No.

Court, U.$.FILED

OFFICE OF T[t’~ C;LER~

IN THESUPREME COURT OF THE UNITED STATES

DORA B. SCHRIRO, DIRECTOR, ARIZONADEPARTMENT OF CORRECTIONS,

Petitioner,VS.

MICHAEL EMERSON CORRELL,

Respondent.

On Petition for Writ of CertiorariTo the United States Court of Appeals For the Ninth

Circuit

PETITION FOR WRIT OF CERTIORARI

TERRY GODDARDAttorney General

MARY R. O’GRADYSolicitor General

KENT E. CATTANIChief Counsel

Capital Litigation Section

J. D. NIELSENAssistant Attorney General(Attorney of Record)Capital Litigation Section1275 W. WashingtonPhoenix, Arizona 85007Telephone: (602) 542-4686

CAPITAL CASE

QUESTIONS PRESENTED

In 2001, pursuant to a remand to address aclaim of ineffective assistance of counsel, the districtcourt held a 9-day evidentiary hearing during which itheard testimony from 17 witnesses, 14 of whom werecalled by Correll, and reviewed voluminous documents.In a detailed 109-page decision issued in 2003, thedistrict court found that Correll was not prejudiced dueto any deficient performance on counsel’s part.

The Ninth Circuit reversed the decision in 2008,notwithstanding the district court’s careful findings. Asthe dissenting judges noted,

[t]he panel majority’s opinion reweighs theevidence before the district court and reversesits conclusion by ignoring the district court’sfactual findings as well as the second prong ofthe Strick]and test for ineffective assistance ofcounsel. The majority opinion collapses the twoStrickland prongs into one prong. The opinionimphes that if counsel makes a strategicdecision not to investigate or present what itcalls "classic mitigating circumstances" thatwould nonetheless open the door to moredamaging aggravating evidence, prejudice willbe presumed ....

Corre]l v. Ryan (Correll V), ~ F.3d ~, 2008 WL2039074 (9th Cir. 2008) (Pet. App. A at 3) (Callahan, J.,dissenting from denial of rehearing en banc).

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1. Did the Ninth Circuit fail to appropriatelyafford deference to the district court’s factual findings?

2. Did the Ninth Circuit essentially ehminatethe prejudice prong of the StricMand analysis bypresuming prejudice, and by failing to consider thefacts and circumstances of the offense, the death"qualifying aggravating factors found at trial, Arizonalaw, and the rebuttal evidence the state would havepresented had the alleged omitted mitigation beenoffered?

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TABLE OF CONTENTS

PAGE

QUESTIONS PRESENTED FOR REVIEW ............iTABLE OF AUTHORITIES ....................................ivOPINION BELOW ..................................................viSTATEMENT OF JURISDICTION ........................viCONSTITUTIONAL PROVISIONS .......................viSTATEMENT OF THE CASE .................................1SUMMARY OF ARGUMENTS ................................4ARGUMENTS ...............................................................5, 18

I

THE NINTH CIRCUIT FAILED TO DEFER TO THEDISTRICT COURT’S FACTUAL FINDINGS ..................5

II

THE NINTH CIRCUIT ES SENTIALLY ELIMINATEDTHE PREJUDICE PRONG OF THE STRICKLANDANALYSIS BY PRESUMING PREJUDICE, AND BYFAILING TO CONSIDER THE FACTS ANDCIRCUMSTANCES OF THE OFFENSE, THEAGGRAVATING FACTORS FOUND AT TRIAL,ARIZONA LAW, AND THE REBUTTAL EVIDENCETHAT THE STATE WOULD HAVE PRESENTEDHAD THE ALLEGED OMITTED MITIGATIONBEEN OFFERED .............................................................18

CONCLUSION .......................................................27APPENDIX A ........................................................A- IAPPENDIX B ........................................................B-I

TABLE OF AUTHORITIES

CASES ....................................................................PAGE

Allen v. Woodford, 395 F.3d 979 (9th Cir. 2005) ......18Anderson v. City of Bessemer City, N.C.,

470 U.S. 564 (1985) ...........................................7Bernard Smith v. Stewart, 140 F.3d 1263 (Ariz.

1998) .......................................................................14Burger v. Kemp, 483 U.S. 776 (1987) .......................24Correll v. Ryan (Correll Ill), 465 F.3d 1006

(9th Cir. 2006) .............................................vi, 2Correll v. Ryan (Correll IV), CV 87-1471-PHX-SMM

(Pet. App. B) ............. 3, 5, 10, 13, 16, 17, 24, 25Correll v. Ryan (Correll V), __ F.3d __

2008 WL 2039074 (9th Cir. 2008).vi, 2, 3, 7, 8,................................ 11, 12, 14, 16, 18, 19, 21, 24, 26

Correll v. Stewart (Correll II), 137 F.3d 1404 (9thCir. 1998) .......................................................

Cuyler v. Sullivan, 466 U.S. 335 (1980) ...................20Darden v. Wainwright, 477 U.S. 169 (1986) ........................24Inwood Laboratories, Inc. v. Ives laboratories, Inc.,

456 U.S. 844 (1982) ........................................7Ring v. Arizona, 536 U.S. 584 (2002) .........................1State v. Bishop, 622 P.2d 478 (Ariz. 1980) ...............23State v. Correll (Correll I), 715 P.2d 721

(Ariz. 1986) .................................... vi, 1, 21, 22State v. Gerlaugh, 698 P.2d 694 (Ariz. 1985) ........... 23State v.State v.State v.State v.State v.

