattler’s failure to investigate more thoroughly is justi-
fied, then, by the irrelevance of additional social history to her
chosen strategy. As Pinholster recognized, choice of a partic-
ular strategy can make “particular investigations unneces-
sary.” 131 S. Ct. at 1407; see id. at 1407-08 (approving of the
notion that “ “‘humanizing” the defendant . . . may be the
wrong tactic in some cases because experienced lawyers con-
clude that the [sentencing authority] simply won’t buy it’ ”
9822 MILES v. RYAN
(quoting Pinholster, 590 F.3d at 692 (Kozinski, C.J., dissent-
ing)).
[10] Because Sattler’s actions reflect a deliberate choice of
reasonable strategy, they do not fall outside reasonable pro-
fessional norms. We see no deficient performance in Sattler’s
decision not to investigate Petitioner’s social history further,
and AEDPA deference applies. It is on this holding that we
part ways with the dissent. The dissent rests on the premise
that the Arizona Superior Court’s holding—that Sattler’s
approach to mitigation was not deficient—was “contrary to”
clearly established federal law and that, as a result, we should
review Petitioner’s ineffective assistance of counsel claim de
novo, not with AEDPA deference. That argument is flawed
because it overreads Rompilla v. Beard, 545 U.S. 374 (2005),
and Wiggins v. Smith, 539 U.S. 510 (2003), in contravention
of Pinholster’s clear instructions to the contrary. See 131 S.
Ct. at 1406-07 (“The Court of Appeals erred in attributing
strict rules to this Court’s recent case law.” (citing Rompilla
and Wiggins)). Indeed, the dissent here appears to be making
the same argument made by the dissent in Pinholster, an argu-
ment that was necessarily rejected by a majority of the Court.
See id. at 1427 (Sotomayor, J., dissenting) (“In reaching this
conclusion, the majority commits the same Strickland error
that we corrected, applying § 2254(d)(1), in Wiggins: It holds
a purportedly ‘tactical judgment’ to be reasonable without
assessing ‘the adequacy of the investigatio[n] supporting
[that] judgmen[t].’ ” (alterations in original) (quoting Wig-
gins, 539 U.S. at 521)).
Further, to the extent that the dissent finds support in Por-
ter, 130 S. Ct. 447, that case is distinguishable. Porter held
that the defendant “may have been fatalistic or uncooperative,
but that [did] not obviate the need for defense counsel to con-
duct some sort of mitigation investigation.” Porter, 130 S. Ct.
at 453. In Porter, counsel failed to conduct any investigation
into the defendant’s background—he did not interview any
witnesses or request any records. Id. Here, as the Arizona
MILES v. RYAN 9823
Superior Court held, Petitioner’s failure to disclose pertinent
facts about his background “guaranteed that [Sattler] would
not and Dr. Levy certainly would not, conduct further investi-
gation into Petitioner’s background.” Sattler did conduct a
mitigation investigation—she engaged an investigator who
interviewed childhood friends of Petitioner, attempted to call
his wife to testify at the penalty phase (but Petitioner refused
to allow her to do so), and engaged Dr. Levy. Porter, there-
fore, is inapplicable here.
But even if Sattler’s performance had been deficient, Peti-
tioner suffered no prejudice. As with Petitioner’s claim
regarding Sattler’s expert, the state court made no prejudice
finding on the failure to investigate claim, so we must review
prejudice de novo. That review is not subject to the evidenti-
ary limitations announced in Pinholster, though it is subject
to the limitations in § 2254(e)(2). See Pinholster, 131 S. Ct.
at 1401 (“Section 2254(e)(2) continues to have force where
§ 2254(d)(1) does not bar federal habeas relief. . . . At a mini-
mum, therefore, § 2254(e)(2) still restricts the discretion of
federal habeas courts to consider new evidence when deciding
claims that were not adjudicated on the merits in state
court.”). But even assuming that § 2254(e)(2) permits us to
consider the new evidence that Petitioner produced at the dis-
trict court,16 we see no prejudice.
First, as discussed above, Petitioner received a capital sen-
tence primarily on account of three aggravating factors—
previous convictions for three armed robberies, committing
the car-jacking in pursuit of pecuniary gain, and committing
the murder in an especially cruel manner—and the sentencing
16
Even under review de novo and § 2254(e)(2), however, we do not
consider the new evidence produced on appeal in connection with the sup-
plemental briefing on the Martinez issue discussed below. See United
States v. Waters, 627 F.3d 345, 355 n.3 (9th Cir. 2010) (“Facts not pre-
sented to the district court are not part of the record on appeal.” (internal
quotation marks omitted)).
