Miles v. Ryan

713 F.3d 477

Kevin Artice MILES, Petitioner–Appellant,

v.Charles L. RYAN, Director, Arizona Department of Corrections, Respondent–Appellee.

No. 10–99016.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 16, 2012.

Filed Aug. 27, 2012.

Amended March 25, 2013.

Sean Bruner, Law Office of Sean Bruner, Ltd., and Timothy M. Gabrielsen, Assistant Federal Public Defender, Tucson, AZ, for Petitioner–Appellant.

Jonathan Bass, Assistant Attorney General, Criminal Appeals/Capital Litigation Section, Tucson, AZ, for Respondent–Appellee.

Appeal from the United States District Court for the District of Arizona, Raner C. Collins, District Judge, Presiding. D.C. No. 4:01–cv–00645–RCC.

Before: SUSAN P. GRABER, MARSHA S. BERZON, and RICHARD C. TALLMAN, Circuit Judges.

Opinion by Judge GRABER; Partial Concurrence and Partial Dissent by Judge BERZON.

ORDER

The opinion filed on August 27, 2012, slip op. 9797, and appearing at 691 F.3d 1127, is amended as follows:

On slip opinion page 9827 , replace lines 6 through 15 with the following:

Even though Petitioner has now uncovered, during federal habeas proceedings, some new information that was not presented to the state courts during post-conviction review, that evidence is insufficient to demonstrate that his lawyer's investigation during the state-court proceedings was objectively unreasonable. As detailed above, his counsel conducted an extensive investigation during post-conviction review, obtaining a psychologist to perform further testing and hiring an investigator who visited Petitioner's home town and interviewed many people who knew him and his mother.

With this amendment, Judges Graber and Tallman have voted to deny Petitioner–Appellant's petition for rehearing and petition for rehearing en banc. Judge Berzon has voted to grant the petition for rehearing and petition for rehearing en banc.

The full court was advised of the petition for rehearing en banc. A judge of the court called for a vote on whether to rehear the matter en banc. The majority of the nonrecused active judges failed to vote in favor of en banc rehearing.

Petitioner–Appellant's petition for rehearing and petition for rehearing en banc are DENIED. No further petitions for rehearing or for rehearing en banc shall be entertained.

OPINION

GRABER, Circuit Judge:

Petitioner Kevin Artice Miles appeals the district court's denial of his habeas petition, brought pursuant to 28 U.S.C. § 2254. Petitioner challenges only his capital sentence; he does not challenge his underlying felony murder conviction, arising from his role in a car-jacking.¹ Petitioner argues that his counsel was ineffective at sentencing because she failed to focus on Petitioner's drug addiction (rather than on intoxication), enlisted an unqualified expert, and failed to investigate Petitioner's social history thoroughly enough.

We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253, and we affirm.

FACTUAL AND PROCEDURAL HISTORY

A. The Crime

On an afternoon late in 1992, Petitioner was standing on a street corner in Tucson, Arizona, with Levi Jackson and Ray Hernandez. Jackson was carrying a pistol that the three of them had just obtained together; he had told Petitioner and Hernandez of his plan to commit a car-jacking. Specifically, according to Petitioner's post-arrest statement to the police, Jackson had told them that he was “gonna get somebody's car, take 'em off in the middle of the desert, and shoot 'em.” At the time, Jackson and Hernandez were both 16 years old. Petitioner was 24 years old.

When Patricia Baeuerlen drove up and stopped at the corner, Jackson approached her car and asked for “a light.” When she turned to reach her cigarette lighter, Jackson pointed the weapon at her and told her to move over. He unlocked the car to allow Petitioner and Hernandez to enter and sit in the rear. While Jackson drove the car out to the desert, Hernandez held the pistol, but Petitioner also held it at some point. They drove Baeuerlen out of the city, into the desert, and stopped at a dirt road. There, Jackson told Baeuerlen to get out of the car and take off her shoes and jacket. She obeyed. After taunting and harassing Baeuerlen for five to ten minutes, Jackson suddenly shot her in the chest. Baeuerlen died as a result of the gunshot. According to testimony presented at trial and sentencing, Jackson—not Petitioner—shot Baeuerlen as he and Petitioner were walking away from Baeuerlen and returning to the car. Throughout the ordeal, starting with the drive to the desert, Baeuerlen was pleading for her life.