Hoskins, 14 P.3d 997 (Ariz. 2000) ...............23Jackson, 918 P.2d 1038 (Ariz. 1996) ...........23Medrano, 914 P.2d 192 (Ariz.1996) ............14Murdaugh, 97 P.3d 844 (Ariz. 2004) ...........22Vickers, 633 P.2d 315 (Ariz. 1981) ..............23

Strickland v. Washington, 466 U.S. 668 (1984) .... 4, 6,............................................................... 15, 18-22, 27

United States v. Cronic, 466 U.S. 648 (1984) ..........20United States v. Real Estate Boards, 339 U.S. 485

(1950) ........................................................................7Wiggins v. Smith, 539 U.S. 510 (2003) ........... 4, 18, 20

Statutes

A.R.S. § 13-703(G)(1) .................................................17

Rules

Rule 52(a) Fed. R. Civ. P .............................................6Rule 52(a)(6), Fed. R. Civ. P .......................................6

Constitutional Provisions

U.S. Const. amend VI ................................vi, 1, 20, 27U.S. Const. art. III, 2 ..............................................vi28 U.S.C. § 1254(1) ...................................................vi

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vi

OPINION BELOW

A panel of the United States Court of Appeals forthe Ninth Circuit (Judges Thomas and Schroeder)held, in an amended opinion, that Correll is entitled tobe resentenced based upon trial counsel’s allegeddeficient performance and resulting prejudice. JudgeO’Scannlain dissented. Correll v. Ryan ( Correl] V), mF.3d __, 2008 WL 2039074 (9th Cir. 2008) (Pet. App.A). The panel opinion reversed a decision by the UnitedStates District Court for the District of Arizona. CorreIlv. Ryan (CorreI] /l?), CV 87-1471-PHX-SMM (Pet.App. B). See also Correll v. Ryan ( Correll II1), 465 F.3d1006 (9th Cir. 2006); Correl] v. Stewart(Correll I1/), 137F.3d 1404 (9th Cir. 1998); State v. CorreII (Correl] 1),715 P.2d 721 (Ariz. 1986).

STATEMENT OF JURISDICTION

On May 14, 2008, the Ninth Circuit deniedPetitioner’s petition for rehearing en banc. Chief JudgeKozinski, and Judges Callahan, O’Scannlain, Kleinfeld,Tallman, Bea dissented. (Correl] V, Pet. App. A). Thispetition for writ of certiorari is timely filed within 90days of that decision, and this Court has jurisdictionpursuant to United States Constitution Article III,Section 2 and 28 U.S.C. § 1254(1).

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vii

CONSTITUTIONAL PROVISIONS

The Sixth Amendment to the United StatesConstitution provides:

In all criminal prosecutions, the accused shall enjoy theright to . . . have the assistance of Counsel for hisdefence.

Blank Paae

STATEMENT OF THE CASE

Following a jury trial, Correll was convicted of threecounts of first-degree murder, four counts ofkidnapping, one count of armed robbery, and one countof first-degree burglary, in connection with the 1984execution-style murders of Robin Cady and ShawnD’Brito, the strangulation death of Debra Rosen, andthe attempted murder of Guy Snelling.

The trial court found the existence of fouraggravating, death’qualifying circumstances: (1)Correll had previously been convicted of a violentfelony; (2) the offenses had been committed inexpectation of pecuniary gain; (3) the murders werecommitted in an especially cruel, heinous or depravedmanner; and (4) the offenses constituted a series ofmultiple homicides.~ The trial court concluded that themitigation evidence was insufficient to call forleniency, and sentenced Correll to death on the murdercounts, and to terms of imprisonment on the remainingcounts.

On direct appeal, the Arizona Supreme Court foundthat the record did not support a finding that Correllintended to kill victim Debra Rosen, and modifiedCorrell’s sentence for Rosen’s murder from death to lifeimprisonment. CorreI1 I, 715 P.2d. at 730--31. Withregard to the two other murder convictions, the court

~ Correll’s case was final before the Court decided R/~g v. Ar/zo~a,536 U.S. 584 (2002), in which the Court held that the SixthAmendment requires, in most cases, jurors to find at least onedeath-qualifying aggravating factor.

2

affirmed the existence of three of the aggravatingfactors found by the trial court, but denied the multiplehomicides aggravator, finding that the aggravatorbecame effective after the crimes were committed, butbefore Correll was sentenced. Id. at 734--35. Afterconducting both an independent review of theaggravating and mitigating circumstances, as well as aproportionality review, the court affirmed Correll’sdeath sentences with respect to the murders of RobinCady and Shawn D’Brito. Id. at 731-38.

In 1987, Correll filed a petition for post-convictionrelief, asserting multiple violations of hisconstitutional rights, including his right to effectiveassistance of counsel during the guilt and penaltyphases of trial. See Correl] III, 465 F.3d at 1009. Thetrial court summarily denied his petition, and theArizona Supreme Court summarily denied review. Id.

Correll then filed a petition for writ of habeascorpus in the United States District Court for theDistrict of Arizona, raising 53 claims of constitutionalviolations at trial, sentencing, and direct appeal.2 Id.The district court found 26 of Correll’s claims wereprocedurally barred, and granted summary judgmentagainst him on the remaining counts. Id.

In 1998, a panel of the United States Court ofAppeals for the Ninth Circuit affirmed the districtcourt’s decision, except for Correll’s contention that hewas entitled to an evidentiary hearing on his claim of

2 Correll filed his petition prior to the effective date of the AEDPA. (See

Correll V, Pet. App. A, A-25).

ineffective assistance of counsel at the sentencingphase of trial. The panel remanded the matter to thedistrict court with instructions to hold an evidentiaryhearing on the claim. Id.