9824 MILES v. RYAN
judge observed that the aggravators were unlikely to be out-
weighed by anything less than substantial mitigation. Peti-
tioner’s additional social history is, as the district court noted,
largely cumulative of what was already before the sentencing
judge in the PSR, meaning that its mitigating value would be
marginal.
More significantly, the additional social history is equivo-
cal, and not as alarming as that of the defendants in other
failure-to-investigate cases. See, e.g., James v. Ryan, 679 F.3d
780 (9th Cir. 2012), petition for cert. filed, 81 U.S.L.W. 3047
(U.S. June 28, 2012) (No. 11A1119). Petitioner’s mother was
a prostitute during his early years, though she turned to legiti-
mate employment when he was about 11 years old. He may
have observed—but did not experience—violence in connec-
tion with his mother’s prostitution. But, however problematic
were the circumstances of Petitioner’s mother’s lifestyle, she
did not neglect him, and there was no evidence that he was
ever abused. To the contrary, Petitioner’s mother was clearly
quite devoted to him. Moreover, whatever other problems
existed in Petitioner’s hometown, he had a community of
friends and a support system there, with responsible adults
who took an interest in him. He developed healthy relation-
ships that continued into adulthood. Finally, by all objective
indications, he was socially well adjusted in high school.
Petitioner’s background was far more stable than, say, the
background of the defendant in James, in which we granted
habeas relief from a capital sentence.17 The defendant in that
case, James, grew up in a household with a father who shot
heroin in front of James and was a violent alcoholic who beat
James’ mother. James, 679 F.3d at 811. James grew up on
17
James is distinguishable on the deficiency-of-performance prong of
Strickland because, in James, the state did not dispute deficient perfor-
mance. 679 F.3d at 807. Also, the state court in James had denied the inef-
fective assistance of counsel claim for procedural reasons, rather than on
the merits, meaning that AEDPA deference did not apply. Id. at 802.
MILES v. RYAN 9825
welfare and was both neglected and verbally abused by his
mother. Id. Later, his mother took up with another violent
alcoholic, but this one abused James as well as his mother. Id.
Growing up, James was frequently visited by an uncle known
to have sexually abused other children in his family. Id. at
811-12. At one point, James’ mother tried to smother him
with a pillow but relented at the last moment. Id. at 812. After
living in various foster homes and an adoption center for six
to nine months, James was given up for adoption at age 4. Id.
He was eventually adopted by an older couple who physically
abused him when he misbehaved.18 Id. at 812-13.
Similarly, the Arizona Supreme Court reversed a death sen-
tence in State v. Trostle, 951 P.2d 869 (Ariz. 1997). Unlike
Petitioner here, Trostle had been neglected as a baby. Child
Protective Services received numerous reports about him,
starting with a report that he was found, at the age of 2 or 3
months old, sleeping in his own vomit while wearing a soiled
diaper. Id. at 884. “His grandmother beat him regularly and
once severely burned him with hot water for wetting his
pants. His grandfather was convicted of sexually molesting
him over a substantial period of time beginning at age 11.” Id.
After Trostle began acting out in sexually inappropriate ways,
juvenile authorities placed him in a residential treatment and
educational program when he was 14 years old. Id.
The newly uncovered portion of Petitioner’s social history
simply does not have significant mitigating value in view of
what was already available to the sentencing judge. Thus,
even if Sattler had been professionally deficient in failing to
investigate and present these additional facts, it is not reason-
18
The dissent asserts, “[C]ontrary to the majority’s account, James did
not ‘grow up’ in the abusive circumstances described. Instead, at age four,
James was adopted by parents who were strict but loving, and his life cir-
cumstances from thence forward took a dramatic turn for the better.” Dis-
sent at 9838. But James’ adoptive father was so “strict” that, “[o]n one
occasion, [he] whipped James so severely with a rope that he raised
bloody welts all over James’s back.” James, 679 F.3d at 813.
9826 MILES v. RYAN
ably probable that the outcome of the aggravation/mitigation
balancing would have been different. Indeed, the new evi-
dence does little to dispel Petitioner’s later social history, in
which he acted as a functioning member of society for a num-
ber of years, demonstrating a capacity to overcome the hard-
ships that had burdened his youth.
