and Submitted October 4, 2017 Pasadena, California
from the United States District Court for the District of
Arizona D.C. No. 3:08-cv-08139-SPL Steven Paul Logan,
District Judge, Presiding
Jennifer Y. Garcia (argued), Assistant Federal Public
Defender; Jon M. Sands, Federal Public Defender; Office of
the Federal Public Defender, Phoenix, Arizona; for
Pressley Todd (argued), Assistant Attorney General, Capital
Litigation Section; Lacey Stover Gard, Chief Counsel; Mark
Brnovich, Attorney General; Office of the Attorney General,
Phoenix, Arizona; for Respondents-Appellees.
Before: Milan D. Smith, Jr., Mary H. Murguia, and Jacqueline
H. Nguyen, Circuit Judges.
panel reversed the district court's judgment denying
Arizona state prisoner Michael Ray White's petition for a
writ of habeas corpus based on ineffective assistance of
counsel at resentencing, and remanded with instructions to
grant a conditional writ.
counsel's performance, the panel held (1) that counsel
performed deficiently by failing to challenge evidence that
White committed the murder for pecuniary gain, and by failing
to conduct an adequate investigation of mitigating factors,
including the unreasonable decision not to hire any experts
to assist with the penalty phase; and (2) that the state
post-conviction court's contrary conclusion was an
unreasonable application of Strickland v.
Washington, 466 U.S. 668 (1984), and Wiggins v.
United States, 539 U.S. 510 (2003).
panel evaluated prejudice without AEDPA deference because the
state post-conviction court applied a test for prejudice
contrary to Strickland. Reviewing de novo, the panel
concluded that there is a reasonable likelihood that White
would have received a different sentence if counsel had
investigated and presented mitigating evidence.
NGUYEN, CIRCUIT JUDGE
White shot and killed David Johnson ("David"), the
husband of White's lover, Susan Johnson
("Susan"). The only question is why. White was
initially sentenced to death based on the state court's
finding of one aggravating factor-that he committed the
murder for pecuniary gain. David had a life insurance policy,
and there was some evidence that Susan was going to share the
payout with White. After White lost his direct appeal, the
state court granted him post-conviction relief as to the
penalty phase and ordered a new mitigation hearing and
sentencing. During these proceedings, however, White's
new counsel abandoned any challenge to the sole aggravating
factor relied on by the state court despite compelling
evidence that, rather than financial gain, White acted out of
love for Susan and killed David only after she repeatedly
pressured him to do so. Counsel's failure to challenge
the aggravating factor was not based on any strategic
decision; instead, it was simply due to his mistaken belief
that the issue already had been conclusively decided in a
still, counsel utterly failed to investigate White's
background for mitigating circumstances. Had he done so,
counsel would have found abundant and readily available
evidence that White was suffering from serious mental illness
as well as Graves' disease and its attendant
neuropsychological effects. White also struggled with low
intellectual functioning and had a troubled and abusive
childhood. None of this background evidence was presented at
his resentencing hearing. Instead, counsel relied on and
presented White's statement to the probation officer that
"he had a normal childhood and enjoyed growing up."
filed a federal petition for a writ of habeas corpus based on
ineffective assistance of counsel at his resentencing, which
the district court denied. We reverse and remand with instructions
to grant a conditional writ. Under similar circumstances, the
United States Supreme Court has held that even less egregious
lapses by defense counsel violated the defendant's Sixth
Amendment rights. The state court's finding that counsel
performed reasonably was an unreasonable application of this
precedent, and the state court's prejudice determination
was contrary to Strickland v. Washington, 466 U.S.
