Thomas West v. Charles Ryan ( 2011 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
THOMAS PAUL WEST, 
Petitioner,

No. 11-71987
v.
ORDER
CHARLES L. RYAN,
Respondent.

Filed July 18, 2011
Before: Andrew J. Kleinfeld, Kim McLane Wardlaw, and
Consuelo M. Callahan, Circuit Judges.
COUNSEL
For petitioner-appellant West: Jon M. Sands, Arizona Federal
Public Defender, Timothy M. Gabrielson, Paula K. Harms,
Assistant Arizona Federal Public Defenders, Tucson, Arizona.
For respondent-appellant Ryan: Thomas C. Horne, Attorney
General, Jonathan Bass, Assistant Attorney General, Tucson,
Arizona.
ORDER
Thomas Paul West applies to this court for authorization to
file a second or successive petition for a writ of habeas corpus
in the District of Arizona. See 28 U.S.C. § 2244(b)(3). We
deny his application.
BACKGROUND
West was convicted of first-degree felony murder, second
degree burglary, and theft in March 1988. In our opinion
9701
9702 WEST v. RYAN
denying his first federal habeas petition, we set out the facts
surrounding the murder and trial:
West moved to Arizona from Illinois in June 1987.
While living in Tucson with a family friend, he met
Donald Bortle (“Bortle”). Bortle had various items
for sale in his home, including assorted electronic
equipment and videotapes of popular movies. West’s
friend wanted to buy some things from Bortle, and
West accompanied her to his house. About two
weeks later in mid-July 1987, West broke into
Bortle’s home, beat him severely about the head, and
bound his limbs. He left Bortle to die, stealing his
car and various other items, including several pieces
of electronic equipment.
West transported the stolen goods to the desert
where he hid them, and then drove to Glendale
where some of his friends lived. After retrieving the
goods from Tucson with an acquaintance, West
returned to Glendale and spent a couple of days with
his friends. FN1 He made several allusions to beat-
ing up and robbing “some guy,” but expressed no
remorse about it. West then absconded to Illinois
with much of the stolen property. Soon thereafter,
one of West’s acquaintances contacted the Pima
County Sheriff’s Office, and an investigation led
officers to Bortle’s home where they discovered his
dead and decaying body. His hands and feet were
bound with a vacuum cleaner cord and lamp wire,
and he had extensive fractures on the right side of his
face. The fractures were so severe that his hard pallet
had detached from his skull. The coroner estimated
that he had bled to death within forty-five minutes to
an hour after the beating.
FN1. The record shows that West was buying and
taking large amounts of drugs around the time of the
WEST v. RYAN 9703
murder and immediately thereafter. Defense counsel
successfully excluded this evidence from trial but
introduced it during sentencing to establish the
extent and effects of West’s substance abuse.
West was arrested in Illinois when the car in which
he was riding was stopped for speeding, and the offi-
cer discovered he was wanted for murder in Arizona.
A search of the car revealed several pieces of elec-
tronic equipment and other items stolen from
Bortle’s home.
West v. Ryan, 608 F.3d 477, 480 (9th Cir. 2010). We also set
out the facts surrounding West’s sentencing. Because West
challenges his sentence, rather than his conviction, those facts
are important here as well:
The prosecution sought the death penalty, citing the
following aggravating factors: (1) the murder was
committed for pecuniary gain; (2) the murder was
committed in an especially cruel and heinous man-
ner; and (3) West had a prior conviction for a crime
of violence (a 1981 manslaughter conviction). FN2
FN2. The record contains conflicting information as
to whether the conviction was for voluntary or invol-
untary manslaughter.
At the initial sentencing hearing on May 4, 1988,
West’s counsel argued that a conviction for felony
murder precluded imposition of the death penalty.
Dawley[, West’s counsel,] indicated that, as “a mat-
ter of strategy,” he and [co-counsel] Fiorillo chose to
rely solely on this “legal argument” and not to pre-
sent mitigation witnesses. Dawley said that they had
looked for mitigating factors, explaining that West
had been “examined” from “a mental health stand-
9704 WEST v. RYAN
point,” but that he and Fiorillo had determined that
the evidence “was not worth bringing” to the court.
