Executed October 26, 2010 at 10:26 p.m. by Lethal Injection in Arizona
44th murderer executed in U.S. in 2010
1232nd murderer executed in U.S. since 1976
1st murderer executed in Arizona in 2010
24th murderer executed in Arizona since 1976
(Race/Sex/Age at Murder-Execution)
(Race/Sex/Age at Murder)
Jeffrey Timothy Landrigan
a/k/a/ Billy Patrick Wayne Hill
NA / M / 29 - 50
|Chester Dean Dyer
W / M / 42
Landrigan was abandoned by his parents as an infant. His birth father, whom he never met face to face, died on death row in Arkansas. His grandfather was shot to death by police while robbing a drugstore. In 1982, when he was 20, Landrigan lived in Oklahoma and stabbed to death a childhood friend. He was found guilty of first-degree murder and sentenced to life, but the conviction was overturned on appeal and Landrigan entered a plea agreement to second-degree murder and a 20-year prison term. In 1989, Landrigan escaped from a minimum security work crew and headed for Arizona.
State v. Landrigan, 176 Ariz. 1, 859 P.2d 111 (Ariz. 1993). (Direct Appeal)
Schriro v. Landrigan, 550 U.S. 465, 127 S.Ct. 1933 (2007). (Habeas)
Landrigan v. State, 700 P.2d 218 (Okla. Cr. 1985). (Unrelated Murder Reversed)
“Well, I’d like to say thank you to my family for being here and all my friends,and Boomer Sooner.” (Sooners is the team nickname at the University of Oklahoma)
Final / Special Meal:
Steak, fried okra, french fries, strawberry ice cream and a Dr. Pepper.
"Arizona executes inmate after federal judge lifts stay," by Michael Kiefer. (Oct. 27, 2010)
In only the second Arizona execution since 2000, convicted killer Jeffrey Landrigan died by lethal injection late Tuesday after the U.S. Supreme Court removed the last legal barrier.
His death came shortly after a curtain opened into the execution room at 10:14 p.m. Tuesday. The condemned man looked quizzically at roughly 27 people gathered to witness the event. He smiled to friends and family, his lip curling slightly under his reddish mustache.
When asked for any last words, he said in a strong voice with a heavy Oklahoma accent: "Well, I'd like to say thank you to my family for being here and all my friends, and Boomer Sooner," a reference to the University of Oklahoma Sooners. He looked around and smiled again. Then, as the first drug -- sodium thiopental -- took effect, he slowly closed his eyes. A medical technician entered to check that he was fully sedated. Then the execution continued. Death was pronounced at 10:26 p.m. and the curtain closed.
Landrigan had been on Arizona's death row for 20 years for the 1989 murder of Chester Dean Dyer in Phoenix.
Landrigan's execution at the Arizona State Prison Complex in Florence moved relatively quickly after the U.S. Supreme Court lifted a temporary restraining order that had been imposed Monday by a U.S. District Court judge in Phoenix and affirmed by the 9th U.S. Circuit Court of Appeals. The court imposed the order as it tried to force Arizona to disclose where and how it had obtained its supply of sodium thiopental, one of three drugs used in Arizona executions. Attorneys had been battling for days over the issue.
The high court, in a terse one-page order issued after 7 p.m. Tuesday, agreed by a 5-4 decision with Arizona prosecutors that there was no reason to force disclosure. "There was no showing that the drug was unlawfully obtained, nor was there an offer of proof to that effect," the court order said. Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan dissented, voting to keep the stay in place. Justices Anthony Kennedy, Clarence Thomas, Samuel Alito, Antonin Scalia and John Roberts were in the majority, lifting the stay.
Going into Landrigan's final weekend, intensive legal maneuvering by his defense team had sought re-examination of DNA evidence obtained in the case, as well as disclosure of how the state legally obtained its thiopental. Simultaneous arguments were raised in both state and federal courts.
Thiopental is a barbiturate that renders the condemned person unconscious so he or she cannot feel suffocation or pain induced by the second and third drugs administered during execution. The sole U.S. manufacturer and only apparent supplier of thiopental approved by the U.S. Food and Drug Administration has temporarily ceased production of the drug. Landrigan's attorneys wanted assurances that Arizona's thiopental had been lawfully obtained and would be effective, so as not to constitute cruel and unusual punishment. The state resisted disclosing the information, citing a state law concealing the identities of executioners and all people with "ancillary" functions needed to carry out the execution. However, Attorney General Terry Goddard revealed to an Arizona Republic reporter late Monday that the drug had come from Britain.
On Tuesday, the Arizona Supreme Court rejected a stay based on the DNA matter, leaving only the federal stay in place. When an appellate panel late Tuesday afternoon agreed to leave the federal restraining order in place until Arizona disclosed more about its thiopental supply, Goddard immediately appealed to the U.S. Supreme Court. Within several hours, the high court lifted the stay, noting: "There is no evidence in the record to suggest that the drug obtained from a foreign source is unsafe. The district court granted the restraining order because it was left to speculate as to the risk of harm. . . . But speculation cannot substitute for evidence that the use of the drug is 'sure or very likely to cause serious illness and needless suffering.'"
That sent the Arizona Department of Corrections into motion to carry out the execution. The department had been poised all day, since Landrigan's execution originally had been scheduled for 10 a.m. Tuesday. Landrigan had already eaten what everyone thought would be his last meal Monday night: a dinner of well-done steak, fried okra, french fries, ice cream and a Dr Pepper.
Landrigan's execution is the first in Arizona since May 2007, when Robert Comer was put to death for shooting a Florida man at a campground near Apache Lake in 1987.
Landrigan was supposed to be executed Nov. 1, 2007, but another case in the U.S. Supreme Court, this time regarding the constitutionality of execution by lethal injection, put his execution on hold. That case was decided in 2008, and Arizona had overhauled its own lethal injection protocol by 2009, clearing the way to resume executions.
With Landrigan's execution, there are 133 people on Arizona's death row. Meanwhile, there are 79 capital cases awaiting trial in Maricopa County, three in trial, and seven in which defendants have been found guilty of first-degree murder but have not yet been sentenced.
Arizona Daily Sun
"State goes overseas for lethal injection drug." (Associated Press October 26, 2010 10:49 pm)
Facing a nationwide shortage of a lethal injection drug, Arizona has taken an unusual step that other death penalty states may soon follow: get their supplies from another country. Such a move, experts say, raises questions about the effectiveness of the drug. But it also may further complicate executions in the 35 states that allow them, as inmates challenge the use of drugs not approved by federal inspectors for use in the U.S.
Arizona said Tuesday that it got its sodium thiopental from Great Britain, the first time a state has acknowledged obtaining the drug from outside the United States since the shortage began slowing executions in the spring. "This drug came from a reputable place," Chief Deputy Attorney General Tim Nelson said. "There's all sorts of wild speculation that it came from a third-world country, and that's not accurate." Nelson said the state revealed the drug's origins to let the public know that its supply is trustworthy and to dispel rumors. However, he did not name the company that manufactured it.
Without assurances of the drug's quality, many questions will be raised, including its effectiveness and how it should be handled, and would serve as a basis for lawsuits, said Deborah Denno, a law professor at Fordham University. "The impact could be huge," Denno said. "The source of the thiopental is critical."
Tuesday night, Arizona executed Jeffrey Landrigan for a 1989 murder in the state's first execution since 2007. Landrigan died by injection at a state prison in Florence at 10:26 p.m. after a stay issued by a federal judge was lifted by the U.S. Supreme Court.
Landrigan's lawyers had argued he could be suffocated painfully if the sodium thiopental doesn't render him unconscious. In lethal injections, sodium thiopental makes an inmate unconscious before a second drug paralyzes him and a third drug stops his heart.
Hospira Inc. of Lake Forest, Ill., the sole U.S. manufacturer of the drug, has blamed the shortage on unspecified problems with its raw-material suppliers and said new batches will not be available until January at the earliest. There are no FDA-approved overseas manufacturers of the drug.
The limited supply has also directly affected executions in California, Kentucky and Oklahoma, and may affect executions in Missouri, which says its supply of sodium thiopental expires in January. California officials say they acquired a dosage of 12 grams in September with a 2014 expiration date. But there was some dispute about the source. Hospira said its remaining supplies expire next year and California could only have obtained it elsewhere.
The state prison system would not address the discrepancy. "The state obtained the sodium thiopental lawfully from within the United States," Terry Thornton, a corrections spokeswoman told The Associated Press. Ohio, which spends about $350 for the drug for each execution, ran out of the amount prescribed by state procedures just three days before a May 13 execution. The state obtained enough in time but won't say where.
A few weeks ago, Kentucky's governor held off signing death warrants setting execution dates for two inmates because the state is almost out of sodium thiopental. The state's lone dose expired Oct. 1. Officials say they have tried unsuccessfully to get the drug from other states, and have gotten calls from states looking for it.
In August, an Oklahoma judge delayed the execution of Jeffrey Matthews when the state tried to switch anesthetics after running out of its regular supply in August. Matthews was convicted of killing his 77-year-old great-uncle during a 1994 robbery. Oklahoma finally found enough sodium thiopental from another state, but the court-ordered delay continues. The controversy could end if Hospira resumes making the drug next year as indicated, or states could switch to another drug.
At least 15 states, including Arizona, Florida, Missouri, Texas and Tennessee, might be able to switch drugs without a new law or administrative process, death penalty expert Megan McCracken said.
In Arizona, officials at the state prison waited for the high court's decision for much of the day. The execution had been set for 10 a.m. Tuesday, but a ruling by a federal judge in Phoenix that had been upheld by an appeals court panel put the execution on hold until the evening. The delay, prosecutors say, is one reason the public has lost some faith in the criminal justice system. "We're 20 years in and we're not arguing over guilt or innocence," said interim Maricopa County Attorney Rick Romley, whose office prosecuted Landrigan in the 1989 killing of Chester Dyer during a robbery. "We have lawyers fighting lawyers."
In recent years, lethal injections have run into high-profile problems, including botched executions. Ohio and Washington have switched from a three-drug method to a single, powerful dose of sodium thiopental. The change helps avoid litigation over pain that inmates could suffer from the second and third drugs if they haven't been knocked out.
The switch doesn't affect the drug's administration, which has led to a number of fumbled executions, including a September 2009 procedure in Ohio in which the governor stopped an execution after two hours when officials couldn't find a usable vein. The issue will come down to whether an overseas version of sodium thiopental would be equivalent to what the FDA has approved here, said Ty Alper, associate director of the death penalty clinic at the University of California-Berkeley. "It really opens the door to Eighth Amendment challenges that go to the heart of whether executions work the way they're supposed to," he said, referring to the amendment about prohibiting cruel and unusual punishment.
New York Times
"Arizona Executes Inmate After Supreme Court Clears Way," by John Swartz. (October 27, 2010)
The State of Arizona executed Jeffrey Landrigan late Tuesday night after the Supreme Court lifted a lower court’s injunction blocking the lethal injection.
Last-minute appeals for Mr. Landrigan, convicted of murder in 1990, focused on the origins of one of the drugs used in the state’s three-drug execution protocol. Shortages of barbiturates used in executions has led to delays in several states. The only domestic manufacturer approved by the Food and Drug Administration to make sodium thiopental, the barbiturate used in Arizona, is Hospira, Inc; it suspended production of the drug a year ago because of supply issues, and is expected to be producing it again in the first quarter of next year.
With no supplies coming from sources approved by the F.D.A., Judge Roslyn O. Silver of Federal District Court had demanded that the state provide information about the origins of Arizona’s drug in order to know whether there were risks of impurity or efficacy that could violate Mr. Landrigan’s rights under the Eighth Amendment barring cruel and unusual punishment. The state refused to detail the origins of the drug or the process used to obtain it in open court, citing the state’s confidentiality laws, though officials said it had come from England. Thus “the Court is left to speculate,” Judge Silver wrote, “whether the non-F.D.A. approved drug will cause pain and suffering.”
A three-judge panel of the Court of Appeals for the Ninth Circuit upheld the order, stating that the state should provide a full accounting. “Because we do not know what was before the district court due to the state’s failure to provide the materials, we cannot say the district court abused its discretion in granting a temporary stay,” the judges wrote on Tuesday. Later in the day, the full Ninth Circuit refused to rehear the case, resulting in the state appealing to the Supreme Court.
In a one-page order issued Tuesday night explaining the 5-to-4 vote to vacate Judge Silver’s temporary restraining order, the Supreme Court stated that Judge Silver’s reasoning was flawed, because the case affirming the constitutionality of the three-drug execution method, Baze v. Rees, had a high standard of proof that an execution method would cause harm.
The Court stated that “speculation cannot substitute for evidence that the use of the drug is ‘sure or very likely to cause serious illness and needless suffering,’ ” and added, “There was no showing that the drug was unlawfully obtained, nor was there an offer of proof to that effect.” The five justices who voted for lifting the stay were Chief Justice John G. Roberts Jr.; Antonin Scalia; Clarence Thomas; Samuel Alito; and Anthony M. Kennedy. The four justices who voted to uphold Judge Silver’s stay were Ruth Bader Ginsburg; Stephen G. Breyer; Sonia Sotomayor; and Elena Kagan. They did not issue an opinion.
Eric M. Freedman, a law professor at Hofstra University, said that the lesson of the Supreme Court’s ruling in the Landrigan case was “crime pays.” He explained: “The state flatly stonewalled the lower courts by defying orders to produce information, and then was rewarded at the Supreme Court by winning its case on the basis that the defendant had not put forward enough evidence. That is an outcome which turns simple justice upside-down and a victory that the state should be ashamed to have obtained.”
Proponents of the death penalty saw the outcome, instead, as a victory for the rule of law. Kent Scheidegger, the legal director of the Criminal Justice Legal Foundation, a victims’ rights group, wrote on the group’s blog that the case draws a bright line for other attempts to stay executions, and singled out a procedural stay in California, where Judge Jeremy Fogel of Federal District Court has delayed the execution of Albert Greenwood Brown Jr. over questions concerning the state’s drug protocols. “Judge Fogel now has a clear directive from the high court that unless the new California protocol fails this ’sure or very likely’ standard, he should allow executions to proceed,” Mr. Scheidegger wrote. “The protocol surely passes.”
