by Dale Chappell

The U.S. Court of Appeals for the Ninth Circuit held that trial counsel’s failure to obtain a mental health expert and psychological testing constituted ineffective assistance of counsel (“IAC”), rendering the death-penalty sentences invalid. The Court reversed the denial of habeas corpus relief and instructed the U.S. District Court for the District of Arizona to grant relief by vacating those sentences.

Nearly 30 years ago, Danny Jones was arrested for the murders of three members of the Weaver family, including a seven-year-old girl. After being convicted by a jury, he was sentenced to death for two of the murders. The judge found several aggravating factors, including that Jones received something of value (robbery), that his use of a baseball bat was “especially heinous or depraved,” and that a child was murdered.

As for mitigating factors, the judge noted Jones’ history of chronic drug abuse from an early age and use during the offense and that he had a chaotic and abusive childhood with aggravated head trauma as a youth. All of Jones’ appeals were unsuccessful, and he filed for post-conviction relief (“PCR”) in state court.

Jones argued, among other things, that his defense counsel provided constitutionally ineffective assistance of counsel at sentencing for failing to obtain a defense mental health expert (“Claim 1”) and for failing to seek neurological or neuropsychological testing prior to sentencing (“Claim 2”).

PCR counsel requested the court to appoint a neuropsychologist to evaluate Jones, but that request was denied. The court reasoned that the county’s Chief of Forensic Psychiatry for the Correctional Health Services, Dr. Jack Potts, who testified at sentencing about Jones’ abusive childhood, history of substance abuse, psychological problems in Jones’ family, and multiple head traumas was sufficient for the record. Dr. Potts didn’t give a specific diagnosis, but he testified for the need for “some neurologic evaluations … such as a CAT scan, possibly an MRI, possibly EEG” because he believed there was “strong evidence” of “traumatic brain injury” and possibly “organic neurologic dysfunctions” since about the age of 13. While Dr. Potts wasn’t a defense expert, nor was he brought in to testify for the defense, he gave “defense opinions,” the court said in that he favored the defense as much as the State.

At an evidentiary hearing in state court on Jones’ claims, former trial counsel admitted in an affidavit that he “was of the opinion that it would be fruitless to ask the court for additional funding for needed experts such as an independent psychiatrist or psychologist.” Additionally, he said he didn’t think the public defender’s office would authorize the funds either. The trial court had authorized only $2,000 of the $5,000 requested by trial counsel for expert assistance. Instead of using that money for a mental health expert or psychological evaluation, counsel hired a crime scene investigator and an addictionologist to show the drugs used during the offense prevented pre-meditated murder.

The PCR court denied Jones’ petition, concluding that Dr. Potts’ testimony at sentencing adequately addressed Jones’ mental health issues. His appeals were unsuccessful once again, so he filed a petition for habeas corpus relief in federal court under 28 U.S.C. § 2254. The district court denied both of his claims, and subsequently, the case went through a series of appeals and remands and ultimately made its way back to the Ninth Circuit.

The Court began by stating the Antiterrorism and Effective Death Penalty Act (“AEDPA”) governs its review of Jones’ petition since it was filed after April 24, 1996. See Summers v. Schriro, 481 F.3d 710 (9th Cir. 2007). Under AEDPA, a federal court may not grant habeas relief unless the state court’s decision was either “contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States,” or was “based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.” 28 U.S.C. § 2254(d)(1)-(2).

A state court’s decision is “contrary to” federal law if it “applies a rule that contradicts the governing law set forth by the Supreme Court and, nevertheless, arrives at a result different from its precedent.” Lambert v. Blodgett, 393 F.3d 943 (9th Cir. 2004) (citing Lockyer v. Andrade, 538 U.S. 63 2003)). A state court’s decision is an “unreasonable application” of clearly established federal law if it “identifies the correct, governing principle from [the Supreme] Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id. The Supreme Court has instructed that “clearly established” law refers only to “the holdings, as opposed to the dicta” of its decisions. Williams v. Taylor, 529 U.S. 362 (2000). The Supreme Court has also instructed that circuit precedent does not constitute “clearly established” federal law for purposes of § 2254(d). Marshall v. Rodgers, 569 U.S. 58 (2013).

The Court noted that in order to prove a constitutional violation based on IAC, Jones must show (1) “that counsel’s performance was deficient,” and (2) “that the deficient performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668 (1984). Counsel’s performance is deficient if it “fell below an objective standard of reasonableness … under prevailing professional norms.” Id. Jones must also show that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id.

  Turning to Claim 1, the Court agreed with Jones. It concluded that the state court’s decision on Claim 1 was contrary to Williams, in which the U.S. Supreme Court instructed that counsel’s performance may be deficient “if he is on notice that his client may be mentally impaired, yet fails to investigate his client’s mental health condition as a mitigating factor in a penalty phase hearing.” The Williams Court further instructed that counsel has an “obligation to conduct a thorough investigation of the defendant’s background” and that counsel’s performance is deficient if he fails to investigate and present evidence of defendant’s mental defect. Furthermore, the Ninth Circuit has held that counsel’s performance may be deficient “if he ‘is on notice that his client may be mentally impaired,’ yet fails ‘to investigate his client’s mental condition as a mitigating factor in a penalty phase hearing.’” Caro v. Woodford, 280 F.3d 1247 (9th Cir. 2002) (quoting Hendricks v. Calderon, 70 F.3d 1032 (9th Cir. 1995)).