The judge disagreed with the defense’s legal theory
that the death penalty could not be imposed for a fel-
ony murder conviction and asked West if there was
anything he wished to say prior to sentencing. West
indicated that there were a lot of people who would
testify that he was not a “wicked mad man,” but that
he did not feel like “dragging them in” because he
felt the court had already made up its mind. The
court responded that it would consider any such evi-
dence and would delay sentencing so that West
could present it. West agreed, and the court res-
cheduled the hearing for June 6.
On May 11, Dawley sought and obtained another
continuance, delaying the sentencing hearing until
August 1. During the interim, defense counsel sent
two investigators to Illinois and Oklahoma to inter-
view thirteen witnesses about West’s childhood,
drug addiction, and the circumstances surrounding
the earlier 1981 homicide. Counsel also retained a
substance abuse expert, Terry Hickey (“Hickey”),
who interviewed West, West’s mother, his brother,
and LuAnn St. Aubin (West’s girlfriend at the time
of the 1981 homicide). Hickey reviewed the tran-
scripts of the interviews with West’s family and
friends, as well as West’s Illinois prison records, his
medical records, and Dr. Allender’s neuropsy-
chological evaluation.
Meanwhile, the probation office submitted an
amended presentence report (“PSR”), which
described positive letters from West’s father, grand-
mother, maternal aunt, and a family friend. The letter
from West’s father stated that West was well-liked
and that drugs and alcohol were “the bottom line to
WEST v. RYAN 9705
all of [his] problems.” Other letters opined that West
needed drug treatment and that he was a good person
when he was not using drugs. The PSR took note of
the numerous interviews conducted by the defense
investigators and advised the court to consider that
West’s actions may have been the result of chronic
and acute drug abuse, which may have reduced his
ability to appreciate the wrongfulness of his actions.
It also opined that West’s actions may have resulted
from an unstable and abusive home environment.
In its pre-hearing sentencing brief, the defense
argued that West (1) had an emotionally deprived
childhood, (2) suffered from substance abuse, which
diminished his capacity to conform his conduct to
social and legal norms, (3) could be rehabilitated, (4)
did not intend to kill Bortle, (5) could not legally be
put to death for felony murder, and (6) had acted in
self-defense and defense of another in connection
with his 1981 homicide conviction.
At the August 1 sentencing hearing, Hickey and five
lay witnesses testified on West’s behalf. The defense
also submitted newspaper articles about the 1981
homicide, hospital records from West’s drug-related
hospitalizations in 1983 and 1986, a rap sheet from
the Department of Justice, and transcripts of inter-
views with thirteen witnesses who discussed the
extent of West’s substance abuse, his emotionally
deprived childhood, and/or the circumstances sur-
rounding the 1981 homicide. FN3
FN3. LuAnn St. Aubin and Mike Richmond, both of
whom witnessed the 1981 homicide, testified that the
victim was a violent drug dealer who had been ter-
rorizing people at a party and was participating in an
attack on St. Aubin when West shot him. Although
St. Aubin testified at the sentencing hearing that the
9706 WEST v. RYAN
victim had pulled a gun on West, she did not offer
such testimony during the manslaughter trial, and
Richmond provided a contrary account. According
to Richmond, when West pointed a gun at the vic-
tim, the victim taunted him by saying he “didn’t
have the balls” to pull the trigger. West then shot
him.
Hickey testified that West came from a chemically
dependent family, that West’s chemical dependency
began at age ten, and that it significantly impaired
his judgment. He testified that addicts cannot reason
normally and that they make increasingly bad deci-
sions as their addiction progresses. He testified that
extreme addictions cause “cognitive impairment[s]”
similar to brain damage.
With regard to West’s family, Hickey testified that
West’s father was an alcoholic and that West wit-
nessed physical violence in the family from an early
age. Hickey noted that West’s father withdrew affec-
tion and refused to call the children by their names,
calling them “pothead number one” and “pothead
number two.” On cross-examination, Hickey admit-
ted that West’s prognosis was poor, noting that West
had dropped out of treatment programs in 1983 and
1986, but explaining that it is not uncommon for
addicts to fail such programs on their first attempts.
