Robert Charles Towery v Charles Ryan , 673 F.3d 933 ( 2012 )

FILED
FOR PUBLICATION FEB 27 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ROBERT CHARLES TOWERY, No. 12-15071
Petitioner - Appellant, D.C. No. 2:03-cv-00826-ROS
v.
OPINION
CHARLES RYAN; CHARLES
GOLDSMITH, Warden, Arizona State
Prison Central Comples-Florence; TERRY
L. GODDARD, Arizona State Attorney
General; DORA B. SCHRIRO, Director of
the Arizona Department of Corrections,
Respondents - Appellees.
Appeal from the United States District Court
for the District of Arizona
Roslyn O. Silver, Chief District Judge, Presiding
Argued and Submitted February 27, 2012
Phoenix, Arizona
Filed
Before: Mary M. Schroeder, Raymond C. Fisher and N. Randy Smith, Circuit
Judges.
PER CURIAM:
Robert Towery was convicted of murder and sentenced to death in 1992.
After pursuing direct review and seeking postconviction relief in state court, he
filed a pro se habeas petition in federal district court. The district court appointed
counsel, who filed an amended federal habeas petition raising eight substantive
claims of constitutional error as well as numerous distinct allegations of counsel
ineffectiveness. Counsel did not, however, include Towery’s fully exhausted
Eddings-Tennard claim in the amended petition. See Eddings v. Oklahoma, 455
U.S. 104 (1982); Tennard v. Dretke, 542 U.S. 274 (2004). The district court
denied the petition, and we affirmed. See Towery v. Schriro (Towery II), 641 F.3d
300 (9th Cir. 2010), cert. denied, 132 S. Ct. 159 (2011).
Towery subsequently filed a motion for relief from judgment seeking the
opportunity to litigate the Eddings-Tennard issue as a new claim. He argued that
he should be permitted to pursue that claim, notwithstanding the statutory bar on
second or successive habeas petitions, because his counsel had abandoned him by
failing to present the claim in his amended petition. He proposed a new rule under
which abandonment by counsel would serve as an equitable exception to the bar on
second or successive petitions. The district court denied the motion.
We affirm. We need not decide whether abandonment by counsel can serve
as an exception to the bar on second or successive petitions because, like the
2
district court, we conclude that Towery was not abandoned. Counsel did not
engage in “egregious” professional misconduct, Holland v. Florida, 130 S. Ct.
2549, 2563-64 (2010), or leave Towery “without any functioning attorney of
record,” Maples v. Thomas, 132 S. Ct. 912, 927 (2012). Accordingly, we need not
decide whether Towery’s attorney was negligent in failing to raise a colorable
Eddings-Tennard claim. We hold that the district court did not abuse its discretion
by denying Towery’s motion.
I. B ACKGROUND
Towery was convicted of first-degree murder, armed robbery, first-degree
burglary, kidnapping, theft and attempted theft in 1992. See Towery II, 641 F.3d at
303. He was sentenced to death. See id. His execution is scheduled to take place
on March 8, 2012.
A. Sentencing Court
At sentencing, Towery presented evidence, through the testimony of his
sisters, that his mother was physically and emotionally abusive when he was a
child. The sentencing court concluded that Towery’s difficult childhood was not a
mitigating circumstance because Towery could not show that it had an effect on his
behavior that was beyond his control or rose to the level of a mental impairment:
3
I have heard and considered the evidence concerning
the defendant’s family background, the manner in which
Mr. Towery was raised by his mother. And certainly no
one would wish such a condition upon anyone. However,
a difficult family background, in and of itself, is not a
mitigating circumstance. If it were, nearly every defendant
could point to some circumstance in his or her background
that would call for some mitigation.
A difficult family background is a relevant mitigating
circumstance, if a defendant can show that something in
that background had an [e]ffect or impact on his behavior
that was beyond the defendant’s control. I do not believe
there was anything in this case that was beyond the
defendant’s control.
Although he might not have received the interplay
and nurturing that he would have liked to have had and
needed from his mother, I have to look at his two siblings,
who evidence nothing concerning drug use, and have
managed to grow up being relatively stable people in the
community, and contributing members of society.
Therefore, the fact that the defendant had a
dysfunctional relationship with his mother, and being
subject to emotional abuse, is not a mitigating
circumstance, because it amounts to a mere character or
personal – personality disorder, and does not rise to the
level of a mental impairment.
The sentencing court then weighed the mitigating circumstances that it
found to exist against the aggravating circumstances and imposed a death sentence:
The mitigating circumstances that I have found to
exist that merit weight and consideration are the
impairment of the defendant’s capacity to conform his
conduct to the law due to drug use, which I have given little
weight, and the sentence given to his co-defendant, to
which I have given great weight.
