Thomas West v. Charles Ryan , 652 F.3d 1048 ( 2011 )

FILED
FOR PUBLICATION JUL 18 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
THOMAS PAUL WEST, No. 11-71987
Petitioner, ORDER
v.
CHARLES L. RYAN,
Respondent.
Before: KLEINFELD, WARDLAW, and CALLAHAN, Circuit Judges.
Thomas Paul West applies to this court for authorization to file a second or
successive petition for a writ of habeas corpus in the District of Arizona. See 28
U.S.C. § 2244(b)(3). We deny his application.
BACKGROUND
West was convicted of first-degree felony murder, second degree burglary,
and theft in March 1988. In our opinion denying his first federal habeas petition,
we set out the facts surrounding the murder and trial:
West moved to Arizona from Illinois in June 1987. While living in
Tucson with a family friend, he met Donald Bortle (“Bortle”). Bortle
had various items for sale in his home, including assorted electronic
equipment and videotapes of popular movies. West’s friend wanted
to buy some things from Bortle, and West accompanied her to his
house. About two weeks later in mid-July 1987, West broke into
Bortle’s home, beat him severely about the head, and bound his limbs.
He left Bortle to die, stealing his car and various other items,
including several pieces of electronic equipment.
West transported the stolen goods to the desert where he hid them,
and then drove to Glendale where some of his friends lived. After
retrieving the goods from Tucson with an acquaintance, West returned
to Glendale and spent a couple of days with his friends. FN1 He
made several allusions to beating up and robbing “some guy,” but
expressed no remorse about it. West then absconded to Illinois with
much of the stolen property. Soon thereafter, one of West’s
acquaintances contacted the Pima County Sheriff’s Office, and an
investigation led officers to Bortle’s home where they discovered his
dead and decaying body. His hands and feet were bound with a
vacuum cleaner cord and lamp wire, and he had extensive fractures on
the right side of his face. The fractures were so severe that his hard
pallet had detached from his skull. The coroner estimated that he had
bled to death within forty-five minutes to an hour after the beating.
FN1. The record shows that West was buying and taking large
amounts of drugs around the time of the murder and immediately
thereafter. Defense counsel successfully excluded this evidence from
trial but introduced it during sentencing to establish the extent and
effects of West's substance abuse.
West was arrested in Illinois when the car in which he was riding was
stopped for speeding, and the officer discovered he was wanted for
murder in Arizona. A search of the car revealed several pieces of
electronic equipment and other items stolen from Bortle’s home.
2
West v. Ryan, 608 F.3d 477, 480 (9th Cir. 2010). We also set out the facts
surrounding West’s sentencing. Because West challenges his sentence, rather than
his conviction, those facts are important here as well:
The prosecution sought the death penalty, citing the following
aggravating factors: (1) the murder was committed for pecuniary
gain; (2) the murder was committed in an especially cruel and
heinous manner; and (3) West had a prior conviction for a crime of
violence (a 1981 manslaughter conviction). FN2
FN2. The record contains conflicting information as to whether the
conviction was for voluntary or involuntary manslaughter.
At the initial sentencing hearing on May 4, 1988, West’s counsel
argued that a conviction for felony murder precluded imposition of
the death penalty. Dawley[, West’s counsel,] indicated that, as “a
matter of strategy,” he and [co-counsel] Fiorillo chose to rely solely
on this “legal argument” and not to present mitigation witnesses.
Dawley said that they had looked for mitigating factors, explaining
that West had been “examined” from “a mental health standpoint,”
but that he and Fiorillo had determined that the evidence “was not
worth bringing” to the court.
The judge disagreed with the defense’s legal theory that the death
penalty could not be imposed for a felony murder conviction and
asked West if there was anything he wished to say prior to
sentencing. West indicated that there were a lot of people who would
testify that he was not a “wicked mad man,” but that he did not feel
like “dragging them in” because he felt the court had already made up
its mind. The court responded that it would consider any such
evidence and would delay sentencing so that West could present it.