After the shooting, Jackson, Petitioner, and Hernandez drove away. According to Petitioner's post-arrest statement, he thought that Baeuerlen was still alive when they left her in the desert. No one sought help for Baeuerlen. Later the same day, Petitioner used Baeuerlen's ATM card, and a PIN that he had found in her belongings, to take money out of her bank account. The next day, Petitioner drove Baeuerlen's car to Phoenix, where he went shopping at malls, exchanged Baeuerlen's children's Christmas presents for other goods, and went drinking with old friends. Petitioner told those friends about the murder, insisting that he did not pull the trigger, but smiling and laughing as he related the events.

B. Arrest and Interrogation

In the early hours of the following morning, that is, the second day after the murder, police arrested Petitioner in Chandler, Arizona, following a high-speed chase in Baeuerlen's car. The police found Baeuerlen's ATM card, credit card, jewelry, and other personal items in his possession. Later that morning, Tucson detectives began a tape-recorded interrogation that lasted about five hours. During the interrogation, Petitioner initially explained his possession of the car by telling the detectives two different stories, neither of which placed him at the scene of the murder. But, after several hours of interrogation, Petitioner admitted to his involvement in the murder. Specifically, he admitted to knowing of Jackson's plan to car-jack and shoot someone, to participating in obtaining the pistol with Jackson and Hernandez, to holding the weapon at some point during the drive out to the desert, and to watching Jackson shoot Baeuerlen.

C. Trial and Sentencing

Soon after Petitioner's arrest, Barbara Sattler was appointed as his counsel and represented him through trial and sentencing. After a jury convicted Petitioner of first-degree felony murder, dangerous kidnapping, and dangerous armed robbery,² the trial court reviewed a pre-sentence report (“PSR”) and held a sentencing hearing.

The PSR states that the crime occurred at around 1:30 p.m. and that Petitioner reported having used crack cocaine “four or five hours earlier” and not having slept the night before. The PSR also contains statements from Petitioner that he expected to get money from the car-jacking and that he wanted to commit another robbery with the pistol. The PSR repeats Petitioner's assertions that he did not believe that Jackson would kill Baeuerlen and that Petitioner thought that Jackson would have killed him if he had tried to stop the murder.

The social history section of the PSR contains the following information. Petitioner was adopted at the age of 4 months. His adoptive mother was an alcoholic who nevertheless maintained employment, eventually rising past jobs as a waitress and cook to become a nursing home administrator. Although Petitioner is black, his adoptive mother was white, which caused some degree of social problems; those problems grew worse when Petitioner and his mother moved to a more affluent neighborhood. Petitioner found a way to fit in by becoming a “class clown” and by playing basketball. Indeed, despite poor grades, he graduated from high school and won a basketball scholarship to a Bible college, but he dropped out of college after only a week. Petitioner later served in the Navy, where he was disciplined for substance abuse and assault before receiving an other-than-honorable discharge. He also married and had a child, though he later grew apart from his wife and began using drugs. His wife eventually left him, leading him to be evicted from their apartment. A month later, his mother died, and his drug habit grew worse.

At the sentencing hearing, Sattler called an expert, Dr. Martin Levy, Ph.D., to discuss Petitioner's drug use. Dr. Levy is a clinical psychologist who had evaluated Petitioner during a two-hour session. Dr. Levy testified that Petitioner reported using crack cocaine the night before the car-jacking. In particular, Dr. Levy testified that Petitioner's “mental state was compromised by intoxication ... with cocaine.” (Emphasis added.) Dr. Levy also testified that Petitioner's description of his mental state during the crime suggested a state of “disassociat[ion],” ³ which was consistent with Petitioner's reported drug use.

The prosecutor objected to Dr. Levy's testimony on the ground that it lacked foundation. The sentencing judge agreed and determined that, because Dr. Levy had insufficient knowledge of when and in what quantities Petitioner used drugs, he could not testify with specificity as to Petitioner's level of impairment or judgment at the time of the crime. Nevertheless, in Sattler's closing argument, she reiterated her position that Petitioner was “under the influence of drugs and alcohol that day.”

Sattler focused only briefly on Petitioner's social history at sentencing. Two character witnesses testified about his background and his nonviolent nature.⁴ Indeed, Sattler's closing arguments characterize him as a relatively normal person—one who graduated from high school, who usually maintained gainful employment, who served in the military and completed most of his term of service, who married, and who had a child—but who made some mistakes after his wife left and his mother died.

Ultimately, the trial judge sentenced Petitioner to death by lethal injection.⁵ In so...