On remand, the district court conducted a 9-dayevidentiary hearing in 2001, and found that Correllhad failed to prove that he was prejudiced from anydeficient performance on the part of sentencingcounsel. (See Carre]l IV,, Pet. App. B).

In 2006, a panel of the Ninth Circuit held, in a 2-1decision, that Correll was entitled to be re-sentencedbased on trial counsel’s alleged deficient performanceand resulting prejudice, reversing the district court.See Corre!l III.. Petitioners subsequently filed apetition for rehearing en banc, which was denied 19months later by a majority of the non-recused activejudges of the Ninth Circuit. Six Circuit Court judgesdissented from the denial of rehearing. (See Corre//V,Pet. App. A).

Concomitantly with the filing of the denial ofPetitioners’ petition for rehearing en banc, the originalpanel elected to file an amended opinion, in whichJudges Thomas and Schroeder once again held, overJudge O’Scannlain’s amended dissent, that Correll wasentitled to be resentenced. Id.

SUIVIIVIAEY OF ARGUIVIENTS

1. The Ninth Circuit failed to appropriately defer tothe district court’s factual findings. See Striekla~d v.Washi.ugto~, 466 U.S. 668, 698 (1984) ("district courtfindings are subject to the clearly erroneous standardof Federal Rule of Civil Procedure 52(a)"). Thisdeference requirement is especially compelling in casesinvolving claims of ineffective assistance of counsel, inwhich a court must, in conducting its prejudiceanalysis, necessarily assess the strength and reliabilityof ~he proffered evidence, a function best undertakenby the court which presided over the hearing at whichthe evidence was presented.

2. The Ninth Circuit essentially eliminated theprejudice prong of the Stricklandanalysis. The panel’serroneous legal holding, that Wiggins v. Smith, 539U.S. 510 (2003) created a presumption of prejudicewith respect to certain types of omitted mitigation, iscontrary to the j urisprud~ ~ce of this Court. The panel’sfailure to consider the fac~,s and circumstances of theoffense, the death-qualifying aggravatingcircumstances, the rebuttal evidence that the statewould have presented had the additional allegedlymitigating evidence been offered, and Arizona law, iscontrary to this Court’s Sixth Amendmentjurisprudence with respect to the right to effectiveassistance of counsel.

REASONS WHY THE WRIT SHOULD BEGRANTED

I

THE NINTH CIRCUIT FAILED TO DEFER TOTHE DISTRICT COURT’S FACTUALFINDINGS.

Pursuant to the Ninth Circuit’s 1998 remand, thedistrict court held a 9-day evidentiary hearing in 2001,during which it heard testimony from 17 witnesses andreviewed voluminous documents. In a detailed 109-page decision issued in 2003, the district court foundthat trial counsel’s performance had been deficientregarding only two matters. First, the district courtheld:

IT]he Court reluctantly and narrowly concludesthat [counsel’sl performance was deficientbecause he failed to review Petitioner’s mentalhealth records . . . before making sentencingstrategy decisions.

(torte11 I~, Pet. App. B at 25). Second, the districtcourt "narrowly conclude[d]" that counsel should haveobtained the medical treatment records concerning thehead injury Correll suffered when he was seven yearsold. (Id. at 29).

The district court rejected Correll’s other challengesto counsel’s performance,3 including his contention thatcounsel had improperly failed to present mitigating

(See CorrellI~, Pet. App. B at 15-17, 40-46).

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evidence concerning Correll’s use of illegal drugs. (Id.at 30-40).

Addressing the prejudice prong of the Strlcklandanalysis, the district court held that Correll was notprejudiced by counsel’s failure to review his mentalhealth records, because Correll’s proffered mentalhealth evidence was "not entitled to significantmitigating weight"--there was "no credible evidencethat [Correll’s] personahty disorder or his milddepression impaired his capacity or significantlyinfluenced his behavior at the time he committed thecrimes." (Id. at 60), citation to the record omitted). Thedistrict court further found that any potentialprejudice was also "eclipsed by the overwhelmingrebuttal evidence of specific bad acts of an aggravatingnature." (Id. at 60-61). The district court similarlyconcluded that Correll was not prejudiced by counsel’sfailure to obtain his medical records because, basedupon the evidence presented, CorreI1 "did not sufferany brain injury from the block wall that fell on himwhen he was 7 years old." (Id. at 63).

The district court’s conclusions are entitled todeference:

Findings of fact, whether based on oral or otherevidence, must not be set aside unless clearlyerroneous, and the reviewing court must givedue regard to the trial court’s opportunity tojudge the witnesses’ credibility.

Federal Rules of Civil Procedure Rule 52(a)(6). See alsoStricMand, 466 U.S. at 698 ("district court findings are

7

subject to the clearly erroneous standard of FederalRule of Civil Procedure 52(a)"). Under the "clearlyerroneous" standard set out in Rule 52(a)(6), "[a]nappellate court cannot substitute its interpretation ofthe evidence for that of the trial court simply becausethe reviewing court ’might give the facts anotherconstruction, resolve the ambiguities differently, andfind a more sinister cast to actions which the DistrictCourt apparently deemed innocent." InwoodLaboratorites, Inc. v. Ives laboratories, Inc., 456 U.S.844, 857-58 (1982) (quoting United States v. Rea]

Estate Boards, 339 U.S. 485, 495 (1950)).

To determine whether a petitioner ’~has met [this]burden of showing that the decision reached wouldreasonably likely have been different absent theerrors," id. at 696, a court addressing a claim ofineffective assistance of counsel must necessarilyassess the strength and reliability of the profferedevidence, a function best undertaken by the courtwhich presided over the hearing at which the evidencewas presented. See Anderson v. City of Bessemer City,N.C., 470 U.S. 564, 574-575 (1985).