At the close of evidence, West made a lengthy state-
ment in which he denied any responsibility for the
crime. The sentencing court found three aggravating
circumstances: (1) that West previously committed a
felony involving the use of violence upon another,
(2) that West committed the present offense in
expectation of pecuniary gain, and (3) that West
committed the present
WEST v. RYAN 9707
offense in an especially cruel and heinous
manner, in that, A, the [victim] was hog-
tied, bound and beaten repeatedly; B, death
was not immediate, the deceased was left
dying and in a position unable to seek assis-
tance; and C, that the defendant knew or
had reason to know that the deceased was
dying or had suffered serious physical inju-
ries.
The court found West’s emotionally deprived child-
hood and substance abuse problem to be mitigating,
but not sufficiently so as to outweigh the aggravating
factors. It sentenced West to death.
Id. at 481-82.
West’s conviction was affirmed on direct review by the
Arizona Supreme Court on September 30, 1993. State v. West,
862 P.2d 192 (Ariz. 1993). The Supreme Court denied certio-
rari on April 25, 1994. West v. Arizona, 511 U.S. 1063(1994). On March 26, 1996, West filed his first petition for
post-conviction relief in state court, raising numerous claims
including ineffective assistance of counsel for not presenting
sufficient mitigation evidence at sentencing. The superior
court denied the petition without a hearing, and the Arizona
Supreme Court summarily denied the petition.
On May 6, 1998, West filed a timely petition for a writ of
habeas corpus in the District of Arizona. On November 9,
2007, the district court denied West’s third amended habeas
petition. West v. Schriro, No 98-218 2007 WL 4240859. The
court denied West’s motion to reconsider on December 11,
2007. We denied his appeal in a published decision on June
10, 2010. West v. Ryan, 608 F.3d 477. The Supreme Court
denied certiorari on February 22, 2011. West v. Ryan, 131 S.
Ct. 1473 (2011).
9708 WEST v. RYAN
Following the habeas appeals, Arizona moved for a warrant
of execution, which was issued by the Arizona Supreme Court
on May 24, 2011. The warrant set the execution for July 19,
2011. In opposing the warrant of execution, West filed a suc-
cessive petition for post-conviction relief in the Arizona Supe-
rior Court, which that court denied on June 29, 2011. The
Arizona Supreme Court summarily denied review on July 13,
2011, and West filed a petition for a writ of certiorari on July
15, 2011. That petition is currently pending. West filed the
instant application pursuant to 28 U.S.C. § 2244(b)(3), seek-
ing permission from the Ninth Circuit to file a second or suc-
cessive petition for a writ of habeas corpus in the District of
Arizona, on July 15, 2011.
DISCUSSION
I. West Raised The Claim of Ineffective Assistance in a
Prior Petition
The first step in our consideration of West’s application
requires us to “determine whether a ‘claim presented in a sec-
ond or successive habeas corpus application’ was also ‘pre-
sented in a prior application.’ ” Gonzalez v. Crosby, 545 U.S.
524, 530 (2005). If it has, “the claim must be dismissed.” Id.The Supreme Court has clarified that the term “claim” means
“an asserted federal basis for relief from a state court’s judg-
ment of conviction.” Id. West alleges that his claims have not
been presented in a previous petition, but, at least as to his
first claim, we are not convinced.
In his proposed second or successive petition, West makes
two claims: (1) that sentencing counsel rendered ineffective
assistance because they failed to adequately investigate his
background and introduce evidence that would have invali-
dated all three statutory aggravating factors found by the sen-
tencing court; and (2) that his recent diagnoses of post-
traumatic stress disorder (“PTSD”) rendered him ineligible
for the death penalty because it invalidates all three aggravat-
WEST v. RYAN 9709
ing factors. While the PTSD is a new wrinkle, we have seen
at least the first of these claims before. Specifically, in claim
A8 of his previous habeas petition, West contended that his
counsel were ineffective at sentencing by failing to investigate
and present mitigation evidence of West’s impaired mental
health, head injuries, childhood abuse, immaturity, substance
abuse, and failure to complete drug rehabilitation. While the
current proposed petition focuses on the effect the evidence of
his childhood abuse would have on the aggravating factors
rather than the mitigating effect, this is two sides of the same
coin. West’s complaint is that counsel should have discovered
the truth about his childhood and the effect it had on his deci-
sion to murder Mr. Bortle.