In an interview, Mr. Scheidegger said, “The Supreme Court told the Ninth Circuit and the District Court that they had applied too loose a standard in granting a stay.” The new decision, he said, “sends a message” that “speculation about problems with the source is not sufficient to stay an execution.”
Ty Alper, the associate director of the death penalty clinic at the University of California, Berkeley, said that the Supreme Court’s decision did not end the story, arguing that “it explicitly leaves the door open for a challenge in a case where petitioners can show that the drug was unlawfully obtained.” The fact that the F.D.A. has not approved foreign sources of sodium thiopental, he said, suggested that “it’s very likely that a petitioner will be able to make this showing in a case where there is more time to litigate the issue than there was in the Arizona case.”
With the stay in Arizona lifted, Mr. Landrigan was executed at 10:26 p.m. Mountain time.
Mr. Landrigan murdered Chester Dyer in 1989 in Phoenix, after having escaped from an Oklahoma prison where he was being held on another murder conviction.
According to The Arizona Republic, Mr. Landrigan offered his last words in a strong voice and a heavy accent from his native Oklahoma. “Well, I’d like to say thank you to my family for being here and all my friends,” he said, “and Boomer Sooner.” The Sooners is the team nickname at the University of Oklahoma.
"Arizona killer executed after stay lifted." (Oct. 27, 2010 at 7:41 AM)
FLORENCE, Arizona (UPI) -- Convicted murderer Jeffrey Landrigan, on Arizona's death row for 20 years, was executed by lethal injection after a federal stay was lifted, officials said.
Landrigan's last words Tuesday were, "Well, I'd like to say thank you to my family for being here and all my friends, and Boomer Sooner," referring to the University of Oklahoma Sooners, The Arizona Republic reported Wednesday.
Landrigan was convicted for the 1989 murder of Chester Dean Dyer in Phoenix. His execution at the Arizona State Prison Complex in Florence took place after the U.S. Supreme Court on Tuesday lifted a temporary restraining order issued the previous day by a federal judge and affirmed by the 9th U.S. Circuit Court of Appeals, the Republic said.
The legal matter concerned whether Arizona could be forced to disclose where and how it got its supply of sodium thiopental, one of three drugs used in Arizona executions, the Republic said. The lone U.S. manufacturer and only apparent federally approved supplier of thiopental temporarily stopped production of the drug. Landrigan's attorneys wanted assurances that Arizona's thiopental was lawfully obtained and would be effective.
Landrigan's execution was the first in Arizona since May 2007. He was supposed to be put to death on Nov. 1, 2007, but that attempt was put on hold by a case in the U.S. Supreme Court challenging the constitutionality of execution by lethal injection.
"Judge to question whether injection drug illegally obtained," by Michael Kiefer. (Oct. 25, 2010)
Jeffrey Landrigan was sentenced to death 20 years ago today for the 1989 murder of Chester Dean Dyer in Phoenix. Now the clock ticks as he sits on death row in Florence, wondering if he will be executed at 10 a.m. Tuesday or if an eleventh-hour legal maneuver will cause his execution to be put off for a third time.
On Sunday night, Gov. Jan Brewer announced that she would not grant a reprieve to Landrigan based on new evidence.
And today, a federal judge will question whether the state legally obtained one of the drugs needed for the execution by lethal injection. A nationwide shortage of sodium thiopental has raised questions by Landrigan's defense attorneys on whether the state went outside of U.S. Food and Drug Administration regulations to get its supply. Despite a federal judge's order late Saturday, the state is balking at revealing where it obtained the drug, saying the information is protected by a state law concealing the identities of those involved in executions.
Last week, the Arizona Supreme Court refused to consider either the drug controversy or the new evidence.
These are the latest twists to Landrigan's long and troubled story, which, according to court records and media accounts, is a tale of crime, substance abuse and a life mostly spent in correctional facilities. As Tuesday's scheduled execution approaches, Landrigan awaits his fate.
Landrigan was born into a family of criminals. His birth father, whom he never met face to face, died on death row in Arkansas. His grandfather was shot to death by police while robbing a drugstore. And even before a court found that he killed Dyer, ostensibly by stabbing and strangling him, he had already been convicted of another murder.
According to court filings, Landrigan was born March 17, 1962, to a woman who had used drugs and alcohol all through her pregnancy. His birth name was Billy Patrick Wayne Hill, and his father abandoned him when he was a month old. His mother later abandoned him at a day-care center when he was 8 months old. He was put up for adoption in Oklahoma. As an adolescent, he abused drugs and alcohol and spent time in juvenile-correctional facilities.
In 1982, when he was 20, he got into an argument with a childhood friend while both were drinking. The other man was about to become a father and he wanted Landrigan to be the boy's godfather. Instead, the two went outside the man's trailer where Landrigan stabbed him to death. Landrigan was found guilty of first-degree murder and sentenced to death, but the conviction was overturned on appeal and Landrigan entered a plea agreement to second-degree murder and a 20-year prison term.
Landrigan actually came to know his birth father, Darrel Hill, while in prison. A fellow prisoner in Oklahoma had known Hill from prison in Arkansas and remarked that Landrigan bore such a strong resemblance that he must be Hill's son. He was. Landrigan and Hill struck up correspondence.
Despite his murder plea, Landrigan was put on a minimum-security work crew, and he would sneak away to have sex with a woman he had met in a park. On Nov. 11, 1989, he walked for good, escaping from prison. He headed for Yuma, where he hoped to find his birth mother.
He met Dyer in Phoenix. Dyer, 42, worked in a health club and was known to pick up men and take them home. He met Landrigan at a Burger King. On Dec. 13, 1989, Dyer called friends at a bar to tell them he was having sex with a man named Jeff. Days later, Dyer was found strangled by an electrical cord and stabbed to death in his apartment. A deck of pornographic playing cards were strewn over the bed and the ace of hearts was dramatically propped up on Dyer's back.
Days later, Landrigan and another man were seen by police stealing a car and breaking into an abandoned house. Landrigan's shoes matched a footprint left in sugar in Dyer's apartment. According to media accounts at the time, Landrigan told police that he had beaten Dyer after Dyer made sexual advances, but that another man had done the killing.
Landrigan was offered a plea deal to second-degree murder but opted to go to trial. On June 28, 1990, a jury found him guilty of burglary, theft and first-degree felony murder. Landrigan was uncooperative and disruptive during his trial, and as the judge pondered whether he should be sentenced to death or to life in prison, he refused to let his adoptive mother or his ex-wife testify on his behalf.
When it was time to be sentenced, he dared the judge to sentence him to death. "If you want to give me the death penalty, bring it on," he told Maricopa County Superior Court Judge Cheryl Hendrix. "I'm ready." Hendrix complied with his wish on Oct. 25, 1990.
Hendrix, now retired, has since sworn in an affidavit that if she had known about Landrigan's background, she would probably have sentenced him to life in prison. Landrigan was first scheduled to die in 1996, but his attorneys found grounds for appeal.
In September 2007, his appeals ran out, and the Arizona Supreme Court scheduled his execution for Nov. 1, 2007. But then the execution was stayed because the U.S. Supreme Court was deciding whether lethal injection, as practiced by Kentucky, constituted cruel and unusual punishment. The Supreme Court approved the Kentucky protocol in April 2008 and a new Arizona protocol was hammered out in state and federal courts in 2009. Landrigan's appeals ran out again, and he was rescheduled for execution on Tuesday.
Last week, however, Landrigan's attorneys received preliminary analysis of DNA from the case. It was not tested at the time because there was no reliable DNA testing in 1989, when the crime took place. In 2007, attorneys had sent Dyer's pants to a crime lab to have blood and semen stains tested. Two samples of semen were found, neither of which matched Landrigan. Dyer's DNA profile is unknown. But the blood was not tested.
After Landrigan had already been scheduled to die, a Superior Court judge approved sending the pants back to the lab to test the blood. The blood was found to belong to two individuals, one assumed to be Dyer, the other a third person who was not Landrigan. The implication, defense attorneys argue, is that someone else had sex with Dyer and then the two struggled, ending in Dyer's death.
Assistant Arizona Attorney General Kent Cattani maintained that the new DNA findings were only cumulative and that because other evidence placed Landrigan at the scene of the crime, they didn't matter. On Friday, the Arizona Board of Executive Clemency recommended that Brewer issue a reprieve on the execution based on that evidence. Brewer denied the motion Sunday night.
The sodium-thiopental shortage first became evident in May, when the state of Ohio nearly postponed an execution because it wasn't sure it could obtain the drug. On Sept. 30, the Arizona Department of Corrections announced that it had obtained thiopental, though court hearings revealed it had not come from the FDA-approved source.
On Saturday, U.S. District Court Judge Roslyn O. Silver ordered that the state "immediately and publicly disclose" its source for the drug, its expiration date and other information about its manufacture. Cattani told The Republic on Sunday that he would reveal only the expiration date in a motion to reconsider the ruling. And if the judge insisted, he would offer to provide the other facts under seal.
In an Oct. 18 sworn deposition, Landrigan claimed he had spoken to Department of Corrections Director Charles Ryan about the drug. A Corrections Department spokesman would not confirm the conversation. "I asked the director if he was going to tell me where he got the drugs to kill me with," Landrigan said. "The director said it was all on the up and up."
Canadian Coalition against Death Penalty
Death Row Arizona
JEFFREY LANDRIGAN'S PEN PAL REQUEST: My name is Jeff T. Landrigan, and I am presently stuck here on death row in Arizona.
I am 38 years old, have long blonde hair, weigh about 175 pounds, and am 5' 9" tall. I am white and Native American. I am originally from Oklahoma, so I am just a simple country boy at heart, into the outdoors.
I love kids, have two myself, as well as a young granddaughter. I am divorced, and looking for friendship or what could possibly grow into more. I like tattoos, and am fully sleeved out myself.
Being slammed down in this super max unit has limited my hobbies, as we aren't allowed much of anything here. I enjoy listening to rock & roll, mostly early rock, some newer stuff, but not death metal or rap or country.
If you are interested in writing, I'll answer all, so drop me a line!
My address is:
Jeff T. Landrigan #082157
Arizona State Prison
PO Box 3400 SMU II 3H41
Florence, AZ 85232 USA
Arizona Department of Corrections
Inmate: LANDRIGAN JEFFREY T
Height: 68 inches
Weight: 160 lbs.
Ethnic Origin: NATIVE INDIAN
Sentence: 11/09/90 DEATH
Jeffrey Timothy Landrigan, aka Billy Patrick Wayne Hill, was convicted of first degree murder and sentenced to life imprisonment for the fatal stabbing of his best friend, Greg Brown, after they and some friends had smoked marijuana and drank whiskey at a trailer park in Dewey, Oklahoma, on August 24, 1982.
According to testimony presented at trial, Landrigan, accompanied by his wife and son, arrived at the trailer home of Gordon Aiken at about 8 p.m. that evening. Soon after they arrived, Landrigan, his family and Aiken went to purchase a fifth of whiskey. On their way back to the trailer park, the group picked up Landrigan's brother-in-law, Robert Martinez. When they returned to the trailer, Landrigan, Greg Brown, David Detjan and Donna Favier began drinking whiskey and smoking marijuana cigarettes. Landrigan and Greg Brown began calling one another a "punk," and began arguing whether Landrigan could beat the victim in a fight. As Landrigan started to leave, Greg Brown pushed him against the trailer wall, and told Landrigan, "if you want to settle the argument, we can take it outside." Brown went outside, followed by Landrigan.
According to Aiken's testimony, Landrigan was holding a knife behind his back. Aiken testified he rushed to a bedroom to find his rifle. In the meantime, however, Landrigan lunged at Brown and stabbed him in the chest. Aiken returned to the living room with the rifle. Detjan took the rifle, pointed it at Landrigan and told him to "back up or I'm going to blow your head off." Landrigan escaped between two cars as his victim collapsed on the ground. Landrigan ran to the machine shop of Alvin Burns and told Burns that he had "wasted a guy." He later told Washington County Undersheriff Jim Eppler, "Jim, I tried to kill the m____ f____. I don't take that shit off nobody. I cut him twice. I think I cut him twice." Landrigan testified on his own behalf that as the men continued to drink, he could see that what began as friendly teasing was now making the victim angry. Landrigan testified that, as he was leaving, the victim grabbed him by the throat and threatened to "whip my ass." Landrigan said the men went outside. He also testified that he attempted to go back into the trailer, but someone inside pointed the shotgun in his direction. Landrigan jumped at Brown, but did not know he had a knife in his hand when he hit the victim. However, Brown did have a knife as he approached Landrigan, according to Landrigan's testimony.
In 1986, while in custody for Greg Brown's murder, Landrigan repeatedly stabbed another inmate and was subsequently convicted of assault and battery with a deadly weapon. Three years later, Landrigan escaped from prison and murdered Chester Dean Dyer in Arizona.
An Arizona jury found Landrigan guilty of theft, second-degree burglary, and felony murder for having caused the victim’s death in the course of a burglary. At sentencing, Landrigan's counsel attempted to present the testimony of Landrigan's ex-wife and birth mother as mitigating evidence. But at Landrigan's request, both women refused to testify. When the trial judge asked why the witnesses refused, Landrigan's counsel responded that "it's at my client's wishes." When counsel tried to explain that Landrigan had worked in a legitimate job to provide for his family, Landrigan interrupted and stated "if I wanted this to be heard, I'd have my wife say it." When counsel characterized Landrigan's first murder as having elements of self-defense, Landrigan interrupted and clarified: "He didn't grab me. I stabbed him." Responding to counsel's statement implying that the prison stabbing involved self-defense because the assaulted inmate knew Landrigan's first murder victim, Landrigan interrupted to clarify that the inmate was not acquainted with his first victim, but just "a guy I got in an argument with. I stabbed him 14 times. It was lucky he lived." At the conclusion of the sentencing hearing, the judge asked Landrigan if he had anything to say. Landrigan made a brief statement that concluded, "I think if you want to give me the death penalty, just bring it right on. I'm ready for it." In later appeals, Landrigan alleged that his lawyers had failed to explore mitigation evidence.