The Court concluded that the state court record establishes that counsel’s decision to not seek a mental health expert on a timely basis fell below “prevailing professional norms.” Strickland. The Court explained that at the penalty phase counsel has a much broader “duty to follow up on indicia of mental impairment” than at the guilt phase. Bemore v. Chappell, 788 F.3d 1151 (9th Cir. 2015). The Court also discussed ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases, Guideline 11.4.1(d)(7) at length and Jones’ counsel’s deficient performance under that standard.

The Court noted that counsel had records and information in his possession that put him on notice before the guilt-phase of the trial that Jones may have been mentally impaired, yet he failed to investigate the matter and failed to obtain a defense mental health expert. A reasonable attorney in counsel’s position would not have acted similarly. See Wiggins v. Smith, 539 U.S. 510 (2003). The court-appointed, independent expert’s “short and cursory evaluation” didn’t satisfy counsel’s duty to investigate and obtain a defense mental health expert, the Court stated. See Lambright v. Schriro, 490 F.3d 1103 (9th Cir. 2007) (“Counsel may not rely for the development and presentation of mitigating evidence on … a court appointed psychologist…. The responsibility to afford effective representation is not delegable to parties who have no obligation to protect or further the interests of the defendant.”).

Moreover, the Court noted that the U.S. Supreme Court has held that the failure to “make even a cursory investigation” into funds available for expert assistance may be deficient performance under Strickland. Hinton v. Alabama, 571 U.S. 263 (2014).

Thus, the Court held that trial counsel’s performance was constitutionally ineffective and that, pursuant to § 2254(d)(1), the Arizona Supreme Court’s decision to the contrary was “an unreasonable application of Strickland and its progeny.”

In a belt and suspenders approach in finding in favor of Jones, the Court noted that, alternatively, Jones argued that the state PCR court’s decision was predicated on an unreasonable determination of facts under § 2254(d)(2) and that the court’s failure to hold a hearing on Claim 1 resulted in an unreasonable determination of the facts. It agreed with him on both points.

  The Court explained that § 2254(d)(2) challenges “come in several flavors.” Taylor v. Maddox, 366 F.3d 992 (9th Cir. 2004). It mentioned several types of challenges, but the one at issue in the present case is where the state court makes factual findings without holding an evidentiary hearing and is thus not entitled to AEDPA deference. Hurles v. Ryan, 752 F.3d 768 (9th Cir. 2014). An especially deficient fact-finding process is where a “judge bases factual findings on their own personal conduct, untested memory, or understanding of events in the place of an evidentiary hearing,” according to the Court. See Hurles. 

Based on the governing caselaw, the Court concluded that the PCR court’s failure to hold a hearing on Claim 1 constituted an unreasonable determination of facts. The Court was especially troubled by the fact the judge based his finding that Dr. Potts was a good and sufficient defense expert witness on his own untested memory more than six years after hearing Dr. Potts testify at Jones’ sentencing hearing. The Court explained that simply because Dr. Potts’ conclusions were “favorable” to the defense does not mean he satisfied the role of a defense mental health expert witness. See Taylor. Thus, the Court concluded that Jones satisfied the requirements of § 2254(d)(2).

After an extensive discussion of the prejudice prong of Strickland and the many supporting facts presented in this case, the Court concluded that there is a reasonable probability that the testimony of a defense mental health expert witness would have changed the results of the sentencing hearing. As a result, it ruled that Jones established Strickland prejudice. Thus, the Court reversed the district court’s denial of relief on Claim 1.

The Court found in favor of Jones on Claim 2 for substantially the same reasons as Claim 1: (1) counsel’s failure to promptly seek neuropsychological testing was contrary to Williams (and Strickland) and (2) the state judge prevented appropriate factual development of the record because he relied on his own memory, rather than holding a hearing.

In federal court, habeas counsel provided expert witness testimony and testing performed on Jones that painted a strikingly different picture from what was presented in state court. The Court stated: “The neuropsychological and neurological test conducted by various experts during Jones’s federal district court proceedings confirmed that Jones suffered from a variety of psychological disorders stemming from birth and exacerbated any long-term drug use and trauma that affected Jones’s cognitive functioning. As explained previously, testing revealed that Jones suffered from [numerous brain disorders]. The presentation of these results would involve presenting the contributing factors to his cognitive dysfunction, as previously described with respect to Claim 1, including that his lone-term substance abuse was induced by his sexually abusive step-grandfather. At sentencing, there was no indication that Jones had suffered years of sexual abuse as a child. In combination, the testing results and the presentation of contributing factors would have dramatically affected any sentencing judge’s perception of Jones’s culpability for his crimes such that there is a reasonable probability that Jones would not have received a death sentence.”

Accordingly, the Court reversed and remanded to the district court with instructions to issue the writ of habeas corpus. See: Jones v. Ryan, 1 F.4th 1179 (9th Cir. 2021).

Writer’s note: It’s important to note that the Court only had to find one of the exceptions under § 2254(d): the state court’s decision was (1) “contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States” or (2) “based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.” In a rare move, the Court found both in this case. The Court’s opinion is a must-read for anyone who is thinking about raising a federal IAC claim based upon counsel’s failure to obtain expert assistance. 

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