4
I have also considered the defendant’s family
background, the manner in which he was raised. I have
considered Mr. Towery’s character, propensities, record,
and circumstances of the offense which would constitute
mitigation.
I have considered whether or not this case presents
circumstances that are so shocking or repugnant, that the
murder stands out above the norm of first degree murder,
and whether the background of the defendant sets him apart
from the usual murderer.
In considering the existence of the three aggravating
circumstances, and balancing them against the mitigating
circumstances, I find the mitigating circumstances which do
exist are not significantly substantial to call for leniency.
It is unclear from the transcript whether the sentencing court ultimately
considered Towery’s difficult childhood in imposing sentence. On the one hand,
the court expressly found that Towery’s childhood was not a mitigating
circumstance, and, consistent with that determination, the court did not mention
Towery’s childhood when it listed the mitigating circumstances it found to exist.
On the other hand, the court said that it “also considered the defendant’s family
background, the manner in which he was raised” and considered “whether the
background of the defendant set[] him apart from the usual murderer,” suggesting
that the court may have included this evidence in the sentencing calculus after all.
B. Arizona Supreme Court
5
On direct appeal, Towery argued that the sentencing court violated Lockett v.
Ohio, 438 U.S. 586 (1978), Eddings v. Oklahoma, 455 U.S. 104 (1982), and Penry
v. Lynaugh, 492 U.S. 302 (1989), abrogated on other grounds by Atkins v.
Virginia, 536 U.S. 304 (2002), when it “determined that the defendant had to show
that his background had an [e]ffect or impact on his behavior, and since he did not,
rejected that evidence as a mitigating factor.” He argued that the sentencing court
violated Eddings’ fundamental principle that “there need not be a nexus between
mitigating evidence such as child abuse with the offense.”
The Arizona Supreme Court rejected Towery’s argument. See State v.
Towery (Towery I), 920 P.2d 290, 310-11 (Ariz. 1996). The court concluded that
the sentencing court had properly considered the absence of a causal nexus
between Towery’s difficult childhood and the crime only as a means of weighing
the evidence, not as a means of discounting it as a matter of law:
We independently weigh the mitigating evidence
against the aggravating circumstances to determine whether
leniency is called for. . . .
The trial judge considered evidence of Defendant’s
abusive family background and did not find mitigating
value in it. Citing a line of Supreme Court cases requiring
courts to consider family history for independent mitigating
w eig h t, D efen d ant calls the judge’s finding
unconstitutional. Although the judge rejected the evidence
as a mitigating factor because he failed to establish a nexus
6
between his family background and his crime, Defendant
argues that the judge violated the law.
Defendant misconstrues the Supreme Court cases
culminating in Penry v. Lynaugh, 492 U.S. 302 (1989).
They hold only that “a sentencer may not be precluded
from considering, and may not refuse to consider, any
relevant mitigating evidence offered by the defendant as a
basis for a sentence less than death.” Id. at 318. Having
considered family background during the penalty phase, the
sentencer must give the evidence such weight that the
sentence reflects a “reasoned moral response” to the
evidence. Id. at 319. The sentencer therefore must
consider the defendant’s upbringing if proffered but is not
required to give it significant mitigating weight. How
much weight should be given proffered mitigating factors
is a matter within the sound discretion of the sentencing
judge.
We have held that a difficult family background is
not always entitled to great weight as a mitigating
circumstance. State v. Wallace, 160 Ariz. 424, 426-27, 773
P.2d 983, 985-86 (1989) (“A difficult family background is
a relevant mitigating circumstance if a defendant can show
that something in that background had an effect or impact
on his behavior that was beyond the defendant’s control.”),
cert. denied, 494 U.S. 1047 (1990). We have since
reaffirmed that family background may be a substantial
mitigating circumstance when it is shown to have some
connection with the defendant’s offense-related conduct.
Defendant has failed to connect his family
background to his criminal conduct. Defendant’s sisters
testified at the sentencing hearing that he was a small child
with dyslexia and a bed-wetting problem and that he was
physically and mentally abused by his overweight and
diabetic mother. One sister related that his mother forced
him to kneel in a box of rice when he complained that his
leg hurt after falling from a wagon, and that she gagged him
with a sock and bound his hands in the back of the car
7
while on a family trip. These events, however, occurred
when Defendant was young, years before he robbed and
murdered at the age of 27. They do not prove a loss of
impulse control or explain what caused him to kill. The
trial judge considered this background and gave it little or
no mitigating value. We do not disagree. . . .
We have examined the record for mitigating
circumstances and find the rather sparse evidence
insufficient to overcome the weight of the aggravating
circumstances. We therefore affirm the death sentence.
Towery I, 920 P.2d at 310-11 (footnotes and some citations omitted).
