White v. Ryan

Michael Ray White, Petitioner, v. Charles L. Ryan, et al., Respondents.

No. CV-08-08139-PCT-SPL

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

July 10, 2015

ORDER

(Death Penalty Case)

Before the Court are Petitioner's Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 273) and Motion for Evidentiary Development (Doc. 277), which are fully briefed. For the reasons that follow, the Court concludes that Petitioner is not entitled to relief, and will deny his petition.

I. Background

A. State Proceedings

In 1988, a jury convicted Petitioner of first-degree murder and conspiracy to commit first-degree murder. The trial court sentenced him to life without possibility of parole for 25 years for the conspiracy and imposed the death penalty for the first-degree murder. The Arizona Supreme Court affirmed. State v. White (White I), 168 Ariz. 500, 815 P.2d 869 (1991).

In 1992, Petitioner filed a petition for post-conviction relief ("PCR"). He filed an amended petition in 1995. The trial court granted Petitioner a new sentencing on grounds of ineffective assistance of counsel during the initial sentencing proceedings. Onresentencing, Petitioner again received a life sentence without possibility of parole for 25 years for the conspiracy and a death sentence for the murder. The Arizona Supreme Court again affirmed. State v. White (White II), 194 Ariz. 344, 347-49, 982 P.2d 819, 822-24 (1999). Except where otherwise indicated, the following factual summary is taken from White II.

At approximately 11 p.m. on December 12, 1987, neighbors of David and Susan Johnson (David and Susan) heard gunshots at the Johnson residence in Bagdad, Arizona. Neighbors saw a man run from the residence, enter a green car, and speed away. David walked to a neighbor's home and collapsed. He had been shot in the chin and in the back with a .357 magnum revolver. Before dying, David identified the shooter as a man wearing a mask.

The police investigation soon focused on Petitioner and Susan. Police learned that Petitioner met Susan in January 1987, when the two worked at a nursing home in Prescott, Arizona. In April 1987, the couple went to Michigan. Susan returned to Prescott the following October and married David. Petitioner also returned and resumed his affair with Susan.

On November 25, 1987, Susan obtained a $65,000 life insurance policy on David. Susan was the named beneficiary. There was also a change of beneficiary in David's existing employee group life insurance. Susan obtained the change form on December 7, 1987, and returned it fully executed on December 10, two days before the murder. The form added Susan and her children as beneficiaries.

Petitioner told several people that Susan had asked him to kill David. He also told his ex-wife that he was soon going to receive $100,000.

The police learned that Petitioner made a down payment on a revolver at a Prescott pawn shop on November 19, 1987. He later made another payment and picked up the gun. After David was shot, Petitioner sold the revolver to a Phoenix pawn shop. It was later recovered and identified as the weapon used to kill David. Petitioner's car was also identified as the green vehicle driven from the murder scene.

Petitioner was arrested in Phoenix on December 19, 1987. Police searched the car and found a box of .38 caliber bullets, a ski mask, and a bag of potatoes. At the time of the shooting, the killer had placed a potato over the barrel of the revolver to act as a silencer. Pieces of dried potato were found at the crime scene, and potato starch was found on the gun barrel.

Petitioner's trial was severed from Susan's. Petitioner was represented by attorney Chester Lockwood.

The jury convicted Petitioner on both the conspiracy and murder counts. At the presentencing hearing, the State argued that the crime was motivated by Petitioner's intent to benefit from the insurance proceeds on the victim's life. Petitioner contended that the evidence did not establish that his involvement in the killing was for financial gain. The court disagreed and found that the State had proved the pecuniary gain aggravating factor.

Petitioner presented no evidence of mitigation but argued that the absence of a prior criminal record was a mitigating circumstance. The trial court also considered the following facts in mitigation: Petitioner's natural father left home when Petitioner was 18 months old, his first stepfather was an alcoholic, and he was raised by his mother; Petitioner had dependent personality traits and admitted to past heroin, cocaine, and amphetamine use and addiction; Petitioner was unable to form and maintain close personal relationships; although he generally had difficulty acting responsibly, Petitioner did well in his nursing home employment and had been a productive person during various periods of his life; he had no prior record of abuse or violent behavior; and he expressed sorrow for David's death. The court found these circumstances insufficient to call for leniency and sentenced Petitioner to death for David's murder. (SER 24.)¹ The Arizona Supreme Court affirmed on direct appeal. White I, 168 Ariz. 500, 815 P.2d 869.