West agreed, and the court rescheduled the hearing for June 6.
On May 11, Dawley sought and obtained another continuance,
delaying the sentencing hearing until August 1. During the interim,
3
defense counsel sent two investigators to Illinois and Oklahoma to
interview thirteen witnesses about West’s childhood, drug addiction,
and the circumstances surrounding the earlier 1981 homicide.
Counsel also retained a substance abuse expert, Terry Hickey
(“Hickey”), who interviewed West, West’s mother, his brother, and
LuAnn St. Aubin (West's girlfriend at the time of the 1981
homicide). Hickey reviewed the transcripts of the interviews with
West's family and friends, as well as West’s Illinois prison records,
his medical records, and Dr. Allender’s neuropsychological
evaluation.
Meanwhile, the probation office submitted an amended presentence
report (“PSR”), which described positive letters from West’s father,
grandmother, maternal aunt, and a family friend. The letter from
West’s father stated that West was well-liked and that drugs and
alcohol were “the bottom line to all of [his] problems.” Other letters
opined that West needed drug treatment and that he was a good
person when he was not using drugs. The PSR took note of the
numerous interviews conducted by the defense investigators and
advised the court to consider that West’s actions may have been the
result of chronic and acute drug abuse, which may have reduced his
ability to appreciate the wrongfulness of his actions. It also opined
that West’s actions may have resulted from an unstable and abusive
home environment.
In its pre-hearing sentencing brief, the defense argued that West (1)
had an emotionally deprived childhood, (2) suffered from substance
abuse, which diminished his capacity to conform his conduct to
social and legal norms, (3) could be rehabilitated, (4) did not intend
to kill Bortle, (5) could not legally be put to death for felony murder,
and (6) had acted in self-defense and defense of another in
connection with his 1981 homicide conviction.
At the August 1 sentencing hearing, Hickey and five lay witnesses
testified on West’s behalf. The defense also submitted newspaper
articles about the 1981 homicide, hospital records from West’s
drug-related hospitalizations in 1983 and 1986, a rap sheet from the
4
Department of Justice, and transcripts of interviews with thirteen
witnesses who discussed the extent of West’s substance abuse, his
emotionally deprived childhood, and/or the circumstances
surrounding the 1981 homicide. FN3
FN3. LuAnn St. Aubin and Mike Richmond, both of whom
witnessed the 1981 homicide, testified that the victim was a violent
drug dealer who had been terrorizing people at a party and was
participating in an attack on St. Aubin when West shot him.
Although St. Aubin testified at the sentencing hearing that the victim
had pulled a gun on West, she did not offer such testimony during the
manslaughter trial, and Richmond provided a contrary account.
According to Richmond, when West pointed a gun at the victim, the
victim taunted him by saying he “didn't have the balls” to pull the
trigger. West then shot him.
Hickey testified that West came from a chemically dependent family,
that West’s chemical dependency began at age ten, and that it
significantly impaired his judgment. He testified that addicts cannot
reason normally and that they make increasingly bad decisions as
their addiction progresses. He testified that extreme addictions cause
“cognitive impairment[s]” similar to brain damage.
With regard to West’s family, Hickey testified that West’s father was
an alcoholic and that West witnessed physical violence in the family
from an early age. Hickey noted that West’s father withdrew
affection and refused to call the children by their names, calling them
“pothead number one” and “pothead number two.” On
cross-examination, Hickey admitted that West’s prognosis was poor,
noting that West had dropped out of treatment programs in 1983 and
1986, but explaining that it is not uncommon for addicts to fail such
programs on their first attempts.