The current claim adds nothing new except the contention
that the investigation would have revealed his PTSD. How-
ever, even that is not truly new, because West argued the
same thing to this court in his appeal of the prior habeas
denial. In fact, West argued his PTSD warranted relief in
seven different places in his opening brief of the first habeas
appeal and three places in his reply brief. Because West’s first
claim regarding ineffective assistance of sentencing counsel
was raised in a prior habeas petition, it must be dismissed. 28
U.S.C. § 2244(b)(1).
II. Requirements For Filing Second or Successive
Petition
Even if West’s claims are distinct enough from those raised
in his first petition so that we may consider them, we must
dismiss his application unless he meets Antiterrorism and
Effective Death Penalty Act’s (AEDPA) stringent standards.
28 U.S.C. § 2244(b)(2)(B). “Permitting a state prisoner to file
a second or successive federal habeas corpus petition is not
the general rule, it is the exception, and an exception that may
be invoked only when the demanding standard set by Con-
gress is met.” Bible v. Schriro, ___ F.3d ___, 2011 WL
2547617, *3 (9th Cir. June 28, 2011). Because West is not
9710 WEST v. RYAN
claiming that a new rule of constitutional law supports his
claim, this demanding standard requires that we dismiss his
application unless
(i) the factual predicate for the claim could not have
been discovered previously through the exercise of
due diligence; and
(ii) the facts underlying the claim, if proven and
viewed in light of the evidence as a whole, would be
sufficient to establish by clear and convincing evi-
dence that, but for constitutional error, no reasonable
factfinder would have found the applicant guilty of
the underlying offense.
28 U.S.C. § 2244(b)(2)(B). While West must satisfy both
requirements to prevail in his application, he cannot satisfy
either.
A. The Evidence Could Have Been Discovered
Previously
West must first demonstrate that the evidence he now pre-
sents is newly-discovered, i.e., it “could not have been discov-
ered previously through the exercise of due diligence.” Id.West offers two pieces of evidence he deems newly-
discovered. First, West asserts that he suffered physical and
emotional abuse from his family and he was sexually
molested by three different men during his childhood. This
information was not brought out at trial or in mitigation dur-
ing sentencing. Second, West was diagnosed after the trial
and sentencing as suffering from PTSD. His medical experts
opine that West was suffering from PTSD at the time he mur-
dered Bortle.
1. Family and Sexual Abuse
West cannot demonstrate that the evidence of physical and
emotional abuse by his family or sexual molestation is newly-
WEST v. RYAN 9711
discovered because it could have been discovered before trial
through the exercise of due diligence. In fact, West knew it
all along, and it is undisputed that his counsel knew of at least
some of the allegations of sexual abuse in 1996. Under the
facts of this case, this was not newly-discovered information
which could not have been discovered through the exercise of
due diligence. See King v. Trujillo, 638 F.3d 726, 730 (9th
Cir. 2011).
West now contends that his family life during his childhood
was much worse than he had previously admitted. Prior to
trial, West discussed his family life with Dr. Allender, a
court-appointed psychologist, in 1987.1 Dr. Allender reported
on the interview:
Mr. West characterizes his growing up years as
problematic. He states that his father loved him a
great deal and would get him almost anything he
wanted. After his father’s work schedule changed
however, his older brother was left with the respon-
sibility of getting him off to school. He states that his
brother who is five years older was the person who
started getting him involved with drugs.
In 2010, however, West reported a much different relationship
with his parents in interviews with Dr. Smith, a clinical psy-
chologist referred by the Arizona Federal Public Defender:
“I was moving around constantly. My mom would
dump me on anybody — neighbors, my grandma,
any relative that would take me. I even stayed with
1
West was evaluated by two neuropsychologists, Dr. Allender and Dr.
Daniel Overbeck, in the fall of 1987. There is no record of Dr. Overbeck’s
evaluation, so it is unknown what West did or did not disclose to him. See
West v. Ryan, 608 F.3d at 480-81. Even if he had disclosed the purported
sexual abuse by the priest, it is entirely possible that a strategic choice was
made not to pursue a related mitigation claim.
9712 WEST v. RYAN
my friends’ parents. At home, my mom and dad
argued all the time. They had vicious physical fights.
I just wanted to escape it — wanted it to stop, but
they fought over everything. I would get in between
to try to stop my dad from hurting my mom and then
he would hit me. He hit us over and over. Bloodied
my brother’s nose, bloodied and bruised my mom. I
would get so scared that they would kill one another
that I would just scream at them. One time, I got so
scared I pissed myself.” Mr. West shared that he had
no real relationship with his father. He explained that
“My dad was basically absent except when he was
terrorizing us. He never spent any time with us as a
family, playing ball with my brother and me or any-
thing. All he ever did was call me and my brother
assholes, dumb shits, worthless mother fuckers. The
neighbors called the police over and over again, but
since dad was a fireman the police simply looked the
other way. No charges were ever pressed, even when
my mom was clearly beaten. My mom would get in
the car and leave and then my dad would do the
same thing, leaving me and my brother home alone
for days at a time. That is what it was like growing
up in my house — a fucking nightmare.”
The only explanation for the stark difference in stories is in
Dr. Allender’s May 7, 2011 letter:
When asked specifically why he had told me he had
a good relationship with his father back in 1987 he
explained that his relationship with his father was
like fire and ice. That his father would buy him lots
of things like a go cart, a mini bike, a pinball
machine when he was being nice, but then had the
other side of being abusive physically and emotion-
ally. He also described being in a bit of a stupor from
the psychiatric medications he was on during the
time [Dr. Allender] was evaluating him.
WEST v. RYAN 9713
There is no question that, to the extent West contends his abu-
sive home life is a mitigating factor, West knew about his
home life and the alleged family abuse at trial and at sentenc-
ing. There is no legitimate reason for his failure to disclose it
before this late date.
Dr. Allender’s May 7, 2011 letter also describes West’s
failure to report sexual abuse:
When asked why he never told people about his
abuse Mr. West mentioned reasons often reported by
victims including, “I was ashamed, I thought it was
my fault,” “no one wanted to hear about it,” and “I
tried to block it out.” When asked why he had not
brought these things up to me in 1987 he said that
his attorney had suggested to him that he should only
answer questions that I asked and not volunteer any
other information, especially about the alleged
crime.
Regardless, West was at all times aware of the three instances
of sexual abuse he now raises. Notably, he does not argue that
his counsel was ineffective for failing to inquire about sexual
abuse. Rather, he complains only that counsel was not suc-
cessful in discovering what West already knew and not get-
ting the court to pay for yet another mental health expert.
Even if counsel had been successful in securing funding for
another mental health expert, it is pure speculation that the
information about his abuse would have come out. The mental
health defense efforts at the time were not focused on West’s
background, but rather on whether he had an organic brain
injury. Accordingly, it is by no means clear that the mental
health expert, if appointed, would have addressed the psycho-
logical consequences of West’s sexual abuse. West acknowl-
edges that his post-conviction relief counsel was aware of one
of the childhood sexual abuse allegations as early as 1996.
While West identifies several requests for funding for defense
9714 WEST v. RYAN
investigations that were denied in 1996 and 1997, the evi-
dence shows that counsel diligently pursued mitigation evi-
dence based on organic brain injury and substance abuse, but
sexual abuse was at best peripheral. Similarly, after the Fed-
eral Public Defender took over West’s representation in Janu-
ary 2008, it obtained a court order to have West evaluated by
a neuropsychologist, who reported in August 2008 that West
described childhood sexual abuse by the teacher and the
priest. While that report was filed in this court, West did not
raise any arguments based on the sexual abuse issue at any
point in that first federal habeas proceeding.