Accordingly, the failure-to-investigate portion of Petition-
er’s ineffective assistance claims fails on the first prong of
Strickland, applying AEDPA deference. We note, however,
that Petitioner’s claim would fail on the first prong even under
de novo review. Further, as discussed above, even if Peti-
tioner could prevail on the first prong, thereby requiring us to
review de novo on the second prong, he would fail.19
D. Effect of Martinez
Martinez does not help Petitioner. He had the assistance of
counsel in his post-conviction relief proceeding, and counsel
raised a claim of ineffective assistance of trial counsel.
Assuming that Martinez applies in that situation, its exception
is available only if Petitioner can establish that his post-
conviction counsel was ineffective under the Strickland stan-
dard and that the “underlying ineffective-assistance-of-trial-
19
Petitioner argues that the state court made an error of law in suggest-
ing that it denied this portion of his ineffective assistance of counsel
claims because his social history was not “new” evidence. Because Peti-
tioner did not raise this argument in the district court, he may not raise it
for the first time on appeal. See Scott v. Ross, 140 F.3d 1275, 1283 (9th
Cir. 1998) (identifying a general rule of waiver for issues not raised below,
subject to a discretionary exception). Even if we allowed Petitioner to
raise this argument, he could gain nothing more than review de novo
under the Strickland standard, which is itself deferential. See Frantz, 533
F.3d at 737 (holding that, when Ҥ 2254(d)(1) is satisfied, then federal
habeas courts must review the substantive constitutionality of the state
custody de novo”). As noted above, the failure to investigate portion of
Petitioner’s ineffective assistance of counsel claims would fail even under
review de novo.
MILES v. RYAN 9827
counsel claim is a substantial one, which is to say that . . . the
claim has some merit.” 132 S. Ct. at 1318.
[11] Here, it cannot be said that Petitioner’s post-
conviction counsel performed his duties so incompetently as
to be outside the “wide range of professionally competent
assistance.” Strickland, 466 U.S. at 690. Even though Peti-
tioner’s current counsel has now uncovered some new infor-
mation beyond that presented to the state courts by his post-
conviction counsel, that evidence is insufficient to demon-
strate that the previous lawyer’s investigation was objectively
unreasonable. As detailed above, post-conviction counsel con-
ducted an extensive investigation, obtaining a psychologist to
perform further testing and hiring an investigator who visited
Petitioner’s home town and interviewed many people who
knew him and his mother. Accordingly, Petitioner cannot
demonstrate that his post-conviction counsel was ineffective.
Furthermore, even with new evidence relating to his social
history and drug use, Petitioner cannot rescue the claim that
his sentencing counsel was ineffective. As we have already
discussed, sentencing counsel made a reasonable choice, as a
matter of strategy, not to focus on social history and addic-
tion, opting instead to paint Petitioner as a normal person who
made a grave mistake during a tumultuous period in his life.
Petitioner’s new evidence does not establish that this choice
was unreasonable.
In summary, even assuming that the Martinez exception
applies to Petitioner’s case, he cannot satisfy its requirements.
CONCLUSION
Petitioner’s counsel adopted a permissible sentencing strat-
egy to show: (1) that Petitioner was a nice young man who
went with bad companions because he was depressed, who
may have been intoxicated at the time of the crime, who was
remorseful, and who was worth saving through rehabilitation;
9828 MILES v. RYAN
and (2) that he was just a very minor participant in the crime
who was surprised by the violent turn of events. She pre-
sented mitigation witnesses to bolster this theory. To portray
him as a crazed drug addict with a sordid past would have
contradicted the chosen strategy. Petitioner’s arguments
amount to little more than a contention that his counsel should
have adopted a different strategy. Under Strickland, such
arguments must fail, and Martinez does not compel a different
result.
AFFIRMED.
BERZON, Circuit Judge, concurring in part and dissenting in
part:
I agree with the majority that Miles has not shown that he
is entitled to relief under the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132,
110 Stat. 1214, on the basis of his counsel’s alleged deficien-
cies in presenting addiction as a mitigating factor and in pre-
paring Dr. Levy to testify. I cannot agree, however, with the
majority’s conclusion that Miles is not entitled to relief based
on his counsel’s deficient investigation of his troubled back-
ground. In rejecting this claim, the state court applied Strick-
land in a way inconsistent with the holdings of several
Supreme Court cases. Its decision was therefore “contrary to”
clearly established Federal law, and we should conduct de
novo review. On de novo review, I would conclude that
Miles’s counsel was constitutionally deficient and that Miles
was prejudiced by this deficiency. On this point, therefore, I
dissent.