Arizona Republic Editorial
"Stop the Landrigan execution," by E.J. Montini. (Friday, October 22, 2010 at 10:26 AM)
Jeffrey Landrigan should not be executed next Tuesday, as is supposed to occur. Not because Landrigan is innocent. He isn't.
Landrigan should not be executed because death penalty cases should be decided by the judges and juries who hear them. And the judge in this case has changed her mind based on evidence she should have seen and heard at the time of Landrigan's trial but didn't.
Back when Landrigan was tried for murder in 1990 the decision of when to sentence a convicted killer to death was made by the judge. In Landrigan's case it was now-retired Superior Court Judge Cheryl Hendrix. Recently, Hendrix had a chance to review mitigating evidence about Landrigan that was available at the time of his trial but was not presented to her during the sentencing phase. It dealt with Landrigan's "organic brain damage" and what she called "the impact of fetal alcohol syndrome" and more.
In a sworn affidavit (See it here) Hendrix signed this month she said, "In sum, had trial counsel presented any of the mitigating information that I have reviewed -- which was available at the time of sentencing -- Mr. Landrigan would not have been sentenced to death."
I'm not a big fan of death penalty appeals by people who weren't there for the trial second guessing the decisions of folks who spent every day in court. Hendrix spent every day at the trial. She sat through the sentencing hearing. There is a clemency hearing today for Landrigan at which other issues will be discussed.
In the end, however, the sworn affidavit of Hendrix should be enough for the state to stop Landrigan's execution.
State v. Landrigan, 176 Ariz. 1, 859 P.2d 111 (Ariz. 1993) (Direct Appeal)
Defendant was convicted of theft, second-degree burglary, and felony-murder. The Superior Court, Maricopa County, No. CR-90-00066, Cheryl K. Hendrix, J., imposed death penalty. Automatic appeal was taken. The Supreme Court, Zlaket, J., held that: (1) evidence supported conviction; (2) evidence supported finding of aggravating factors; and (3) defendant had not received ineffective assistance of counsel. Affirmed.
Jeffrey Timothy Landrigan a/k/a Jeffrey Dale Page.
This is an automatic appeal from a death sentence following defendant's conviction of first degree murder. We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3) and A.R.S. §§ 13-4033 and -4035.
FACTUAL AND PROCEDURAL BACKGROUND
Evidence at trial established that the victim's body was found in his residence on December 15, 1989. According to the testimony of a friend (“Michael”), the victim had been a promiscuous homosexual who frequently tried to “pick up” men by flashing a wad of money. This would invariably occur after he got paid. The victim told Michael that he had recently met a person named “Jeff,” with whom he wanted to have sex. The victim's physical description of Jeff was later found to closely approximate defendant.
Michael received three phone calls from the victim on Wednesday, December 13, 1989. During the first, the victim said he had picked up Jeff, that they were at the apartment drinking beer, and he wanted to know whether Michael was coming over to “party.” Approximately 15 minutes later, the victim called a second time and said that he was in the middle of sexual intercourse with Jeff. Shortly thereafter, the victim called to ask whether Michael could get Jeff a job. Jeff spoke with Michael about employment, and asked if he was going to come over. Michael said no. During one of these conversations, the victim indicated that he had picked up his paycheck that day.
The victim failed to show up for work the following day, and calls to him went unanswered. On Friday, a co-worker and two others went to the victim's apartment and found him dead. He was fully clothed, face down on his bed, with a pool of blood at his head. An electrical cord hung around his neck. There were facial lacerations and puncture wounds on the body. A half-eaten sandwich and a small screwdriver lay beside it. Blood smears were found in the kitchen and bathroom. Partial bloody shoeprints were on the tile floor.
Cause of death was ligature strangulation. Medical testimony at the presentence hearing indicated that the victim probably was strangled after being rendered unconscious from blows to the head with a blunt instrument.
Acquaintances testified that the apartment usually was neat. When the body was found, however, the apartment was in disarray. Drawers and closets were open; clothes and newspapers were strewn on the floor. The remnants of a Christmas present lay open and empty at the foot of the bed. In the kitchen area were two plates, two forks, a bread wrapper, luncheon meat, cheese wrappers, and an open jar of spoiled mayonnaise. A five-pound bag of sugar was spilled on the floor. A clear impression of the sole of a sneaker appeared in the sugar. Neither the paycheck nor its proceeds were located. Although the apartment had been ransacked, nothing else seemed to be missing.
When defendant first was questioned, he denied knowing the victim or ever having been to his apartment. When arrested, however, he was wearing a shirt that belonged to the victim. Seven fingerprints taken from the scene matched defendant's. The impression in the sugar matched his sneaker, down to a small cut on the sole. Tests also revealed that a small amount of blood had seeped into the sneaker. The blood matched that found on the shirt worn by the victim.
Defendant's ex-girlfriend testified that she had three telephone conversations with him in December of 1989. During one of those, defendant told her that he was “getting along” in Phoenix by “robbing.” Defendant placed the last call to her from jail sometime around Christmas. He said that he had “killed a guy ... with his hands” about a week before.
The jury found defendant guilty of theft, second degree burglary, and felony murder for having caused the victim's death “in the course of and in furtherance of” the burglary. The jury also determined that defendant previously had been convicted in Oklahoma of assault and battery with a deadly weapon, second degree murder, and possession of marijuana. At the time of the Arizona incident, defendant was an escapee from an Oklahoma prison.
At the sentencing hearing, the trial judge found two statutory aggravating circumstances under A.R.S. § 13-703(F): that defendant was previously convicted of a felony involving the use or threat of violence on another person; and, that defendant committed the offense in expectation of the receipt of anything of pecuniary value. In making the latter finding, the trial judge noted that the victim's apartment had been ransacked, and it appeared the culprit was looking for something.
The trial judge found no statutory mitigating circumstances sufficient to call for leniency. As for non-statutory mitigating circumstances, she identified family love and absence of premeditation. She stated, however, that the mitigating factors did not outweigh the aggravating circumstances. Defendant was sentenced to an aggravated term of 20 years on the burglary count, to six months in the county jail for theft, and to death for murder.
MOTIONS FOR ACQUITTAL AND NEW TRIAL
Defendant argues that the trial judge erred in denying his motions for acquittal and for new trial under Rules 20 and 24, Ariz.R.Crim.P., 17 A.R.S. He claims that the evidence was insufficient to find him guilty of burglary and felony murder. We disagree.
A judgment of acquittal under Rule 20 is appropriate only where there is “no substantial evidence to warrant a conviction.” State v. Mathers, 165 Ariz. 64, 67, 796 P.2d 866, 869 (1990). “Substantial evidence is more than a mere scintilla and is such proof that ‘reasonable persons could accept as adequate and sufficient to support a conclusion of defendant's guilt beyond a reasonable doubt.’ ” Id. (quoting State v. Jones, 125 Ariz. 417, 419, 610 P.2d 51, 53 (1980)). Evidence may be direct or circumstantial, State v. Blevins, 128 Ariz. 64, 67, 623 P.2d 853, 856 (App.1981), but if reasonable minds can differ on inferences to be drawn therefrom, the case must be submitted to the jury. State v. Hickle, 129 Ariz. 330, 331, 631 P.2d 112, 113 (1981). A trial judge has no discretion to enter a judgment of acquittal in such a situation.
Under Rule 24, a new trial is required only if the evidence was insufficient to support a finding beyond a reasonable doubt that the defendant committed the crime. State v. Neal, 143 Ariz. 93, 97, 692 P.2d 272, 276 (1984). Whether to grant or deny a new trial is, however, within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of that discretion. State v. Hickle, 133 Ariz. 234, 238, 650 P.2d 1216, 1220 (1982).
The evidence here, although circumstantial, is sufficient to uphold the burglary conviction. It supports the conclusion that defendant entered or remained in the apartment with the intent to commit a theft. A.R.S. § 13-1507(A). The fact that the victim was found on his bed fully clothed, next to a half-eaten sandwich, suggests he was killed before the apartment was ransacked. Any other conclusion would require an inference that the victim entered his apartment, found it trashed, then calmly made himself a sandwich and sat down on his bed to eat it. As the trial judge noted, the ransacked apartment indicates that the culprit was probably looking for things of value. The evidence clearly placed defendant, who admitted getting along by “robbing,” and who was wearing one of the victim's shirts when arrested, in the ransacked apartment.
This case is not, as defendant argues, similar to State v. Hill, 12 Ariz.App. 196, 469 P.2d 88 (1970), in which the evidence showed only that the accused was present at the scene of a burglary. In Hill, unlike here, no evidence linked defendant to the crime itself. Id. at 197, 469 P.2d at 89. Since reasonable minds could differ on the inferences to be drawn, the trial judge properly denied the Rule 20 motion. Additionally, because the verdict on the burglary count was not contrary to the weight of the evidence, the trial judge did not abuse her discretion in denying the Rule 24 motion.
On the charge of felony murder, it was for the jury to decide whether defendant committed or attempted to commit burglary in the second degree and, in the course of and in furtherance of that crime, caused the victim's death. A.R.S. § 13-1105(A)(2); State v. Hallman, 137 Ariz. 31, 38, 668 P.2d 874, 881 (1983). As noted above, the record contains substantial evidence to support the burglary conviction. Additionally, defendant admitted to his ex-girlfriend that he killed a man about a week before December 23rd, and the blood on his shoe matched that on the victim's shirt.
Defendant's reliance on State v. Lopez, 158 Ariz. 258, 762 P.2d 545 (1988), is misplaced. In Lopez, this court concluded that a felony murder conviction could not stand because the evidence did not support the elements of the underlying armed robbery (the coexistence of intent to commit robbery with the use of force). The evidence showed only that defendant and his brother took the victim's car and wallet to leave the scene and delay detection of the victim's identity. Id. at 264, 762 P.2d at 551.
The record here contains much more. The trial judge could not properly have granted defendant's motion for acquittal, nor did she abuse her discretion in denying the motion for new trial.
INSTRUCTION ON LESSER DEGREES OF HOMICIDE
Defendant next argues, citing Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), that the trial judge's failure to sua sponte instruct the jury on lesser degrees of homicide-second degree murder or manslaughter-deprived him of a fair trial by forcing the jury to convict him of first degree murder or “set ... him free.” Defendant failed to request any lesser homicide instruction at trial, but contends that the failure to instruct was fundamental error.
We find no error here, fundamental or otherwise. In Beck, the United States Supreme Court invalidated an Alabama statute prohibiting the judge in a capital case from instructing the jury on lesser included offenses, even though the evidence supported such instruction. The Court reasoned: [W]hen the evidence unquestionably establishes that the defendant is guilty of a serious, violent offense-but leaves some doubt with respect to an element that would justify conviction of a capital offense-the failure to give the jury the “third option” of convicting on a lesser included offense would seem inevitably to enhance the risk of an unwarranted conviction. 447 U.S. at 637, 100 S.Ct. at 2389, 65 L.Ed.2d at 402-03. Thus, the fundamental concern in Beck was that a jury-convinced that the defendant had committed some violent crime, but unsure that he was guilty of a capital crime-might nonetheless vote for a capital conviction if the only alternative was to set the defendant free with no punishment at all. Schad v. Arizona, 501 U.S. 624, ----, 111 S.Ct. 2491, 2504, 115 L.Ed.2d 555, 574 (1991). In Arizona, however, there is no lesser included homicide offense to the crime of felony murder, because the necessary mens rea is supplied by the intent required for the underlying felony. State v. Arias, 131 Ariz. 441, 641 P.2d 1285 (1982); Schad, 501 U.S. at ---- n. 5, 111 S.Ct. at 2512 n. 5, 115 L.Ed.2d at 584 n. 5 (1991) (White, J., dissenting).
Defendant argues that the evidence warranted a manslaughter or second degree murder instruction. He claims to have placed a telephone call to his mother around December 12th or 13th in which he told her he was bleeding from his ears, nose, and rectum. He asserts the jury could have concluded from this evidence that he was injured during sex and killed the victim in response “upon a sudden quarrel or heat of passion.”
Even if we construe his mother's highly equivocal testimony on this point in a light most favorable to defendant, the evidence is insufficient to support a finding that he killed the victim during a sudden quarrel or the heat of passion, or in response to injuries inflicted on him during sex. Beck does not require a trial court to instruct on a lesser offense that is unsupported by the evidence. Therefore, the failure to have done so in this case was not error. See State v. LaGrand, 153 Ariz. 21, 30, 734 P.2d 563, 572 (1987). See also State v. Arias, 131 Ariz. at 443-44, 641 P.2d at 1287-88 (1982) ( Beck does not apply because Arizona law differs significantly from Alabama law).
Defendant's next argument, that the failure to have a jury decide the existence of aggravating circumstances violated his equal protection rights, also lacks merit. The Sixth Amendment does not require that a jury make findings of aggravating and mitigating circumstances before the death penalty is imposed. Walton v. Arizona, 497 U.S. 639, 648, 110 S.Ct. 3047, 3054, 111 L.Ed.2d 511, 524 (1990). Sentencing factors-as opposed to the elements of an offense-may be found by the court at the sentencing hearing. State v. Hurley, 154 Ariz. 124, 130, 741 P.2d 257, 263 (1987). We find no constitutional violation. See Clark v. Ricketts, 958 F.2d 851, 859 (9th Cir.1992) (federal equal protection clause does not require that a jury find the aggravating circumstances supporting a death sentence).
