Lee v. Thornell

108 F.4th 1148

Darrel Eston LEE, Petitioner-Appellant, v. Ryan THORNELL, Respondent-Appellee.

No. 10-99022

United States Court of Appeals, Ninth Circuit

Argued and Submitted September 19, 2023 San Francisco, California

Filed July 24, 2024

Appeal from the United States District Court for the District of Arizona John J. Tuchi, District Judge, Presiding, D.C. No. 2:04-cv-00039-JJT

Timothy M. Gabrielsen (argued), Assistant Federal Public Defender; Jon M. Sands, Federal Public Defender, District of Arizona, Federal Public Defender's Office, Tucson, Arizona; Stephen E. Eberhardt, Law Offices of Stephen E. Eberhardt, Tinley Park, Illinois; for Petitioner-Appellant.

Laura P. Chiasson (argued), Assistant Attorney General, Capital Litigation Section; Lacy Stover Gard, Chief Counsel; Jeffrey L. Sparks, Deputy Solicitor General, Section Chief of Capital Litigation; Mark Brnovich, Former Attorney General; Kristin K. Mayes, Attorney General; Office of the Arizona Attorney General, Tucson, Arizona; Jim Nielsen, Assistant Attorney General, Office of the Arizona Attorney General, Phoenix, Arizona; for Respondent-Appellee.

Before: William A. Fletcher, Eric D. Miller, and Lawrence VanDyke, Circuit Judges.

OPINION

MILLER, Circuit Judge:

Darrel Eston Lee, an Arizona prisoner under sentence of death, appeals the district court's denial of his petition for a writ of habeas corpus. He contends that his trial counsel was ineffective in allowing him to testify falsely and in failing to investigate and present mitigating evidence. In support of his claims, Lee sought to introduce evidence that he did not present in state court. But with limited exceptions, a federal court may not hold an evidentiary hearing when a habeas petitioner has failed to develop the factual basis for his claims in state court. The district court therefore correctly declined to consider Lee's new evidence and, based on the state-court record, correctly concluded that the state court's rejection of his claims was reasonable. We affirm.

I

On December 5, 1991, Lee and a companion, Karen Thompson, approached John Calvin Anderson in Phoenix and asked him for a ride. Once in the car, Lee pretended to be armed and forced Anderson to drive to an ATM, where Lee and Thompson took Anderson's wallet and used his card to get money for drugs. They then drove toward Tucson. As Anderson pleaded for his life, Lee and Thompson bound his hands and feet and left him in a ditch on the side of the road. Thompson had second thoughts about leaving Anderson, so she and Lee returned and placed him in the trunk of the car. They drove back to Phoenix and then toward California, all the while with Anderson in the trunk.

Lee and Thompson ultimately decided to kill Anderson. Lee decided that they should asphyxiate Anderson with car exhaust by placing one end of a hose in the tailpipe and the other in the trunk. But the attempt failed when Anderson pushed open the trunk and let out the fumes. As Lee and Thompson argued about what to do next, Anderson escaped from the trunk and began to flee. Lee chased Anderson and wrestled with him, and Thompson brought Lee a belt with which to strangle Anderson. When the belt broke, Lee told Thompson to get a rock. As Lee continued to wrestle with Anderson, Thompson struck Anderson on the head with the rock, killing him. Lee and Thompson put Anderson's body in the trunk and drove to Tucson to buy a shovel, which they used to bury Anderson in a shallow grave outside the city.

An Arizona grand jury indicted Lee and Thompson on one count each of first-degree murder, kidnapping, theft, armed robbery, and credit-card theft. Thompson pleaded guilty to first-degree murder and armed robbery and agreed to testify against Lee. The State offered Lee a plea agreement under which the State would not pursue the death penalty. Lee first accepted the offer, then rejected it and proceeded to trial. At trial, Thompson testified that Lee was with her and assisted with Anderson's kidnapping and murder. Lee, however, testified that he was not present at the scene of the murder and was not with Thompson at the time.

The jury found Lee guilty on all counts. At the time of Lee's trial, Arizona law required the trial judge to make findings relevant to capital punishment and to determine the appropriate sentence. See Ring v. Arizona, 536 U.S. 584, 609, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) (holding that the Sixth Amendment requires that a jury determine the existence of facts making a defendant eligible for capital punishment); Schriro v. Summerlin, 542 U.S. 348, 358, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004) (holding that Ring does not apply retroactively to cases already final on direct review). The judge therefore held an aggravation-mitigation hearing.