C. Federal Habeas Proceedings
Following Towery’s unsuccessful appeal to the Arizona Supreme Court,
Daniel Maynard was appointed to represent Towery in state postconviction relief
proceedings. In 2003, following the denial of state postconviction relief, the
federal district court appointed Maynard to represent Towery in his federal habeas
proceedings. The appointment order provided for the filing of an amended federal
habeas petition, and said that “[t]he Amended Petition shall include and set forth
all known claims of constitutional error or deprivation entitling Petitioner to
federal habeas relief,” citing Rule 2(c) of the Rules Governing § 2254 Cases, 28
foll. U.S.C. § 2254. Maynard filed an amended petition raising eight claims and
numerous sub-claims, but not Towery’s Eddings-Tennard claim. The district court
8
denied the petition, and we affirmed. See Towery II, 641 F.3d 300 (9th Cir. 2010),
cert. denied, 132 S. Ct. 159 (2011).
D. Rule 60(b)(6) Motion
Towery subsequently filed a motion for relief from judgment under Federal
Rule of Civil Procedure 60(b)(6), asking the district court reopen his habeas case
and adjudicate his Eddings-Tennard claim on the merits. Towery argued that there
were grounds to raise this new claim in a Rule 60 motion, because Maynard had
abandoned him by failing to raise the claim earlier. He argued that abandonment
was a proper basis for relief under Rule 60(b)(6), see Lal v. California, 610 F.3d
518, 524 (9th Cir. 2010); Cmty. Dental Servs. v. Tani, 282 F.3d 1164, 1168-71 (9th
Cir. 2002), as well as a persuasive reason to avoid the statutory bar on second or
successive habeas petitions.
The district court denied the motion, citing Gonzalez v. Crosby, 545 U.S.
524 (2005), for the proposition that “Rule 60(b) may not be used to avoid the
prohibition against second or successive petitions set forth in 28 U.S.C.
§ 2244(b).” Order Den. Mot. Relief J., Jan. 9, 2012, at 2; see Gonzalez, 545 U.S. at
531 (“Using Rule 60(b) to present new claims for relief from a state court’s
judgment of conviction – even claims couched in the language of a true Rule 60(b)
motion – circumvents AEDPA’s requirement that a new claim be dismissed unless
9
it relies on either a new rule of constitutional law or newly discovered facts.”).1
According to the district court, Gonzalez barred Towery’s claim:
In Gonzalez, the Court explained that an appropriate
Rule 60(b) motion “attacks, not the substance of the federal
court’s resolution of a claim on the merits, but some defect
in the integrity of the federal habeas proceedings.” The
Court specifically noted that “an attack based on the
movant’s own conduct, or his habeas counsel’s omissions
. . . ordinarily does not go to the integrity of the
proceedings, but in effect asks for a second chance to have
the merits determined favorably.” . . .
Here, Petitioner is seeking relief from the judgment
denying his habeas petition based on habeas counsel’s
omissions. Therefore, under Gonzale[z], Petitioner’s Rule
60(b) motion is the equivalent of a successive petition,
which this Court cannot entertain absent authorization from
the Ninth Circuit Court of Appeals. See 28 U.S.C.
§ 2244(b)(3).
Order Den. Mot. Relief J., Jan. 9, 2012, at 3-4 (first alteration in original) (some
citations omitted) (quoting Gonzalez, 545 U.S. at 532 & n.5).
The district court added that, even assuming abandonment by habeas counsel
could undermine the integrity of habeas proceedings such that Towery’s Rule
60(b) motion would not constitute a second or successive petition, Maynard’s
conduct did not constitute abandonment:
1
AEDPA refers to the Antiterrorism and Effective Death Penalty Act of
1996, Pub. L. No. 104-132, 110 Stat. 1214.
10
In a case decided prior to the ruling in Gonzalez, the
Second Circuit denied the petitioner’s request for relief
under Rule 60(b) based on habeas counsel’s performance.
Harris v. United States, 367 F.3d 74 (2d Cir. 2004). The
court held that counsel’s failure to raise certain claims – a
failure which counsel himself was willing to swear
constituted ineffective assistance – did not undermine the
integrity of the proceedings because counsel’s performance
did not reach a level of deficiency that could be deemed
“abandonment” of the petitioner’s case. Id. at 81-82. The
court then explained that to prove abandonment, “a Rule
60(b)(6) movant must show that his lawyer agreed to
prosecute a habeas petitioner’s case, abandoned it, and
consequently deprived the petitioner of any opportunity to
be heard at all.” Id. at 81.
Petitioner has not demonstrated that habeas counsel’s
performance descended to a level where Petitioner was
abandoned and deprived of an opportunity to be heard.
Despite failing to raise a Tennard claim, Maynard
presented eight substantive claims of constitutional error as
well as numerous distinct allegations of counsel
ineffectiveness. He also pursued an innocence theory based
on previously untested crime scene evidence. The failure
to raise a claim, even a viable one, does not amount to
abandonment. On this record, the Court finds that
Maynard’s failure to present the Tennard claim did not
constitute abandonment or deprive Petitioner of any
opportunity to be heard concerning the constitutionality of
his conviction and sentence.
