Eric Mann v. Charles Ryan

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ERIC OWEN MANN, No. 09-99017 Petitioner-Appellant, D.C. No. v. 4:03-CV-00213-CKJ

CHARLES L. RYAN,

Respondent-Appellee. OPINION

Appeal from the United States District Court for the District of Arizona Cindy K. Jorgenson, District Judge, Presiding

Argued and Submitted En Banc January 11, 2016 Pasadena, California

Filed July 15, 2016

Before: Sidney R. Thomas, Chief Judge, and Susan P. Graber, M. Margaret McKeown, Kim McLane Wardlaw, Marsha S. Berzon, Richard R. Clifton, Consuelo M. Callahan, N. Randy Smith, Morgan Christen, Paul J. Watford, and John B. Owens, Circuit Judges.

Opinion by Judge Clifton; Partial Concurrence and Partial Dissent by Chief Judge Thomas; Partial Concurrence and Partial Dissent by Judge Christen SUMMARY*

Habeas Corpus / Death Penalty

The en banc court affirmed the district court’s judgment denying Arizona state prisoner Eric Owen Mann’s 28 U.S.C. § 2254 habeas corpus petition challenging his conviction and capital sentence for two counts of first-degree murder.

The en banc court held that Mann is…

concurring in part and dissenting in part:

I agree with the majority that Mann is not entitled to relief on his claims of guilt-phase ineffective assistance of counsel. I respectfully disagree that he is not entitled to relief on his claim of ineffective assistance of counsel at sentencing. Therefore, I concur in part and dissent in part.

I

Before venturing into the dense thicket of AEDPA nuances, we must recognize at the onset that, although the law may not provide a remedy, Mann was sentenced to death under an unconstitutional sentencing scheme.

First, his death sentence was imposed by a judge, not a jury, under a system that the Supreme Court later declared unconstitutional as a violation of the Sixth Amendment right to trial by jury. Ring v. Arizona, 536 U.S. 584, 609 , 122 S.Ct. 2428 , 153 L.Ed.2d 556 (2002). Mann, of course, has no remedy for that constitutional infirmity because Ring does not apply retroactively. Schriro v. Summerlin, 542 U.S. 348, 358 , 124 S.Ct. 2519 , 159 L.Ed.2d 442 (2004).

Second, he was sentenced during a period in which Arizona unconstitutionally precluded the consideration of mitigating evidence that lacked a “causal nexus” to the crime, in…

joined by BERZON, Circuit Judge, concurring in part and dissenting in part:

I agree with the majority and the dissent that petitioner did not meet his burden of establishing a meritorious guilt-phase claim. As for petitioner’s sentencing-phase claim, I fully join the dissent’s Part IIA analysis and conclude that Mann is entitled to de novo review on his claim of ineffective assistance of counsel. The dissent meticulously traces the post-conviction court’s treatment of Mann’s mitigating evidence and conclusively establishes that the court did indeed apply the rule from State v. Hoskins, 199 Ariz. 127 , 14 P.3d 997 (2000) (en banc), a decision published by the Arizona Supreme Court less than a year before the court decided Mann’s post-conviction petition. Though this was exactly the course urged by the prosecution, it doomed the post-conviction court’s Strickland analysis because it unequivocally incorporated Eddings error. As the dissent makes plain, no speculation is required to conclude that the state court improperly weighed Mann’s mitigating evidence; the court said so. The dissent’s Part IIIA discussion of Strickland’s deficient performance prong is also compelling and I join…

Partial Concurrence and Partial Dissent by Chief Judge THOMAS;

Partial Concurrence and Partial Dissent by Judge CHRISTEN

OPINION

Petitioner Eric Owen Mann lured Richard Alberts and Ramon Bazurto to his house in 1989 with a promise to sell them cocaine for about $20,000. Instead, he took the money and shot both men to death. Mann was eventually arrested and tried in Arizona state court in 1994. A jury found him guilty on two counts of first-degree murder, and the trial judge sentenced him to death, noting his long criminal history and his apparent lack of remorse for the killings. Following the affirmance of his convictions and sentence by the Arizona Supreme Court, Mann filed a petition for post-conviction relief in state court in 2000 asserting, among other claims, that he had received ineffective assistance of counsel at trial and sentencing. That petition was assigned to the same judge who had presided over Mann’s trial and imposed the capital sentence upon him a few years before. The judge denied in full Mann’s petition for post-conviction relief, and the Arizona Supreme Court thereafter denied Mann’s petition for review. Mann then filed a petition for habeas corpus under…