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Greenway v. Ryan

United States Court of Appeals, Ninth Circuit

May 11, 2017

Richard Harley Greenway, Petitioner-Appellant,
v.
Charles L. Ryan, Director of Arizona Department of Corrections, Respondent-Appellee.

          Argued and Submitted October 28, 2015

          Deferred January 25, 2016

          Resubmitted March 27, 2017 San Francisco, California

         Appeal from the United States District Court for the District of Arizona Raner C. Collins, Chief District Judge, Presiding D.C. No. 4:98-cv-00025-RCC

          Robin C. Konrad (argued) and Therese M. Day, Assistant Federal Public Defenders; Jon M. Sands, Federal Public Defender; Office of the Federal Public Defender, Phoenix, Arizona; for Petitioner-Appellant.

          Jeffrey Sparks (argued) and Laura P. Chiasson, Assistant Attorneys General; Jeffrey A. Zick and Lacey Stover Gard, Chief Counsel; Mark Brnovich, Attorney General; Office of the Attorney General, Tucson, Arizona; for Respondent-Appellee.

          Before: Mary M. Schroeder, Johnnie B. Rawlinson, and Carlos T. Bea, Circuit Judges

         SUMMARY[*]

         Habeas Corpus/Death Penalty

         The panel affirmed the district court's judgment on remand denying Arizona state prisoner Richard Greenway's habeas corpus petition challenging his conviction and death sentence.

         The panel wrote that because the determination does not affect the scope of the issues before it in this appeal, it need not consider Greenway's argument that the district court erred in determining that some claims were outside the scope of this court's remand.

         The panel held that neither of Greenway's certified claims of ineffective assistance of counsel has merit. As to his claim that trial counsel failed to present an overall defense theory, the panel held that ineffectiveness has not been shown. As to his claim that trial counsel should have explored the possibility of a mental incapacity defense of impulsivity in order to negate premeditation, the panel concluded that this Christensen defense would have been counterproductive.

         The panel also deemed meritless Greenway's claim - as to which the panel asked for supplemental briefing - that trial counsel was ineffective during voir dire in failing to discover that a juror had been the victim of a violent crime that would have disqualified that juror.

         The panel denied a certificate of appealability as to all other claims.

         Concurring, Judge Bea would find that much of Greenway's ineffective-assistance claim based on trial counsel's failure to challenge and remove a juror was not fairly - or at all - presented in any state court proceeding and is therefore procedurally barred.

          OPINION

          SCHROEDER, Circuit Judge:

         Richard Greenway is an Arizona state prisoner. A jury convicted him of the brutal 1988 murders of a mother and her teenage daughter during a burglary in Tucson, Arizona. He was tried and convicted of burglary, armed robbery, theft by control, arson of an unoccupied structure, as well as two counts of murder in the first degree, and sentenced to death in 1989. Following his appeal and state court post-conviction proceedings, the district court denied his 28 U.S.C. § 2254 petition.

         We heard his first federal appeal in 2011. Greenway v. Schriro, 653 F.3d 790 (9th Cir. 2011). Our decision affirmed the district court's denial of Greenway's claims of ineffective assistance at sentencing, but remanded for the district court to consider on the merits the claims of ineffective assistance at trial and on direct appeal. Id. at 793. The district court has now done so and has denied them. Greenway seeks review in this appeal.

         The district court spent a good deal of time attempting to determine what claims were within the scope of our remand, because Greenway made additional contentions. Although the district court found that many of the claims were not within the scope of the remand, it concluded that an intervening Supreme Court decision required consideration of some of the ineffectiveness claims in any event. See Martinez v. Ryan, 132 S.Ct. 1309, 1315 (2012). We do not need to consider Greenway's argument that the district court erred in determining that some claims were outside the scope of our remand, however, since the determination does not affect the scope of the issues before us in this appeal.

         The district court granted a certificate of appealability regarding two claims of ineffectiveness. Both relate to trial counsel's alleged failure to present defenses. Neither has merit.

         Greenway claims trial counsel failed adequately to present an overall defense theory. Defense counsel at trial argued that the evidence showed only that Greenway was involved in destroying the stolen property after the murders had occurred. This theory was consistent with the physical evidence. No viable alternative theory appears in the record, and Greenway does not suggest one. Ineffectiveness has not been shown.

         The district court also certified the issue of whether trial counsel should have explored the possibility of a mental incapacity defense of impulsivity, as recognized in Arizona, in order to negate premeditation. See State v. Christensen, 628 P.2d 580, 583-84 (Ariz. 1981). We conclude the suggested defense would have been counterproductive, as it would have placed Greenway as a ...


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