White's counsel performed deficiently by failing to
challenge evidence that White committed the murder for
pecuniary gain, and by failing to conduct an adequate
investigation of mitigating factors, including the
unreasonable decision not to hire any experts to assist with
the penalty phase. Reviewing de novo, we conclude that but
for counsel's errors, it is reasonably likely that the
result would have been different. This was a relatively weak
case for imposition of the death penalty. Even the trial
prosecutors believed that the death penalty was inappropriate
because this was a "run-of-the-mill" case, Susan
was the "mastermind" behind the murder, and White
succumbed to pressure from her to commit the crime. White had
no criminal record when he committed the murder at age 36,
pecuniary gain was the only aggravating factor, and there was
substantial evidence that White acted out of love or
infatuation rather than profit.
met Susan in January 1987 when they worked together at a
nursing home in Prescott, Arizona. At the time, Susan was in a
relationship with David. White was living with another woman,
Becky Fisher, whom he had recently married. White began
visiting Susan at her home every day, and they began a
April, White and Susan went to Michigan, where they lived
together and worked at the same nursing home. David
apparently felt "burned" by Susan, but still
continued contact with her despite his friends'
"serious misgivings." One friend believed that
Susan was "taking advantage of him" based on things
that David had said.
October, Susan returned to Bagdad, Arizona, and White to
Prescott. They continued their sexual relationship
notwithstanding Susan's engagement and subsequent
marriage to David. White and Susan spoke on the phone up to
six times each day when David was at work, and White was
frequently at Susan's house. At a restaurant where White
worked for a few weeks that fall, he told a server about his
"girlfriend." According to White, he and his
girlfriend "were planning on getting married
sometime" although "she was living with someone
else in Bagdad." This other boyfriend "had
money," which White's girlfriend "was going to
use . . . to start a business." White said that he and
his girlfriend were planning to go to Phoenix, where they
would start the business or go to school.
Susan's marriage, White began to visit Fisher,
purportedly to visit their children and "get back
with" Fisher, but he used her phone to call Susan.
Around November 1, White told Fisher that Susan had asked him
to help kill David. He explained that Susan "wanted to
be with [him]." White also said that Susan was marrying
David "[b]ecause of his money" and that "as
soon as David put everything into [Susan's] name . . .
something was going to happen to David." Several days
later, White admitted to Fisher that he was
"confused" and "didn't know what to
do" about Susan's request that he kill David. White
also told another friend, Carol Sexton, that "Susan was
planning to kill David" and "wanted [him] to do
early November, Susan called several insurers about life
insurance policies. She called Colonial Penn Insurance in
Prescott to inquire about the "time frame on life
insurance policies," and in particular, "when you
can receive monies." She also called Mutual of Omaha
Insurance in Prescott to inquire about a $100, 000 life
insurance policy. Susan expressed concern about how long it
would take the insurer to pay out if David were accidentally
killed in the mine where he worked. Later that month, Susan
told the agent that the payout would be enough to open a
nursing home in Michigan, where she had family. Susan also
arranged with David's employer to add herself and her two
children from a previous marriage to David's life
November 10, White and Sexton had another conversation about
Susan. Susan had told White that David "just took out a
big life insurance policy" for $100, 000. A few days
later, White told Sexton that "Susan still had the crazy
idea about killing David, and she still wanted [him] to do
it." Sexton "tried to talk [White] out of it."
White agreed with Sexton that "you just don't take
another man's life."
November 19, at a pawn shop, White made a down payment on the
.357 magnum revolver that he used to kill David. He made a
second payment the next day, and on November 27 he returned
to pay the remaining balance and pick up the weapon.
November 20, when Fisher was upset with White for not making
child support payments, he told her that she "didn't
have to worry about money" because he would be getting
$100, 000 from Susan. A few days later he told Fisher that
"he didn't get the money." Sometime in
November, White asked Fisher if he could stay with her on
December 15 and 16 because he "needed a place to
stay." When pressed, he admitted to Fisher that
"something might happen to David" and he needed an
alibi. Fisher refused.