Order Den. Mot. Relief J., Jan. 9, 2012, at 4-5.
The district court denied Towery’s motion, and Towery timely appealed.
II. J URISDICTION AND S TANDARD OF R EVIEW
11
We have jurisdiction under 28 U.S.C. § 1291. “We review the district
court’s denial of a Rule 60(b)(6) motion for an abuse of discretion.” Delay v.
Gordon, 475 F.3d 1039, 1043 (9th Cir. 2007); see also Martella v. Marine Cooks
& Stewards Union, 448 F.2d 729, 730 (9th Cir. 1971) (per curiam) (“60(b) motions
are addressed to the sound discretion of the district court.”). A court abuses its
discretion when it fails to identify and apply the correct legal rule to the relief
requested, or if its application of the correct legal standard was illogical,
implausible or without support in inferences that may be drawn from the facts in
the record. See United States v. Hinkson, 585 F.3d 1247, 1262-63 (9th Cir. 2009)
(en banc). In addition, relief under Rule 60(b)(6) requires the moving party to
make a showing of “extraordinary circumstances.” Gonzalez, 545 U.S. at 535.
“Such circumstances will rarely occur in the habeas context,” and “Rule 60(b)
proceedings are subject to only limited and deferential appellate review.” Id.III. D ISCUSSION
Towery argues that there were extraordinary circumstances here because the
statutory bar on second or successive habeas petitions, 28 U.S.C. § 2244(b), should
be read to include an equitable exception for attorney abandonment. He relies on
two cases construing abandonment as a basis for relief from two other procedural
bars governing federal habeas proceedings – Holland v. Florida, 130 S. Ct. 2549,
12
2563-64 (2010), holding that habeas counsel’s professional misconduct, including
abandonment, can “amount to egregious behavior and create an extraordinary
circumstance that warrants equitable tolling,” and Maples v. Thomas, 132 S. Ct.
912, 922-27 (2012), holding that attorney abandonment can constitute “cause” for
excusing a procedural default. He contends that a similar exception should be read
into the second-or-successive-petition bar and that Maynard abandoned him by
failing to present his fully exhausted Eddings-Tennard claim in his amended
federal habeas petition. According to Towery, Maynard “breached the duty of
loyalty and thereby voided the agency relationship, thereby causing the
abandonment that Mr. Towery contends should allow him to raise the Tennard
issue in a motion under Rule 60(b)(6) unfettered by the second-or-successive-
13
petition bar.” He says that “failing to raise a plainly meritorious ground for
avoiding the death sentence” was inconsistent with the duty of loyalty.2
A. Abandonment
We need not decide whether there is an attorney abandonment exception to
the statutory bar on second or successive petitions, because we conclude that
Towery was not abandoned by counsel in this case.
A federal habeas petitioner – who as such does not have a Sixth Amendment
right to counsel – is ordinarily bound by his attorney’s negligence, because the
attorney and the client have an agency relationship under which the principal is
bound by the actions of the agent. See Coleman v. Thompson, 501 U.S. 722, 753
(1991) (“Attorney ignorance or inadvertence is not ‘cause’ [for excusing
procedural default] because the attorney is the petitioner’s agent when acting, or
2
Before AEDPA imposed the statutory bar, a petitioner’s ability to file a
second or successive petition was governed by the abuse of the writ doctrine, under
which a court could consider a second or subsequent habeas application when the
petitioner showed cause and prejudice or a fundamental miscarriage of justice. See
McCleskey v. Zant, 499 U.S. 467, 493-94 (1991). The parties disagree over
whether the cause and prejudice standard survives AEDPA. Compare United
States v. Lopez, 577 F.3d 1053, 1063 n.8 (9th Cir. 2009) (holding that “the
meaning of ‘second or successive’ is informed by the abuse-of-the-writ doctrine”
(citing Panetti v. Quarterman, 551 U.S. 930 (2007))), with United States v.
Roberson, 194 F.3d 408, 411 (3d Cir. 1999) (“AEDPA, however, replaced the
abuse-of-the writ doctrine articulated in McCleskey.”), and Burris v. Parke, 95
F.3d 465, 469 (7th Cir. 1996) (en banc) (“The doctrine of abuse of the writ is
defunct.”).
14
failing to act, in furtherance of the litigation, and the petitioner must ‘bear the risk
of attorney error.’” (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986))); see
also Maples, 132 S. Ct. at 922 (“Negligence on the part of a prisoner’s
postconviction attorney does not qualify as ‘cause’ . . . because the attorney is the
prisoner’s agent, and under ‘well-settled principles of agency law,’ the principal
bears the risk of negligent conduct on the part of his agent.” (quoting Coleman,
501 U.S. at 753-54)); cf. Holland, 130 S. Ct. at 2564 (holding that “a ‘garden
variety claim’ of attorney negligence” “does not warrant equitable tolling” of the
one-year statute of limitations governing federal habeas petitions (quoting Irwin v.
Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990))); Gonzalez, 545 U.S. at 532 n.5
(observing that a habeas petitioner’s Rule 60 motion “based on the movant’s own
conduct, or his habeas counsel’s omissions, . . . ordinarily does not go to the
integrity of the proceedings,” and thus is subject to the bar on second or successive
habeas petitions).
An attorney who “abandons his client without notice,” however, “sever[s]
the principal-agent relationship” and “no longer acts, or fails to act, as the client’s
representative.” Maples, 132 S. Ct. at 922-23. “His acts or omissions therefore
‘cannot fairly be attributed to [the client].’” Id. at 923 (alteration in original)
(quoting Coleman, 501 U.S. at 753).
15
Towery relies on these principles here. He points out, correctly, that
Maynard owed him a duty of loyalty. See Webb v. Gittlen, 174 P.3d 275, 279
(Ariz. 2008) (“Attorneys are fiduciaries with duties of loyalty, care, and obedience,
whose relationship with the client must be one of ‘utmost trust.’” (quoting In re
Piatt, 951 P.2d 889, 891 (Ariz. 1997))); In re Estate of Shano, 869 P.2d 1203, 1210
(Ariz. Ct. App. 1993) (“A lawyer’s overriding duty of loyalty to a client is a basic
tenet of the attorney-client relationship. Inherent in this principle is the concept
that no other interest or consideration should be permitted to interfere with the
lawyer’s loyalty to his client.”); Arizona Rules of Professional Conduct R. 1.7;
Restatement (Third) of Law Governing Lawyers § 16 (2000).
Towery is also correct that, under general agency principles, breach of the
duty of loyalty can terminate an agency relationship. See State v. DiGiulio, 835
P.2d 488, 492 (Ariz. Ct. App. 1992) (“Violating the duty of loyalty, or failing to
disclose adverse interests, voids the agency relationship.”); Restatement (Second)
of Agency § 112 (1958) (“Unless otherwise agreed, the authority of an agent
terminates if, without knowledge of the principal, he acquires adverse interests or if
he is otherwise guilty of a serious breach of loyalty to the principal.”).
Towery, however, has not shown severance of his attorney-client
relationship with Maynard. First, Towery has not shown that Maynard committed
16
a “serious breach of loyalty.” Towery does not argue, and the record does not
suggest, that Maynard permitted any interest or consideration to interfere with his
loyalty to Towery. Towery also has presented no authority for the proposition that
counsel’s failure to raise a colorable habeas claim amounts to a serious breach of
the duty of loyalty that severs the attorney-client agency relationship. We are not
aware of any such authority.
Second, Towery also has not shown abandonment. “Withdrawal, whether
proper or improper, terminates the lawyer’s authority to act for the client,” and
“[t]he client is not bound by acts of a lawyer who refuses to represent the client.”
Restatement (Third) of Law Governing Lawyers § 31 cmt. f (2000) (citing
Restatement (Second) of Agency § 118 (1958) (“Authority terminates if the
principal or the agent manifests to the other dissent to its continuance.”)); see also
Maples, 132 S. Ct. at 922-23. Here, however, Maynard did not refuse to represent
Towery or renounce the attorney-client relationship. On the contrary, he diligently
pursued habeas relief on Towery’s behalf, although omitting a colorable
constitutional claim from Towery’s amended petition.
Towery’s attempts to compare his case to Holland and Maples are therefore
unpersuasive. The issue in Holland was whether the petitioner was entitled to
equitable tolling. A petitioner is entitled to equitable tolling only “if he shows ‘(1)
17
that he has been pursuing his rights diligently, and (2) that some extraordinary
circumstance stood in his way’ and prevented timely filing.” Holland, 130 S. Ct. at
2562 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). The Court held
that, although garden variety attorney negligence is not an extraordinary
circumstance, “professional misconduct . . . could . . . amount to egregious
behavior and create an extraordinary circumstance that warrants equitable tolling.”
Id. at 2563.
The Court then found the extraordinary circumstance requirement was likely
satisfied in the case before it. Counsel’s failure to file the petitioner’s petition on
time and ignorance of the filing deadline “suggest[ed] simple negligence.” Id. at
2564. But counsel’s failures went much further, violating “fundamental canons of
professional responsibility” requiring attorneys to “perform reasonably competent
legal work, to communicate with their clients, to implement clients’ reasonable
requests, to keep their clients informed of key developments in their cases, and
never to abandon a client.” Id. Counsel’s failures also caused the petitioner to lose
“what was likely his single opportunity for federal habeas review of the lawfulness
of his imprisonment and of his death sentence.” Id. at 2565. On that record, the
Court concluded that counsel’s failures were likely sufficient to establish the
extraordinary circumstance prong of equitable tolling. See id. at 2564-65; see also
18
id. at 2568 (Alito, J., concurring) (“Common sense dictates that a litigant cannot be
held constructively responsible for the conduct of an attorney who is not operating
as his agent in any meaningful sense of that word.”).