Defendant argues that Arizona's death penalty scheme, taken as a whole, violates the Eighth Amendment by failing to “sufficiently channel the sentencer's discretion.” We recently rejected this argument in State v. Greenway, 170 Ariz. 155, 164, 823 P.2d 22, 31 (1991) (Arizona's death penalty statute narrowly defines the class of death-eligible defendants). Likewise, defendant's suggestion that Arizona's aggravating circumstances are too broad to be meaningful is without substance.
AGGRAVATING AND MITIGATING CIRCUMSTANCES
We have independently reviewed the record to determine the presence or absence of aggravating and mitigating circumstances, and the propriety of the death penalty. State v. Richmond, 114 Ariz. 186, 196, 560 P.2d 41, 51 (1976). Defendant claims the record does not support a finding that the murder was committed with the expectation of the receipt of anything of pecuniary value, pursuant to A.R.S. § 13-703(F)(5).
We disagree. Not only is the actual receipt of money or valuables not required to find the expectation of pecuniary gain, State v. LaGrand, 153 Ariz. 21, 36, 734 P.2d 563, 578 (1987), but here defendant was convicted of theft and burglary on evidence we have deemed sufficient. Defendant admitted he was getting money by robbing. The victim, who was pursuing defendant as a sexual partner, was an obvious target. The apartment was ransacked. The killing hardly appears to have been unexpected or accidental. See State v. Nash, 143 Ariz. 392, 405, 694 P.2d 222, 235 (1985) (unexpected or accidental death during course of or flight from robbery will not support aggravating circumstance of pecuniary gain). Physical and testimonial evidence supports the finding that pecuniary consideration was a cause, not merely a result, of the murder. LaGrand, 153 Ariz. at 35, 734 P.2d at 577 (“When the defendant comes to rob, the defendant expects pecuniary gain and this desire infects all other conduct of the defendant”).
The record also supports the finding of a second aggravating circumstance, that defendant previously was convicted of a felony involving the use or threat of violence on another person under A.R.S. § 13-703(F)(2). See Okla.Stat. tit. 21, §§ 641, 642, 645 (1971) (assault and battery with a dangerous weapon). Defendant on appeal does not contest this finding. The state produced certified public records from Oklahoma, and its expert matched defendant's fingerprints with those on the records.
We also agree that the record does not present mitigating evidence sufficiently substantial to call for leniency. The trial judge properly rejected defendant's suggestion that intoxication was a mitigating circumstance under A.R.S. § 13-703(G)(1). The only evidence on this subject was testimony from the friend who said the victim called and told him that he and Jeff were drinking beer. There was no evidence that defendant was impaired, that he did not have the capacity to appreciate the wrongfulness of his conduct, or that he could not conform his conduct to the requirements of the law.
THE DEATH SENTENCE
Defendant argues that imposing the death sentence was unwarranted because the trial judge found the crime “not out of the ordinary when considering first degree murders.” The judge determined, however, that while the crime was not out of the ordinary, defendant clearly was. She said: ... Mr. Landrigan appears to be somewhat of an exceptional human being. It appears that Mr. Landrigan is a person who has no scruples and no regard for human life and human beings and the right to live and enjoy life to the best of their ability, whatever their chosen lifestyle might be. Mr. Landrigan appears to be an amoral person.
Defendant's comments in the courtroom support these conclusions. At the sentencing hearing, he offered the following soliloquy: Yeah. I'd like to point out a few things about how I feel about the way this [expletive], this whole scenario went down. I think that it's pretty [expletive]ing ridiculous to let a fagot (sic) be the one to determine my fate, about how they come across in his defense, about I was supposedly [expletive]ing this dude. This never happened. I think the whole thing stinks. I think if you want to give me the death penalty, just bring it right on. I'm ready for it. Defendant made additional statements during the hearing. When his counsel attempted to characterize the prior second degree murder as self-defense, defendant interjected: THE DEFENDANT: See, also, Your Honor, there's a few things he got wrong here again. I'd like to clear them up. THE COURT: Please do, Mr. Landrigan. THE DEFENDANT: When we left the trailer, [the victim] went out of the trailer first. My wife was between us. I pulled my knife out, then I was the one who pushed her aside and jumped him and stabbed him. He didn't grab me. I stabbed him.
In attempting to explain the aggravated assault committed by defendant while in prison on this prior murder charge, defense counsel claimed that his client had been threatened by the person he assaulted, allegedly a friend of the murder victim's father. Defendant once more took issue with his lawyer: THE DEFENDANT: Yeah, something else that was just said about the guy that was in prison. That wasn't [the murder victim's] dad's friend or nothing like that. It was a guy I got in an argument with. I stabbed him 14 times. It was lucky he lived. But two weeks later they found him hung in his cell. He was dead. It wasn't nothing like it was presented.
The best we can say for this defendant is that he was forthright. His comments demonstrate a lack of remorse that unfavorably distinguishes him from other defendants and supports imposition of this severe penalty. See State v. Fierro, 166 Ariz. 539, 548, 804 P.2d 72, 81 (1990) (“We will not uphold imposition of the death penalty unless either the murder or the defendant differs from the norm of first degree murders or defendants”).
ASSISTANCE OF COUNSEL
Finally, defendant argues that his trial counsel deprived him of effective assistance by instructing the probation officer not to interview defendant in preparation for the aggravation/mitigation hearing. On direct appeal, we will not reverse a conviction on ineffective assistance grounds absent an evidentiary hearing below. State v. Carver, 160 Ariz. 167, 175, 771 P.2d 1382, 1390 (1989). Here, no hearing occurred because defendant moved to dismiss his petition for post-conviction relief. The trial judge granted that motion. We address the issue now only because “we may clearly determine from the record that the ineffective assistance claim is meritless.” Id.
To establish ineffective assistance of counsel, defendant must prove that (1) counsel lacked minimal competence as determined by prevailing professional norms, and (2) counsel's deficient performance prejudiced the defense. Carver, 160 Ariz. at 174, 771 P.2d at 1389. Whether counsel's actions are reasonable may be determined or substantially influenced by the defendant's own statements or actions. Strickland v. Washington, 466 U.S. 668, 691, 104 S.Ct. 2052, 2066, 80 L.Ed.2d 674, 695 (1984).
At the sentencing hearing, defendant instructed his lawyer not to present any mitigating evidence. He prohibited his ex-wife and mother from testifying in his behalf, and they honored his wishes. Over defendant's objections, his attorney stated on the record what he thought those witnesses would say, specifically that defendant had a past history of substance abuse, that his mother had abused drugs when pregnant with him, that he was supporting a family, and that his prior murder conviction involved elements of self-defense. As previously indicated, defendant interjected with a more inculpatory version of that prior killing.
Counsel's instruction to the probation officer was clearly within the wide range of professionally competent assistance, given defendant's stated desire not to have mitigating evidence presented in his behalf, and his tendency to volunteer damaging statements like those made to the trial judge at the hearing. Contrary to defendant's argument, this case is not like State v. Smith, 136 Ariz. 273, 665 P.2d 995 (1983). The defendant in Smith would have testified in mitigation that he did not intentionally shoot the victim, but for erroneous legal advice from his counsel as to the admissibility of such statements in any subsequent legal proceeding. We held that “advising a client incorrectly about the black letter Rules of Criminal Procedure, especially in a matter of life and death,” was not “minimally competent representation.” Id. at 279, 665 P.2d at 1001.
This case does not present such a situation. In his comments, defendant not only failed to show remorse or offer mitigating evidence, but he flaunted his menacing behavior. On this record it is reasonable to assume that had defendant been interviewed, it would not have been to his benefit. There is no showing of incompetence or prejudice.
In view of the majority holding in State v. Salazar, 173 Ariz. 399, 416-417, 844 P.2d 566, 583-584 (1992), we have not conducted a proportionality review. We have, however, reviewed the record for fundamental error pursuant to A.R.S. § 13-4035, and found none. Defendant's convictions and sentences are affirmed.
FELDMAN, C.J., MOELLER, V.C.J., and CORCORAN and MARTONE, JJ., concur.
Schriro v. Landrigan, 550 U.S. 465, 127 S.Ct. 1933 (2007) (Habeas).
Background: After his murder conviction and sentence of death were affirmed on direct appeal, 176 Ariz. 1, 859 P.2d 111, and his state postconviction petitions were unsuccessful, petitioner sought federal habeas corpus relief. The United States District Court for the District of Arizona, Roslyn O. Silver, J., denied petition. Petitioner appealed. The Court of Appeals for the Ninth Circuit, 272 F.3d 1221, affirmed. On rehearing en banc, the Court of Appeals for the Ninth Circuit, 441 F.3d 638, affirmed in part, reversed in part, and remanded.
Holdings: On grant of certiorari, the Supreme Court, Justice Thomas, held that: (1) defense counsel's failure to present mitigating evidence during sentencing phase did not deprive petitioner of effective assistance of counsel; (2) Arizona state courts' determination, that counsel's failure to present mitigating evidence during sentencing phase did not amount to ineffective assistance of counsel, was not an unreasonable application of clearly established federal law; (3) habeas review on claim that petitioner failed to make informed and knowing decision not to present mitigating evidence was barred; and (4) claimed ineffectiveness of counsel in failing to adequately investigate and develop potential mitigating evidence was not prejudicial.
Reversed and remanded. Justice Stevens filed dissenting opinion, with which Justices Souter, Ginsburg, and Breyer joined.
Justice THOMAS delivered the opinion of the Court.
In cases where an applicant for federal habeas relief is not barred from obtaining an evidentiary hearing by 28 U.S.C. § 2254(e)(2), the decision to grant such a hearing rests in the discretion of the district court. Here, the District Court determined that respondent could not make out a colorable claim of ineffective assistance of counsel and therefore was not entitled to an evidentiary hearing. It did so after reviewing the state-court record and expanding the record to include additional evidence offered by the respondent. The Court of Appeals held that the District Court abused its discretion in refusing to grant the hearing. We hold that it did not.
Respondent Jeffrey Landrigan was convicted in Oklahoma of second-degree murder in 1982. In 1986, while in custody for that murder, Landrigan repeatedly stabbed another inmate and was subsequently convicted of assault and battery with a deadly weapon. Three years later, Landrigan escaped from prison and murdered Chester Dean Dyer in Arizona.
An Arizona jury found Landrigan guilty of theft, second-degree burglary, and felony murder for having caused the victim's death in the course of a burglary. At sentencing, Landrigan's counsel attempted to present the testimony of Landrigan's ex-wife and birth mother as mitigating evidence. But at Landrigan's request, both women refused to testify. When the trial judge asked why the witnesses refused, Landrigan's counsel responded that “it's at my client's wishes.” App. to Pet. for Cert. D-3. Counsel explained that he had “advised [Landrigan] very strongly that I think it's very much against his interests to take that particular position.” Ibid. The court then questioned Landrigan: “THE COURT: Mr. Landrigan, have you instructed your lawyer that you do not wish for him to bring any mitigating circumstances to my attention? “THE DEFENDANT: Yeah. “THE COURT: Do you know what that means? “THE DEFENDANT: Yeah. “THE COURT: Mr. Landrigan, are there mitigating circumstances I should be aware of? “THE DEFENDANT: Not as far as I'm concerned.” Id., at D-3, D-4.
Still not satisfied, the trial judge directly asked the witnesses to testify. Both refused. The judge then asked counsel to make a proffer of the witnesses' testimony. Counsel attempted to explain that the witnesses would testify that Landrigan's birth mother used drugs and alcohol (including while she was pregnant with Landrigan), that Landrigan abused drugs and alcohol, and that Landrigan had been a good father.
But Landrigan would have none of it. When counsel tried to explain that Landrigan had worked in a legitimate job to provide for his family, Landrigan interrupted and stated “[i]f I wanted this to be heard, I'd have my wife say it.” Id., at D-6. Landrigan then explained that he was not only working but also “doing robberies supporting my family.” Id., at D-7. When counsel characterized Landrigan's first murder as having elements of self-defense, Landrigan interrupted and clarified: “He didn't grab me. I stabbed him.” Id., at D-9. Responding to counsel's statement implying that the prison stabbing involved self-defense because the assaulted inmate knew Landrigan's first murder victim, Landrigan interrupted to clarify that the inmate was not acquainted with his first victim, but just “a guy I got in an argument with. I stabbed him 14 times. It was lucky he lived.” Ibid.
At the conclusion of the sentencing hearing, the judge asked Landrigan if he had anything to say. Landrigan made a brief statement that concluded, “I think if you want to give me the death penalty, just bring it right on. I'm ready for it.” Id., at D-16.
The trial judge found two statutory aggravating circumstances: that Landrigan murdered Dyer in expectation of pecuniary gain and that Landrigan was previously convicted of two felonies involving the use or threat of violence on another person. Id., at D-23. In addition, the judge found two nonstatutory mitigating circumstances: that Landrigan's family loved him and an absence of premeditation. Ibid. Finally, the trial judge stated that she considered Landrigan “a person who has no scruples and no regard for human life and human beings.” Ibid. Based on these findings, the court sentenced Landrigan to death. On direct appeal, the Arizona Supreme Court unanimously affirmed Landrigan's sentence and conviction. In addressing an ineffective-assistance-of-counsel claim not relevant here, the court noted that Landrigan had stated his “desire not to have mitigating evidence presented in his behalf.” State v. Landrigan, 176 Ariz. 1, 8, 859 P.2d 111, 118 (1993).
On January 31, 1995, Landrigan filed a petition for state postconviction relief and alleged his counsel's “fail[ure] to explore additional grounds for arguing mitigation evidence.” App. to Pet. for Cert. F-3 (internal quotation marks omitted). Specifically, Landrigan maintained that his counsel should have investigated the “biological component” of his violent behavior by interviewing his biological father and other relatives. Id., at E-2. In addition, Landrigan stated that his biological father could confirm that his biological mother used drugs and alcohol while pregnant with Landrigan. Ibid.
