George Lopez v. Dora B. Schriro, Arizona Department of Corrections Director Megan Savage, Warden

Opinion by Judge HAWKINS; Partial Concurrence and Partial Dissent by Judge THOMAS.

Appellant George Lopez (“Lopez”) was convicted in Arizona state court of child abuse and felony murder of his one-year-old son and sentenced to death. In this post-Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) habeas proceeding, he presents one certified issue: whether the state trial court denied Lopez his rights under the Eighth Amendment by failing to consider mitigation evidence presented at trial. He also seeks to expand the certificate of appealability (“COA”) to include four additional issues, including the Arizona Supreme Court’s review of his death sentence and three ineffective assistance of counsel claims. We affirm in part, reverse in part, and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

The relevant facts pertaining to the death of Lopez’s son, Anthony, are set forth in the Arizona Supreme Court’s opinion on direct review:

State v. Lopez, 174 Ariz. 131 , 847 P.2d 1078, 1081-83 (1992).

Lopez was indicted on one count of first-degree murder and one count of child abuse, and a jury convicted him on both counts. At an aggravation/mitigation hearing…

concurring in part and dissenting in part:

I concur in the majority’s holdings in Parts II-V of the majority opinion. That is, I agree that the district court erred in concluding that Lopez’s ineffective assistance of counsel claims for failure to investigate and present mitigating evidence were unexhausted, and I agree that Lopez is not entitled to remand or relief on his *1045 claims that the Arizona Supreme Court denied him meaningful appellate review, that his lawyer was deficient in failing to challenge Dr. Hobeich’s testimony, or that his lawyer was deficient in failing to object to evidence of prior injuries.

However, because I conclude that Lopez has successfully demonstrated an unreasonable application of Eddings v. Oklahoma, 455 U.S. 104 , 102 S.Ct. 869 , 71 L.Ed.2d 1 (1982), based on both the trial judge’s and the Arizona Supreme Court’s failure to consider his mens rea as a mitigating factor, I respectfully dissent from Part I of the majority’s opinion.

I

I share the concern raised by Chief Justice Feldman in his special concurrence, namely the lack of any trial court findings on mens rea. The lack of such a finding creates a distinct constitutional problem under…

491 F.3d 1029 George LOPEZ, Petitioner-Appellant, v. Dora B. SCHRIRO, * Arizona Department of Corrections Director; Megan Savage, Warden, Respondents-Appellees. No. 06-99000. United States Court of Appeals, Ninth Circuit. Argued and Submitted March 6, 2007. Filed June 20, 2007. Cary Sandman, Waterfall, Economidis, Caldwell, Hanshaw & Villamana, P.C., Tucson, AZ, for the petitioner-appellant. Robert J. Gorman, Arizona State Attorney General's Office, Tucson, AZ, for the respondents-appellees. Appeal from the United States District Court for the District of Arizona; Cindy K. Jorgenson, District Judge, Presiding. D.C. No. CV-97-00224-CKJ. Before: HAWKINS, SIDNEY R. THOMAS, and RICHARD R. CLIFTON, Circuit Judges. Opinion by Judge HAWKINS; Partial Concurrence and Partial Dissent by Judge THOMAS. MICHAEL DALY HAWKINS, Circuit Judge: 1 Appellant George Lopez ("Lopez") was convicted in Arizona state court of child abuse and felony murder of his one-year-old son and sentenced to death. In this post-Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") habeas proceeding, he presents one certified issue: whether the state trial court denied Lopez his rights under the Eighth…