December 12, at approximately 11:00 p.m., David and
Susan's neighbors heard gunshots at the Johnson
residence. Neighbors saw a man run from the Johnsons'
carport, get into a green car, and drive off. Shortly
thereafter, David walked to a neighbor's home, where he
collapsed, covered in blood. He had been shot in his chin and
lower back with a .357 magnum revolver. Before he died,
David stated that his assailant was an unknown man wearing a
mask. Susan claimed that David had identified the shooter as
her ex-husband, Clifford Minter. Minter's name and the
description of the green car were broadcast over the police
officer on his way to the murder scene stopped a green sedan
heading away from Bagdad. White was the sole occupant. White
stated that he had just dropped off a companion in Bagdad and
was heading back to Prescott. Because the officer was looking
for Minter, he let White proceed.
police soon discovered that Minter was not involved in the
shooting and began to focus their investigation on White and
Susan. White traveled to Phoenix, where he sold the revolver
used to kill David to a pawn shop. While White was staying at
various motels in Phoenix, he and Susan made several calls to
was arrested in Phoenix on December 18. Officers searched his
car and found an empty box of .38 caliber bullets, a holster,
a ski mask, and a bag of potatoes. They concluded that the
murderer had placed a potato over the barrel of the revolver
to act as a silencer due to pieces of dried potato with
gunpowder particles found at the scene of the shooting and
potato starch found on the barrel of the revolver and
David's glasses. White's car also contained a glove
with human blood stains on it and an envelope. On the back of
the envelope was written: "Susie, I love you. We will be
careful. I will call soon. Love, Michael."
police arrested Susan on December 23. While in the booking
area of the Yavapai County Jail, she encountered White. He
asked her, "is everything still the same, Susie"?
Trial, original sentencing, and first direct appeal
and Susan were tried separately on the same
charges-conspiracy to commit first degree murder and first
trial counsel, Chester Lockwood, moved for a competency
examination due to his strong suspicion that White suffered
from "mental dysfunction." In addition to his
strange behavior, White repeatedly disregarded Lockwood's
instruction not to discuss his case by communicating with
inmates, prosecution witnesses, and others, including
Susan's counsel and the prosecutor. The trial court
denied the motion without oral argument. The jury convicted
White of both charges.
sentencing, Lockwood presented no mitigation evidence other
than the presentence report to highlight White's lack of
a prior felony record. Lockwood argued that White did not
commit the murder for pecuniary gain because it was
"Susan . . . who wanted the insurance money."
Lockwood acknowledged that White "may have benefitted
from being with [Susan]," but argued that this fact did
not show "that his participation in the murder was for
anything other than his love or infatuation with Susan."
Lockwood submitted a five-page sentencing memorandum, only
half of which addressed the death penalty.
trial court found that the state had proven the sole
statutory aggravating factor alleged-that White committed the
murder for pecuniary gain based on the insurance
proceeds-beyond a reasonable doubt. The court found no
statutory mitigating factors but considered several
non-statutory factors: White's lack of a prior criminal
record, his natural father leaving home when White was 18
months old, White's alcoholic stepfather, White's
substance-dependent personality, his inability to form and
maintain close relationships, his employment record, his lack
of a record of abusive or violent behavior, and his
expression of sorrow for David's death. The court found
that these mitigating circumstances did not warrant leniency
and sentenced White to death for the first degree murder, and
to imprisonment for 25 years to life for the conspiracy
appellate counsel, John Williams, moved the Arizona Supreme
Court to remand for appointment of mental health experts to
determine whether White was competent to assist counsel.
Williams asserted, based on discussions with White, his
counselor, and an inmate acquaintance of White's, that
White appeared to be "suffering from a severe mental
disease or defect which render[ed] him incapable of assisting
counsel." Specifically, Williams noted that White
claimed that the Arizona Department of Corrections
("ADOC") was "monitoring his thoughts through
some sort of electrical device which [was] somehow tied into
the electro-shock therapy machine at the prison"; Susan
(who was housed at the women's prison in Perryville)
"visit[ed] him outside his cell to taunt him"; and
"he knows which portion of his head the electrical
apparatus is connected to and is sending counsel a
diagram." In addition, White's counselor told
Williams that White "is very mentally unbalanced."
Another inmate stated that White "has gradually
withdrawn from reality since he arrived at [the prison] and
that he is engaging in 'VERY bizarre behavior.'"
