Jones v. Shinn

943 F.3d 1211

Barry Lee JONES, Petitioner-Appellee,

v.David SHINN, Director; Stephen Morris, Warden, Arizona State Prison-Eyman Complex, Respondents-Appellants.

No. 18-99006

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 20, 2019 San Francisco, California

Filed November 29, 2019

Myles A. Braccio (argued), Assistant Attorney General; Lacey Stover Gard, Chief Counsel; Mark Brnovich, Attorney General; Capital Litigation Section, Office of the Attorney General, Phoenix, Arizona; for Respondents-Appellants.

Cary Sandman (argued) and Karen Smith, Assistant Federal Public Defenders; Jon M. Sands, Federal Public Defender; Office of the Federal Public Defender, Tucson, Arizona; for Petitioner-Appellee.

Before: Johnnie B. Rawlinson, Richard R. Clifton, and Paul J. Watford, Circuit Judges.

CLIFTON, Circuit Judge:

A warden and several other employees of the State of Arizona (collectively the "State") appeal the grant of federal habeas relief to Barry Lee Jones, a state prisoner under sentence of death. Jones was convicted of one count of sexual assault, three counts of child abuse, and felony murder for the death of four-year-old Rachel Gray. Jones v. Ryan , 327 F. Supp. 3d 1157, 1163–64 (D. Ariz. 2018) (" Jones Habeas "). To determine whether Jones qualified for habeas relief, the district court considered evidence presented at hearings to determine whether Jones could establish cause to excuse the procedural default of a claim of ineffective assistance of counsel ("IAC") pursuant to Martinez v. Ryan , 566 U.S. 1, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012) (" Martinez hearing"). Id. at 1163. It then concluded that Jones had established cause to excuse the procedural default of his meritorious guilt-phase IAC claim that trial counsel failed to sufficiently investigate the police work, medical evidence, and timeline between Rachel's fatal injury and her death (Claim 1D), and it therefore granted his habeas petition. Id. at 1163, 1168.

We hold that 28 U.S.C. § 2254(e)(2), which precludes evidentiary hearings on claims that were not developed in state court proceedings, did not prohibit the district court from considering the evidence adduced at the Martinez hearing to determine the merits of Jones's underlying IAC claim. When a district court holds an evidentiary hearing to determine whether a petitioner's claim is excused from procedural default under Martinez , it may consider that same evidence to grant habeas relief on the underlying claim.

We also conclude that the district court did not err in determining that (1) the assistance provided by Jones's counsel was constitutionally deficient because he failed to perform an adequate pretrial investigation into whether Rachel's injuries were sustained during the time she was alone with Jones, and (2) Jones has demonstrated prejudice due to counsel's failures. At Jones's trial, the State presented evidence that established that most of Rachel's injuries, including her fatal injury, were consistent with infliction on Sunday, May 1, 1994, between 2:00 p.m. and 5:30 p.m., a few hours before she was pronounced dead the next morning. Jones Habeas , 327 F. Supp. 3d at 1169. The State also presented evidence from several witnesses that supported its theory that Rachel was in the sole care of Jones during that time. Id. at 1173–74. At the Martinez hearing, Jones presented evidence, both from his own experts and from a government expert's prior statements, that Rachel may have in fact been injured earlier. Id. at 1179–80. He also presented evidence of other potential suspects who had access to Rachel outside the critical disputed hours, including her mother, other children in the trailer park, her siblings, and her mother's former boyfriend. Id. at 1188–89. Although this evidence would not necessarily exonerate Jones, there is a reasonable probability that the jury might have arrived at a different conclusion on the question of whether Jones had inflicted the injuries or knowingly failed to seek care. We generally affirm the order of the district court that granted Jones habeas relief on the guilt-phase portion of his IAC claim and ordered the State to release him from custody unless it initiated new trial proceedings against him.

However, on one of the five counts of conviction, regarding Jones's failure to seek medical care for the victim (Count Four), the ineffective assistance only affected the jury's classification of Jones's offense as intentional or knowing but not his underlying guilt based on a less culpable mental state, such as recklessness. We therefore affirm the district court's grant of Jones's habeas petition but vacate in part its remedy. The district court should amend its order to require that the state court either retry him on Count Four (as its order currently states, 327 F. Supp. 3d at 1218 ) or resentence him on that count for the lesser included offense.