At the close of evidence, West made a lengthy statement in which he
denied any responsibility for the crime. The sentencing court found
three aggravating circumstances: (1) that West previously committed
a felony involving the use of violence upon another, (2) that West
5
committed the present offense in expectation of pecuniary gain, and
(3) that West committed the present
offense in an especially cruel and heinous manner, in that, A,
the [victim] was hogtied, bound and beaten repeatedly; B,
death was not immediate, the deceased was left dying and in a
position unable to seek assistance; and C, that the defendant
knew or had reason to know that the deceased was dying or
had suffered serious physical injuries.
The court found West’s emotionally deprived childhood and
substance abuse problem to be mitigating, but not sufficiently so as to
outweigh the aggravating factors. It sentenced West to death.
Id. at 481-82.
West’s conviction was affirmed on direct review by the Arizona Supreme
Court on September 30, 1993. State v. West, 862 P.2d 192 (Ariz. 1993). The
Supreme Court denied certiorari on April 25, 1994. West v. Arizona, 511 U.S.
1063 (1994). On March 26, 1996, West filed his first petition for post-conviction
relief in state court, raising numerous claims including ineffective assistance of
counsel for not presenting sufficient mitigation evidence at sentencing. The
superior court denied the petition without a hearing, and the Arizona Supreme
Court summarily denied the petition.
On May 6, 1998, West filed a timely petition for a writ of habeas corpus in
the District of Arizona. On November 9, 2007, the district court denied West’s
third amended habeas petition. West v. Schriro, No 98-218 2007 WL 4240859.
6
The court denied West’s motion to reconsider on December 11, 2007. We denied
his appeal in a published decision on June 10, 2010. West v. Ryan, 608 F.3d 477.
The Supreme Court denied certiorari on February 22, 2011. West v. Ryan, 131 S.
Ct. 1473 (2011).
Following the habeas appeals, Arizona moved for a warrant of execution,
which was issued by the Arizona Supreme Court on May 24, 2011. The warrant
set the execution for July 19, 2011. In opposing the warrant of execution, West
filed a successive petition for post-conviction relief in the Arizona Superior Court,
which that court denied on June 29, 2011. The Arizona Supreme Court summarily
denied review on July 13, 2011, and West filed a petition for a writ of certiorari on
July 15, 2011. That petition is currently pending. West filed the instant
application pursuant to 28 U.S.C. § 2244(b)(3), seeking permission from the Ninth
Circuit to file a second or successive petition for a writ of habeas corpus in the
District of Arizona, on July 15, 2011.
DISCUSSION
I. West Raised The Claim of Ineffective Assistance in a Prior Petition
The first step in our consideration of West’s application requires us to
“determine whether a ‘claim presented in a second or successive habeas corpus
application’ was also ‘presented in a prior application.’” Gonzalez v. Crosby, 545
7
U.S. 524, 530 (2005). If it has, “the claim must be dismissed.” Id. The Supreme
Court has clarified that the term “claim” means “an asserted federal basis for relief
from a state court's judgment of conviction.” Id. West alleges that his claims have
not been presented in a previous petition, but, at least as to his first claim, we are
not convinced.
In his proposed second or successive petition, West makes two claims: (1)
that sentencing counsel rendered ineffective assistance because they failed to
adequately investigate his background and introduce evidence that would have
invalidated all three statutory aggravating factors found by the sentencing court;
and (2) that his recent diagnoses of post-traumatic stress disorder (“PTSD”)
rendered him ineligible for the death penalty because it invalidates all three
aggravating factors. While the PTSD is a new wrinkle, we have seen at least the
first of these claims before. Specifically, in claim A8 of his previous habeas
petition, West contended that his counsel were ineffective at sentencing by failing
to investigate and present mitigation evidence of West’s impaired mental health,
head injuries, childhood abuse, immaturity, substance abuse, and failure to
complete drug rehabilitation. While the current proposed petition focuses on the
effect the evidence of his childhood abuse would have on the aggravating factors
rather than the mitigating effect, this is two sides of the same coin. West’s
8
complaint is that counsel should have discovered the truth about his childhood and
the effect it had on his decision to murder Mr. Bortle.
