Wednesday, June 19, 2013

Henry v. Ryan, No. 09-99007 (Fisher, author, with Tallman and Berzon) --- Full disclosure: this is an Arizona FPD case.

The Ninth Circuit affirmed the denial of a ยง 2254 petition filed by an Arizona death-row prisoner.

(A) The court exercised its discretion to deny a Bradyclaim on the merits because the district court did so in an alternative ruling and the merits had been fully briefed by the parties.

(B) The prosecution did not violate Bradyby failing to disclose drawings and other notes prepared by the petitioner's codefendant at the request of the police. They amount to inadmissible hearsay (not a statement against interest insofar as the codefendant was trying to shift the blame to the petitioner), and in any event they were primarily inculpatory and only a little exculpatory. Moreover, "significant other circumstantial evidence" supported the jury's verdict, and in any event the petitioner had been charged with both premeditated and felony murder, so evidence relating to relative lack of culpability wasn't necessarily exculpatory.

(C) On a second Brady claim, the court resolved it on the basis of a procedural default based on an express procedural bar invoked by the state postconviction court. The petitioner did not qualify for an exception to the state procedural bar based on newly discovered evidence, see Ariz. R. Crim. P. 32.1(e), because his claim reled not only newly discovered evidence but a new analysis of previously existing evidence. Nor did he qualify for the exception for actual innocence, seeAriz. R. Crim. P. 32.1(h), because of the ample evidence of guilty against him. The state procedural bar thus supported federal procedural default. Nor could he show cause and prejudice to excuse the default pursuant to Banks v. Dretke, 540 U.S. 668 (2004), because the prosecution's suppression of the evidence was not the reason for the default on this Brady claim. The petitioner "not only suspected but alleged and had evidentiary support for his claim more than a decade before commencing federal habeas proceedings" [i.e., during state postconviction proceedings].

(D) Although the court was "skeptical" that the petitioner had not procedurally defaulted his Napue claim, the court reached the merits because the parties briefed the merits. The claim failed on the merits because the petitioner did not establish that a police detective knowingly perjured himself at trial.

(E) The petitioner's claim of juror misconduct stemming from the jury's conducting an out-of-court experiment of staging the crime scene was not sufficiently meritorious to warrant a certificate of appealability. The error did not have a substantial and injurious effect on the verdict, because it was reasonable for the state postconviction court to conclude that the experiment merely confirmed what jurors, using their common sense, already knew. Nor was an evidentiary hearing warranted on this claim, because the district court may not speculate on the subjective impact of the experiment on the jurors' thought process.

(F) The court expanded the COA to cover the petitioner's claim under Tennard v. Dretke, 542 U.S. 274 (2004). Any failre to consider mitigating evidence that lacked a causal connection to the crime was harmless. The sentencing judge considered that mitigating evidence as a statutory mitigating factor, which under Arizona law required a causal connection, and concluded it did not warrant leniency; a fortiori, considering it without the causal connection could not have affected the sentence.

(G) The failure of counsel at the petitioner's capital resentencing proceeding to present additional mitigating evidence relating to sexual abuse the petitioner suffered at the hands of his father was not prejudicial because that additional evidence would have allowed counsel merely to emphasize such evidence that was already in the record. In state postconviction proceedings, the petitioner refused to cooperate with an expert hired by his counsel. PCR counsel thus did not present the expert's report. Evidence from this expert thus would not have been persuasive to the sentencing judge.

The decision is here:


Post a Comment

<< Home