The Arizona postconviction court, presided over by the same judge who tried and sentenced Landrigan, rejected Landrigan's claim. The court found that “[Landrigan] instructed his attorney not to present any evidence at the sentencing hearing, [so] it is difficult to comprehend how [Landrigan] can claim counsel should have presented other evidence at sentencing.” Id., at F-4. Noting Landrigan's contention that he “ ‘would have cooperated’ ” had other mitigating evidence been presented, the court concluded that Landrigan's “statements at sentencing belie his new-found sense of cooperation.” Ibid. Describing Landrigan's claim as “frivolous,” id., at F-5, the court declined to hold an evidentiary hearing and dismissed Landrigan's petition. The Arizona Supreme Court denied Landrigan's petition for review on June 19, 1996.
Landrigan then filed a federal habeas application under § 2254. The District Court determined, after “expand[ing] the record to include ... evidence of [Landrigan's] troubled background, his history of drug and alcohol abuse, and his family's history of criminal behavior,” id., at C-22, that Landrigan could not demonstrate that he was prejudiced by any error his counsel may have made. Because Landrigan could not make out even a “colorable” ineffective-assistance-of-counsel claim, id., at C-46, the District Court refused to grant him an evidentiary hearing.
On appeal, a unanimous panel of the Court of Appeals for the Ninth Circuit affirmed, but the full court granted rehearing en banc, Landrigan v. Stewart, 397 F.3d 1235 (2005), and reversed. The en banc Court of Appeals held that Landrigan was entitled to an evidentiary hearing because he raised a “colorable claim” that his counsel's performance fell below the standard required by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). 441 F.3d 638, 650 (2006). With respect to counsel's performance, the Ninth Circuit found that he “did little to prepare for the sentencing aspect of the case,” id., at 643, and that investigation would have revealed a wealth of mitigating evidence, including the family's history of drug and alcohol abuse and propensity for violence.
Turning to prejudice, the court held the Arizona postconviction court's determination that Landrigan refused to permit his counsel to present any mitigating evidence was “an ‘unreasonable determination of the facts.’ ” Id., at 647 (quoting 28 U.S.C. § 2254(d)(2)). The Court of Appeals found that when Landrigan stated that he did not want his counsel to present any mitigating evidence, he was clearly referring only to the evidence his attorney was about to introduce-that of his ex-wife and birth mother. 441 F.3d, at 646. The court further held that, even if Landrigan intended to forgo the presentation of all mitigation evidence, such a “last-minute decision cannot excuse his counsel's failure to conduct an adequate investigation prior to the sentencing.” Id., at 647. In conclusion, the court found “a reasonable probability that, if Landrigan's allegations are true, the sentencing judge would have reached a different conclusion.” Id., at 650. The court therefore remanded the case for an evidentiary hearing.
We granted certiorari, 548 U.S. 941 (2006), and now reverse.
Prior to the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214, the decision to grant an evidentiary hearing was generally left to the sound discretion of district courts. Brown v. Allen, 344 U.S. 443, 463-464, 73 S.Ct. 397, 97 L.Ed. 469 (1953); see also Townsend v. Sain, 372 U.S. 293, 313, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). That basic rule has not changed. See 28 U.S.C. § 2254, Rule 8(a) (“[T]he judge must review the answer [and] any transcripts and records of state-court proceedings ... to determine whether an evidentiary hearing is warranted”).
AEDPA, however, changed the standards for granting federal habeas relief.FN1 Under AEDPA, Congress prohibited federal courts from granting habeas relief unless a state court's adjudication of a claim “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” § 2254(d)(1), or the relevant state-court decision “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” § 2254(d)(2). The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable-a substantially higher threshold. See Williams v. Taylor, 529 U.S. 362, 410, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). AEDPA also requires federal habeas courts to presume the correctness of state courts' factual findings unless applicants rebut this presumption with “clear and convincing evidence.” § 2254(e)(1).
FN1. Although not at issue here, AEDPA generally prohibits federal habeas courts from granting evidentiary hearings when applicants have failed to develop the factual bases for their claims in state courts. 28 U.S.C. § 2254(e)(2).
In deciding whether to grant an evidentiary hearing, a federal court must consider whether such a hearing could enable an applicant to prove the petition's factual allegations, which, if true, would entitle the applicant to federal habeas relief. See, e.g., Mayes v. Gibson, 210 F.3d 1284, 1287 (C.A.10 2000). Because the deferential standards prescribed by § 2254 control whether to grant habeas relief, a federal court must take into account those standards in deciding whether an evidentiary hearing is appropriate. See id., at 1287-1288 (“Whether [an applicant's] allegations, if proven, would entitle him to habeas relief is a question governed by [AEDPA]”). FN2
FN2. Indeed, the Court of Appeals below, recognizing this point, applied § 2254(d)(2) to reject certain of the Arizona court's factual findings that established a hearing would be futile.
It follows that if the record refutes the applicant's factual allegations or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing. The Ninth Circuit has recognized this point in other cases, holding that “an evidentiary hearing is not required on issues that can be resolved by reference to the state court record.” Totten v. Merkle, 137 F.3d 1172, 1176 (1998) (emphasis deleted) (affirming the denial of an evidentiary hearing where the applicant's factual allegations “fl[ew] in the face of logic in light of ... [the applicant's] deliberate acts which are easily discernible from the record”). This approach is not unique to the Ninth Circuit. See Anderson v. Attorney General of Kan., 425 F.3d 853, 858-859 (C.A.10 2005) (holding that no evidentiary hearing is required if the applicant's allegations are contravened by the existing record); cf. Clark v. Johnson, 202 F.3d 760, 767 (C.A.5 2000) (holding that no hearing is required when the applicant has failed to present clear and convincing evidence to rebut a state court's factual findings); Campbell v. Vaughn, 209 F.3d 280, 290 (C.A.3 2000) (same).
This principle accords with AEDPA's acknowledged purpose of “reduc[ing] delays in the execution of state and federal criminal sentences.” Woodford v. Garceau, 538 U.S. 202, 206, 123 S.Ct. 1398, 155 L.Ed.2d 363 (2003) (citing Williams v. Taylor, supra, at 386, 120 S.Ct. 1495 (opinion of STEVENS, J.) (“Congress wished to curb delays, to prevent ‘retrials' on federal habeas, and to give effect to state convictions to the extent possible under law”)). If district courts were required to allow federal habeas applicants to develop even the most insubstantial factual allegations in evidentiary hearings, district courts would be forced to reopen factual disputes that were conclusively resolved in the state courts. With these standards in mind, we turn to the facts of this case.
For several reasons, the Court of Appeals believed that Landrigan might be entitled to federal habeas relief and that the District Court, therefore, abused its discretion by denying Landrigan an evidentiary hearing. To the contrary, the District Court was well within its discretion to determine that, even with the benefit of an evidentiary hearing, Landrigan could not develop a factual record that would entitle him to habeas relief.
The Court of Appeals first addressed the State's contention that Landrigan instructed his counsel not to offer any mitigating evidence. If Landrigan issued such an instruction, counsel's failure to investigate further could not have been prejudicial under Strickland. The Court of Appeals rejected the findings of “the Arizona Supreme Court (on direct appeal) and the Arizona Superior Court (on habeas review)” that Landrigan instructed his counsel not to introduce any mitigating evidence. 441 F.3d, at 646. According to the Ninth Circuit, those findings took Landrigan's colloquy with the sentencing court out of context in a manner that “ amounts to an ‘unreasonable determination of the facts.’ ” Id., at 647 (quoting 28 U.S.C. § 2254(d)(2)). Upon review of record material and the transcripts from the state courts, we disagree. As a threshold matter, the language of the colloquy plainly indicates that Landrigan informed his counsel not to present any mitigating evidence. When the Arizona trial judge asked Landrigan if he had instructed his lawyer not to present mitigating evidence, Landrigan responded affirmatively. Likewise, when asked if there was any relevant mitigating evidence, Landrigan answered, “Not as far as I'm concerned.” App. to Pet. for Cert. D-4. These statements establish that the Arizona postconviction court's determination of the facts was reasonable. And it is worth noting, again, that the judge presiding on postconviction review was ideally situated to make this assessment because she is the same judge that sentenced Landrigan and discussed these issues with him.
Notwithstanding the plainness of these statements, the Court of Appeals concluded that they referred to only the specific testimony that counsel planned to offer-that of Landrigan's ex-wife and birth mother. The Court of Appeals further concluded that Landrigan, due to counsel's failure to investigate, could not have known about the mitigating evidence he now wants to explore. The record conclusively dispels that interpretation. First, Landrigan's birth mother would have offered testimony that overlaps with the evidence Landrigan now wants to present. For example, Landrigan wants to present evidence from his biological father that would “confirm [his biological mother's] alcohol and drug use during her pregnancy.” Id., at E-2. But the record shows that counsel planned to call Landrigan's birth mother to testify about her “drug us[e] during her pregnancy,” id., at D-10, and the possible effects of such drug use. Second, Landrigan interrupted repeatedly when counsel tried to proffer anything that could have been considered mitigating. He even refused to allow his attorney to proffer that he had worked a regular job at one point. Id., at D-6, D-7. This behavior confirms what is plain from the transcript of the colloquy: that Landrigan would have undermined the presentation of any mitigating evidence that his attorney might have uncovered.
On the record before us, the Arizona court's determination that Landrigan refused to allow the presentation of any mitigating evidence was a reasonable determination of the facts. In this regard, we agree with the initial Court of Appeals panel that reviewed this case: “In the constellation of refusals to have mitigating evidence presented ... this case is surely a bright star. No other case could illuminate the state of the client's mind and the nature of counsel's dilemma quite as brightly as this one. No flashes of insight could be more fulgurous than those which this record supplies.” Landrigan v. Stewart, 272 F.3d 1221, 1226 (C.A.9 2001).
Because the Arizona postconviction court reasonably determined that Landrigan “instructed his attorney not to bring any mitigation to the attention of the [sentencing] court,” App. to Pet. for Cert. F-4, it was not an abuse of discretion for the District Court to conclude that Landrigan could not overcome § 2254(d)(2)'s bar to granting federal habeas relief. The District Court was entitled to conclude that regardless of what information counsel might have uncovered in his investigation, Landrigan would have interrupted and refused to allow his counsel to present any such evidence. Accordingly, the District Court could conclude that because of his established recalcitrance, Landrigan could not demonstrate prejudice under Strickland even if granted an evidentiary hearing.
The Court of Appeals offered two alternative reasons for holding that Landrigan's inability to make a showing of prejudice under Strickland did not bar any potential habeas relief and, thus, an evidentiary hearing.
The Court of Appeals held that, even if Landrigan did not want any mitigating evidence presented, the Arizona courts' determination that Landrigan's claims were “ ‘frivolous' and ‘meritless' was an unreasonable application of United States Supreme Court precedent.” 441 F.3d, at 647 (citing 28 U.S.C. § 2254(d)(1)). This holding was founded on the belief, derived from Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003), that “Landrigan's apparently last-minute decision cannot excuse his counsel's failure to conduct an adequate investigation prior to the sentencing.” 441 F.3d, at 647.
Neither Wiggins nor Strickland addresses a situation in which a client interferes with counsel's efforts to present mitigating evidence to a sentencing court. Wiggins, supra, at 523, 123 S.Ct. 2527 (“[W]e focus on whether the investigation supporting counsel's decision not to introduce mitigating evidence of Wiggins' background was itself reasonable” (emphasis added and deleted)). Indeed, we have never addressed a situation like this. In Rompilla v. Beard, 545 U.S. 374, 381, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005), on which the Court of Appeals also relied, the defendant refused to assist in the development of a mitigation case, but did not inform the court that he did not want mitigating evidence presented. In short, at the time of the Arizona postconviction court's decision, it was not objectively unreasonable for that court to conclude that a defendant who refused to allow the presentation of any mitigating evidence could not establish Strickland prejudice based on his counsel's failure to investigate further possible mitigating evidence.
The Court of Appeals also stated that the record does not indicate that Landrigan's decision not to present mitigating evidence was “informed and knowing,” 441 F.3d, at 647, and that “[t]he trial court's dialogue with Landrigan tells us little about his understanding of the consequences of his decision.” Ibid. We have never imposed an “informed and knowing” requirement upon a defendant's decision not to introduce evidence. Cf., e.g., Iowa v. Tovar, 541 U.S. 77, 88, 124 S.Ct. 1379, 158 L.Ed.2d 209 (2004) (explaining that waiver of the right to counsel must be knowing and intelligent). Even assuming, however, that an “informed and knowing” requirement exists in this case, Landrigan cannot benefit from it, for three reasons.
First, Landrigan never presented this claim to the Arizona courts.FN3 Rather, he argued that he would have complied had other evidence been offered. Thus, Landrigan failed to develop this claim properly before the Arizona courts, and § 2254(e)(2) therefore barred the District Court from granting an evidentiary hearing on that basis.
FN3. Landrigan made this argument for the first time in a motion for rehearing from the denial of his postconviction petition. Under Arizona law, a defendant cannot raise new claims in a motion for rehearing. State v. Byers, 126 Ariz. 139, 142, 613 P.2d 299, 302 (App.1980), overruled on other grounds, State v. Pope, 130 Ariz. 253, 635 P.2d 846 (1981) (en banc).
Second, in Landrigan's presence, his counsel told the sentencing court that he had carefully explained to Landrigan the importance of mitigating evidence, “especially concerning the fact that the State is seeking the death penalty.” App. to Pet. for Cert. D-3. Counsel also told the court that he had explained to Landrigan that as counsel, he had a duty to disclose “any and all mitigating factors ... to th[e][c]ourt for consideration regarding the sentencing.” Ibid. In light of Landrigan's demonstrated propensity for interjecting himself into the proceedings, it is doubtful that Landrigan would have sat idly by while his counsel lied about having previously discussed these issues with him. And as Landrigan's counsel conceded at oral argument before this Court, we have never required a specific colloquy to ensure that a defendant knowingly and intelligently refused to present mitigating evidence. Tr. of Oral Arg. 26.