In Maples, the issue was whether counsel’s abandonment could serve as
cause for lifting the bar on procedural default. See Maples, 132 S. Ct. at 922.
Cause exists where something external to the petitioner, something that cannot
fairly be attributed to him, impeded his efforts to comply with the state’s
procedural rule. See id. Negligence on the part of a petitioner’s postconviction
attorney does not qualify as cause, because the attorney is the petitioner’s agent,
and the principal bears the risk of negligent conduct on the part of his agent. See
id. When an attorney abandons his client without notice, however, the
principal-agent relationship is severed, and the attorney’s acts or omissions can no
longer be fairly be attributed to the client. See id. at 922-23.
In Maples, the standard for abandonment was satisfied. The petitioner’s pro
bono counsel, two Sullivan & Cromwell attorneys, left Sullivan & Cromwell’s
employ months before the state procedural default occurred, and no other lawyer –
local counsel or other Sullivan & Cromwell attorneys – was serving as the
petitioner’s agent in any meaningful sense of the word. See id. at 924-27. As a
19
result, the petitioner was “left without any functioning attorney of record.” Id. at
927.
Towery’s case does not compare to Holland and Maples. At most, Towery
alleges that Maynard was negligent in failing to raise a colorable Eddings-Tennard
claim in Towery’s amended federal habeas petition. In contrast to Holland,
however, Towery makes no claim that Maynard performed incompetent legal
work, failed to communicate with him, refused to implement his reasonable
requests or failed to keep him informed of key developments in his case. Nor, in
contrast to Maples, did Maynard cease serving as Towery’s agent in any
meaningful sense of that word or leave Towery without any functioning attorney of
record. Towery’s claim of abandonment is therefore unpersuasive.
Furthermore, as the district court noted, Maynard presented eight substantive
claims of constitutional error as well as numerous distinct allegations of counsel
ineffectiveness. He also pursued an innocence theory based on previously untested
crime scene evidence. Order Den. Mot. Relief J., Jan. 9, 2012, at 4-5.
Consequently, the court found that “[o]n this record, . . . Maynard’s failure to
present the Tennard claim did not constitute abandonment or deprive Petitioner of
any opportunity to be heard concerning the constitutionality of his conviction.” Id.
at 5. Even if the district court’s finding regarding abandonment was incorrect, it
20
was not “illogical, implausible, or without support in inferences that may be drawn
from the facts in the record.” Hinkson, 585 F.3d at 1263.
B. Strength of the Eddings Claim
Our conclusion is reinforced when we consider Towery’s Eddings-Tennard
claim applying AEDPA’s governing standards.
Towery’s federal habeas petition is governed by AEDPA. See Towery II,
641 F.3d at 306. Under AEDPA, an application for a writ of habeas corpus may
not be granted unless the last reasoned state court decision adjudicating the claim
on the merits was “contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United States,”
or “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).
Towery relies exclusively on the first of these prongs, arguing that the
decisions of the Arizona courts were “contrary to” Supreme Court precedent in
Lockett, Eddings and Penry. A state court decision is “contrary to” federal law if
the court either “arrives at a conclusion opposite to that reached by [the Supreme]
Court on a question of law,” or arrives at a different result on facts that are
“materially indistinguishable from a relevant Supreme Court precedent.” Williams
v. Taylor, 529 U.S. 362, 405, 408 (2000). “We review the state court’s last
21
reasoned decision.” Crittenden v. Ayers, 624 F.3d 943, 950 (9th Cir. 2010). Here,
the last reasoned decision addressing Towery’s Eddings-Tennard claim is the
decision of the Arizona Supreme Court affirming Towery’s conviction and
sentence on direct review.3
The state supreme court’s decision is not contrary to Supreme Court
precedent. The Arizona Supreme Court recognized that “a sentencer may not be
precluded from considering, and may not refuse to consider, any relevant
mitigating evidence offered by the defendant as a basis for a sentence less than
death.” Towery I, 920 P.2d at 311 (quoting Penry, 492 U.S. at 318) (internal
quotation marks omitted). It recognized that, “[h]aving considered family
background during the penalty phase, the sentencer must give the evidence such
weight that the sentence reflects a ‘reasoned moral response’ to the evidence.” Id.(quoting Penry, 492 U.S. at 319). It also recognized that “[t]he sentencer therefore
3
Towery suggests we review the decisions of the sentencing court and the
state supreme court together. “When more than one state court has adjudicated a
claim, we analyze the last reasoned decision.” Barker v. Fleming, 423 F.3d 1085,
1091 (9th Cir. 2005). The AEDPA inquiry applies “to a single state court decision,
not to some amalgamation of multiple state court decisions.” Id. at 1093. We have
considered more than one decision when “the last reasoned decision adopted or
substantially incorporated the reasoning from a previous decision and, as a result, it
was reasonable for the reviewing court to look at both decisions to fully ascertain
the reasoning of the last decision.” Id. Our focus here is on the independent
review conducted by the state supreme court in the last reasoned state-court
decision.