The panel majority ignored this fundamental rule.In his amended dissent to the panel’s opinion, JudgeO’Scannlain notes the "sharp divergence between themajority’s presentation of the facts and the districtcourt’s factual findings." (Correll V, Pet. App. A at 51n.1)). Similarly, in her dissent to the denial ofrehearing en banc, Judge Callahan concludes:

Here, the district court held a nine-dayevidentiary hearing and made detailed findingsof fact on remand from this court. We abuse our

role as an appellate court when we cavalierlyignore the findings that a district court makeson remand .... The majority, in pursuing "somemitigating evidence [that] could have sparedCorrell’s life," fails to appreciate--as it isrequired to--that the district court’s contraryposition is reasonable and entitled to deference.

(Id. at 14-15).

The dissenters’ criticism is apt--the panel’simproper substitution of its independent interpretationof the evidence heard by the district court isdemonstrated numerous times throughout its decision.For example, to support its finding that Correll wasprejudiced due to counsel’s failure to investigate andpresent evidence concerning his childhood head injury,the panel states:

When Correll was seven, a brick wallcollapsed on his head. Although he wasunconscious for some time after the accident, hisparents did not seek medical treatment untilseveral days later when he was still not back tonormal. Several experts testified that this typeof accident and the symptoms Correll exhibitedthen and now indicate a high likelihood of brainimpairment.

(Correll V, Pet. App. A at 43, footnote omitted). Thisindependent assessment of the evidence concerningCorrell’s injury differs significantly from the districtcourt’s detailed factual findings:

9

[P]etitioner received a head injury on April 8,1967, when he was 7, at which time his parentstook him to see their family doctor. Four dayslater, Petitioner was vomiting and again takento the family doctor where an X-ray was takenand an EEG scheduled. On April 14, 1967, anEEG was done. On April 15, in response to morevomiting, Petitioner’s parents took him to theemergency room at Children’s Hospital of LosAngeles. At the hospital, he was seen by atreating physician, who diagnosed a subgalealhematoma, which is a bruise or collection ofblood under the scalp, but above the skull. Thetreating physician recommended a neurosurgeryconsultation, which was done. The doctor in theneurosurgery clinic also diagnosed Petitionerwith a subgaleal hematoma. On May 3, 1967,Petitioner was brought back to the neurosurgeryclinic for a follow-up visit. The follow-up visitnoted that Petitioner’s hematoma cleared in 5days and that Petitioner was alert and well.

Dr. Anne Herring, Petitioner’sneuropsychologist, performed neuro-psychological testing upon Petitioner to assesshis cognitive functioning and whether he hasany brain injury. For the vast majority of tests(30 out of 33 tests), Petitioner’s scores wereaverage to high average. Dr. Herring identified 3tests where Petitioner had difficulty. Dr. Herringopined that Petitioner had severe difficulty onone test measuring his central information

10

processing capacity. Based on her testing, Dr.Herring testified that Petitioner’s performancesuggests some degree of brain dysfunction andproblems with impulse control. Dr. Herringfurther opined that Petitioner’s history ofdysfunctional behavior suggests a possibility ofprefrontal lobe brain impairment. Finally, shenoted that his dysfunctional behavior isexacerbated by the ingestion of recreationaldrugs and alcohol.

Respondents presented a report andtestimony from Dr. Daniel Martell, aneuropsychologist. Dr. Martell tested petitionerafter Dr. Herring and had the benefit of herreport. Dr. Martell focused his testing onassessing areas of possible impairment,Petitioner’s visual perceptual skills, his visualmemory and executive functioning. Dr. Martellconcluded that there is evidence that Petitionerhas isolated neuropsychological impairments ordeficits characterized by mild impulsivity anddifficulty with selective attention. However,those isolated impairments did not generahze toPetitioner’s overall ability to organize, plan andcontrol his behavior. Regarding his frontal lobeability, Dr. Martell testified that there issignificant variability. In some areas he [Correll]is "absolutely genius" and in others average toabove average, and in still another there is mildto moderate deficit. Overall, Dr. Martellcharacterized Petitioner as only having verymild impairment and that of all the capitaldefendants he has tested, Petitioner is one of the

11

highest functioning defendants. The Courtrequested clarification, and asked how it shouldview a finding of mildly brain impaired. Martellopined that "it’s a very minor finch’~g."

(Correll 1~, Pet. App. B at 61-63), emphasis added,citations to the record omitted). From this factualrecord, the district court concluded:

Based on testimony received fromneuropsychologists, the Court concludes thatPetitioner did not suffer any brain injury fromthe block wall that fell on him when he was 7years old. The Court specifically finds thatPetitioner does suffer from some mild brainimpairment or deficit. The Court adopts Dr.Martell’s finding that it is a minor impairmentand does not generalize to Petitioner’s overallability to organize, plan and control hisbehavior. The Court further adopts the findingof Dr. Martell that, when subjected toneuropsychological testing, most everyonesuffers some level of deficit or impairment. TheCourt is unable to determine the origin ofPetitioner’s mild impairment. Petitioner did notdemonstrate any brain damage or that his mildbrain deficit or impairment was a factor in themurders.

(fd. at 63, citations to the record omitted).

The panel majority attempts to justify itsquestionable independent interpretation of theevidence by asserting:

12

[I]n the procedural context of this case, thedistrict court’s role was not to evaluate theevidence in order to reach a conclusive opinionas to Correlrs brain injury (or lack thereof). Thedistrict court should have decided only whetherthere existed a "reasonable probability" that "anobjective fact-finder" in a state sentencinghearing would have concluded, based on theevidence presented, that Correll had a braininjury that impaired his judgment at the time ofthe crimes.