Third, the Court of Appeals overlooked Landrigan's final statement to the sentencing court: “I think if you want to give me the death penalty, just bring it right on. I'm ready for it.” App. to Pet. for Cert. D-16. It is apparent from this statement that Landrigan clearly understood the consequences of telling the judge that, “as far as [he was] concerned,” there were no mitigating circumstances of which she should be aware. Id., at D-4.
Finally, the Court of Appeals erred in rejecting the District Court's finding that the poor quality of Landrigan's alleged mitigating evidence prevented him from making “a colorable claim” of prejudice. App. to Pet. for Cert. C-46. As summarized by the Court of Appeals, Landrigan wanted to introduce as mitigation evidence: “[that] he was exposed to alcohol and drugs in utero, which may have resulted in cognitive and behavioral deficiencies consistent with fetal alcohol syndrome. He was abandoned by his birth mother and suffered abandonment and attachment issues, as well as other behavioral problems throughout his childhood.
His adoptive mother was also an alcoholic, and Landrigan's own alcohol and substance abuse began at an early age. Based on his biological family's history of violence, Landrigan claims he may also have been genetically predisposed to violence.” 441 F.3d, at 649.
As explained above, all but the last sentence refer to information that Landrigan's birth mother and ex-wife could have offered if Landrigan had allowed them to testify. Indeed, the state postconviction court had much of this evidence before it by way of counsel's proffer. App. to Pet. for Cert. D-21. The District Court could reasonably conclude that any additional evidence would have made no difference in the sentencing.
In sum, the District Court did not abuse its discretion in finding that Landrigan could not establish prejudice based on his counsel's failure to present the evidence he now wishes to offer. Landrigan's mitigation evidence was weak, and the postconviction court was well acquainted with Landrigan's exceedingly violent past and had seen first hand his belligerent behavior. Again, it is difficult to improve upon the initial Court of Appeals panel's conclusion: “The prospect was chilling; before he was 30 years of age, Landrigan had murdered one man, repeatedly stabbed another one, escaped from prison, and within two months murdered still another man. As the Arizona Supreme Court so aptly put it when dealing with one of Landrigan's other claims, ‘[i]n his comments [to the sentencing judge], defendant not only failed to show remorse or offer mitigating evidence, but he flaunted his menacing behavior.’ On this record, assuring the court that genetics made him the way he is could not have been very helpful. There was no prejudice.” 272 F.3d, at 1229 (citations and footnote omitted).
The Court of Appeals erred in holding that the District Court abused its discretion in declining to grant Landrigan an evidentiary hearing. Even assuming the truth of all the facts Landrigan sought to prove at the evidentiary hearing, he still could not be granted federal habeas relief because the state courts' factual determination that Landrigan would not have allowed counsel to present any mitigating evidence at sentencing is not an unreasonable determination of the facts under § 2254(d)(2) and the mitigating evidence he seeks to introduce would not have changed the result. In such circumstances, a District Court has discretion to deny an evidentiary hearing. The judgment of the Court of Appeals for the Ninth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Justice STEVENS, with whom Justice SOUTER, Justice GINSBURG, and Justice BREYER join, dissenting.
Significant mitigating evidence-evidence that may well have explained respondent's criminal conduct and unruly behavior at his capital sentencing hearing-was unknown at the time of sentencing. Only years later did respondent learn that he suffers from a serious psychological condition that sheds important light on his earlier actions. The reason why this and other mitigating evidence was unavailable is that respondent's counsel failed to conduct a constitutionally adequate investigation. See Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). In spite of this, the Court holds that respondent is not entitled to an evidentiary hearing to explore the prejudicial impact of his counsel's inadequate representation. It reasons that respondent “would have” waived his right to introduce any mitigating evidence that counsel might have uncovered, ante, at 1941 - 1942, 1943, and that such evidence “would have” made no difference in the sentencing anyway, ante, at 1943. Without the benefit of an evidentiary hearing, this is pure guesswork.
The Court's decision rests on a parsimonious appraisal of a capital defendant's constitutional right to have the sentencing decision reflect meaningful consideration of all relevant mitigating evidence, see, e.g., Abdul-Kabir v. Quarterman, 550 U.S. ----, 127 S.Ct. 1654, --- L.Ed.2d ---- (2007); Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986); Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), a begrudging appreciation of the need for a knowing and intelligent waiver of constitutionally protected trial rights, see, e.g., Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), and a cramped reading of the record. Unlike this Court, the en banc Court of Appeals properly accounted for these important constitutional and factual considerations. Its narrow holding that the District Court abused its discretion in denying respondent an evidentiary hearing should be affirmed. See Townsend v. Sain, 372 U.S. 293, 312, 318, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963); see also 28 U.S.C. § 2254 Rule 8(a) (2000 ed., Supp. IV).
No one, not even the Court, seriously contends that counsel's investigation of possible mitigating evidence was constitutionally sufficient. See Wiggins, 539 U.S., at 521, 123 S.Ct. 2527; Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Indeed, both the majority and dissenting judges on the en banc Court of Appeals agreed that “counsel's limited investigation of Landrigan's background fell below the standards of professional representation prevailing” at the time of his sentencing hearing. 441 F.3d 638, 650 (C.A.9 2006) (Bea, J., dissenting); see id., at 643-645 (“On the record before us, it appears that Landrigan's counsel did little to prepare for the sentencing aspect of the case. ... A comparison of the results of the minimal investigation by [counsel] with the amount of available mitigating evidence Landrigan claims was available leaves us with grave doubts whether Landrigan received effective assistance of counsel during his penalty phase proceeding”). The list of evidence that counsel failed to investigate is long. For instance, counsel did not complete a psychological evaluation of respondent, which we now know would have uncovered a serious organic brain disorder. He failed to consult an expert to explore the effects of respondent's birth mother's drinking and drug use during pregnancy. And he never developed a history of respondent's troubled childhood with his adoptive family-a childhood marked by physical and emotional abuse, neglect by his adoptive parents, his own serious substance abuse problems (including an overdose in his eighth or ninth grade classroom), a stunted education, and recurrent placement in substance abuse rehabilitation facilities, a psychiatric ward, and police custody. See Declaration by Shannon Sumpter, App. 180-192. Counsel's failure to develop this background evidence was so glaring that even the sentencing judge noted that she had “received very little information concerning the defendant's difficult family history.” App. to Pet. for Cert. D-21.FN1 At the time of sentencing, counsel was only prepared to put on the testimony by respondent's ex-wife and birth mother. By any measure, and especially for a capital case, this meager investigation “fell below an objective standard of reasonableness.” Strickland, 466 U.S., at 688, 104 S.Ct. 2052.
FN1. Even more troubling is that prior to sentencing, counsel had clues for where to find this important mitigating evidence. As the Court of Appeals noted, respondent has alleged that his birth mother sent a letter to counsel explaining that “(1) Landrigan began drinking at an early age because his adoptive mother was an alcoholic and would walk around nude in front of him, (2) Landrigan's father was on death row in Arkansas and the ‘blood link to Darrel [and] I are what has messed up his whole life,’ and (3) ‘Jeff needs help mentally like his father did.’ ” 441 F.3d 638, 644 (C.A.9 2006) (en banc). Counsel failed to follow up on any of these leads. Given this deficient performance, the only issue is whether counsel's inadequate investigation prejudiced the outcome of sentencing. The bulk of the Court's opinion argues that the District Court reasonably found that respondent waived his right to present any and all mitigating evidence. See ante, at 1940 - 1943. As I shall explain, this argument finds no support in the Constitution or the record of this case.
It is well established that a citizen's waiver of a constitutional right must be knowing, intelligent, and voluntary. As far back as Johnson v. Zerbst, we held that courts must “ ‘indulge every reasonable presumption against waiver’ of fundamental constitutional rights.' ” 304 U.S., at 464, 58 S.Ct. 1019. Since then, “[w]e have been unyielding in our insistence that a defendant's waiver of his trial rights cannot be given effect unless it is ‘knowing’ and ‘intelligent.’ ” Illinois v. Rodriguez, 497 U.S. 177, 183, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990) (citing Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461).
Twenty-five years after Zerbst, our decision in Schneckloth v. Bustamonte added crucial content to our jurisprudence on the knowing and intelligent waiver of constitutional rights. That case considered whether Zerbst's requirement applied to a citizen's consent to a search or seizure. In determining that it did not, our decision turned on the “vast difference between those rights that protect a fair criminal trial and the rights guaranteed under the Fourth Amendment.” 412 U.S., at 241, 93 S.Ct. 2041. We explained: “The requirement of a ‘knowing’ and ‘intelligent’ waiver was articulated in a case involving the validity of a defendant's decision to forgo a right constitutionally guaranteed to protect a fair trial and the reliability of the truth-determining process .... Almost without exception, the requirement of a knowing and intelligent waiver has been applied only to those rights which the Constitution guarantees to a criminal defendant in order to preserve a fair trial.” Id., at 236-237, 93 S.Ct. 2041.
We then ran through the extensive list of trial rights to which the knowing-and-intelligent-waiver requirement had already been applied.FN2 We further noted that the Zerbst requirement had been applied to the “waiver of trial rights in trial-type situations,” FN3 and to guilty pleas, which we said must be “carefully scrutinized to determine whether the accused knew and understood all the rights to which he would be entitled at trial.” FN4 412 U.S., at 238, 93 S.Ct. 2041. If our emphasis on trial rights was not already clear, we went on to state:
FN2. See, e.g., Brookhart v. Janis, 384 U.S. 1, 86 S.Ct. 1245, 16 L.Ed.2d 314 (1966) (right to confrontation); Adams v. United States ex rel. McCann, 317 U.S. 269, 63 S.Ct. 236, 87 L.Ed. 268 (1942) (right to jury trial); Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) (the right to a speedy trial); Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957) (right to be free from double jeopardy). FN3. See, e.g., Smith v. United States, 337 U.S. 137, 69 S.Ct. 1000, 93 L.Ed. 1264 (1949) (waiver of the privilege against compulsory self-incrimination before an administrative agency); Emspak v. United States, 349 U.S. 190, 75 S.Ct. 687, 99 L.Ed. 997 (1955) (waiver of the privilege against compulsory self-incrimination before a congressional committee); In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967) (waiver of counsel in a juvenile proceeding). FN4. See, e.g., McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969); Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); Von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309 (1948); Uveges v. Pennsylvania, 335 U.S. 437, 69 S.Ct. 184, 93 L.Ed. 127 (1948).
“A strict standard of waiver has been applied to those rights guaranteed to a criminal defendant to insure that he will be accorded the greatest possible opportunity to utilize every facet of the constitutional model of a fair criminal trial. Any trial conducted in derogation of that model leaves open the possibility that the trial reached an unfair result precisely because all the protections specified in the Constitution were not provided .... The Constitution requires that every effort be made to see to it that a defendant in a criminal case has not unknowingly relinquished the basic protections that the Framers thought indispensable to a fair trial.” Id., at 241-242, 93 S.Ct. 2041.
Given this unmistakable focus on trial rights, it makes little difference that we have not specifically “imposed an ‘informed and knowing’ requirement upon a defendant's decision not to introduce evidence.” Ante, at 1942. A capital defendant's right to present mitigating evidence is firmly established FN5 and can only be exercised at a sentencing trial. For a capital defendant, the right to have the sentencing authority give full consideration to mitigating evidence that might support a sentence other than death is of paramount importance-in some cases just as important as the right to representation by counsel protected in Zerbst or any of the trial rights discussed in Schneckloth. Our longstanding precedent-from Zerbst to Schneckloth to the only waiver case that the majority cites, Iowa v. Tovar, 541 U.S. 77, 124 S.Ct. 1379, 158 L.Ed.2d 209 (2004) FN6-requires that any waiver of the right to adduce such evidence be knowing, intelligent, and voluntary. As such, the state postconviction court's conclusion that respondent completely waived his right to present mitigating evidence involved an unreasonable application of clearly established federal law as determined by this Court. See 28 U.S.C. § 2254(d)(1).
FN5. See, e.g., Abdul-Kabir v. Quarterman, 550 U.S. ----, 127 S.Ct. 1654 (2007); Brewer v. Quarterman, 550 U.S. 286, 127 S.Ct. 1706, 167 L.Ed.2d 622 (2007); Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986); Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). FN6. See Tovar, 541 U.S., at 81, 124 S.Ct. 1379 (“Waiver of the right to counsel, as of constitutional rights in the criminal process generally, must be a ‘knowing, intelligent ac[t] done with sufficient awareness of the relevant circumstances' ” (quoting Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); emphasis added)). Respondent's statements at the sentencing hearing do not qualify as an informed waiver under our precedents. To understand why, it is important to remember the context in which the waiver issue arose. In all of his postconviction proceedings, respondent has never brought a freestanding claim that he failed to knowingly or intelligently waive his right to present mitigating evidence. See Keeney v. Tamayo-Reyes, 504 U.S. 1, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992) (considering a claim that a defendant's guilty plea was not knowing and intelligent). That is because respondent believes he never waived his right to present all available mitigating evidence. See Brief for Respondent 20 (“Landrigan has alleged that ... he intended at most to forgo his right to put on his ex-wife and birth mother as witnesses”); Part III, infra. Respondent's only claim is that his counsel was ineffective for failing to investigate and present mitigating evidence.