Susan Johnson was subsequently convicted of conspiracy to commit first-degreemurder and first-degree murder. She received consecutive life sentences.²

Petitioner returned to the trial court for PCR proceedings. He was represented by Douglas McVay, who filed a PCR petition alleging numerous grounds of ineffectiveness of counsel at trial and sentencing. The court granted the petition on the sentencing claims and ordered a new mitigation hearing and sentencing proceeding. McVay also represented Petitioner at resentencing and on direct appeal from the resentencing.

At the resentencing hearing in August 1996, the prosecution offered no new evidence of aggravation. McVay presented evidence that the prosecutors at Petitioner's first trial and sentencing believed the State should not have sought the death penalty. (RT 8/27/96.)³

McVay proffered other mitigating circumstances. He argued that Petitioner was capable of being rehabilitated; that he was an involved parent to his daughter; that co-defendant Susan Johnson was the "mastermind" behind the crimes and therefore Petitioner's death sentence was unfair and disproportionate to Johnson's sentence; and the murder represented "aberrant behavior" for Petitioner. (SER 122-32.)

The trial court again found the pecuniary gain aggravating factor had been proven. (SER 138.) The court considered the mitigating factors urged by Petitioner but found them insufficient to call for leniency. (SER 139-45.)

On direct appeal the Arizona Supreme Court again affirmed:

Based on our independent review of the sentence imposed on the defendant we conclude that the state has proved beyond a reasonable doubt the aggravating circumstance that Michael Ray White murdered David Johnson in anticipation of substantial pecuniary gain. We further conclude, in view of the calculated scheme which resulted in Johnson's death, that the mitigating factors raised by the defendant and discussed in this opinion, whether viewed individually or cumulatively, are insufficient to warrant a mitigation of sentence. They neither outweigh nor are they equal to the statutory aggravating circumstance present in this case. Defendant's capital sentence is therefore affirmed.

White II, 194 Ariz. at 356, 982 P.2d at 831.

Petitioner, represented by new counsel, returned to the trial court for another round of PCR proceedings, this time alleging that McVay had performed ineffectively at resentencing by failing to adequately investigate Petitioner's mental health issues. (See SER 247.) Petitioner filed an amended PCR petition on May 2, 2005. (PR doc. 7, Ex. F.)⁴

The court held an evidentiary hearing on November 5, 2007. Petitioner was represented by attorney Kerrie Droban. Two witnesses testified on Petitioner's behalf, counsel McVay and Keith Rohman, a mitigation specialist. (RT 11/5/07.) McVay acknowledged that he did not attempt to secure Petitioner's medical or psychological records. (Id. at 29, 50-51.) Rohman testified about Petitioner's physical and mental illnesses and other information gained in his mitigation investigation. (Id. at 92-93, 146.)

The court denied relief. (SER 271.) The court found that McVay did not perform deficiently at resentencing under prevailing professional norms and that Petitioner was not prejudiced. (Id.)

Droban filed a petition for review in the Arizona Supreme Court raising two issues: that McVay failed to contest the pecuniary gain aggravating factor and failed to conduct a mitigation investigation concerning Petitioner's "mental health, social history, and atrocious childhood." (SER 273-74.) The Supreme Court denied the petition without comment on October 28, 2008, and issued a warrant for Petitioner's execution. (SER 293.)

B. Federal Proceedings

Petitioner filed a motion for stay of execution, a motion for appointment of federal habeas counsel, and a statement of intent to file a federal habeas petition in this Court. (Docs. 1-5.) On October 29, 2008, the Court issued a stay of execution and appointed the Federal Public Defender's Office to represent Petitioner in his federal habeas proceedings, with Droban serving as co-counsel. (Docs. 7, 8.)

The initial petition for writ of habeas corpus was filed on December 22, 2008. (Doc. 23.) The Court ordered Petitioner to submit an amended petition no later than July 17, 2009. (Doc. 35.) Petitioner's counsel sought additional time to file the amended petition, raising concerns about Petitioner's competency pursuant to Rohan ex rel. Gates v. Woodford, 334 F.3d 803 (9th Cir. 2003).⁵ (Doc. 42.) On September 23, 2009, counsel filed a motion to determine competency and to stay the habeas proceedings, which the Court granted. (Docs. 66, 68.)

Petitioner was evaluated by a court-appointed expert and experts for the parties. On September 28, 2010, the parties...