(Correll V, Pet. App. A at 43 n.6, citation omitted.)

This explanation for the panel’s disregard of thedistrict court’s factual findings is not persuasive.Obviously implicit in the district court’s findings is adetermination that there was no reasonable probabilitythat "an objective fact-finder’ in a state sentencinghearing" would have found "that Correll had a braininjury that impaired his judgment at the time of thecrimes."

The panel’s improper disregard of the districtcourt’s factual findings is further demonstrated by itsindependent analysis of the evidence regardingCorrelrs use of methamphetamine:

Perhaps more compellingly, the evidence ofCorrelrs methamphetamine use on the night ofthe crimes, had it been fully presented, couldhave risen to the level of a statutory mitigator.Under Arizona law, gross intoxication at thetime of the crime constitutes a statutorymitigator if that intoxication impaired the

defendant’s "capacity to appreciate thewrongfulness of his conduct or to conform hisconduct to the requirements of law." A.R.S. § 13-703(G)(1). There was undisputed evidenceadduced at the evidentiary hearing that Correllwas addicted to methamphetamine, that Correllused some methamphetamine on the day of thecrime, that Correll habitually usedmethamphetamine in astonishingly andunusually high dosages, and that drug addictsgenerally are incapable of using their drug ofchoice in any dosage that is lower than theirusual dosage. Thus, the evidence stronglyindicated that Correll used an extremely highdosage of methamphetamine on the day of thecrime.

(Correll V, Pet. App. A at 46-47).

The panel’s view of the evidence, which ignores thefact that Correll did not testify at the evidentiaryhearing and refused to cooperate with the State’s drugabuse expert, is in marked contrast to that of thedistrict court which, after hearing the evidence firsthand, found that Correll had failed to prove that hewas intoxicated when the victims were murdered,specifically noting:

Absent other evidence in support or proof byPetitioner, the Court will not assume thatPetitioner was intoxicated when the crimes werecommitted. Rather, the evidence shows that itwas Petitioner who remained calm when thegun misfired as Nabors was trying to kill Robin

14

Cady. It was Petitioner who encouraged Naborsto remain calm as there were no cars coming, toget a shell chambered and shoot Cady. Suchbehavior at the time of the crime does notdemonstrate intoxication and, in fact, undercutsan assertion of intoxication.

(Corroll IV,, Pet. App. B at 69, internal citationomitted).

The panel attempts to explain its refusal to defer tothese factual findings of the district court by assertingthat the district court’s conclusion, that Correll was notintoxicated when the victims were murdered, wasbased upon "a critical misunderstanding" of theevidence:

At the evidentiary hearing, expert testimonymade it clear that gross methamphetamineintoxication, unlike gross alcohol intoxication, isnot necessarily apparent to outside observers.The experts described a state known as"methamphetamine blackout," during which theuser would be capable of performing complextasks but would be incapable of understandingor remembering his behavior. One of theexperts, a recovered methamphetamine addict,specifically con~rmed the possibility that "thoseobserving a person in a methamphetamineblackout [wouldn’t] know that the person is in amethamphetamine blackout." This evidenceseverely undermines the propriety of the districtcourt’s reliance on witness observation inconcluding that Correll was not intoxicated on

15

the night of the crimes. Those witnesses mightnot have known whether Correll was intoxicatedor not.

(Correll V, Pet. App. A at 47).

However, the panel ignores the fact that no credibleevidence was presented at the hearing to corroborateCorrell’s self-serving claim that he was under theinfluence of methamphetamine when the victims weremurdered. As the district court found:

The Court does not credit [Correll’s]unsubstantiated self-report that he abusedmethamphetamine every day before the crimeswere committed. Petitioner chose not to testifyat the evidentiary hearing; Petitioner chose notto fully cooperate with [the government’s drugabuse expert’s] examination of him regardingthe issue of drug abuse. Because of the obviousmotive to fabricate, Petitioner’s self-servingstatements about his drug usage prior to thecrimes is [sic] unreliable and subject tosearching skepticism. See, e.g., [State v.]Medrano, 914 P.2d [192,] 227 [(Ariz.1996)] ("thedefendant provided most of the informationconcerning his use of cocaine in the past and onthe night of the murder, as well as the drug’seffect on him. Because of the obvious motive tofabricate, such self-serving testimony is subjectto skepticism and may be deemed insufficient toestablish mitigation.")]; ~ee s/~o Bernard Smitt~[v. Stewart], 140 F.3d 1263,] 1270 [(Ariz. 1998)](evaluating evidence based on impartial

15

sentencing judge applying Arizona law); seegeneraliy,, Strickland, 466 U.S. at 695 (’~rheassessment of prejudice should proceed on theassumption that the decision maker isreasonably, conscientiously, and impartiallyapplying the standards that govern thedecision."). The Court’s searching skepticismtoward Petitioner’s self report is corroborated byRespondent’s drug abuse expert, Dr. Matthews,who opined as follows: "Antisocial personalitydisorder is characterized by malingering anddeceit; instances of [Petitioner’s] lifelong patternof deceptiveness abound throughout his penaland other records. He has been deceitful about agreat many matters, including his history ofsubstance abuse. Because of [Petitioner’s]history of deceit, it is a major clinical error toaccept [Petitioner’s] self-serving view of hiscondition at the time of the offense as accurate."

Based on [counsel’s] testimony, it appearsthat Petitioner may have abused some unknownamount of methamphetamine on the days priorto April 11, 1984. However, at the evidentiaryhearing, Petitioner did not prove such usage.

