Tuesday, February 28, 2012

Editorial note: This is an Az FPD case.

Towery v. Ryan, No. 12-15071 (2-27-12) (per curiam by Schroeder, Fisher and N. Smith).

Petitioner is under an Arizona warrant and facing execution on March 8. He argues that his counsel's failure to raise an Eddings-Tennard claim (no need for nexus between mitigation and act to consider mitigation) amounts to abandonment, citing Holland and Maples. The 9th holds that there was no abandonment by counsel. Sure, there could well be negligence, states the 9th, but it does not rise to severing the ties with client as required under an abandonment theory. Counsel just missed a key colorable claim, but he was still representing the client in pursuing other claims. Turning to the claim, the 9th, in dicta, finds it tenuous because the state courts seemingly did consider the presented mitigation. The 9th does note that: "One could question the wisdom of the Arizona Supreme Court's decision to accord Towery's evidence little or no weight." (emphasis in original; citations omitted)(p.24). Still, the decision was an individualized one, and thus not contrary to Supreme Court precedent.


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