White's "letters to counsel [were] bizarre and . . .
of no help in the preparation of his case. In one instance he
wrote three letters in one day and stated that he was
intentionally closing to 'start a new letter.'"
The Arizona Supreme Court denied the motion.
moved pro se for a medical evaluation because he believed
that the ADOC had "implant[ed] a listening device in
which they could monitor their victims['] words and
deeds." The Arizona Supreme Court denied this motion as
well, and affirmed White's conviction and sentence.
See State v. White (White I), 815 P.2d 869
First PCR petition
sought post-conviction relief in the trial court. In May
1992, after attorney Douglas McVay was appointed, he
requested the appointment of an investigator and
"anticipated that a substantial effort must be made to
unearth all mitigating circumstances." The PCR court
granted the motion and appointed investigator Arthur
August 1995, after McVay had been representing White for more
than three years, White moved pro se for a new trial. His
motion consisted of various factual assertions and diagrams
regarding his claimed version of events in which Susan shot
David. He also claimed that he was being "tortured"
while incarcerated. White's motion was denied.
prior counsel, McVay noticed troubling signs of mental health
issues. At an October 1995 telephonic status conference,
McVay stated, "[o]ne of the difficulties in representing
. . . White is I have a three-inch stack of stuff from him
that I have some questions, sometimes, and I expressed,
sometimes he did not appear to be close to being lucid; other
times he seemed to be quite okay."
court held an evidentiary hearing on White's amended PCR
petition, which alleged ineffective assistance of counsel at
trial, sentencing, and appeal.
Prosecutor Marc Hammond's testimony
Hammond testified. He and his co-counsel, Jill Lynch,
prosecuted White's case. After the trial, Lynch left the
office, and Hammond handled White's sentencing and later
Susan's prosecution alone.
believed that the death penalty was not appropriate because
Susan was the "mastermind" behind the crime and
White had no prior felony conviction or history of violence
or abuse. Hammond told his supervisor, County Attorney
Charles Hastings, that he "felt that White was just a
run-of-the-mill loser who hooked up with his co-defendant on
the case and that this murder would not have occurred but for
the chemistry between the two of them." Based on the
evidence, Hammond believed that White "probably would
have gone through his entire life without this kind of an
offense" if not for Susan. Hastings told Hammond that
the office policy was to ask for the death penalty in every
first degree murder case where aggravating circumstances were
present and to let the judge make the decision. Hammond felt
that he "should follow the policy" or quit.
Trial counsel Chester Lockwood's testimony
testified that he simply "miscalculated" the
potential risk of a death sentence. He believed "[i]t
couldn't be a death penalty case" based on his
experience representing the defendant in State v.
Madsen, 609 P.2d 1046 (Ariz. 1980). Lockwood "was
convinced that [if] White had committed this offense he
didn't do it for money," but rather because
"[Susan] . . . convinced him to do it." Had
Lockwood appreciated the sentencing risk, he would have
handled the case differently, such as developing "lots
of other evidence" in mitigation. After the trial,
White's appellate counsel pointed out to Lockwood that
"White must have some type of either emotional problem
or health-related problems" because "he didn't
react to things." Lockwood stated that at trial he
"didn't take any clue" from White's
behavior "as to why and how [White] reacted physically
certain ways, but, boy, the mannerisms were all there."
In fact, White's behavior "was so obvious" that
Lockwood instructed him "not to answer certain
ways" that Lockwood later came to think "were
psychological or physiological for him."
failed to present mitigation evidence due to his
"serious miscalculation" about the risk of the
death penalty. Just prior to sentencing, Hammond told
Lockwood that the hearing would not be long "[be]cause
it's not a death penalty case." Although Lockwood
took this as a statement of Hammond's opinion rather than
a guarantee of what the trial court would do, Lockwood
"wrongfully formed the opinion that [the court]
couldn't give [White] the death penalty."
stated that, in retrospect, he would have hired a second
defense attorney to develop mitigating circumstances. He felt
"there was [a] mitigating circumstance definitely that
should have been developed psychologically about . . .