The current claim adds nothing new except the contention that the
investigation would have revealed his PTSD. However, even that is not truly new,
because West argued the same thing to this court in his appeal of the prior habeas
denial. In fact, West argued his PTSD warranted relief in seven different places in
his opening brief of the first habeas appeal and three places in his reply brief.
Because West’s first claim regarding ineffective assistance of sentencing counsel
was raised in a prior habeas petition, it must be dismissed. 28 U.S.C. § 2244(b)(1).
II. Requirements For Filing Second or Successive Petition
Even if West’s claims are distinct enough from those raised in his first
petition so that we may consider them, we must dismiss his application unless he
meets Antiterrorism and Effective Death Penalty Act’s (AEDPA) stringent
standards. 28 U.S.C. § 2244(b)(2)(B). “Permitting a state prisoner to file a second
or successive federal habeas corpus petition is not the general rule, it is the
exception, and an exception that may be invoked only when the demanding
standard set by Congress is met.” Bible v. Schriro, ___ F.3d ___, 2011 WL
2547617, *3 (9th Cir. June 28, 2011). Because West is not claiming that a new
9
rule of constitutional law supports his claim, this demanding standard requires that
we dismiss his application unless
(i) the factual predicate for the claim could not have been discovered
previously through the exercise 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 evidence that, but for constitutional error, no reasonable
factfinder would have found the applicant guilty of the underlying
offense.
28 U.S.C. § 2244(b)(2)(B). While West must satisfy both requirements to prevail
in his application, he cannot satisfy either.
A. The Evidence Could Have Been Discovered Previously
West must first demonstrate that the evidence he now presents is newly-
discovered, i.e., it “could not have been discovered previously through the exercise
of due diligence.” Id. West offers two pieces of evidence he deems newly-
discovered. First, West asserts that he suffered physical and emotional abuse from
his family and he was sexually molested by three different men during his
childhood. This information was not brought out at trial or in mitigation during
sentencing. Second, West was diagnosed after the trial and sentencing as suffering
from PTSD. His medical experts opine that West was suffering from PTSD at the
time he murdered Bortle.
10
1. Family and Sexual Abuse
West cannot demonstrate that the evidence of physical and emotional abuse
by his family or sexual molestation is newly-discovered because it could have been
discovered before trial through the exercise of due diligence. In fact, West knew it
all along, and it is undisputed that his counsel knew of at least some of the
allegations of sexual abuse in 1996. Under the facts of this case, this was not
newly-discovered information which could not have been discovered through the
exercise of due diligence. See King v. Trujillo, 638 F.3d 726, 730 (9th Cir. 2011).
West now contends that his family life during his childhood was much
worse than he had previously admitted. Prior to trial, West discussed his family
life with Dr. Allender, a court-appointed psychologist, in 1987.1 Dr. Allender
reported on the interview:
Mr. West characterizes his growing up years as problematic. He
states that his father loved him a great deal and would get him almost
anything he wanted. After his father’s work schedule changed
however, his older brother was left with the responsibility of getting
him off to school. He states that his brother who is five years older
was the person who started getting him involved with drugs.
1
West was evaluated by two neuropsychologists, Dr. Allender and Dr.
Daniel Overbeck, in the fall of 1987. There is no record of Dr. Overbeck’s
evaluation, so it is unknown what West did or did not disclose to him. See West v.
Ryan, 608 F.3d at 480-81. Even if he had disclosed the purported sexual abuse by
the priest, it is entirely possible that a strategic choice was made not to pursue a
related mitigation claim.
