Before: Jerome Farris, Consuelo M. Callahan, and John B.
Owens, Circuit Judges.
panel filed an order denying a petition for panel rehearing
and a petition for rehearing en banc, in a case in which the
panel vacated the district court's judgment granting a
writ of habeas corpus on a claim of ineffective assistance of
counsel at sentencing.
from the denial of rehearing en banc, Judge Paez, joined by
Judges W. Fletcher and Berzon, wrote that the case should
have been reheard en banc to correct serious legal errors
committed by the panel in evaluating the prejudice that
resulted from the glaring ineffective assistance of counsel
provided at the penalty phase of a capital trial.
panel has voted to deny the petition for panel rehearing and
petition for rehearing en banc. The full court was advised of
the petition for rehearing en banc. A judge requested a vote
on whether to rehear the matter en banc. The matter failed to
receive a majority of the votes of the nonrecused active
judges in favor of en banc consideration. Fed. R. App. P. 35.
The petition for panel rehearing and the petition for
rehearing en banc are denied.
Circuit Judge, joined by W. FLETCHER and BERZON, Circuit
Judges, dissenting from the denial of en banc rehearing:
case should have been reheard en banc to correct the serious
legal errors committed by the panel in evaluating the
prejudice that resulted from the glaring ineffective
assistance of counsel provided at the penalty phase of a
capital trial.Given his death sentence, Michael Apelt was
entitled to appellate review that meaningfully engaged with
the significant mitigation evidence developed in state court
post-conviction proceedings and that adjudicated each of his
claims for relief. As a result of our failure to go en banc,
we have left in place an opinion that not only misconstrues
well-established Supreme Court precedent about the humanizing
effect of mitigation evidence, but also employs dehumanizing
language to condemn Apelt in a manner that does not belong in
a court of law. Accordingly, I respectfully dissent from the
denial of rehearing en banc.
district court granted habeas relief on one issue,
ineffective assistance of counsel ("IAC") at
sentencing. Apelt v. Ryan, 148 F.Supp.3d 837 (D.
Ariz. 2015), vacated, 878 F.3d 800 (9th Cir. 2017).
Apelt was represented by Michael Villarreal at his trial for
the first-degree murder and conspiracy to commit first-degree
murder of Cindy Monkman, his wife of a few months. Villarreal
also represented Apelt in his first unsuccessful
post-conviction relief ("PCR") petition. In his
second PCR petition, in which he was represented by new
counsel, Apelt argued that Villarreal's failure to
investigate and present mitigating evidence during sentencing
denied Apelt effective assistance of counsel in violation of
the Sixth Amendment. In response to the state's appeal,
and in support of the district court's judgment, Apelt
argued that the Arizona superior court's conclusion that
he did not suffer from Villarreal's alleged deficient
performance at sentencing was objectively unreasonable under
28 U.S.C. § 2254(d)(1). In the alternative, he raised a
second issue: that the Arizona superior court's
decision-reached without an evidentiary hearing despite
significant evidence of a childhood filled with pervasive
physical and sexual abuse that left Apelt "mentally
disturbed" and suicidal-was objectively unreasonable
under 28 U.S.C. § 2254(d)(2).
panel held, correctly, that Villarreal was grossly
ineffective for failing to meaningfully investigate any
mitigation evidence that could spare his client's
life. Apelt v. Ryan, 878 F.3d 800,
828-31 (9th Cir. 2017). As the district court aptly
Villareal did not collect records from social
service agencies, welfare agencies, doctors, hospitals, or
employers. Villareal did not interview potential mitigation
witnesses, including Apelt's family members, or consult
with any mental health experts. Villareal did not obtain
Apelt's readily-available medical health records from the
Pinal County jail which described Apelt receiving various
medications as well as Apelt's placement on suicide
watch. And Villareal did not present a single witness at the
sentencing hearing. This was deficient performance.
Id. at 820. The record shows that Villarreal knew
about Apelt's "difficult childhood" in Germany
and other indicia of psychiatric issues, but did not take the
steps necessary to investigate his client's background
for sentencing. Id. at 829-31. Villarreal also
acknowledged that his failure to investigate mitigation
evidence was not a strategic choice. Id. at 830.
Thus, the panel rightly agreed with the district court that
Villarreal's performance "'fell below an
objective standard of reasonableness,' even in
1989." Id. at 831.
the extent of Villarreal's deficient performance in his
representation of Apelt, the panel seriously erred in
concluding that Apelt did not suffer prejudice as a result of
his counsel's IAC at sentencing. Id. at 831-34.
The panel's discussion in the third step of the
Strickland analysis gravely misapprehends the role of
mitigation evidence in capital cases. The panel's
approach cannot be squared with the Supreme Court's
longstanding emphasis on the humanizing effect of such
evidence-no matter the underlying the offense-for individuals
panel's first error was to conflate legal culpability
with moral culpability, thereby minimizing the role of
mitigation evidence. To the extent the panel refers to
mitigation in its analysis, it is to conclude that the record
evidence does not provide sufficient "explanation"
for Apelt's conduct. Id. at 834. The panel
insists: "none of the proffered mitigating evidence
excuses Apelt's callousness, nor does it reduce
Apelt's responsibility for planning and carrying
out the murder." Id. (emphasis added).
Mitigation evidence, however, is not consigned to such a
guilt phase of a capital murder trial, a central question is
whether the defendant had the capacity to understand what he
was doing when he acted. At the penalty phase, the
defendant's mitigation evidence asks in addition
whether there is something humanizing about the defendant and
his background such that the judge or a member of the jury
would be inspired to spare the defendant's life in an act
of mercy. See Kansas v. Carr, 136 S.Ct. 633, 642
(2016); Porter v. McCollum, 558 U.S. 30, 41 (2009)
(per curiam). Mitigation evidence can be used to excuse or
explain a heinous crime. See, e.g., Perry v.
Lynaugh, 492 U.S. 302, 319 (1989), abrogated on
other grounds by Atkins v. Virginia, 536 U.S. 304
(2002). However, "while demonstrating such a causative
'nexus' between painful life experiences and the
commission of the offense is one way in which mitigating
evidence can be expected to alter a sentencing outcome, it is
certainly not the only one." Doe v. Ayers, 782
F.3d 425, 462 (9th Cir. 2015) (citing Tennard v.
Dretke, 542 ...