To the extent West contends his first post-conviction relief
counsel was ineffective for not discovering the sexual abuse
in 1997 and for not obtaining funding to investigate, the facts
do not support his claim. West’s first post-conviction relief
counsel, Carla Ryan, explained in her motion for a funded
mental health expert, that West “apparently was sexually
abused, on numerous occasions, by a teacher. Therefore, a
mental health expert is also needed to explain how the family
environment and the sexual abuse affected Petitioner’s emo-
tional development.” The court denied this request, but did so
without prejudice to bringing the motion again with additional
evidence. Thus, West had ample incentive at the time to more
fully disclose his background and history of sexual abuse. He
might have satisfied the diligence requirement if he had done
so then, but he chose not to.
West’s primary argument regarding diligence is that we
have already found he was diligent, citing West v. Ryan, 608
F.3d at 484-85. West misreads our prior opinion. We held that
West’s prior counsel had been diligent in seeking an evidenti-
ary hearing regarding her need for funding for a mental health
expert and investigator. We did not hold that West had been
diligent in disclosing information about his childhood; he
clearly was not. If we were to rule that West had been diligent
in pursuing and developing evidence of sexual abuse and
abuse by family members by failing to disclose the informa-
WEST v. RYAN 9715
tion, even to his counsel, for twenty years, we would be creat-
ing a strong incentive for capital defendants to withhold the
strongest mitigation evidence until the eve of execution. We
are not prepared to create that incentive.
2. PTSD
The state court concluded that although West’s diagnosis of
PTSD had not been made at the time of trial, West was not
diligent in obtaining the diagnosis. We agree. Dr. Allender
and Dr. Smith based their diagnoses on conversations with
West regarding information known by him at the time of trial.
There was no new information that led to the diagnoses; the
only new turn of events is that West has now chosen to dis-
close that he is the victim of sexual abuse, which apparently
resulted in his PTSD. West argues that his allegations of sex-
ual abuse were only corroborated within the past few weeks.
This proves too much, because Dr. Allender and Dr. Smith
both diagnosed PTSD before the allegations of sexual abuse
were corroborated.2 Moreover, Dr. Allender first indicated
that he suspected PTSD in his 2008 letter based only on the
physical and emotional abuse in the West household growing
up with no indication that West had been sexually abused.
Thus, there is no legitimate reason why the diagnosis would
not have been made in 1987, or at least by August 1, 1988,
if West had disclosed the information he had available to him.
See State v. Jensen, 735 P.2d 781, 784 (Ariz. 1987) (recogniz-
ing PTSD as a diagnostic mental disorder in 1983).
The evidence of family and sexual abuse is not newly dis-
covered. While West’s PTSD diagnosis was not made until
2
There was evidence that indicated Fr. Burke, one of West’s accused
abusers, had previously sexually abused boys in the area around the same
time. However, this does not conclusively corroborate West’s claim that
Fr. Burke abused him. More importantly, however, neither expert indi-
cated they would not have believed West absent this corroboration, and at
the time they reached their diagnoses there was no corroboration of the
other two accused abusers.
9716 WEST v. RYAN
well after the trial and sentencing, West at all times possessed
the information that forms the basis of the diagnosis. Had
West been forthcoming with the events of his childhood in
1987, there is no reason to think that the diagnosis would not
have been made. West cannot withhold the information he
claims is critical mitigating evidence and then complain when
it is not considered. West chose not to reveal the information
at trial and sentencing, and made at least a partial disclosure
in his post-conviction proceedings in 1997. He cannot now
claim that the information he chose to withhold for over 20
years is new.
B. The Actual Innocence Requirement
Even if the evidence were accepted as newly-discovered,
we must still deny West’s application unless it “would be suf-
ficient to establish by clear and convincing evidence that . . .
no reasonable factfinder would have found [him] guilty of the
underlying offense.” Bible, 2011 WL 2547617 at *3 (quoting
28 U.S.C. § 2244(b)(2)(B)(ii)). Here, West challenges only
his death sentence, and not his conviction. When a “capital
defendant challenges his death sentence in particular, he must
show by ‘clear and convincing evidence’ that no reasonable
juror would have found him eligible for the death penalty in
light of the new evidence.” Calderon v. Thompson, 523 U.S.