11
In 2010, however, West reported a much different relationship with his parents in
interviews with Dr. Smith, a clinical psychologist referred by the Arizona Federal
Public Defender:
“I was moving around constantly. My mom would dump me on
anybody – neighbors, my grandma, any relative that would take me. I
even stayed with my friends’ parents. At home, my mom and dad
argued all the time. They had vicious physical fights. I just wanted to
escape it – wanted it to stop, but they fought over everything. I would
get in between to try to stop my dad from hurting my mom and then
he would hit me. He hit us over and over. Bloodied my brother’s
nose, bloodied and bruised my mom. I would get so scared that they
would kill one another that I would just scream at them. One time, I
got so scared I pissed myself.” Mr. West shared that he had no real
relationship with his father. He explained that “My dad was basically
absent except when he was terrorizing us. He never spent any time
with us as a family, playing ball with my brother and me or anything.
All he ever did was call me and my brother assholes, dumb shits,
worthless mother fuckers. The neighbors called the police over and
over again, but since dad was a fireman the police simply looked the
other way. No charges were ever pressed, even when my mom was
clearly beaten. My mom would get in the car and leave and then my
dad would do the same thing, leaving me and my brother home alone
for days at a time. That is what it was like growing up in my house –
a fucking nightmare.”
The only explanation for the stark difference in stories is in Dr. Allender’s May 7,
2011 letter:
When asked specifically why he had told me he had a good
relationship with his father back in 1987 he explained that his
relationship with his father was like fire and ice. That his father
would buy him lots of things like a go cart, a mini bike, a pinball
machine when he was being nice, but then had the other side of being
12
abusive physically and emotionally. He also described being in a bit
of a stupor from the psychiatric medications he was on during the time
[Dr. Allender] was evaluating him.
There is no question that, to the extent West contends his abusive home life is a
mitigating factor, West knew about his home life and the alleged family abuse at
trial and at sentencing. There is no legitimate reason for his failure to disclose it
before this late date.
Dr. Allender’s May 7, 2011 letter also describes West’s failure to report
sexual abuse:
When asked why he never told people about his abuse Mr. West
mentioned reasons often reported by victims including, “I was
ashamed, I thought it was my fault,” “no one wanted to hear about it,”
and “I tried to block it out.” When asked why he had not brought
these things up to me in 1987 he said that his attorney had suggested
to him that he should only answer questions that I asked and not
volunteer any other information, especially about the alleged crime.
Regardless, West was at all times aware of the three instances of sexual abuse he
now raises. Notably, he does not argue that his counsel was ineffective for failing
to inquire about sexual abuse. Rather, he complains only that counsel was not
successful in discovering what West already knew and not getting the court to pay
for yet another mental health expert.
Even if counsel had been successful in securing funding for another mental
health expert, it is pure speculation that the information about his abuse would
13
have come out. The mental health defense efforts at the time were not focused on
West’s background, but rather on whether he had an organic brain injury.
Accordingly, it is by no means clear that the mental health expert, if appointed,
would have addressed the psychological consequences of West’s sexual abuse.
West acknowledges that his post-conviction relief counsel was aware of one of the
childhood sexual abuse allegations as early as 1996. While West identifies several
requests for funding for defense investigations that were denied in 1996 and 1997,
the evidence shows that counsel diligently pursued mitigation evidence based on
organic brain injury and substance abuse, but sexual abuse was at best peripheral.
Similarly, after the Federal Public Defender took over West’s representation in
January 2008, it obtained a court order to have West evaluated by a
neuropsychologist, who reported in August 2008 that West described childhood
sexual abuse by the teacher and the priest. While that report was filed in this court,
West did not raise any arguments based on the sexual abuse issue at any point in
that first federal habeas proceeding.
To the extent West contends his first post-conviction relief counsel was
ineffective for not discovering the sexual abuse in 1997 and for not obtaining
funding to investigate, the facts do not support his claim. West’s first post-
conviction relief counsel, Carla Ryan, explained in her motion for a funded mental
14
health expert, that West “apparently was sexually abused, on numerous occasions,
by a teacher. Therefore, a mental health expert is also needed to explain how the
family environment and the sexual abuse affected Petitioner’s emotional
development.” The court denied this request, but did so without prejudice to
bringing the motion again with additional evidence. Thus, West had ample
incentive at the time to more fully disclose his background and history of sexual
abuse. He might have satisfied the diligence requirement if he had done so then,
but he chose not to.