22
must consider the defendant’s upbringing if proffered but is not required to give it
significant mitigating weight. How much weight should be given proffered
mitigating factors is a matter within the sound discretion of the sentencing judge.”
Id. These were all correct statements of the law.
The supreme court also said that “a difficult family background is not
always entitled to great weight as a mitigating circumstance”; that “family
background may be a substantial mitigating circumstance when it is shown to have
some connection with the defendant’s offense-related conduct”; and that where the
defendant fails to connect his family background to his criminal conduct, a trial
judge could give it little or no weight or value. Id. These statements too were not
contrary to Supreme Court precedent. See Schad v. Ryan, ___ F.3d ____, No.
07-99005, 2011 WL 5433763, at *14 (9th Cir. Nov. 10, 2011) (per curiam) (“The
United States Supreme Court has said that the use of the nexus test [to assess the
quality and strength of the mitigation evidence] is not unconstitutional because
state courts are free to assess the weight to be given to particular mitigating
evidence.” (citing Eddings, 455 U.S. at 114-15)), petition for reh’g en banc filed
(Nov. 23, 2011).
The supreme court also “independently weigh[ed] the mitigating evidence
against the aggravating circumstances to determine whether leniency [wa]s called
23
for.” Towery I, 290 P.2d at 310. As part of that review, the court considered
whether evidence of Towery’s difficult childhood should be given substantial
weight. See id. at 311. Agreeing with the sentencing court, it accorded this
evidence “little or no mitigating value” because Towery “failed to connect his
family background to his criminal conduct.” Id. The evidence was entitled to little
or no weight because it did “not prove a loss of impulse control or explain what
caused him to kill.” Id. These statements too were not contrary to Supreme Court
precedent.4
One could question the wisdom of the Arizona Supreme Court’s decision to
accord Towery’s evidence little or no weight. See Lambright v. Schriro, 490 F.3d
1103, 1115 (9th Cir. 2007) (per curiam) (explaining that “evidence relating to life
circumstances with no causal relationship to the crime,” such as “a defendant’s
disadvantaged background, emotional and mental problems, and adverse history,
. . . might cause a sentencer to determine that a life sentence, rather than death at
the hands of the state, is the appropriate punishment for the particular defendant”);
4
Towery does not argue that the state supreme court’s finding that the
sentencing court used a nexus test as a weighing mechanism rather than as a
screening mechanism was an “unreasonable determination of the facts” under 28
U.S.C. § 2254(d)(2). See Lopez v. Schriro, 491 F.3d 1029, 1037-38 & n.2 (9th Cir.
2007) (treating the state supreme court’s determination of the sentencing court’s
actions as a question of historical fact subject to review for objective
unreasonableness under § 2254(d)(2)). We therefore do not reach that issue.
24
cf. Smith v. Texas, 543 U.S. 37, 45 (2004) (per curiam) (holding that petitioner’s
evidence of a troubled childhood “was relevant for mitigation purposes”
notwithstanding the petitioner’s failure to establish a nexus between his
background and his crime); Tennard, 542 U.S. at 287 (“[W]e cannot countenance
the suggestion that low IQ evidence is not relevant mitigating evidence . . . unless
the defendant also establishes a nexus to the crime.”).