A. AEDPA
The Arizona Superior Court rejected Miles’s failure-to-
investigate claim on the ground that “a Defendant must bear
MILES v. RYAN 9829
some responsibility to assist his or her attorney in preparing
a defense [and that] an attorney should be able to rely on
his/her client to bring pertinent facts to his/her attention.”1
Because this ground is “contrary to . . . clearly established
Federal law,” this claim should be reviewed de novo. 28
U.S.C. § 2254(d)(1); Frantz v. Hazey, 533 F.3d 724, 734 (9th
Cir. 2008) (en banc).
Strickland v. Washington, 466 U.S. 668 (1984), the seminal
ineffective assistance of counsel case, explained that
[t]he reasonableness of counsel’s actions may be
determined or substantially influenced by the defen-
dant’s own statements or actions. . . . In particular,
what investigation decisions are reasonable depends
critically on such information. . . . [W]hen a defen-
dant has given counsel reason to believe that pursu-
ing certain investigations would be fruitless or even
harmful, counsel’s failure to pursue those investiga-
tions may not later be challenged as unreasonable.
Id. at 691. What Strickland did not say is that a failure to
investigate claim can be dismissed out of hand whenever the
defendant had information about his past and failed to provide
it to his lawyer. Instead, Strickland stated only that competent
counsel can rely to some degree, with regard to the scope of
an investigation, on what the defendant does tell the lawyer,
not on what he does not.
1
The state court also held that Miles could not make a claim under Ari-
zona Rule of Criminal Procedure 32.1(e) because his evidence was not
“new.” Post-conviction Strickland claims in California are brought under
Rule 32.1(a), which allows post conviction relief when “[t]he conviction
or sentence was in violation of the Constitution.” Because the two subsec-
tions provide separate grounds for relief, the state court’s discussion of
Rule 32.1(e) does not bear on its Strickland analysis, and so it is irrelevant
to this appeal.
9830 MILES v. RYAN
After Strickland, the Supreme Court specifically held, more
than once, that an attorney’s duty to investigate a defendant’s
background in preparation for sentencing is not circumscribed
by the degree to which the defendant offers up mitigating
information about his past. In Porter v. McCollum, for exam-
ple, the court emphasized that whether a defendant is “fatalis-
tic or uncooperative . . . does not obviate the need for defense
counsel to conduct some sort of mitigation investigation.” 588
U.S. ___, 130 S. Ct. 447, 453 (2009). And in Rompilla v.
Beard, the Court held counsel’s mitigation investigation defi-
cient despite the defendant’s “minimal” contributions and
refusal to discuss his background. 545 U.S. 374, 381-82
(2005). In contrast, the Court has explained, a defendant’s
active obstruction of counsel’s efforts to perform a mitigation
investigation can prevent him from showing prejudice under
Strickland. See Schriro v. Landrigan, 550 U.S. 465, 466
(2007). Except in that circumstance, the Court has recognized,
a competent attorney would independently seek mitigation
evidence rather than rely on the defendant’s representations
about his past.
Moreover, the ABA Guidelines in effect at the time of
Miles’s sentencing specified that “[t]he investigation for the
preparation of the sentencing phase should be conducted
regardless of any initial assertion by the client that mitigation
is not to be offered.” See ABA Guidelines for the Appoint-
ment and Performance of Counsel in Death Penalty Cases
11.4.1(C) (1989). “Prevailing norms of practice as reflected in
American Bar Association standards . . . are guides to deter-
mining what is reasonable . . . .” Strickland, 466 U.S. at 688.
The state court did recite the general, two-prong Strickland
standard at the beginning of its opinion (under the heading
“standard of review”). But then, as evidenced by the passages
quoted above, the court did not apply that standard in accord
with clearly established Supreme Court precedents when eval-
uating the substance of Miles’s claim as it related to Sattler’s
investigation of his background. Instead, it held that there
MILES v. RYAN 9831
cannot be ineffective assistance of counsel—indeed, the ques-
tion cannot even be litigated—if the defendant did not affir-
matively inform his counsel at trial of the information he now
contends should have been developed and used.