West’s primary argument regarding diligence is that we have already found
he was diligent, citing West v. Ryan, 608 F.3d at 484-85. West misreads our prior
opinion. We held that West’s prior counsel had been diligent in seeking an
evidentiary hearing regarding her need for funding for a mental health expert and
investigator. We did not hold that West had been diligent in disclosing
information about his childhood; he clearly was not. If we were to rule that West
had been diligent in pursuing and developing evidence of sexual abuse and abuse
by family members by failing to disclose the information, even to his counsel, for
twenty years, we would be creating a strong incentive for capital defendants to
withhold the strongest mitigation evidence until the eve of execution. We are not
prepared to create that incentive.
15
2. PTSD
The state court concluded that although West’s diagnosis of PTSD had not
been made at the time of trial, West was not diligent in obtaining the diagnosis.
We agree. Dr. Allender and Dr. Smith based their diagnoses on conversations with
West regarding information known by him at the time of trial. There was no new
information that led to the diagnoses; the only new turn of events is that West has
now chosen to disclose that he is the victim of sexual abuse, which apparently
resulted in his PTSD. West argues that his allegations of sexual abuse were only
corroborated within the past few weeks. This proves too much, because Dr.
Allender and Dr. Smith both diagnosed PTSD before the allegations of sexual
abuse were corroborated.2 Moreover, Dr. Allender first indicated that he suspected
PTSD in his 2008 letter based only on the physical and emotional abuse in the
West household growing up with no indication that West had been sexually
abused. Thus, there is no legitimate reason why the diagnosis would not have been
made in 1987, or at least by August 1, 1988, if West had disclosed the information
2
There was evidence that indicated Fr. Burke, one of West’s accused
abusers, had previously sexually abused boys in the area around the same time.
However, this does not conclusively corroborate West’s claim that Fr. Burke
abused him. More importantly, however, neither expert indicated they would not
have believed West absent this corroboration, and at the time they reached their
diagnoses there was no corroboration of the other two accused abusers.
16
he had available to him. See State v. Jensen, 735 P.2d 781, 784 (Ariz. 1987)
(recognizing PTSD as a diagnostic mental disorder in 1983).
The evidence of family and sexual abuse is not newly discovered. While
West’s PTSD diagnosis was not made until well after the trial and sentencing,
West at all times possessed the information that forms the basis of the diagnosis.
Had West been forthcoming with the events of his childhood in 1987, there is no
reason to think that the diagnosis would not have been made. West cannot
withhold the information he claims is critical mitigating evidence and then
complain when it is not considered. West chose not to reveal the information at
trial and sentencing, and made at least a partial disclosure in his post-conviction
proceedings in 1997. He cannot now claim that the information he chose to
withhold for over 20 years is new.
B. The Actual Innocence Requirement
Even if the evidence were accepted as newly-discovered, we must still deny
West’s application unless it “would be sufficient to establish by clear and
convincing evidence that . . . no reasonable factfinder would have found [him]
guilty of the underlying offense.” Bible, 2011 WL 2547617 at *3 (quoting 28
U.S.C. § 2244(b)(2)(B)(ii)). Here, West challenges only his death sentence, and
not his conviction. When a “capital defendant challenges his death sentence in
17
particular, he must show by ‘clear and convincing evidence’ that no reasonable
juror would have found him eligible for the death penalty in light of the new
evidence.” Calderon v. Thompson, 523 U.S. 538, 559-60 (1998) (quoting Sawyer
v. Whitley, 505 U.S. 333, 348 (1992)). Thus, West has the burden of showing, by
clear and convincing evidence, that no reasonable sentencing judge aware of his
family and sexual abuse and resulting PTSD would have sentenced him to death.
