Warren Wesley Summerlin v. Terry L. Stewart, Director of Arizona Department of Corrections

341 F.3d 1082 Warren Wesley SUMMERLIN, Petitioner-Appellant, v. Terry L. STEWART, Director of Arizona Department of Corrections, Respondent-Appellee. No. 98-99002. United States Court of Appeals, Ninth Circuit. Argued and Submitted October 10, 2000-Pasadena, California Opinion Filed October 12, 2001. Withdrawn February 11, 2002. Order Granting En Banc Hearing November 23, 2002 Argued and Submitted December 10, 2002 Filed September 2, 2003. Ken Murray and Leticia Marquez, Federal Public Defender's Office, Phoenix, Arizona, for the petitioner-appellant. John Pressley Todd, Attorney General's Office, Phoenix, Arizona, for the respondent-appellee. Appeal from the United States District Court for the District of Arizona; Roslyn O. Silver, District Judge, Presiding. D.C. No. CV-86-00584-ROS. Before Mary M. Schroeder, Chief Judge, and Harry Pregerson, Stephen Reinhardt, Diarmuid F. O'Scannlain, Michael Daly Hawkins, Sidney R. Thomas, M. Margaret McKeown, Kim McLane Wardlaw, Raymond C. Fisher, Richard C. Tallman, and Johnnie B. Rawlinson, Circuit Judges. Opinion by Judge THOMAS; Concurrence by Judge REINHARDT; Dissent by Judge RAWLINSON. OPINION THOMAS, Circuit Judge. In this appeal we…

Opinion by Judge THOMAS; Concurrence by Judge REINHARDT; Dissent by Judge RAWLINSON.

In this appeal we consider whether the district court erred in denying a writ of habeas corpus sought as to petitioner’s conviction and death sentence. We affirm the district court’s judgment as to the conviction. However, we conclude that the Supreme Court’s decision in Ring v. Arizona, 536 U.S. 584 , 122 S.Ct. 2428 , 153 L.Ed.2d 556 (2002), applies retroactively so as to require that the penalty of death in this case be vacated.

I

It is the raw material from which legal fiction is forged: A vicious murder, an anonymous psychic tip, a romantic encounter that jeopardized a plea agreement, an allegedly incompetent defense, and a death sentence imposed by a purportedly drug-addled judge. But, as Mark Twain observed, “truth is often stranger than fiction because fiction has to make sense.”

There is no doubt that Warren Summer-lin is an extremely troubled man. He has organic brain dysfunction, was described by a psychiatrist as “functionally retarded,” and has explosive personality disorder with impaired impulse control. His father was a convicted armed robber who was killed in a shootout. As a…

concurring.

I join fully in Judge Thomas’s excellent opinion for the court. I could not improve on the legal arguments he has offered. I agree entirely that Ring establishes a new substantive rule and that to the extent the rule is procedural it constitutes a watershed rule that enhances the accuracy of capital sentencing and alters our understanding of a bedrock procedural provision.

I write separately only to emphasize that a contrary result would be unthinkable in a society that considers itself both decent and rational. Few seriously doubt that the death penalty is generally imposed in an arbitrary manner in this nation. The vagaries of the process by which prosecutors select those they believe worthy of death; the chances that defendants will be assigned incompetent rather than competent legal counsel, and that such representation will continue throughout the state and federal direct and collateral proceedings; the fortuitous circumstances which in combination account for the fact-finders’ decisions in capital proceedings as to who shall live or die: all result in a system of execution by chance or fate. And this is wholly aside from factors such as race, IQ, poverty,…