A similar sequence occurred in Lafler v. Cooper, in which
the state court articulated the correct standard established by
Strickland but then “fai[ed] to apply Strickland to assess the
ineffective-assistance-of-counsel claim respondent raised,”
meaning that “the state court’s adjudication was contrary to
clearly established federal law.” 132 S. Ct. 1376, 1390
(2012); see also Premo v. Moore, 131 S. Ct. 733, 743 (2011)
(citing Bell v. Cone, 535 U.S. 685, 694 (2002), for the propo-
sition that “[a] federal habeas court may issue the writ under
the ‘contrary to’ clause if the state court applies a rule differ-
ent from the governing law set forth in our cases . . . .”). In
sum, the Supreme Court has never imposed an affirmative
disclosure obligation on defendants and has recognized that
attorneys have an obligation to investigate mitigation evi-
dence regardless of whether the defendant has provided miti-
gating information to counsel.
The majority argues that it is wrong to “attribut[e] strict
rules to [the Supreme] Court’s recent case law.” Maj. Op. at
9822 (quoting Cullen v. Pinholster, 131 S. Ct. 1388, 1406-07
(2011)). I agree entirely. My argument is not that we should
apply a bright-line rule when evaluating the performance of
counsel; my argument is that the Arizona Superior Court
erred by doing just that, treating the evaluation of Miles’s
Strickland claim as if it turned entirely on the fact that he
could have told his lawyer about his childhood but did not do
so. The Arizona Superior Court’s flat statement that “an attor-
ney should be able to rely on his/her client to bring pertinent
facts to his/her attention” is thus squarely inconsistent with
clearly established Supreme Court law. Miles’s claim should
therefore be reviewed de novo.
9832 MILES v. RYAN
B. Ineffective Assistance of Counsel
In evaluating the merits of Miles’s ineffective assistance of
counsel claim, I begin by comparing with some clarity and
depth the facts about Miles’s background known to Sattler
before the sentencing hearing and the facts that came to light
during his state habeas proceedings.
The record paints a fairly clear picture of what Sattler knew
about Miles’s background before his sentencing. Viewed next
to what came out later, it wasn’t much. In a detailed letter to
Dr. Levy, Sattler wrote that Miles was adopted when he was
two months old, and that “all the information I have received
about [Miles’s adoptive mother] indicates that she was very
devoted to Kevin and worked very hard to give him material
things as well as a great deal of love and affection.” Sattler
notes that Miles moved to Winslow with his adoptive mother
when he was young and then discusses his high school years,
indicating that he was “well liked,” “active in student activi-
ties,” and that “there was never any incidence of violence in
his school years that anyone is aware of.” The information
about Miles’s pre-high school life takes up one paragraph in
the letter.
After interviewing Miles, Dr. Levy wrote a letter to Sattler
in which he indicated that Miles’s adoptive mother “was a
single parent who held a variety of jobs from professional to
laborer,” and that her habit of frequently changing jobs may
have been due to alcoholism. Still, Dr. Levy says, Miles’s
“early years were described as good ones and ‘pretty nor-
mal.’ ” The Presentence Report does not shed any additional
light on Miles’s childhood, repeating the assertion that his
mother was an alcoholic and that “she cooked, waited tables,
and worked at a convenience store, before becoming a nursing
home administrator.” The PSR also notes that Miles had trou-
ble fitting in because he was black in a small Arizona town.
This, then, was what Sattler knew of Miles’s childhood: that
he was adopted at a young age and that his adoptive mother
MILES v. RYAN 9833
may have been an alcoholic, but that she worked hard and
provided him with an upbringing that was “pretty normal.”
The investigations conducted after Miles was sentenced,
which resulted in a 33-page report prepared for his state
habeas proceedings, paint a very different picture, one rife
with drugs, prostitution, and violence. Miles’s adoptive
mother, Lois, was married to a pimp named Alfred Miles,
who ran a bar, restaurant, and hotel in Tulsa called El Rancho.
Miles’s birth mother was one of Alfred’s prostitutes, and may
have been a heroin addict. Both Lois and Miles’s birth mother
lived in rooms at the El Rancho. Lois was terrified of Alfred
and often heard him beating Miles’s birth mother mercilessly,
possibly while she was pregnant with Miles. Lois informally
adopted Miles, and when he was two she took him and fled
to Arizona, settling in Winslow.