538, 559-60 (1998) (quoting Sawyer v. Whitley, 505 U.S. 333,
348 (1992)). Thus, West has the burden of showing, by clear
and convincing evidence, that no reasonable sentencing judge
aware of his family and sexual abuse and resulting PTSD
would have sentenced him to death.
The state trial court found three aggravating circumstances
in the penalty phase: (1) prior conviction of a violent crime
in Illinois; (2) murder committed for pecuniary gain; and (3)
murder committed in an especially cruel and heinous manner.
West contends each of these findings is completely negated
by the PTSD diagnosis and, had the sentencing court known
WEST v. RYAN 9717
of his PTSD, it would not have been able to sentence him to
death.
1. Prior Conviction of Violent Crime — 1981
Manslaughter
West contends that had the Illinois judge in 1981 known
West suffered from PTSD, he would not have convicted him,
and therefore the prior Illinois conviction should not have
been considered by the Arizona court. The Supreme Court has
held “that once a state conviction is no longer open to direct
or collateral attack in its own right because the defendant
failed to pursue those remedies while they were available (or
because the defendant did so unsuccessfully), the conviction
may be regarded as conclusively valid.” Lackawana Cnty.
Dist. Attorney v. Coss, 532 U.S. 394, 403 (2001). The Court
noted a possible exception to this rule in a case where, “after
the time for direct or collateral review has expired, a defen-
dant may obtain compelling evidence that he is actually inno-
cent of the crime for which he was convicted, and which he
could not have uncovered in a timely manner.” Id. at 405(emphasis added).
West has not presented “compelling evidence” of actual
innocence. In support of this argument, he submitted a letter
from the Illinois judge (unsworn, but declared to be “true to
the best of [the judge’s] information and belief”) in which, 30
years after the fact, the judge states “I may well have acquit-
ted Mr. West at that bench trial had I known that he suffered
from PTSD at the time of the shooting.”
This evidence is insufficient to meet the “compelling evi-
dence” standard for at least two reasons. First, there is no evi-
dence establishing that West suffered from PTSD at the time
of the 1981 shooting.3 Second, the evidence on which this
3
Both Dr. Smith and Dr. Allender opine that West was suffering PTSD
in 1987. Neither states that he suffered PTSD prior to 1987 in general, or
specifically in 1981 at the time he shot and killed Billy Oldham at a party
(because another girl was beating up his girlfriend).
9718 WEST v. RYAN
argument rests, the physical and emotional abuse and sexual
abuse, was known to West since 1981. Even if PTSD was not
a recognized diagnosis in 1981, it was in 1983. See State v.
Jensen, 735 P.2d at 784 (noting that the “American mental
health community” recognized PTSD as a diagnostic mental
disorder in 1983). West failed to contest the conviction for 30
years.
Most importantly, however, is the requirement that “the
challenged prior conviction must have adversely affected the
sentence that is the subject of the habeas petition.” Coss, 532
U.S. at 406. West cannot show that his prior manslaughter
conviction had the requisite adverse affect on his current sen-
tence. In affirming West’s death sentence, the Arizona
Supreme Court accepted “the trial judge’s finding that the cir-
cumstances of defendant’s previous manslaughter conviction
were not mitigating,” but nonetheless stated that “we believe
this to be an appropriate death penalty case even if it be
assumed that the Illinois voluntary manslaughter conviction
was not properly proved.” State v. West, 862 P.2d 192, 211,
212 n.4 (Ariz. 1993).
2. Murder Committed for Pecuniary Gain
The mere showing that a murder occurred during the com-
mission of a robbery is not sufficient to establish that the mur-
der was committed with the expectation of pecuniary gain.
Woratzeck v. Stewart, 97 F.3d 329, 334 (9th Cir. 1996). “To
establish the pecuniary gain aggravating circumstance, the
state must prove that the expectation of pecuniary gain was a
motive, cause, or impetus for the murder and not merely a
result of the murder.” State v. Prasertphong, 76 P.3d 438, 440
(Ariz. 2003) (internal quotation and alteration omitted). West
contends that the murder was committed due to an exagger-
ated startle response attributable to his PTSD, and was noth-
ing more than a killing during a “robbery gone bad.” The
circumstances surrounding Bortle’s murder do not support the
argument.
