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Apelt v. Ryan

United States Court of Appeals, Ninth Circuit

October 11, 2018

Michael Apelt, Petitioner-Appellee/ Cross-Appellant,
v.
Charles L. Ryan, Respondent-Appellant/ Cross-Appellee.

          D.C. No. 2:98-cv-00882-ROS

          Before: Jerome Farris, Consuelo M. Callahan, and John B. Owens, Circuit Judges.

         SUMMARY[*]

         Habeas Corpus

         The 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.

         Dissenting 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.

          ORDER

         The 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.

          PAEZ, Circuit Judge, joined by W. FLETCHER and BERZON, Circuit Judges, dissenting from the denial of en banc rehearing:

         This 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.[1]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.

         I.

         The 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).

         The panel held, correctly, that Villarreal was grossly ineffective for failing to meaningfully investigate any mitigation evidence that could spare his client's life.[2] Apelt v. Ryan, 878 F.3d 800, 828-31 (9th Cir. 2017). As the district court aptly summarized:

Villareal[3] 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.

         Given 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[4] 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 like Apelt.

         A.

         The 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 limited role.

         At the 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 ...


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