For the day before the crimes, the Courtcredits Robin Correll’s testimony that shewitnessed Petitioner inject himself withmethamphetamine in the morning. However,her failure to testify at sentencing was notprejudicial to Petitioner as [counsel] could nothave had Robin testify due to the inculpatoryinformation she had regarding his whereabouts

17

at the time of the crime.4 The Court finds thatthere was no other evidence presented thatPetitioner was intoxicated or under theinfluence of methamphetamine the day beforethe crimes were committed. Absent otherevidence in support or proof by Petitioner, theCourt will not assume that Petitioner wasintoxicated when the crimes were committed...

(Corre]l IE, Pet. App. B at 67-69), internal citationsomitted).

Another example of the panel’s refusal to defer tothe district court’s factual findings concerns Correll’spsychological history. The panel states:

Correll was committed to psychiatricinstitutions at least twice during his teen yearsand was described at age 16 as "severelypsychologically impaired." He was treated witha tranquilizer/anti-psychotic drug whileinstitutionalized, and he attempted suicide ontwo occasions. However, there is no evidencethat Correll continued to receive treatment afterthese stays.

(Correll V, Pet. App. A at 44-45).

The panel’s summary of Correll’s psychologicalhistory is once again at odds with the district court’s

(See CorrellI~, Pet. App. B at (40); see a/so discussion

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assessment of the evidence it heard. Based upon thatevidence, the district court found that, although Correll"established a history of mental health commitments topsychological facilities when he was a minor," therewas "insufficient evidence to support that Petitionerhas ever suffered from any major mental illness,whether PTSD [post traumatic stress disorder], amajor depressive disorder, or a bipolar disorder."(Correi] I~, Pet. App. B at 58-59). The district courtreached this conclusion after two psychological expertstestified that there was no evidence Correll has eversuffered from any significant mental disorder. (Id. at58). The sole mental health expert who speculated thatCorrell might have suffered from PTSD conceded thatsuch a diagnosis was "only a possibility." (Id. at 56).

The district court also found that the evidence didnot support Correll’s contention, adopted by the panel,that he was given anti’psychotic medications while incustody. In reaching this factual finding, the districtcourt noted that mental health experts for both partiesscrutinized Correll’s medical records from theCalifornia Department of Corrections and reported theabsence of any indication that Correll was ever treatedwith anti-psychotic medication. (Id. at 55). AlthoughCorrell contended that he had been treated with adosage of 25 milligrams of the drug Mellaril for aperiod of time as a juvenile, the government’s mentalhealth expert testified, without opposition, that at thatdosage the drug would have served only as a mildtranquilizer. (Id. at 54 & n.41).

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The panel fails to explain why it chose to ignorethese factual findings made by the district courtregarding Correll’s psychological history.

The panel’s failure to afford deference to the districtcourt’s factual findings is contrary to this Court’sjurisprudence, and to the Federal Rules of CivilProcedure, as well. Establishing a line of Ninth Circuitauthority abrogating this duty of deference would leadto secondary trials in the court of appeals, which"would very likely contribute only negligibly to theaccuracy of fact determination at a huge cost indiversion of judicial resources." Anderson, 470 U.S. at575.

2O

II

THE NINTH CIRCUIT ESSENTIALLYELIMINATED THE PREJUDICE PRONG OFTHE STRICKLAND ANALYSIS BY PRESUMINGPREJUDICE, AND BY FAILING TO CONSIDERTHE FACTS AND CIRCUMSTANCES OF THEOFFENSE, THE AGGRAVATING FACTORSFOUND AT TRIAL, ARIZONA LAW, AND THEREBUTTAL EVIDENCE THAT THE STATEWOULD HAVE PRESENTED HAD THEALLEGED OMITTED MITIGATION BEENOFFERED.

Failure to .require Cozre]./ to proveprejuch’ce.

After improperly substituting its independentinterpretation of the evidence for that of the districtcourt, the panel failed to follow the prejudice analysisdictated by this Court in Strlckls~d.

Finding that counsel performed deficiently becausehe failed to present evidence of Correll’s allegedabusive childhood, his childhood head injury, his abuseof alcohol and illicit drugs, and his allegedpsychological problems,5 the panel concluded:

In sum, there was a substantial amount ofmitigating evidence available, which, takentogether, is sufficient to raise a presumption of

~ (Corz’e]./V,, Pet. App. A at 43-45.)

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prejudice under the Supreme Court’s standardin Wiggins, 539 U.S. at 534-38.

(Correl] V, Pet. App. A at 45).

This analysis conflicts with this Court’sjurisprudence. As Judge O’Scannlain noted in dissent:

More alarming than its reconstruction of therecord, however, the majority jumps withstartling speed from its new factualdetermination that Correll received ineffectiveassistance of counsel to its ultimate conclusionthat his habeas petition must be granted. In sodoing, the majority ignores Strickland’s secondrequirement, that even if Correll provesineffective assistance of counsel, he must alsoprove that the result was actually prejudicial.Wiggins, 539 U.S. at 534 (citing StricMand, 466U.S. at 692). As the Supreme Court has madeclear, we do not presume prejudice fromcounsel’s ineffective assistance. StricMand, 466U.S. at 693. Rather, even if counsel’sperformance was deficient, Correll still bearsthe "highly demanding and heavy burden ofestabhshing actual prejudice." Allen [v.Wood’oral, 395 F.3d 979, 1000 (9th Cir. 2005)](internal quotation marks omitted) (emphasisadded). This burden "affirmatively [to] proveprejudice" requires Correll to show more thanthe mere possibility that counsel’s performanceprejudiced the outcome. StricMand, 466 U.S. at693. Instead, Correll must demonstrate "areasonable probability" that, but for counsel’s

22

constitutionally deficient performance, he wouldhave received a lesser sentence. Id. at 695.