In Winslow, Lois met Jasper Renfro, who operated a bar
called the Prairie Moon, which had rooms in the back that
were rented to prostitutes for $2.00. Lois began working there
as a prostitute and bartender, and moved into a two-bedroom
house next door. Lois and Miles slept in one room, and prosti-
tutes turned tricks in the other. When Lois had a customer,
she would ask one of the other prostitutes to watch Miles
while she was occupied. Lois drank heavily, and although her
fellow prostitutes insisted that none of them used drugs, a
Winslow police officer who was interviewed once found her-
oin at the house and recalled that the women there were “all
drug addicts.”
Kevin Hernandez, who was Miles’s age and grew up on the
same block, remembered looking over the fence that faced the
alley behind the Prairie Moon and seeing prostitutes having
sex. He also remembered hearing gunfire on weekends. At
one point during Lois and Miles’s time at the house, “a girl
named Charmaine shot an Indian at the house. The police fol-
lowed the blood trail to the front door and tore the house apart
looking for the gun.”
9834 MILES v. RYAN
When Miles was around 7, he and Lois moved to another
house a few blocks away from the Prairie Moon. A prostitute
named Connie, who lived with Lois and Miles next to the
Prairie Moon and was also a heroin addict, was shot and
killed about a year after Lois and Miles moved to their nearby
house. Lois was trying to turn her life around at this point, and
took a job as a cook, although she may have continued work-
ing as a prostitute (her boss was a “known pimp,” according
to the investigator’s report, and she occasionally left Miles
alone at the restaurant). 1979, when Miles was around 11,
Lois got a job as a dietary aide at a convalescent center. She
worked there for seven years, rising to become the administra-
tor before being fired for drinking on the job the same year
Miles graduated from high school. Lois and Miles slept in the
same bed until he was 14.
1. Deficient Performance
The majority views Sattler’s decision not to further investi-
gate Miles’s background as reasonable in light of her strategic
decision to present Miles as a fundamentally normal person
who had a viable chance of being rehabilitated if spared exe-
cution. While the Supreme Court has instructed us to treat
with deference the strategic decisions of counsel, see, e.g.,
Pinholster, 131 S. Ct. at 1407-08, it is hard to see how Sattler
could have made a reasonable strategic choice not to present
the harrowing details of Miles’s childhood when she knew
virtually nothing about what that childhood was like. Treating
this strategic decision as determinative introduces an element
of circularity into the analysis: Sattler’s choice not to learn
about Miles’s childhood was reasonable because it was part
of her strategy, which she adopted because she knew nothing
about Miles’s childhood. As the Supreme Court has observed,
“counsel’s failure to uncover and present voluminous mitigat-
ing evidence at sentencing [cannot] be justified as a tactical
decision . . . [where] counsel had not ‘fulfilled their obligation
to conduct a thorough investigation of the defendant’s back-
ground.’ ” Wiggins v. Smith, 539 U.S. 510, 523 (2003) (quot-
MILES v. RYAN 9835
ing Williams, 529 U.S. at 396). In other words, a strategic
choice is only reasonable to the extent that “the investigation
supporting [that choice] . . . was itself reasonable.” Wiggins,
539 U.S. at 523 (emphasis in original). The relevant question,
then, is whether Sattler’s investigation “fell below an objec-
tive standard of reasonableness. . . . under prevailing profes-
sional norms.” Strickland, 466 U.S. at 688.
Sattler’s efforts to investigate Miles’s background fell
below prevailing professional norms. Sattler did work with an
investigator in preparation for trial, but that investigator was
not trained in investigating homicide cases or conducting mit-
igation investigations. Sattler’s letters to the investigator show
that Sattler was focused on finding people in Tucson who
might know something about the crime, rather than on finding
information about Miles’s background.
Sattler did ask the investigator to interview four people
from Winslow. Of these, the investigator spoke to three high
school friends who knew nothing of Miles’s earlier childhood.
The investigator submitted the fruits of these interviews to
Sattler in two “interview reports,” each a single page, and no
formal background report was prepared. The investigator
never traveled to Winslow. When she was deposed in connec-
tion with Miles’s federal habeas petition,2 the investigator had
no recollection of Miles’s name or of her work on the case,
and, looking over the record, she expressed surprise at how
little information her investigation produced. Although Sattler
knew that Miles had been adopted at an early age and that his
mother was an alcoholic who had trouble holding a job, she
and her investigator did nothing to find out about his pre-high
school life.
