In Dickens v. Ryan,
08-99017 (9th Cir. Jan. 23, 2013) (en banc), the Ninth Circuit affirmed
the denial of Arizona death row inmate Gregory Dickens’s Edmund/Tison
claim but remanded the case to the district court for consideration of
whether Dickens could show cause and prejudice for the procedural
default of an ineffective assistance of counsel (IAC) at sentencing
A majority of the en banc court (N.R. Smith, Ikuta, Watford Kozinski, Bybee and Callahan) found that the Arizona Supreme Court did not unreasonably conclude that Dickens was a major participant in the robbery/murders for which he was sentenced to death and that he acted with reckless indifference to human life. The majority also rejected Dickens’s challenges to the state court’s factual findings. Kozinski, joined by Bybee and Callahan, wrote separately to express the view that not only was the state supreme court’s ruling on the claim not unreasonable, it was correct. Watford penned a concurrence, stating that he would have found an Eighth Amendment violation if the claim could have been considered de novo. Christen, joined by Pregerson, Wardlaw, Berzon and Murguia, dissented from the majority’s ruling on this claim, finding that the death sentence in this case is an unreasonable application of Supreme Court precedent and that at least two unreasonable findings of fact were critical to the Arizona Supreme Court’s decision affirming the sentence.
A larger majority of the en banc court (N.R. Smith, Ikuta, Watford, Pregerson, Wardlaw, Berzon, Murguia and Christen) concluded that Dickens was entitled to a remand on his IAC claim. The majority found that the claim that trial counsel was ineffective at sentencing for failing to obtain and present evidence of organic brain damage and FAS had not been presented to the state court and the claim was now procedurally defaulted. Although Dickens had challenged in state court trial counsel’s sentencing phase performance, he had not raised the specific allegations about brain damage and FAS. The majority found that the new allegations fundamentally altered the claim, noting that in state court Dickens had only generally alleged that trial counsel had failed to effectively evaluate whether Dickens suffered from any medical or mental impairment. The majority then found that remand was appropriate for consideration of whether Martinez (i.e., IAC by post-conviction counsel) provides cause to overcome the default. The majority rejected the state’s argument that Pinholster barred Dickens from presenting new evidence in federal court. This was because the new evidence made the claim itself a new one, one that had not been adjudicated on the merits by the state courts. That Dickens had other IAC claims that were adjudicated on the merits by the state courts did not foreclose the new IAC claim. The majority also found that § 2254(e)(2) “does not bar a hearing before the district court to allow a petitioner to show ‘cause’ under Martinez,” or to establish prejudice, i.e., that the trial IAC claim is substantial. Finally, the majority concluded that a petitioner need not have argued in state court that post-conviction counsel was ineffective in order to raise that ineffectiveness in federal court as cause to overcome a procedural default.
Callahan, with Kozinski and Bybee, dissented from the remand. She first contended that Martinez is inapplicable because: (1) Dickens did raise a claim of trial ineffectiveness in his post-conviction petition; and (2) Dickens did not seek to raise the “new” trial IAC claim in a successor state petition. Callahan reasoned: “Because Dickens’s claim was not procedurally barred by the Arizona state courts, he does not need, and cannot qualify for, the Martinez exception . . ..” Unlike the majority, Callahan concluded that Pinholster precluded the federal courts from considering the new IAC allegations. According to Callahan, the proper course would be for Dickens to seek a stay of federal proceedings while he attempted to exhaust the new facts, although she did acknowledge that the state may have waived any argument that the claim is not procedurally defaulted. Even assuming that the Martinez exception were applicable to Dickens’s claim, Callahan would hold that the denial of relief was proper because the record showed that Dickens had not raised a new claim. Her conclusion was supported, inter alia, by Dickens’s pre-Martinez argument that the new evidence did not render the IAC claim unexhausted. Finally, even assuming that Martinez applied and that Dickens had raised a new claim, Callahan found that Dickens could not establish cause or prejudice. In her view, there was nothing in the record to suggest that trial counsel knew or should have known that Dickens possibly suffered from organic brain damage and FAS. Nor did she believe that Dickens could show prejudice.