(Id. at 58-59) (O’Scannlain, dissenting). JudgeO’Scannlain’s observations are correct.

Contrary to the panel’s assertion, and as JudgeO’Scannlain correctly observed, this Court has neverheld that the failure to present certain types ofmitigation raises a presumption of prejudice. Rather,in Wiggins the Court reaffirmed that, except in rarecases,s it is the defendant’s burden to prove prejudice:

In order for counsel’s inadequateperformance to constitute a Sixth Amendmentviolation, petitioner must show that counsel’sfailures prejudiced his defense. St~’ick]a~d, 466U.S., at 692, 104 S.Ct. 2052. In Strickland, wemade clear that, to establish prejudice, a"defendant must show that there is a reasonableprobability that, but for counsel’s unprofessionalerrors, the result of the proceeding would havebeen different." Id., at 694, 104 S.Ct. 2052.

Wiggins, 539 U.S. at 534.

The Ninth Circuit’s ruling that Wlggins creates a

6 In the context of the Sixth Amendment right to effective counsel,this Court presumes prejudice in two limited circumstances,neither of which is present here: (1) where there is a completedenial of the right to counsel; and (2) where counsel labors underan actual conflict of interest. Stn’cMand, 466 U.S. at 692 (citingUnited S~ates v. Cronic, 466 U.S. 648, 659, & n.25 (1984); andCu.vler v. Sulb’van, 466 U.S. 335, 345-50 (1980)).

23

presumption of prejudice is incorrect and should becorrected by this Court.

B. Failure to consider the facts andcircumstances of the crimes, the death-

qualifying aggravating circumstances provedat trial, and relevant Arizona law.

In its analysis leading to its alternative finding thatCorrell proved prejudice, the panel fails to evenmention, much less consider, the facts andcircumstances of Correll’s crimes. (Correl] V, Pet. App.A at 42-50). This is contrary to this Court’sjurisprudence. See StrlcM~nd, 466 U.S. at 695 ("[A]court hearing an ineffectiveness claim must considerthe totality of the evidence before the judge or jury.").Moreover, the panel’s error here was especiallyegregious given the brutal and disturbing nature of themurders:

Shelling, Cady and D’Brito [the victims] musthave been in great fear about their ultimatefate. Nabors had a gun, which he often lent todefendant [Correll], and additionally, defendantarmed himself with a kitchen knife. Each victimwas bound with duct tape, and this occurrencemust have caused each victim great distress.This fear and worry must have greatly increasedwhen they were loaded into Cady’s car anddriven into the desert. A~ no time could they becertain what these two armed men intendedbeyond robbery. In the desert, each victim waslaid on the ground. Snelling was shot first,D’Brito was second, and then Cady was shot

24

last. Therefore, Cady and D’Brito bothwitnessed the shooting of Snelling and musthave realized they would be next. Cady furthersuffered because the gun misfired a couple oftimes before Nabors succeeded in killing her.

Corze11I, 715 P.2d at 733-34.

Moreover, the Ninth Circuit panel compounded itserror by additionally failing to consider the threedeath-qualifying aggravating factors found by theArizona Supreme Court: (1) Correll’s prior felonyconviction involving the use or threat of violenceagainst another person; (2) the fact that the murderswere committed for pecuniary gain; and (3) the factthat the murders were committed in a cruel, heinous,or depraved manner. Correll I, 715 P.2d at 731-34.See, e.g., Strickland, 466 U.S. at 700 ("Given theoverwhelming aggravating factors, there is noreasonable probability that the omitted evidence wouldhave changed the conclusion that the aggravatingcircumstances outweighed the mitigatingcircumstances and, hence, the sentence imposed.").

The panel also failed to consider Arizona law inmaking its alternative finding of prejudice. Once again,this is contrary to this Court’s jurisprudence:

The assessment of prejudice should proceedon the assumption that the decisionmaker isreasonably, conscientiously, and impartiallyapplying the standards that govern the decision.

Strickland, 466 U.S. at 694-95. The alleged omittedmitigation that the panel found so compellingm

25

Correll’s personality disorder, his alleged drugaddiction, his past psychological and medical history,and his dysfunctional family--would likely be affordedlittle mitigating weight under Arizona jurisprudence,both as it existed at the time of Correlrs sentencing, aswell as currently, because Correll failed to demonstrateany causal nexus between this proffered evidence andthe crimes he committed. See, e.g., State v. Murdaug_h,97 P.3d 844, 860 ¶¶ 81-82 (Ariz. 2004) (drugimpairment, personality disorder, and paranoia notafforded significant mitigating weight where there wasno proven causal nexus between the proffered evidenceand the defendant’s crimes); State v. Hoski~s, 14 P.3d997, 1021-23 ¶¶ 107-18, (Ariz. 2000) (antisocial orborderline personality disorder, and dysfunctionalfamily history, found not significantly mitigating inabsence of causal link to crime). See a/so State v.Ger]augl~, 698 P.2d 694, 704 (Ariz. 1985); State v.Vickers, 633 P.2d 315, 325 (Ariz. 1981); State v.Bishop, 622 P.2d 478, 482 (Ariz. 1980). Additionally,Arizona sentencers typically afford tittle mitigatingweight to evidence of a dysfunctional or abusivechildhood. See, e.g., State v. Jackson, 918 P.2d 1038,1049 (Ariz. 1996) (’Wee are well aware that childrenwho are emotionally and physically abused areadversely affected to some extent for the rest of theirlives. Our criminal dockets are filled with such people.But we have never reduced a defendant’s deathsentence on such a basis").