White." White's appellate counsel, John Williams,
similarly testified that the lack of a mitigation hearing was
the "most obvious" sign that Lockwood was
ineffective at sentencing.
court denied White's petition as to the trial claims but
granted it as to the sentencing claims and ordered a new
mitigation hearing and sentencing. The Arizona Supreme Court
subsequently denied review of White's PCR claims
regarding ineffective assistance of counsel at trial.
presented two witnesses at the mitigation hearing: Hammond
and White. McVay also submitted an affidavit from Dr. Philip
Keen, the Yavapai County Medical Examiner, who had testified
as a prosecution witness at trial. Dr. Keen opined that
David's wounds "were not fatal" and, but for
"intervening medical . . . carelessness, [he]
wouldn't have died in the first place." Dr. Keen
indicated that the Bagdad Clinic had given David "twice
as much [lactate ringer solution] as they should have to
replace the blood loss, and that was the immediate cause of
Prosecutor Marc Hammond's testimony
reiterated his belief that this was not a death penalty case,
but he felt bound by county policy to seek the death penalty,
adding that his co-counsel agreed with him. He opined that
Susan's punishment, two consecutive 25- years-to-life
sentences, was the appropriate punishment for White as well.
Hammond believed that Susan was the "instigator"
and "brains behind" the crime, and that "White
was having . . . some difficulty making up his mind whether
he was going to go through with the conspiracy." White
"had spoken to several witnesses" and said things
to the effect that "Susan wants me to kill her husband.
I don't know what I'm going to do." Hammond did
not know what he was thinking when he argued to the court
that "there was no evidence that . . . White was the
dupe of Susan." Hammond felt it "was pretty
clear" that Susan "kept pushing . . . White until
he made up his mind to kill her husband."
Hammond did not think capital punishment was warranted, he
believed that White committed the murder for pecuniary gain
and felt it "was well proven in the evidence."
testified that he tried to be a "model inmate"
while on death row. He did not participate in the gangs
there. White also discussed his six children. His daughter
Isabel, who lived with her mother in Wisconsin, had been
experiencing problems-she was raped and some friends
committed suicide-which "threw her into a drug
situation," and she "tried to take her own
life." During their correspondence, White was "able
to help her out" because he had "been through a lot
of different things in [his] life." He believed he had
"saved her life." Isabel and her mother were
planning to move to Arizona so that they could be closer to
also was in contact with his other two oldest children,
Jeremiah and Matthew. White felt that he could assist them
avoid some of the mistakes that he had made. He had "no
association whatsoever" with his three youngest
argued four mitigating factors. First, he discussed the
prosecutors' belief that the death penalty was not
appropriate. He cited the subsequent change in Arizona Rule
of Criminal Procedure 15.1-requiring prosecutors to give
notice of their intention to seek the death penalty within 30
days of arraignment-as evidence of "the acknowledged
role of the prosecutor in determining the appropriateness of
the death penalty."
McVay pointed to evidence that White could be rehabilitated.
White had no felony criminal record, did well in his
employment in nursing homes despite problems accepting
responsibility, was productive during various periods of his
life, had no record of prior abusive or violent behavior, and
expressed sorrow for David's death. McVay noted
White's exemplary behavior in prison, his contact with
his children and assistance to his daughter, and his
acceptance that his life would be spent in prison and would
have value there.
McVay focused on the gross disparity between White and
Susan's sentences. McVay argued that their culpability
was equal because Susan planned the crime and pushed White to
commit it. McVay claimed that the "weight of their
mitigating circumstances" was similar because White,
like Susan, had no prior record of crime or violence and was
a caring parent whose death would likely be
"devastating" for his children.
conceded that Susan had mitigating factors that White did
not-a difficult childhood, marriage, and divorce, as well as
a jury recommendation of leniency. McVay acknowledged
White's statement to the probation officer "that his
childhood was normal," but added, "one is left to
wonder about that conclusion when [White's] natural
father left the home when [he] was 18 months old and his
first stepfather was an alcoholic." McVay speculated
that it was "not inconceivable" that a jury might
recommend leniency for White if told the prosecutor's
opinion that Susan was the "mastermind" behind the
murder who had "pushed" White to commit it. And
McVay argued that Susan's additional mitigating factors
were balanced by White's potential for rehabilitation.
McVay argued that the aberrant nature of White's actions
and his lack of a criminal record were themselves mitigating
White's letters and memoranda
submitted at least two pro se filings. In a statement dated
December 3, 1996, White claimed that the ADOC placed
biometric implants in him against his will to transmit and
receive electrical signals between his auditory cortex and
remote computers in order to monitor his thought processes
and cause him to hear voices and other sounds. He believed
that the ADOC used the implants as mental and physical
torture and that ADOC employees derived sexual satisfaction
from these acts. He claimed the implants caused him brain
damage and memory loss. White also pointed out that the ADOC
had classified him as "mentally unfit" and that he
might not have long to live due to his Graves' disease.
White argued that he should be sentenced to "time
served" as a deterrent so that the ADOC would never
again use implants and torture a human being.
"Victim Witness Report" dated December 4, 1996,
White similarly alleged that he was being tortured with
various types of implants, "such as Laser Mic, S, and
Telemeters," exposing him to radiation and causing
physical and mental damage. White claimed that since 1988,
the ADOC had "raped" his memories and deprived him
of all of his privacy because of the "mind to mind
contact." ADOC employees sent him thought signals from
the "Implant Projection Room," projected multiple
personalities into his mind and forced him to perform sexual
and violent acts for as long as six hours.
believed that for nine years, each of the six
"defendant[s]" and "co-conspirator[s]"
had forced their thoughts into him, inflicting a total of 54
years of torture on him. His bones were aging faster than
those of a pregnant woman, and he conservatively estimated
that he has suffered 32 years of bone loss. He then
calculated that the 54 years of torture plus the 32 years of
bone loss, combined with a "Normal sentence Reduction
Rate of 18 Years," amounted to 104 years of sentencing
relief for which he was eligible.
court resentenced White to death, finding "no evidence
which would invalidate [its] previous finding . . . that
[White] committed the crime of first degree murder for the
receipt of something of pecuniary value." The court
cited White's statements that Susan had asked him to help
her kill David, that Fisher did not have to worry about child
support because he would be getting $100, 000, and that he
would use the money to start a business. The court also cited
its mistaken belief that White and Susan had attempted to
collect the insurance proceeds immediately after the
to the statutory mitigation factors,  the trial court again found
that none were present. The court considered several
non-statutory mitigation factors: White had no record of
prior felonies; his natural father left home when he was 18
months old and his first stepfather was an alcoholic; he had
"dependent personality traits" and had a history of
using and being addicted to heroin, cocaine, and amphetamine;
he was unable to form and maintain close relationships; he
was "unable to take responsibility well" despite
having "done well at his employment" and having
"been productive during various periods of his
life"; he expressed sorrow for David's death; he had
no prior record of abusive or violent behavior; he had tried
to be a model inmate since his arrest; his and Susan's
relative culpability; he had contact with and was able to
help some of his children; he accepted that the remainder of
his life would be spent in prison and would have value there;
he believed "that he is controlled by biotelemetry
implants"; he probably helped his daughter Isabel with
her problems; and he believed that he could be rehabilitated.
court rejected the prosecutors' opinions as
"irrelevant." It found that White and Susan's
sentences were not disparate because White "was the
triggerman [who] planned, plotted, and executed [the]
killing." White was criminally responsible for the
murder regardless of any fault of the medical personnel
because David would not have died but for the gunshot wounds
that White inflicted. Finally, the court found that
White's "aberrant behavior in connection with [his]
rehabilitation argument" was "nonsensical."
The court concluded that "there are no mitigating
factors which are sufficiently ...