Kevin Miles v. Charles Ryan

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KEVIN ARTICE MILES, 

Petitioner-Appellant, No. 10-99016 v. CHARLES L. RYAN, Director,  D.C. No. 4:01-cv-00645-RCC Arizona Department of

OPINION

Corrections, Respondent-Appellee.  Appeal from the United States District Court for the District of Arizona Raner C. Collins, District Judge, Presiding

Argued and Submitted February 16, 2012—San Francisco, California

Filed August 27, 2012

Before: Susan P. Graber, Marsha S. Berzon, and Richard C. Tallman, Circuit Judges.

Opinion by Judge Graber; Partial Concurrence and Partial Dissent by Judge Berzon

9797 9800 MILES v. RYAN

COUNSEL

Sean Bruner, Law Office of Sean Bruner, Ltd., Tucson, Ari- zona, for the petitioner-appellant.

Jonathan Bass, Assistant Attorney General, Criminal Appeals/Capital Litigation Section, Tucson, Arizona, for the respondent-appellee.

OPINION

GRABER, Circuit Judge:

Petitioner Kevin Artice Miles appeals the district court’s denial of his habeas petition, brought pursuant to 28 U.S.C. § 2254. Petitioner challenges only his capital sentence; he does not challenge his…

Opinion by Judge GRABER; Partial Concurrence and Partial Dissent by Judge BERZON.

OPINION

Petitioner Kevin Artice Miles appeals the district court’s denial of his habeas petition, brought pursuant to 28 U.S.C. § 2254 . Petitioner challenges only his capital sentence; he does not challenge his underlying felony murder conviction, arising from his role in a car-jacking. 1 Peti *1130 tioner argues that his counsel was ineffective at sentencing because she failed to focus on Petitioner’s drug addiction (rather than on intoxication), enlisted an unqualified expert, and failed to investigate Petitioner’s social history thoroughly enough.

We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253, and we affirm.

FACTUAL AND PROCEDURAL HISTORY

A. The Crime

On an afternoon late in 1992, Petitioner was standing on a street corner in Tucson, Arizona, with Levi Jackson and Ray Hernandez. Jackson was carrying a pistol that the three of them had just obtained together; he had told Petitioner and Hernandez of his plan to commit a car-jacking. Specifically, according to Petitioner’s post-arrest statement to the police, Jackson had told them that he was “gonna get somebody’s car, take 'em…

concurring in part and dissenting in part:

I agree with the majority that Miles has not shown that he. is entitled to relief under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.L. No. 104-132, 110 Stat. 1214, on the basis of his counsel’s alleged deficiencies in *1145 presenting addiction as a mitigating factor and in preparing Dr. Levy to testify. I cannot agree, however, with the majority’s conclusion that Miles is not entitled to relief based on his counsel’s deficient investigation of his troubled background. In rejecting this claim, the state court applied Strickland in a way inconsistent with the holdings of several Supreme Court cases. Its decision was therefore “contrary to” clearly established Federal law, and we should conduct de novo review. On de novo review, I would conclude that Miles’s counsel was constitutionally deficient and that Miles was prejudiced by this deficiency. On this point, therefore, I dissent.

A. AEDPA

The Arizona Superior Court rejected Miles’s failure-to-investigate claim on the ground that “a Defendant must bear some responsibility to assist his or her attorney in preparing a defense [and that] an attorney should be…