Before the hearing, the defense requested that Dr. Leonardo García-Buñuel, a forensic psychiatrist, examine Lee. Dr. García-Buñuel did so and prepared a written report. At the hearing, the prosecution presented no witnesses and relied on the evidence presented at trial. The defense also presented no witnesses, but it introduced Dr. García-Buñuel's report, copies of Lee's high-school records, and a letter from Lee's mother in which she asked that his life be spared. The judge sentenced Lee to death. On direct appeal, the Arizona Supreme Court affirmed. State v. Lee, 185 Ariz. 549, 917 P.2d 692, 703 (1996).

Lee pursued state postconviction relief. As relevant here, he argued that his trial counsel, Stephen Politi, had provided ineffective assistance in two different ways: first, by allowing him to present an alibi defense, and, second, by failing to investigate and present mitigating evidence at sentencing. The state postconviction relief court held a four-day evidentiary hearing. Lee presented testimony from several witnesses, including Politi, Lee's appellate counsel, the prosecutor, the prosecution's lead detective, Lee's mother, a mitigation specialist, an expert on ineffective assistance of counsel, and two psychiatric experts.

Lee asserted that Politi had acted unethically—and therefore performed deficiently—by presenting an alibi that Politi knew to be false. Although Lee did not testify at the postconviction relief hearing, he submitted an affidavit in which he alleged that "[d]uring one of our first in-depth meetings, early on in the case, I told Mr. Politi about my involvement in this case." Lee claimed that he was prejudiced by Politi's conduct because the false alibi caused the sentencing judge to discount his remorse as a mitigating factor.

For his part, Politi testified that when the prosecution offered a plea agreement, he had "advised [Lee] very strongly to take the deal" because it "was the best that I could do for him." To persuade Lee to accept the offer, Politi said, he had enlisted the support of his supervisor, Michael Burke, as well as Lee's parents. Lee accepted the deal but then changed his mind, opting to go to trial and pursue an alibi defense. Politi and Burke both testified that Lee hoped such a defense would end with a full acquittal. As Politi explained, "the only acceptable result as far as [Lee] was concerned was that . . . he would go to trial, be found not guilty on all counts, and then walk away." Politi also suggested that Lee had not confessed to him.

The state postconviction court denied relief. As to the claim based on the alibi, the court stated that it could not "conclude that Mr. Lee confessed the crime of murder to Mr. Politi or that Mr. Politi acted unethically." The court also determined that even if Politi had acted unethically, there was no prejudice to Lee because "Lee's remorse was argued to the judge at sentencing and the judge actually found that as mitigating." The court further concluded that Politi had not provided ineffective assistance at the aggravation-mitigation hearing. The court explained that Politi "did search for mitigation," including by talking to Lee about his background, talking to Lee's family, reviewing Lee's medical and school records, and hiring a doctor to examine Lee. The court noted that Lee had identified no other evidence "that Politi could have presented." Ultimately, the court concluded, the lack of mitigating evidence "was due more to the fact that there was none, rather than to Politi's lassitude or incompetence." The Arizona Supreme Court summarily denied review.

Lee then petitioned for a writ of habeas corpus in federal court. The district court denied the petition. To support his claim based on the alibi, Lee proffered a 1992 transcript of the prosecutor's interview of his father, in which the prosecutor recalled Lee's telling him that he was at the crime scene. The district court declined to consider the transcript because Lee failed to present it in state court, "despite the fact that it was in the defense file and available to [him]." After a review of the state-court record, the district court concluded that the state court's "findings [were] not unreasonable." The district court noted that it was unclear whether Lee told Politi that he was present during the crime, and that even if he had, "it would have been reasonable for counsel to discount this assertion given [Lee's] conflicting stories." The court also observed that Lee's "own expert testified that counsel's obligations with respect to a client whom an attorney suspects is not truthful are not always clear; thus it was not outside the wide range of professional assistance for Politi to continue his representation after [Lee] insisted on pursuing an alibi defense."

Lee sought an evidentiary hearing and expansion of the record to support his claim that Politi should have gathered additional mitigating evidence. Specifically, he sought to introduce declarations from various family members, social-history records, prison records from an earlier period of incarceration, medical records, and a declaration from his trial investigator.

Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDP...