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White v. Ryan

United States Court of Appeals, Ninth Circuit

July 11, 2018

Michael Ray White, Petitioner-Appellant,
Charles L. Ryan, Warden, Director, Arizona Department of Corrections; James O'Neil, Warden, Arizona State Prison - Eyman Complex, Respondents-Appellees.

          Argued and Submitted October 4, 2017 Pasadena, California

          Appeal 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 Petitioner-Appellant.

          John 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.


         Habeas Corpus/Death Penalty

         The 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.

         Regarding 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).

         The 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.



         Michael 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 prior appeal.

         Worse 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."

         White filed a federal petition for a writ of habeas corpus based on ineffective assistance of counsel at his resentencing, which the district court denied.[1] 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. 668 (1984).

         We hold 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.

         I. Factual Background

         White met Susan in January 1987 when they worked together at a nursing home in Prescott, Arizona.[2] 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 romantic relationship.

         That 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.

         In 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.

         After 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 it."

         In 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 insurance policy.

         Around 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."

         On 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.

         Around 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.

         On 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.[3] 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 radio.

         An 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.

         The 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 each other.

         White 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."

         The 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"?

         II. Procedural Background

         A. Trial, original sentencing, and first direct appeal

         White and Susan were tried separately on the same charges-conspiracy to commit first degree murder and first degree murder.

         White's 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.

         At 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.

         The 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 conviction.

         White's 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.

         White 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 (Ariz. 1991).

         B. First PCR petition

         White 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 Hanratty.

         In 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.

         Like 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."

         The PCR court held an evidentiary hearing on White's amended PCR petition, which alleged ineffective assistance of counsel at trial, sentencing, and appeal.

         1. Prosecutor Marc Hammond's testimony

         Marc 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.

         Hammond 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.

         2. Trial counsel Chester Lockwood's testimony

         Lockwood 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."

         Lockwood 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."

         Lockwood 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.

         The PCR 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.

         C. Resentencing proceedings

         1. Mitigation hearing

         McVay 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 the death."

         a. Prosecutor Marc Hammond's testimony

         Hammond 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."

         Although 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."

         b. White's testimony

         White 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 him.

         White 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 children.

         2. Resentencing memoranda

         a. McVay's memorandum

         McVay 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."

         Second, 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.

         Third, 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.

         McVay 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.

         Fourth, McVay argued that the aberrant nature of White's actions and his lack of a criminal record were themselves mitigating factors.

         b. White's letters and memoranda

         White 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.

         In a "Victim Witness Report"[4] 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.

         White 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.

         3. Resentencing decision

         The PCR 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 murder.[5]

         Turning to the statutory mitigation factors, [6] 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.

         The 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 ...

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