2
Because AEDPA deference does not apply to the state court’s rejection
of Miles’s Strickland claim, Pinholster does not prevent consideration of
evidence that was before the district court under § 2254(e)(2). Pinholster,
131 S. Ct. at 1401.
9836 MILES v. RYAN
In short, this was not a case in which counsel “ ‘did spend
considerable time and effort investigating avenues for mitiga-
tion.’ ” Pinholster, 131 S. Ct. at 1404 (quoting Pinholster v.
Ayers, 590 F.3d 651, 701-02 (9th Cir. 2009) (Kozinski, J., dis-
senting)). The ABA guidelines in effect at the time made clear
that “[t]he investigation for preparation of the sentencing
phase . . . should comprise efforts to discover all reasonably
available mitigating evidence.” ABA Guidelines 11.4.1(C).
Thus, under the prevailing professional norms at the time of
Miles’s sentencing, “counsel had an ‘obligation to conduct a
thorough investigation of the defendant’s backrgound.’ ” Por-
ter, 130 S. Ct. at 452 (quoting Williams v. Taylor, 529 U.S.
362, 396 (2000)).
Like the investigations in Porter and Wiggins, Sattler’s
work here fell well short of the thoroughness required in capi-
tal cases. As in Porter, Sattler “ignored pertinent avenues for
investigation of which [she] should have been aware,” 130 S.
Ct. at 453, i.e., Miles’s life up until he entered high school.
As in Wiggins, Sattler “abandoned [her] investigation of
[Miles’s] background after having acquired only rudimentary
knowledge of his history from a narrow set of sources.” 539
U.S. at 524. In Wiggins, those sources included psychological
tests, records from the Department of Social Services docu-
menting petitioner’s time in the foster system, and a one page
account of petitioner’s personal history contained in the pre-
sentence report. The materials available to Sattler were con-
siderably more scant. She did not ask Dr. Levy to conduct any
psychological tests, and she obtained no comparable govern-
ment records concerning Miles’s childhood.
Even if Miles’s reticence about disclosing the details of his
childhood with Sattler is taken as a factor in the deficient per-
formance calculus (rather than the sole determinant, as the
state court held), that reticence does not countervail Sattler’s
failure to investigate. After all, Miles may not have even
remembered some of the circumstances of his early life, yet
“early childhood trauma, even if it is not consciously remem-
MILES v. RYAN 9837
bered, may have ‘catastrophic and permanent effects on those
who . . . survive it.’ ” James v. Ryan, 679 F.3d 780, 815 (9th
Cir. 2012) (quoting Hamilton v. Ayers, 583 F.3d 1100, 1132
(9th Cir. 2009)). Miles “may have been fatalistic or uncooper-
ative, but that does not obviate the need for defense counsel
to conduct some sort of mitigation investigation.” Porter, 130
S. Ct. at 453 (emphasis in original) (citing Rompilla, 545 U.S.
at 381-82). Sattler’s investigation into Miles’s background,
particularly her failure to learn any of the disturbing facts
about his early childhood, was not reasonably in line with pre-
vailing professional norms.
2. Prejudice
The majority characterizes the additional information about
Miles’s childhood that came to light after his sentencing as
“largely cumulative” of what was before the sentencing judge,
and concludes that even if Sattler’s representation was not
constitutionally deficient, there was no “reasonable probabil-
ity that, but for [Sattler’s] unprofessional errors, the result of
the proceeding would have been different.” Strickland, 466
U.S. at 694. I cannot agree.
It is worth remembering how little of Miles’s pre-high
school life was in the record when he was sentenced. The PSR
contains two paragraphs of social history, and has this to say
about Miles’s childhood:
The defendant reported his adoptive mother was an
alcoholic. She cooked, waited tables, and worked at
a convenience store, before becoming a nursing
home administrator. He reported he was not accepted
by everyone because he was black, and his mother
was white. He also indicate[d] he experienced ‘cul-
ture shock’ when he and his mother moved into a
more affluent neighborhood and attended a better
school.
9838 MILES v. RYAN
Dr. Levy’s report, which was also before the sentencing
judge, indicates that Miles’s mother was an alcoholic and that
racism was an issue for him, but notes that “his early years
were described as good ones and ‘pretty normal.’ ” These
brief summaries are, to put it mildly, a far cry from the infor-
mation that came to light later, which showed that both
Miles’s birth and adoptive mothers were prostitutes, that
Miles’s birth mother was a heroin addict and may have been
beaten by her pimp while she was pregnant with him, and that
Miles spent his early years living in a two bedroom brothel,
surrounded by prostitution, heroin use, alcohol abuse, shoot-
ings, and even murder. To call this childhood anywhere near
“pretty normal” is strange indeed. The difference between
these two narratives is one of kind, not degree.