However, the court’s reasoned and individualized decision to give Towery’s
evidence little or no weight was not contrary to Supreme Court precedent. See
Eddings, 455 U.S. at 114-15 (“The sentencer, and the Court of Criminal Appeals
on review, may determine the weight to be given relevant mitigating evidence.”);
Schad, 2011 WL 5433763, at *14 (“The United States Supreme Court has said that
the use of the nexus test [in assessing the quality and strength of the mitigation
evidence] is not unconstitutional because state courts are free to assess the weight
to be given to particular mitigating evidence”). The record supports the conclusion
that the Arizona Supreme Court gave Towery’s difficult childhood little or no
25
weight as a matter of fact, after giving individualized consideration to the evidence,
rather than treating the evidence as irrelevant or nonmitigating as a matter of law.5
Towery points out that the Arizona Supreme Court in its Towery decision
referred to State v. Wallace, 773 P.2d 983, 985-86 (Ariz. 1989), a decision we have
deemed constitutionally suspect, see Schad, 2011 WL 5433763, at *13. Towery
also points to the Arizona court’s subsequent interpretation of Towery, see State v
Hoskins, 14 P.3d 997, 1021-22 (Ariz. 2000), that suggests the court may have cited
Towery as supporting an analysis now constitutionally infirm. But this does not
require us to hold the Arizona court committed constitutional error in Towery
itself. The Arizona court’s opinion as a whole indicates the court understood
Supreme Court precedent and applied it correctly. Our review must be of the
record in Towery itself, rather than the state supreme court’s subsequent
interpretations of Towery. See Lopez v. Ryan, 630 F.3d 1198, 1203 (9th Cir. 2011)
5
Because we conclude that Towery’s Eddings-Tennard claim would not
satisfy § 2254(d), we do not address the constitutional merits of the claim. See
Frantz v. Hazey, 533 F.3d 724, 736-37 (9th Cir. 2008) (en banc) (discussing the
relationship between the AEDPA analysis under § 2254(d)(1) and the analysis of
the constitutional claim on the merits). We also do not address whether, if there
was constitutional error by the sentencing court, the supreme court’s independent
review cured it. See Richmond v. Lewis, 506 U.S. 40, 49 (1992) (holding that a
state appellate court can cure a sentencing error in a capital case when “the state
appellate court . . . actually perform[s] a new sentencing calculus”); Clemons v.
Mississippi, 494 U.S. 738, 741, 750-51 (1990). The state does not invoke the cure
doctrine or argue that the supreme court performed a new sentencing calculus here.
26
(explaining that we review “the record,” to determine whether “the state court
applied the wrong standard,” and we “cannot assume the courts violated . . .
constitutional mandates” otherwise (alteration in original) (emphasis added)
(internal quotation marks omitted)). Considering Towery itself, we conclude that it
was not contrary to Supreme Court precedent – a conclusion we have noted before.
See id. at 1203-04 & n.4 (citing Towery as a decision in which the Arizona
Supreme Court “properly looked to causal nexus only as a factor in determining
the weight or significance of mitigating evidence”). Even if subsequent Arizona
Supreme Court interpretations of Towery were relevant to our analysis, Arizona’s
case law in this regard is conflicting. See State v. Sansing, 26 P.3d 1118, 1129
(Ariz. 2001) (citing Towery for the proposition that the “sentencer therefore must
consider the defendant’s upbringing if proffered but is not required to give it
significant mitigating weight.” (emphasis added) (quoting Towery, 290 P.2d at
311) (internal quotation marks omitted)), judgment vacated on other grounds by
Sansing v. Arizona, 536 U.S. 954 (2002). Indeed, Towery’s counsel conceded at
oral argument that we should not base our analysis on this conflicting Arizona case
law, but should instead confine our review to the record of Towery.
We conclude that the district court applied the correct legal rule for the relief
requested on this claim, and the court did not make an “illogical[ or] implausible”
27
determination when it concluded that Maynard’s actions did not amount to an
extraordinary circumstance warranting relief under Rule 60(b)(6). Hinkson, 585
F.3d at 1262-63; see also Gonzalez, 545 U.S. at 535. At most, Towery alleges a
claim of negligence, which falls far short of a claim of abandonment. Towery was
neither subjected to “egregious” professional misconduct, Holland, 130 S. Ct. at
2563-64, nor “left without any functioning attorney of record,” Maples, 132 S. Ct.
at 927.
IV. C ONCLUSION
In sum, even assuming attorney abandonment could constitute an exception
to the statutory bar on second or successive habeas petitions, Towery has not
shown that he was abandoned in this case. Nor has he shown a serious breach of
loyalty that might have severed his agency relationship with counsel. The district
court therefore properly treated Towery’s Rule 60 motion as a second or successive
petition and did not abuse its discretion by denying the motion. See 28 U.S.C.
§ 2244(b)(2), (b)(3)(A).
AFFIRMED.
Towery’s emergency motion for a stay of execution, filed February 24,
2012, is premised on the merits of his Rule 60(b)(6) motion. Given our affirmance
28
of the denial of the Rule 60(b)(6) motion, Towery’s emergency motion is hereby
DENIED.
29
Counsel
Jon M. Sands, Federal Public Defender; Therese M. Day (argued), Dale A.
Baich and Kelly L. Schneider, Assistant Federal Public Defenders, Phoenix,
Arizona, for petitioner-appellant.
Thomas C. Horne, Attorney General; Kent E. Cattani, Division Chief
Counsel, Criminal Appeals/Capital Litigation Division; Jeffrey A. Zick, Section
Chief Counsel; Jon G. Anderson (argued), Assistant Attorney General, Capital
Litigation Division, Phoenix, Arizona, for respondent-appellees.
30