In light of this posture, the Court's conclusion that respondent cannot make a knowing-and-intelligent-waiver argument because he failed to present it in the Arizona courts is nothing short of baffling. See ante, at 1942 - 1943. Respondent never intended for waiver to become an issue because he never thought it was an issue. Waiver only became a concern when he was forced to answer: (1) the State's argument that he could not establish prejudice under Strickland because he waived the right to present all mitigating evidence; and (2) the state postconviction court's conclusion that “[s]ince the defendant instructed his attorney not to bring any mitigation to the attention of the court, he cannot now claim counsel was ineffective because he did not ‘explore additional grounds for arguing mitigation evidence.’ ” App. to Pet. for Cert. F-4. It is instructive that both the State and the postconviction court considered the waiver issue within the context of the prejudice prong of respondent's ineffective-assistance-of-counsel claim. Even now, respondent's only “claim” within the meaning of 28 U.S.C. § 2254(e)(2) is that his counsel was ineffective for not adequately investigating and presenting mitigating evidence. An argument-particularly one made in the alternative and in response to another party-is fundamentally different from a claim. Cf. Yee v. Escondido, 503 U.S. 519, 534, 112 S.Ct. 1522, 118 L.Ed.2d 153 (1992).FN7
FN7. The Court also misapplies § 2254(e)(2) by failing to account for our holding that “[u]nder the opening clause of § 2254(e)(2), a failure to develop the factual basis of a claim is not established unless there is lack of diligence, or some greater fault, attributable to the prisoner or the prisoner's counsel.” Williams v. Taylor, 529 U.S. 420, 432, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000) (emphasis added). “Diligence ... depends upon whether the prisoner made a reasonable attempt, in light of the information available at the time, to investigate and pursue claims in state court.” Id., at 435, 120 S.Ct. 1479. At the time petitioner filed his state postconviction petition, he was under the impression that he had not waived his right to present all mitigating evidence. Once the state postconviction court informed him otherwise, he immediately raised this argument in a motion for rehearing. See ante, at 1943, n. 3. The consequence of today's decision is that prisoners will be forced to file separate claims in anticipation of every possible argument that might be made in response to their genuine claims. That is no way to advance “[the Antiterrorism and Effective Death Penalty Act of 1996's] acknowledged purpose of reduc[ing] delays in the execution of state and federal criminal sentences.” Ante, at 1940 (internal quotation marks omitted).
Turning back to that claim, respondent's purported waiver can only be appreciated in light of his counsel's deficient performance. To take just one example, respondent's counsel asked a psychologist, Dr. Mickey McMahon, to conduct an initial interview with respondent. But Dr. McMahon has submitted an affidavit stating that his experience was “quite different from the working relationship [he] had with counsel on other death penalty cases in which the psychological study went through a series of steps.” Declaration by Mickey McMahon, App. 247. In this case, Dr. McMahon was “not authorized to conduct the next step in psychological testing that would have told [him] if ... there were any cognitive or neuropsychological deficits not observed during just an interview.” Id., at 246. Even though Dr. McMahon told respondent's counsel that “much more work was needed to provide an appropriate psychological study for a death penalty case,” ibid., counsel refused to let him investigate any further.FN8
FN8. An investigator named George LaBash had a similar experience with respondent's counsel. Although counsel had hired LaBash to look into respondent's case, LaBash stated in an affidavit that counsel “did not ask me to do much.” Declaration by George LaBash, App. 242. In fact, LaBash spent only 13 hours working on the case, never conducted a mitigation investigation, and described his experience working with respondent's counsel as “quite frustrating.” Id., at 242-243. A more thorough investigation would have revealed that respondent suffers from an organic brain disorder. See Abdul-Kabir, 550 U.S., at ----, 127 S.Ct. at 1673-74 (recognizing that “possible neurological damage” is relevant mitigating evidence). Years after Dr. McMahon's aborted examination, another psychologist, Dr. Thomas C. Thompson, conducted a complete analysis of respondent. Based on extensive interviews with respondent and several of his family members, a review of his family history, and multiple clinical tests, Dr. Thompson diagnosed respondent with Antisocial Personality Disorder. See Declaration by Thomas C. Thompson, App. 149. Dr. Thompson filed an affidavit in the District Court describing his diagnosis:
“[Respondent's] actions did not constitute a lifestyle choice in the sense of an individual operating with a large degree of freedom, as we have come to define free will. The inherited, prenatal, and early developmental factors severely impaired Mr. Landrigan's ability to function in a society that expects individuals to operate in an organized and adaptive manner, taking into account the actions and consequences of their behaviors and their impact on society and its individual members. Based on evaluation and investigation along with other relevant data, this type of responsible functioning is simply beyond Mr. Landrigan and, as far back as one can go, there is no indication that he ever had these capacities.” Id., at 160.
On the day of the sentencing hearing, the only mitigating evidence that respondent's counsel had investigated was the testimony of respondent's birth mother and ex-wife. None of this neuropsychological information was available to respondent at the time of his purported waiver. Yet the Court conspicuously avoids any mention of respondent's organic brain disorder. It instead provides an incomplete list of other mitigating evidence that respondent would have presented and incorrectly assumes that respondent's birth mother and ex-wife would have covered it all. See ante, at 1941, 1943. Unless I missed the portion of the record indicating that respondent's ex-wife and birth mother were trained psychologists, neither could have offered expert testimony about respondent's organic brain disorder.
It is of course true that respondent was aware of many of the individual pieces of mitigating evidence that contributed to Dr. Thompson's subsequent diagnosis. He knew that his birth mother abandoned him at the age of six months, see App. 147; that his biological family had an extensive criminal history, see id., at 146-147; that his adoptive mother had “affective disturbances and chronic alcoholism,” id., at 148; that she routinely drank vodka until she passed out, see id., at 184; that she would frequently strike him, once even “hit[ting him] with a frying pan hard enough to leave a dent,” id., at 183, 185; that his childhood was difficult and he exhibited abandonment and attachment problems at an early age, see id., at 148; that he had a bad temper and often threw violent tantrums as a child, see id., at 182; and that he “began getting into trouble and using alcohol and drugs at an early age and, by adolescence, he had begun a series of placements in juvenile detention facilities, a psychiatric ward, and twice in drug abuse rehabilitation programs,” id., at 148. Perhaps respondent also knew that his biological mother abused alcohol and amphetamines during her pregnancy, and that in utero exposure to drugs and alcohol has deleterious effects on the child. See id., at 155-156.
But even if respondent knew all these things, we cannot assume that he could understand their consequences the way an expert psychologist could. Without years of advanced education and a battery of complicated testing, respondent could not know that these experiences resulted in a serious organic brain disorder or what effect such a disorder might have on his behavior. And precisely because his counsel failed to conduct a proper investigation, he did not know that this important evidence was available to him when he purportedly waived the right to present mitigating evidence. It is hard to see how respondent's claim of Strickland prejudice can be prejudiced by counsel's Strickland error. See Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).
Without ever acknowledging that respondent lacked this information, the Court clings to counsel's discussion with respondent about “the importance of mitigating evidence.” Ante, at 1943. The majority also places great weight on the fact that counsel explained to respondent that, as counsel, he had a “duty to disclose ‘any and all mitigating factors ... to th[e][c]ourt for consideration regarding the sentencing.’ ” Ibid. Leaving aside the fact that counsel's deficient performance did not demonstrate an understanding of the “importance of mitigating evidence”-let alone knowledge of “ ‘any and all’ ” such evidence-counsel's abstract explanation cannot satisfy the demands of Zerbst and Schneckloth. Unless respondent knew of the most significant mitigation evidence available to him, he could not have made a knowing and intelligent waiver of his constitutional rights. See Battenfield v. Gibson, 236 F.3d 1215, 1229-1233 (C.A.10 2001) (holding a defendant's waiver invalid where there was “no indication [counsel] explained ... what specific mitigation evidence was available”); Coleman v. Mitchell, 268 F.3d 417, 447-448 (C.A.6 2001); see generally Tovar, 541 U.S., at 88, 124 S.Ct. 1379.
Even if the putative waiver had been fully informed, the Arizona postconviction court's determination that respondent “instructed his attorney not to bring any mitigation to the attention of the [sentencing] court” is plainly contradicted by the record. App. to Pet. for Cert. F-4. The Court nevertheless defers to this finding, concluding that it was not an “unreasonable determination of the facts” under 28 U.S.C. § 2254(d)(2). “[I]n the context of federal habeas,” however, “deference does not imply abandonment or abdication of judicial review.” Miller-El v. Cockrell, 537 U.S. 322, 340, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). A careful examination of the “record material and the transcripts from the state courts,” ante, at 1941, does not indicate that respondent intended to make a waiver that went beyond the testimony of his birth mother and ex-wife.
The Court reads the following exchange as definitive proof that respondent “informed his counsel not to present any mitigating evidence,” ibid.: “THE COURT: Mr. Landrigan, have you instructed your lawyer that you do not wish for him to bring any mitigating circumstances to my attention? “THE DEFENDANT: Yeah. “THE COURT: Do you know what that means? “THE DEFENDANT: Yeah. “THE COURT: Mr. Landrigan, are there mitigating circumstances I should be aware of? “THE DEFENDANT: Not as far as I'm concerned.” App. to Pet. for Cert. D-3 to D-4.
The Court also infers from respondent's disruptive behavior at the sentencing hearing that he “would have undermined the presentation of any mitigating evidence that his attorney might have uncovered.” Ante, at 1941. But this record material does not conclusively establish that respondent would have waived his right to present other mitigating evidence if his counsel had made it available to him.
The brief exchange between respondent and the trial court must be considered in the context of the entire sentencing proceeding. The above-quoted dialogue came immediately after a lengthy colloquy between the trial court and respondent's counsel: “MR. FARRELL: Your Honor, at this time ... I have two witnesses that I wished to testify before this Court, one I had brought in from out of state and is my client's ex-wife, Ms. Sandy Landrigan. The second witness is my client's natural mother, Virginia Gipson. I believe both of those people had some important evidence that I believed the Court should take into mitigation concerning my client. However, Mr. Landrigan has made it clear to me ... that he does not wish anyone from his family to testify on his behalf today.
“I have talked with Sandra Landrigan, his ex-wife. I have talked a number of times with her and confirmed what I thought was important evidence that she should present for the Court. And I have also talked with Ms. Gipson, and her evidence I think is very important and should have been brought to this Court's attention. Both of them, after talking with Jeff today, have agreed with their, in one case son and the other ex-husband, they will not testify in his behalf. “THE COURT: Why not? “MR. FARRELL: Basically it's at my client's wishes, Your Honor. I told him that in order to effectively represent him, especially concerning the fact that the State is seeking the death penalty, any and all mitigating factors, I was under a duty to disclose those factors to this Court for consideration regarding the sentencing. He is adamant he does not want any testimony from his family, specifically these two people that I have here, his mother, under subpoena, and as well as having flown in his ex-wife.” App. to Pet. for Cert. D-2 to D-3 (emphasis added).
Respondent's answers to the trial judge's questions must be read in light of this discussion. When the judge immediately turned from counsel to respondent and asked about “any mitigating circumstances,” the entire proceeding to that point had been about the possible testimony of his birth mother or ex-wife. Counsel had only informed the court that respondent did not want any testimony “from his family.” Id., at D-3. Neither counsel nor respondent said anything about other mitigating evidence. A fair reading of the full sentencing transcript makes clear that respondent's answers referred only to the testimony of his ex-wife and birth mother.FN9
FN9. The Court disregards another important contextual clue-that respondent's counsel requested three 30-day continuances to investigate and prepare a mitigation case, and that respondent consented on the record to each one. App. 10, 12-13, 15. If respondent had instructed his counsel not to develop any mitigating evidence, his consent would be difficult to explain. Similarly, there is clear evidence that respondent cooperated with counsel's minimal investigation. He allowed counsel to interview his birth mother and ex-wife, he assisted in counsel's gathering of his medical records, and he freely met with Dr. McMahon. See App. to Pet. for Cert. D-2 to D-3; App. 12; id., at 129. These are not the actions of a man who wanted to present no mitigating evidence. What is more, respondent's answers were necessarily infected by his counsel's failure to investigate. Respondent does not dispute that he instructed his counsel not to present his family's testimony. Brief for Respondent 47 (“Landrigan contends that his intent was not to effect a broad waiver but, instead, merely to waive presentation of testimony from his mother and his ex-wife”). But his limited waiver cannot change the fact that he was unaware that the words “any mitigating circumstances” could include his organic brain disorder, the medical consequences of his mother's drinking and drug use during pregnancy, and his abusive upbringing with his adoptive family.FN10 In respondent's mind, the words “any mitigating circumstances” just meant the incomplete evidence that counsel offered to present. As the en banc Court of Appeals explained, “[h]ad his lawyer conducted an investigation and uncovered other types of mitigating evidence, Landrigan might well have been able to direct the court to other mitigating circumstances.” 441 F.3d, at 646. It is therefore error to read respondent's simple “Yeah” and “Not as far as I'm concerned” as waiving anything other than the little he knew was available to him.
FN10. Contrary to the Court's contention, see ante, at 1941, 1943 - 1944, respondent's birth mother could not have testified about his difficult childhood with his adoptive family. In fact, respondent sought a state postconviction evidentiary hearing so that his adoptive sister could present such evidence. See Petition for Post-Conviction Relief, App. 88 (“Petitioner's sister, Shannon Sumpter, would also have verified that their mother, Mrs. Landrigan, was an alcoholic and that that disease caused significant problems within the family which impacted adversely on Petitioner as he was growing up. ... She would, moreover, have provided additional information concerning familial problems which preceded the time of sentencing and which may have offered at least a partial explanation of Petitioner's conduct at sentencing”). Accordingly, the state postconviction court's finding that petitioner waived his right to present any mitigating evidence was an unreasonable determination of the facts under § 2254(d)(2). While the Court is correct that the postconviction judge was the same judge who sentenced respondent, we must remember that her postconviction opinion was written in 1995- five years after the sentencing proceeding. Although the judge's memory deserves some deference, her opinion reflects many of the same flaws as does the Court's opinion. Instead of reexamining the entire trial transcript, she only quoted the same two-question exchange with respondent. App. to Pet. for Cert. F-4. And unlike this Court's repeated reference to respondent's behavior at sentencing, she did not mention it at all. Her analysis consists of an incomplete review of the transcript and an unsupported summary conclusion that respondent told his attorney not to present any mitigating evidence.