I also cannot accept the majority’s view that this mitigation
evidence is far milder that in James v. Ryan, 679 F.3d 780. As
in James, Miles survived a childhood rife with violence, drug
use, and crime. While there is no indication that Miles was,
like James, physically abused, James was not raised by prosti-
tutes, nor was his childhood home the scene of murders and
shootings. For, contrary to the majority’s account, James did
not “grow up” in the abusive circumstances described.
Instead, at age four, James was adopted by parents who were
strict but loving, and his life circumstances from thence for-
ward took a dramatic turn for the better. Id. at 812. Miles saw
his situation improve somewhat as he aged, but he and his
mother didn’t move out of the house next to the Prairie Moon
until he was seven, and his mother may have continued to
work as a prostitute until he was 11. They slept in the same
bed until he was 14. My point here is not to downplay the hor-
rors faced by the young James, but to suggest that he and
Miles survived conditions that were far more comparable than
the majority lets on.
The relevant question, at any rate, is not whether Miles’s
story is better or worse than any of the sad tales that have
graced the pages of the Federal Reporter, but whether there is
MILES v. RYAN 9839
a “reasonable probability” that he would not have been sen-
tenced to death had it been told. See Strickland, 466 U.S. at
694. Notably, “it is not necessary for the habeas petitioner to
demonstrate that the newly presented mitigation evidence
would necessarily overcome the aggravating circumstances.”
Correll v. Ryan, 539 F.3d 938, 951-52 (9th Cir. 2008). What
is required “is a probability sufficient to undermine confi-
dence in the outcome.” Strickland, 466 U.S. at 694. In analyz-
ing whether the new mitigation evidence creates the required
“reasonable probability,” Strickland instructs us to consider
whether “the omitted evidence would have changed the con-
clusion that the aggravating circumstances outweighed the
mitigating circumstances.” Id. at 700.
Applying this framework shows that Miles suffered preju-
dice due to Sattler’s deficient performance. The aggravating
factors established at sentencing were not overwhelming: The
judge relied on four, one of which was later overturned by the
Arizona Supreme Court. The other three were based on (1)
Miles’s three armed robberies, (2) the profit motive behind
Miles’s participation in the crime, and (3) the “especially
cruel manner” in which the murder was committed, a finding
based on the fear suffered by Baeuerlen during the twenty
minute drive out to the desert. Against these aggravating fac-
tors, the judge considered and rejected a variety of statutory
and non-statutory mitigating factors. While the judge men-
tioned that he had received numerous letters attesting to
Miles’s previously non-violent nature, he discounted the let-
ters as irrelevant when considering the violent felon before
him. There was no mention of Miles’s childhood.
Given the weakness of the aggravating factors and the total
absence of any mention of Miles’s childhood in the judge’s
sentencing, the additional mitigating evidence Sattler could
have uncovered is sufficient to “undermine confidence in the
outcome.” Strickland, 466 U.S. at 694. “[A] penalty phase
ineffective assistance claim depends on the magnitude of the
discrepancy between what counsel did investigate and present
9840 MILES v. RYAN
and what counsel could have investigated and presented.”
Stankewitz v. Woodford, 365 F.3d 706, 716 (9th Cir. 2004).
Here, that discrepancy was substantial. As in Williams, “the
graphic description of [Miles’s] childhood . . . might well
have influenced the [judge’s] appraisal of his moral culpabili-
ty.” 529 U.S. at 398.3
C. Conclusion
Reviewing Miles’s claim de novo, it is clear that Sattler’s
performance was deficient, and that Miles was prejudiced by
that deficiency. Sattler could not have reasonably chosen the
particular strategy she decided upon without first making a
reasonable investigation into Miles’s past, and the signifi-
cance of the missing information is sufficient to undermine
my confidence that Miles would nevertheless have been sen-
tenced to death. I therefore dissent.
3
Because I would reverse on the present record, I do not address
whether Martinez v. Ryan, 132 S. Ct. 1309 (2012), allows Miles to intro-
duce new facts at this stage.