WEST v. RYAN 9719
West intended to steal Bortle’s property. West had been to
Bortle’s house shortly before the murder and carefully exam-
ined the extensive amount of electronics equipment Bortle
had for sale. Moreover, West ran out of cocaine on the day of
the murder and did not have enough money to buy more.
When Bortle interrupted him, West savagely beat Bortle, hog-
tied him stuck him in a closet, and left him to die. And then
West continued to do what he came for — he stole Bortle’s
electronic equipment and then stole his car to carry it away.
West’s alleged PTSD may help explain why West was moti-
vated to steal Bortle’s property, but it does nothing to under-
mine the finding the murder was committed for pecuniary
gain. West offers no other explanation for the savageness of
the beating he inflicted upon Bortle or hogtying him and leav-
ing him in the closet other than to allow him to complete the
robbery.
3. Especially Cruel and Heinous Manner of Killing
West contends that because he was suffering from PTSD,
no reasonable factfinder could have found the manner in
which he killed Bortle was especially cruel or heinous. While
West offers conclusory statements that a PTSD diagnosis
would defeat the factors used to establish heinousness, he
does not actually explain how PTSD affects any of the factors
that the court weighed to establish that the manner in which
he murdered Bortle was especially cruel and heinous. Rather,
he primarily argues that the evidence was insufficient to
establish the factors. West submits that an exaggerated startle
response stemming from his PTSD explains his reaction.
However, while a startle response might explain an initial,
violent reaction, it does nothing to explain why West took fur-
ther affirmative actions to hogtie Bortle, to move him into a
closet where he left him to die, or why, after that savage out-
burst, he went on to steal Bortle’s possessions and his car.
Moreover, it does nothing to undercut the evidence of his
behavior after the murder. Lisa Murray testified that she over-
heard West tell Richard Wojahn that West had “beat the fuck
9720 WEST v. RYAN
out of this old man and thrown him in a closet” in Tucson.
When Lisa confronted him, West told her “not to worry about
it” and that she “would have to live with it.” He also bragged
to others about getting cuts and bruises on his hand from beat-
ing up “the old man he ripped off.” State v. West, 862 P.2d
at 208. Taken together with the evidence of the cold-blooded
and methodical nature of the crime itself, this severely under-
cuts West’s argument that this aggravating factor would have
been negated by evidence that he committed the crime in the
midst of a startle response.
West’s argument that he is actually innocent of the death
penalty under Tison v. Arizona, 481 U.S. 137, 157-58 (1987),
fails because his cruel, calculated conduct in hogtying Bortle
and abandoning him to die following the beating shows “the
reckless disregard for human life implicit in knowingly
engaging in criminal activities known to carry a grave risk of
death [and] represents a highly culpable mental state, a mental
state that may be taken into account in making a capital sen-
tencing judgment when that conduct causes its natural, though
also not inevitable, lethal result.” Id.; see also Landrigan v.
Trujillo, 623 F.3d 1253, 1257-58 (9th Cir. 2010). West’s reli-
ance on the trial testimony of the prosecution pathologist sug-
gesting that Bortle may have been rendered unconscious by
the first blow does not advance the Tison claim. Even if the
PTSD startle response theory were accepted, and even if
Bortle had been rendered unconscious right away, it would
not overcome West’s subsequent behavior of binding the
bloody victim, throwing him in a closet, and leaving him to
die while later boasting about what happened.
West has not shown that a PTSD diagnosis would have
changed the outcome of any of the three aggravating factors
found by the sentencing court. At best, it would have sup-
ported the mitigating factor the court found — his family life.
However, he has not satisfied his burden of showing, by clear
and convincing evidence, that strengthening this one mitigat-
ing factor would have mandated a different outcome.
WEST v. RYAN 9721
CONCLUSION
West has not satisfied his burden of proving, by clear and
convincing evidence, that the evidence he now proffers is
newly-discovered or that no reasonable factfinder would have
found him eligible for the death penalty had he been aware of
the evidence. Accordingly, West’s application to file a second
or successive petition for writ of habeas corpus is DENIED.