Gregory Dickens v. Charles L. Ryan

Opinion by Judge N.R. SMITH; Dissent by Judge REINHARDT.

OPINION

Gregory Scott Dickens, an Arizona state prisoner, appeals the district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition. Dickens was sentenced to death on each of two counts of felony murder for the 1991 killings of Bryan and Laura Bernstein. In this petition, Dickens challenges his capital sentences, arguing that (1) the Arizona Supreme Court’s application of Enmund v. Florida, 458 U.S. 782 , 102 S.Ct. 3368 , 73 L.Ed.2d 1140 (1982), and Tison v. Arizona, 481 U.S. 137 , 107 S.Ct. 1676 , 95 L.Ed.2d 127 (1987), was unreasonable; (2) the Arizona Supreme Court based its decision on an unreasonable determination of the facts; and (3) his trial counsel rendered ineffective assistance by failing to investigate and present certain mitigating evidence during sentencing.

Regarding Dickens’s first two arguments, we must affirm, because (1) the Arizona Supreme Court’s application of Enmund and Tison to the facts of this case was not objectively unreasonable and (2) the Arizona Supreme Court did not base its decision on a clearly erroneous determination of the facts. As for Dickens’s third argument, although we…

dissenting:

The majority opinion allows the State of Arizona to execute Dickens essentially for being the getaway driver in the armed robbery that resulted in the death of the Bernsteins. Yet Supreme Court case law is clear that imposition of the death penalty on one “who does not himself kill, attempt to kill, or intend that a killing take place or that lethal force will be employed” is excessive punishment under the Eighth Amendment. Enmund v. Florida, 458 U.S. 782, 797 , 102 S.Ct. 3368 , 73 L.Ed.2d 1140 (1982). It is not disputed that Dickens did not kill, attempt to kill, or intend that the Bernsteins be killed. Under Enmund , his death sentence is therefore unconstitutional.

The majority attempts to escape the clear holding of Enmund by arguing that Dickens falls under the narrow exception *1074 created in Tison v. Arizona, in which the Supreme Court held that “major participation in the felony committed, combined with reckless indifference to human life, is sufficient to satisfy the Enmund culpability requirement” and justifies the imposition of a death sentence on a defendant convicted of felony-murder. 481 U.S. 137, 158 , 107 S.Ct. 1676 , 95 L.Ed.2d 127 (1987). Dickens,…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GREGORY DICKENS,  No. 08-99017 Petitioner-Appellant, D.C. No. v.  CV-01-757-PHX-

CHARLES RYAN, NVW

Respondent-Appellee.  OPINION

Appeal from the United States District Court for the District of Arizona Neil V. Wake, District Judge, Presiding

Argued and Submitted February 10, 2011—Pasadena, California

Filed August 3, 2012

Before: Stephen Reinhardt, Johnnie B. Rawlinson, and N. Randy Smith, Circuit Judges.

Opinion by Judge N.R. Smith; Dissent by Judge Reinhardt COUNSEL

Jon M. Sands, Federal Public Defender, Phoenix, Arizona, for petitioner-appellant Gregory Dickens.

John Pressley Todd, Assistant Attorney General, Capital Liti- gation Section, Phoenix, Arizona, for respondent-appellee Dora B. Schriro.

OPINION

N.R. SMITH, Circuit Judge:

Gregory Scott Dickens, an Arizona state prisoner, appeals the district court’s denial of his 28 U.S.C. § 2254 habeas cor- pus petition. Dickens was sentenced to death on each of two counts of felony murder for the 1991 killings of Bryan and Laura…