I. Background

In April and early May 1994, Jones shared his trailer with his girlfriend Angela Gray, his 11-year-old daughter Brandie Jones, and Angela's three children: four-year-old Rachel Gray, 11-year-old Rebecca Lux ("Becky"), and 14-year-old Jonathon Lux.¹ Jones Habeas , 327 F. Supp. 3d at 1163, 1181. At approximately 6:15 a.m. on Monday, May 2, 1994, Jones drove Rachel and Angela to Kino Community Hospital in Tucson, Arizona. Id. at 1163. Rachel was admitted and pronounced dead on arrival, caused by a small bowel laceration due to blunt abdominal trauma. Id. Rachel also had a laceration to her left scalp, injuries to her labia and vagina, and multiple internal and external contusions. Id.

Jones was arrested and charged with:

(1) engaging in an act of sexual intercourse with Rachel, in violation of A.R.S. § 13-1406 (Count One); (2) causing physical injury to Rachel by striking her abdominal area causing a rupture to her small intestine under circumstances likely to produce death or serious physical injury, in violation of A.R.S. § 13-3623(B)(1) (Count Two)² ; (3) causing physical injury to Rachel by bruising her face and ear and causing a laceration to her head, in violation of A.R.S § 13-3623(C)(1) (Count Three); (4) causing Rachel to be placed in a situation where her health was endangered under circumstances likely to produce death or serious physical injury, in violation of A.R.S. § 13-3623(B)(1) (Count Four); and (5) felony murder, in violation of A.R.S. § 13-1105 (Count Five)

Jones Habeas , 327 F. Supp. 3d at 1163.

Under Arizona law, first degree murder can either be (1) premeditated, meaning the defendant intentionally or knowingly caused the death of another with premeditation, or (2) felony murder, if the defendant caused a death during the commission of or in furtherance of enumerated predicate felony offenses. A.R.S. § 13-1105(A) (1994). Those enumerated predicate offenses include sexual assault (as charged in Count One) and child abuse under § 13-3623(B)(1) (as charged in Counts Two and Four). Id. § 13-1105(A)(2) ; State v. Styers , 177 Ariz. 104, 865 P.2d 765, 771 (1993) (In Banc); Jones Habeas , 327 F. Supp. 3d at 1212. Jones was only charged under a felony murder theory. Jones Habeas , 327 F. Supp. 3d at 1163.

In Counts Two and Four, Jones was also charged with the lesser included offenses of child abuse committed recklessly, A.R.S. § 13-3623(B)(2), and child abuse committed with criminal negligence, A.R.S. § 13-3623(B)(3). The trial judge explained that the child abuse charges could only be predicate felonies for felony murder if Jones committed them intentionally or knowingly under circumstances likely to produce death or serious physical injury. Jones Habeas , 327 F. Supp. 3d at 1212.

The day after Jones's arrest, May 3, Sean Bruner was appointed to represent Jones. Id. at 1168. Bruner's partner Leslie Bowman also represented Jones as an informal "second-chair" attorney, although she was never formally appointed by the trial court. Id.

Angela was also charged on Counts Four and Five of the same indictment. Id. at 1163. She was tried separately, prior to Jones's trial, and she was convicted on Count Four. Id. Because the jury determined she had acted recklessly in failing to render care, rather than intentionally or knowingly, she was ineligible for felony murder and therefore acquitted on Count Five. Id. at 1163–64.

Jones was tried before a jury in April 1995. Id. at 1164. The trial judge instructed the jurors that the sexual assault charge (Count One) and two of the child abuse charges (Counts Two and Four) could be predicate felonies for the felony murder charge (Count Five) if Jones committed them intentionally or knowingly under circumstances likely to produce death or serious physical injury. Id.

On April 14, 1995, Jones was convicted of one count of sexual assault, three counts of child abuse, and felony murder. State v. Jones , 188 Ariz. 388, 937 P.2d 310, 313 (1997) (" Jones State "). The jury did not specify which specific felony or felonies—out of Counts One, Two, and Four—it found as a predicate for felony murder under Count Five. The jurors found that both child abuse charges that qualified as predicate felonies were committed intentionally or knowingly under circumstances likely to cause serious physical injury or death. Jones Habeas , 327 F. Supp. 3d at 1164.

After finding two statutory aggravating factors—that the crime was especially cruel, A.R.S. § 13-703(F)(6), and the victim was under the age of fifteen, A.R.S. § 13-703(F)(9) —and no statutory or non-statutory mitigating factors, the trial judge sentenced Jones to death for the murder.³ Jones State , 937 P.2d 310 at 313. The trial court sentenced him to a term of 27 years on Count One, 35 years on Count Two as a class two felony, 3.75 years on Count Three, and life imprisonment on Count Four as a dangerous crime against children in the first degree with two prior predicate felony convictions. A.R.S. §§ 13-604.01(F), 13-604.01(J)(1)(h) (1994).

The Arizona Supreme Court affirmed Jones's convictions and...