The state trial court found three aggravating circumstances in the penalty
phase: (1) prior conviction of a violent crime in Illinois; (2) murder committed for
pecuniary gain; and (3) murder committed in an especially cruel and heinous
manner. West contends each of these findings is completely negated by the PTSD
diagnosis and, had the sentencing court known of his PTSD, it would not have
been able to sentence him to death.
1. Prior Conviction of Violent Crime – 1981 Manslaughter
West contends that had the Illinois judge in 1981 known West suffered from
PTSD, he would not have convicted him, and therefore the prior Illinois conviction
should not have been considered by the Arizona court. The Supreme Court has
held “that once a state conviction is no longer open to direct or collateral attack in
its own right because the defendant failed to pursue those remedies while they
were available (or because the defendant did so unsuccessfully), the conviction
18
may be regarded as conclusively valid.” Lackawana Cnty. Dist. Attorney v. Coss,
532 U.S. 394, 403 (2001). The Court noted a possible exception to this rule in a
case where, “after the time for direct or collateral review has expired, a defendant
may obtain compelling evidence that he is actually innocent of the crime for which
he was convicted, and which he could not have uncovered in a timely manner.” Id.
at 405 (emphasis added).
West has not presented “compelling evidence” of actual innocence. In
support of this argument, he submitted a letter from the Illinois judge (unsworn,
but declared to be “true to the best of [the judge’s] information and belief”) in
which, 30 years after the fact, the judge states “I may well have acquitted Mr. West
at that bench trial had I known that he suffered from PTSD at the time of the
shooting.”
This evidence is insufficient to meet the “compelling evidence” standard for
at least two reasons. First, there is no evidence establishing that West suffered
from PTSD at the time of the 1981 shooting.3 Second, the evidence on which this
argument rests, the physical and emotional abuse and sexual abuse, was known to
3
Both Dr. Smith and Dr. Allender opine that West was suffering PTSD
in 1987. Neither states that he suffered PTSD prior to 1987 in general, or
specifically in 1981 at the time he shot and killed Billy Oldham at a party (because
another girl was beating up his girlfriend).
19
West since 1981. Even if PTSD was not a recognized diagnosis in 1981, it was in
1983. See State v. Jensen, 735 P.2d at 784 (noting that the “American mental
health community” recognized PTSD as a diagnostic mental disorder in 1983).
West failed to contest the conviction for 30 years.
Most importantly, however, is the requirement that “the challenged prior
conviction must have adversely affected the sentence that is the subject of the
habeas petition.” Coss, 532 U.S. at 406. West cannot show that his prior
manslaughter conviction had the requisite adverse affect on his current sentence.
In affirming West’s death sentence, the Arizona Supreme Court accepted “the trial
judge’s finding that the circumstances of defendant’s previous manslaughter
conviction were not mitigating,” but nonetheless stated that “we believe this to be
an appropriate death penalty case even if it be assumed that the Illinois voluntary
manslaughter conviction was not properly proved.” State v. West, 862 P.2d 192,
211, 212 n.4 (Ariz. 1993).
2. Murder Committed for Pecuniary Gain
The mere showing that a murder occurred during the commission of a
robbery is not sufficient to establish that the murder was committed with the
expectation of pecuniary gain. Woratzeck v. Stewart, 97 F.3d 329, 334 (9th Cir.
1996). “To establish the pecuniary gain aggravating circumstance, the state must
20
prove that the expectation of pecuniary gain was a motive, cause, or impetus for
the murder and not merely a result of the murder.” State v. Prasertphong, 76 P.3d
438, 440 (Ariz. 2003) (internal quotation and alteration omitted). West contends
that the murder was committed due to an exaggerated startle response attributable
to his PTSD, and was nothing more than a killing during a “robbery gone bad.”
The circumstances surrounding Bortle’s murder do not support the argument.