While I believe that neither the Constitution nor the record supports the Court's waiver holding, respondent is at least entitled to an evidentiary hearing on this question as well as his broader claim of ineffective assistance of counsel. Respondent insists that he never instructed his counsel not to investigate other mitigating evidence. Even the State concedes that there has been no finding on this issue. See, e.g., Brief for Respondent 37 (“ ‘[Judge Kozinski]: There's no [state court] finding at all even by inference as to investigation? There's ... no finding that ... the trial court made that goes to Landrigan's attitude about allowing his lawyer to investigate? ... [Counsel for State]: I would agree’ ” (quoting Ninth Circuit Oral Argument Audio 43:55-44:30)). He has long maintained that he would have permitted the presentation of mitigating evidence if only counsel was prepared to introduce evidence other than testimony from his birth mother and ex-wife. See, e.g., App. to Pet. for Cert. E-2. Respondent planned to call his counsel at an evidentiary hearing to testify about these very assertions. See App. 126. Because counsel is in the best position to clarify whether respondent gave any blanket instructions not to investigate or present mitigating evidence, the Court is wrong to decide this case before any evidence regarding respondent's instructions can be developed.
Almost as an afterthought, the Court holds in the alternative that “the District Court did not abuse its discretion in finding that Landrigan could not establish prejudice based on his counsel's failure to present the evidence he now wishes to offer.” Ante, at 1943 - 1944. It of course does this on a cold and incomplete factual record. Describing respondent's mitigation case as “weak,” and emphasizing his “exceedingly violent past” and “belligerent behavior” at sentencing, the Court concludes that there is no way that respondent can establish prejudice with the evidence he seeks to introduce. Ibid. This reasoning is flawed in several respects.
First, as has been discussed above but bears repeating, the Court thoroughly misrepresents respondent's mitigating evidence. It is all too easy to view respondent's mitigation case as “weak” when you assume away his most powerful evidence. The Court ignores respondent's organic brain disorder, which would have explained not only his criminal history but also the repeated outbursts at sentencing.FN11 It mistakenly assumes that respondent's birth mother and ex-wife could have testified about the medical consequences of fetal alcohol syndrome. And it inaccurately states that these women could have described his turbulent childhood with his adoptive family. We have repeatedly said that evidence of this kind can influence a sentencer's decision as to whether death is the proper punishment. See, e.g., Wiggins, 539 U.S., at 535, 123 S.Ct. 2527 (“[E]vidence about the defendant's background and character is relevant because of the belief, long held by this society, that defendants who commit criminal acts that are attributable to a disadvantaged background [or to emotional and mental problems] may be less culpable than defendants who have no such excuse” (internal quotation marks omitted)); Eddings v. Oklahoma, 455 U.S. 104, 115, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982) (“[T]here can be no doubt that evidence of a turbulent family history, of beatings by a harsh father, and of severe emotional disturbance is particularly relevant”). The evidence here might well have convinced a sentencer that a death sentence was not appropriate.
FN11. See Declaration by Thomas C. Thompson, App. 149 (stating that tests revealed that respondent has “deficits with cognitive processing, poor adaptability, incomplete understanding of his surroundings and his effect on others, and very limited impulse control ” (emphasis added)); id., at 150 (noting that individuals with antisocial personality disorder typically act “irresponsibl[y] across areas of their daily lives with decisions characterized by impulsivity ” (emphasis added)). Second, the aggravating circumstances relied on by the sentencing judge are not as strong as the Court makes them out to be.FN12 To be sure, respondent had already committed two violent offenses. But so had Terry Williams, and this Court still concluded that he suffered prejudice when his attorney failed to investigate and present mitigating evidence. See Williams v. Taylor, 529 U.S. 362, 368, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (noting that Williams confessed to “two separate violent assaults on elderly victims,” including one that left an elderly woman in a “ ‘vegetative state’ ”); id., at 398, 120 S.Ct. 1495 (“[T]he graphic description of Williams' childhood, filled with abuse and privation, or the reality that he was ‘borderline mentally retarded,’ might well have influenced the jury's appraisal of his moral culpability.”). The only other aggravating factor was that Landrigan committed his crime for pecuniary gain FN13-but there are serious doubts about that. As the en banc Court of Appeals explained, “[t]here was limited evidence regarding the pecuniary gain aggravator. The judge noted that the victim's apartment had been ransacked as if the perpetrator were looking for something, and that this demonstrated an expectation of pecuniary gain, even though Landrigan did not actually steal anything of value.” 441 F.3d, at 649 (emphasis added). Thus, while we should not ignore respondent's violent past, it is certainly possible-even likely-that evidence of his neurological disorder, fetal alcohol syndrome, and abusive upbringing would have influenced the sentencing judge's assessment of his moral blameworthiness and altered the outcome of his sentencing. As such, respondent has plainly alleged facts that, if substantiated at an evidentiary hearing, would entitle him to relief. See Townsend, 372 U.S., at 312, 83 S.Ct. 745.
FN12. In fact, while the Court's terse prejudice analysis relies heavily on a colorful quote from the original Ninth Circuit panel, see ante, at 1943 - 1944, it declines to mention that one judge on that panel switched her vote and joined the en banc majority after further consideration of respondent's mitigating evidence. FN13. Notwithstanding the Court's repeated assertions, the sentencing judge did not consider respondent's courtroom behavior as an aggravating factor. Compare ante, at 1943 - 1944, with App. to Pet. for Cert. D-17 to D-18. In fact, the sentencing judge noted that until the day of sentencing, respondent had “acted appropriately in the courtroom” and his conduct had been “good.” Id., at D-22. Even more important, she understood his behavior that day to be a mere “release ... of his frustration,” ibid.-not as an aggravating factor and certainly not as an indication of his intent to waive his right to present mitigating evidence. At most, the sentencing judge treated respondent's behavior on the day of sentencing as a reason not to credit his earlier “good” behavior as a mitigating circumstance. In any event, a defendant's poor behavior at trial is not listed as an aggravating factor under Arizona's capital sentencing statute. See Ariz.Rev.Stat. Ann. § 13-703(F) (West Supp.2006).
In the end, the Court's decision can only be explained by its increasingly familiar effort to guard the floodgates of litigation. Immediately before turning to the facts of this case, it states that “[i]f district courts were required to allow federal habeas applicants to develop even the most insubstantial factual allegations in evidentiary hearings, district courts would be forced to reopen factual disputes that were conclusively resolved in the state courts.” Ante, at 1940. However, habeas cases requiring evidentiary hearings have been “few in number,” and “there is no clear evidence that this particular classification of habeas proceedings has burdened the dockets of the federal courts.” Keeney, 504 U.S., at 24, 112 S.Ct. 1715 (KENNEDY, J., dissenting). Even prior to the passage of the Antiterrorism and Effective Death Act of 1996, district courts held evidentiary hearings in only 1.17% of all federal habeas cases. See Report to the Federal Courts Study Committee of the Subcommittee on the Role of the Federal Courts and their Relation to the States (Mar. 12, 1990) (Richard A. Posner, Chair), in 1 Federal Courts Study Committee, Working Papers and Subcommittee Reports 468-515 (July 1, 1990). This figure makes it abundantly clear that doing justice does not always cause the heavens to fall. The Court would therefore do well to heed Justice KENNEDY's just reminder that “[w]e ought not take steps which diminish the likelihood that [federal] courts will base their legal decision on an accurate assessment of the facts.” Keeney, 504 U.S., at 24, 112 S.Ct. 1715 (dissenting opinion).
It may well be true that respondent would have completely waived his right to present mitigating evidence if that evidence had been adequately investigated at the time of sentencing. It may also be true that respondent's mitigating evidence could not outweigh his violent past. What is certainly true, however, is that an evidentiary hearing would provide answers to these questions. I emphatically agree with the majority of judges on the en banc Court of Appeals that it was an abuse of discretion to refuse to conduct such a hearing in this capital case.
Accordingly, I respectfully dissent.
Landrigan v. State, 700 P.2d 218 (Okl. Cr. 1985). (Unrelated Murder Reversed)
Defendant was convicted in the District Court, Washington County, Mermon H. Potter, J., of first-degree murder, and he appealed. The Court of Criminal Appeals, Parks, P.J., held that: (1) trial court's comment on credibility of three key State witnesses prejudiced defendant, and (2) prosecutor's comments in summation contributed to denial of defendant's right to fair trial. Reversed and remanded. Bussey, J., filed dissenting opinion.
PARKS, Presiding Judge:
The appellant, Jeffrey Timothy Landrigan, was charged with, tried for, and convicted of Murder in the First Degree in the District Court of Washington County, Case No. CRF-82-228. He was sentenced to life imprisonment. We reverse.
Appellant's conviction stemmed from the fatal stabbing of his best friend, Greg Brown, after they and some friends had smoked marijuana and drank whiskey at a trailer park in Dewey, Oklahoma, on August 24, 1982.
According to testimony presented at trial, appellant, accompanied by his wife and son, arrived at the trailer home of Gordon Aiken at about 8 p.m. that evening. Soon after they arrived, appellant, his family and Aiken went to purchase a fifth of whiskey. On their way back to the trailer park, the group picked up appellant's brother-in-law, Robert Martinez. When they returned to the trailer, appellant, the victim, David Detjan and Donna Favier began drinking whiskey and smoking marijuana cigarettes.
Appellant and the victim began calling one another a “punk,” and began arguing whether appellant could beat the victim in a fight. As appellant started to leave, the victim pushed him against the trailer wall, and told appellant, “if you want to settle the argument, we can take it outside.” The victim went outside, followed by the appellant. According to Aiken's testimony, appellant was holding a knife behind his back. Aiken testified he rushed to a bedroom to find his rifle. In the meantime, however, appellant lunged at Brown and stabbed him in the chest. Aiken returned to the living room with the rifle. Detjan took the rifle, pointed it at appellant and told him to “back up or I'm going to blow your head off.” Appellant escaped between two cars as his victim collapsed on the ground.
Appellant ran to the machine shop of Alvin Burns and told Burns that he had “wasted a guy.” He later told Washington County Undersheriff Jim Eppler, “Jim, I tried to kill the m----- f-----. I don't take that shit off nobody. I cut him twice. I think I cut him twice.”
Appellant testified on his own behalf that as the men continued to drink, he could see that what began as friendly teasing was now making the victim angry. Appellant testified that, as he was leaving, the victim grabbed him by the throat and threatened to “whip my ass.” Appellant said the men went outside. He also testified that he attempted to go back into the trailer, but someone inside pointed the shotgun in his direction. Appellant jumped at Brown, but did not know he had a knife in his hand when he hit the victim. However, Brown did have a knife as he approached appellant, according to appellant's testimony.
The trial court issued instructions on both murder in the first degree and the lesser included offense of manslaughter in the first degree.
Appellant raises three assignments of error in his brief-in-chief. We agree with appellant that two of these assignments of error have merit, and we accordingly reverse and remand this conviction for a new trial.
In one assignment of error, the appellant asserts the trial court committed error by commenting on the credibility of three key state witnesses. Each of the three witnesses-Aiken, Detjan, and Favier-had previously testified the gun Detjan pointed at appellant was unloaded. Later in the trial, they recanted this testimony and admitted the gun was loaded.
It has long been the rule of this jurisdiction that a trial court cannot indicate its opinion, either expressly or impliedly, intentionally or otherwise, as to the credibility of a witness. See Winters v. State, 545 P.2d 786 (Okl.Cr.1976), citing Holcomb v. State, 95 Okl.Cr. 55, 239 P.2d 806 (1952). Accord Black v. State, 664 P.2d 1054 (Okl.Cr.1983). However, the trial judge here made several extemporaneous comments before the jury, leaving no doubt as to his opinion of the witnesses' credibility. The essence of this opinion was embodied in his final remarks when he said, “... After hearing you three young people testify, I believe I can see why you misstated the truth, but the law is to be respected, not feared. The law is on your side. I think you have learned that here today.” That comment, as well as other similar remarks,FN1 did more than just bolster their testimony; it alligned the court on the side of the prosecutor and these three State's witnesses. Brannin v. State, 375 P.2d 276 (Okl.Cr.1962). See also Caffey v. State, 661 P.2d 897 (Okl.Cr.1983).
FN1. The trial court also stated: A) ... the truth must prevail and be brought out. I granted immunity from prosecution for perjury. She realizing, of course, the error of her way. And addressing myself to her and the members of the jury, I pray this will never happen again and having this faith in these young people, I don't believe it will. B) ... I granted him [a State witness] immunity in order to seek out the truth in this matter. In doing so, I just only dedicate myself to the fact that I want the truth to prevail and that these young people have learned a very valuable lesson. I felt that they have.
Although the admitted perjury was on a collateral issue, the balance of their testimony was the State's proof of “external circumstances” needed to establish the pivotal element of malice aforethought for murder in the first degree. We have held that the credibility of witnesses is a jury determination as fundamental and sacred as the question of guilt or innocence. Holcomb v. State, supra. The whole manner in which the perjured testimony was handled was prejudicial to the rights of this appellant.
Of equal concern to this Court is the prosecutor's comments on summation, which we believe also contributed to a denial of appellant's right to a fair trial. The prosecutor argued that “[i]t needs to be shown to Mr. Landrigan that the people of this county will not condone homicide, even if it's convicted criminal drug users.” We will not condone language which plays on societal alarm. Jones v. State, 554 P.2d 830 (Okl.Cr.1976). Furthermore, the prosecutor appealed to the jury to remember appellant's criminal record in considering the verdict. These comments also were improper. See O'Brien v. State, 540 P.2d 579 (Okl.Cr.1975).
Accordingly, based on the above-noted errors, we REVERSE and REMAND this case for a new trial. BRETT, J., concurs. BUSSEY, J., dissents.
BUSSEY, Judge, dissenting:
The evidence discloses that the appellant struck and killed the victim with a knife which he had concealed behind his back, fled the scene, admitted to Alvin Burns that he had “wasted a guy,” and told the Washington County Undersheriff that he tried to kill the victim. The judgment and sentence, which is the minimum sentence authorized by law for this offense, should not be reversed and remanded because of the unfortunate remarks of the judge and the unobjected to comments by the prosecutor.