C. Failu.re to consider the rebu~r.a] evidence thatthe state would have presented had the allegedomi~ed mit~’gation been presented.

26

The panel decision overlooks the fact thatpresenting the additional mitigation evidence wouldhave opened the door to extremely damaging rebuttalevidence. In dissent, Judge O’Scannlain notes:

IT]he majority’s conclusion that Correll hasmet the heavy burden of demonstrating actualprejudice ignores a mountain of precedent whichrequires us to consider not only the benefits ofthe ostensibly mitigating evidence counsel failedto present, but also its potential drawbacks ....The majority fails to realize that.., much of thenew mitigating evidence Correll offers wouldhave enabled the prosecution to present verydamaging evidence in rebuttal.

(Correll V, Pet. App. A at 60--61), O’Scannlain, J.dissenting).

Judge O’Scannlain’s observations are well taken.For example, had Correll offered his mental healthrecords in mitigation, the State would have used thosesame records to show that while "undergoing mentalhealth treatment, he raped a female psychotic patient,"he had escaped "numerous times" from healthtreatment facilities, that during one escape attempt,Correll "took hostages by the use of a butcher knife andletter opener, which resulted in one of the hostageshaving a heart attack," and that "on numerousoccasions, [Correll] turned down institutional efforts toprovide him with mental health treatment." (Correll/~, Pet. App. B. at 60-61). See, e.g., Burger v. Kemp,483 U.S. 776,793 (1987) (counsel’s failure to presentpsychological records did not amount to ineffective

27

assistance because the records suggested "violenttendencies" that would have undermined counsel’sstrategy of portraying petitioner’s actions as the resultof another person’s "strong influence upon his will").

Similarly, Correll’s proffer of the testimony of hismental health expert, Dr. Becker, concerning heropinion whether Correll’s crimes might be attributableto his dysfunctional family, "would have produced adoubled-edged dilemma," opening the door toextremely damaging rebuttal testimony that Correll"regularly participated in incest by sexually molestinghis sister Robin." (Id. at 80). C£ Dsrden v. Wainwright,477 U.S. 168, 186 (1986) ("Any attempt to portraypetitioner as a nonviolent man would have opened thedoor for the State to rebut with evidence of petitioner’sprior convictions.").

Additionally, had Correll offered the testimony ofhis sister, Robin, at sentencing, in order to bolster hisclaim that he was under the influence ofmethamphetamine when the victims were murdered,

she could have been cross’examined about herknowledge of Petitioner’s whereabouts at thetime of the crimes. Had Robin testifiedconcerning Petitioner’s conversations about hisneed to leave town quickly, she would havedisclosed that Petitioner was with John Nabors[Correll’s accomplice] and had wanted animmediate ride out’of’state very soon after themurders occurred. Such testimony would havetotally eliminated any mitigating weight fromPetitioner’s claim of innocence and residual

28

doubt (i.e., the guilt phase misidentificationdefense).

(Corre11I~, Pet. App. B at 33-34).

Thus, much of the new evidence proffered by Correllwould not have been helpful, because it would have"opened the door" to potentially devastating rebuttalevidence.

As Judge Callahan succinctly observed:

This case presents an instance in whichcounsel’s instinct that an investigation intoCorrell’s medical and mental history would notyield any positive evidence, although anunacceptable reason for not conducting aninvestigation turns out after 17 years, a fullinvestigation, and a 9-day evidentiary hearing,to have been correct. The panel majority doesnot really deny that there is no positiveevidence, but argues that evidence concerningCorrell’s alleged brain damage, sociopathic orantisocial personality disorder, drug use, andtroubled family, constitute "classic mitigatingcircumstances." The second prong of theStrickland test, however, does not call for anabstract analysis of what might be mitigatingevidence, but a determination of whether thereis "a reasonable probability that, but forcounsel’s unprofessional errors, the result of theproceeding would have been different."StricMand, 466 U.S. at 694.

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The record in this case clearly shows that thepresentation of evidence of Correll’s allegedbrain damage, sociopathic or antisocialpersonality disorder, drug use, and troubledfamily would not have made any difference tothe trial judge or the Arizona Supreme Court.This conclusion is solidly based on the horrificnature of the murders, the applicableconstitutional and state law as it existed whenCorrell was tried, the perceived nature of thetrial judge’s jurisprudence, and the incrediblydamaging nature of the rebuttal evidence ....

(Corre]l V, Pet. App. A at 20-22, Callahan, J.,dissenting from denial of rehearing en banc).

This Court should grant certiorari review because,left uncorrected, the panel’s erroneous legal holdingswill establish Ninth Circuit authority to the effect that:(1) a petitioner need not prove prejudice; and (2) areviewing court need not consider the facts andcircumstances of the offense, the death-qualifyingaggravating circumstances found at trial, local lawgoverning the decision’making of the trial court, orwhether presenting the alleged omitted mitigationwould "open the door" to damaging rebuttal. Such aresult is not only contrary to StricMand, but itundermines the Court’s entire Sixth Amendmentjurisprudence with respect to the right to effectivecounsel, effectively eliminating the prejudice prong ofthe StricMand analysis.

3O

CONCLUSION

Based upon the foregoing arguments, the petitionfor a writ of certiorari should be granted.

Respectfully submitted

TERRY GODDARDAttorney General

MARY R. O’GRAD¥Solicitor General

KENT E. CATTAN~Chief CounselCapital Litigation Section

J. D. NIELSENAssistant Attorney General(Attorney of Record)Capital Litigation Section1275 W. WashingtonPhoenix, Arizona 85007

Telephone: (602) 542-4686