West intended to steal Bortle’s property. West had been to Bortle’s house
shortly before the murder and carefully examined the extensive amount of
electronics equipment Bortle had for sale. Moreover, West ran out of cocaine on
the day of the murder and did not have enough money to buy more. When Bortle
interrupted him, West savagely beat Bortle, hogtied him stuck him in a closet, and
left him to die. And then West continued to do what he came for – he stole
Bortle’s electronic equipment and then stole his car to carry it away. West’s
alleged PTSD may help explain why West was motivated to steal Bortle’s
property, but it does nothing to undermine the finding the murder was committed
for pecuniary gain. West offers no other explanation for the savageness of the
beating he inflicted upon Bortle or hogtying him and leaving him in the closet
other than to allow him to complete the robbery.
3. Especially Cruel and Heinous Manner of Killing
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West contends that because he was suffering from PTSD, no reasonable
factfinder could have found the manner in which he killed Bortle was especially
cruel or heinous. While West offers conclusory statements that a PTSD diagnosis
would defeat the factors used to establish heinousness, he does not actually explain
how PTSD affects any of the factors that the court weighed to establish that the
manner in which he murdered Bortle was especially cruel and heinous. Rather, he
primarily argues that the evidence was insufficient to establish the factors. West
submits that an exaggerated startle response stemming from his PTSD explains his
reaction. However, while a startle response might explain an initial, violent
reaction, it does nothing to explain why West took further affirmative actions to
hogtie Bortle, to move him into a closet where he left him to die, or why, after that
savage outburst, he went on to steal Bortle’s possessions and his car. Moreover, it
does nothing to undercut the evidence of his behavior after the murder. Lisa
Murray testified that she overheard West tell Richard Wojahn that West had “beat
the fuck out of this old man and thrown him in a closet” in Tucson. When Lisa
confronted him, West told her “not to worry about it” and that she “would have to
live with it.” He also bragged to others about getting cuts and bruises on his hand
from beating up “the old man he ripped off.” State v. West, 862 P.2d at 208.
Taken together with the evidence of the cold-blooded and methodical nature of the
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crime itself, this severely undercuts West’s argument that this aggravating factor
would have been negated by evidence that he committed the crime in the midst of a
startle response.
West’s argument that he is actually innocent of the death penalty under
Tison v. Arizona, 481 U.S. 137, 157-58 (1987), fails because his cruel, calculated
conduct in hogtying Bortle and abandoning him to die following the beating shows
“the reckless disregard for human life implicit in knowingly engaging in criminal
activities known to carry a grave risk of death [and] represents a highly culpable
mental state, a mental state that may be taken into account in making a capital
sentencing judgment when that conduct causes its natural, though also not
inevitable, lethal result.” Id.; see also Landrigan v. Trujillo, 623 F.3d 1253, 1257-
58 (9th Cir. 2010). West’s reliance on the trial testimony of the prosecution
pathologist suggesting that Bortle may have been rendered unconscious by the first
blow does not advance the Tison claim. Even if the PTSD startle response theory
were accepted, and even if Bortle had been rendered unconscious right away, it
would not overcome West’s subsequent behavior of binding the bloody victim,
throwing him in a closet, and leaving him to die while later boasting about what
happened.
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West has not shown that a PTSD diagnosis would have changed the outcome
of any of the three aggravating factors found by the sentencing court. At best, it
would have supported the mitigating factor the court found – his family life.
However, he has not satisfied his burden of showing, by clear and convincing
evidence, that strengthening this one mitigating factor would have mandated a
different outcome.
CONCLUSION
West has not satisfied his burden of proving, by clear and convincing
evidence, that the evidence he now proffers is newly-discovered or that no
reasonable factfinder would have found him eligible for the death penalty had he
been aware of the evidence. Accordingly, West’s application to file a second or
successive petition for writ of habeas corpus is DENIED.
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