Daniel Cook v. Charles Ryan ( 2012 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DANIEL WAYNE COOK,  No. 12-16562
Petitioner-Appellant, D.C. No.
v.  2:97-cv-00146-RCB
CHARLES L. RYAN, ORDER AND
Respondent-Appellee.
 OPINION
Appeal from the United States District Court
for the District of Arizona
Robert C. Broomfield, Senior District Judge, Presiding
Argued and Submitted
July 26, 2012—San Francisco, California
Filed July 27, 2012
Before: Diarmuid F. O’Scannlain, Susan P. Graber, and
Consuelo M. Callahan, Circuit Judges.
Opinion by Judge Callahan
8571
8574 COOK v. RYAN
COUNSEL
Michael J. Meehan (argued), Law Office of Michael Meehan,
Tucson, Arizona, and Dale A. Baich and Robin C. Konrad,
Federal Public Defender, Capital Habeas Unit, Phoenix, Ari-
zona (on the briefs), for petitioner-appellant Daniel Wayne
Cook.
Kent E. Cattani (argued) and Thomas C. Horne (on the
briefs), Office of the Attorney General, Phoenix, Arizona, for
respondent-appellee Charles L. Ryan.
OPINION
CALLAHAN, Circuit Judge:
This is the second time Daniel Wayne Cook seeks habeas
review in this court. See Cook v. Schriro, 538 F.3d 1000, 1007
(9th Cir. 2008). Three things have happened since we issued
our decision in 2008. First, the Supreme Court issued its deci-
sion in Martinez v. Ryan, ___ U.S. ___, 132 S. Ct. 1309(2012). Martinez “changed the landscape with respect to
whether ineffectiveness of postconviction counsel may estab-
lish cause for procedural default.” Lopez v. Ryan, 678 F.3d
1131, 1133 (9th Cir. 2012). Second, the State of Arizona
issued a death warrant and set August 8, 2012, as Cook’s exe-
cution date. Third, the district court denied Cook’s Federal
Rule of Civil Procedure 60(b)(6) motion for relief from judg-
COOK v. RYAN 8575
ment under Martinez. Cook v. Ryan, No. 97-cv-00146-RCB,
2012 WL 2798789 (D. Ariz. July 9, 2012) (unpublished).1
Cook asserts that his pretrial counsel was ineffective and
that his postconviction relief (“PCR”) counsel was ineffective
in Cook’s presentation of that claim. In Cook’s view, Marti-
nez requires us to excuse his procedural default because of
ineffective assistance of counsel (“IAC”) in his state PCR
proceedings. Cook also asks us to stay his execution so that
he may further pursue his underlying pretrial IAC claim.
We affirm the district court’s decision to deny Cook’s Rule
60(b) motion and deny Cook’s motion for a stay of execution.
Martinez does not apply to this case given Cook’s decision to
represent himself during his trial and at sentencing. Even if
Martinez does apply, that decision affords Cook no relief
because his pretrial IAC claim lacks merit.
A unique feature of this case, and one that informs much
of our analysis, is that Cook’s pretrial counsel ceased to repre-
sent Cook after seven months, at which point Cook decided
to represent himself. The propriety of Cook’s waiver of coun-
sel has been fully litigated and is not at issue in this appeal.
During his limited period of representation, Cook’s pretrial
counsel acted competently by, among other things, procuring
two mental evaluations and a hearing on Cook’s competence
to stand trial. Indeed, in Cook’s waiver of counsel hearing,
Cook stated that his lawyer “has worked hard for my defense;
[he] cares about the outcome of my trial.”
Cook’s pretrial counsel cannot be faulted for failing to
develop a mitigation case based on information that Cook
knew but decided not to disclose, either before or during sen-
1
Cook filed a second habeas petition raising the same IAC claims that
form the basis of his Rule 60(b) motion. The district court dismissed the
petition as a second or successive petition barred by 28 U.S.C. § 2244(b).
Cook has not appealed from that ruling, and we do not discuss it further.
8576 COOK v. RYAN
tencing. Even if such fault could be assigned to Cook’s pre-
trial counsel, Cook cannot show prejudice because Cook
affirmatively chose not to present any mitigation information.
Moreover, the same judge who sentenced Cook in 1988
recently reviewed most of the “new” mitigation information
Cook has since developed and concluded that it would not
have changed his decision. Thus, even assuming Martinez
applies to this case, Cook has not raised a “substantial” claim
that his pretrial counsel was ineffective.
BACKGROUND
A. Factual background
The facts are set forth in our opinion affirming the denial
of Cook’s first federal habeas petition, as well as in the Ari-
zona Supreme Court’s opinion denying Cook’s direct appeal.
See Cook v. Schriro, 538 F.3d 1000, 1008-09 (9th Cir. 2008);
State v. Cook, 821 P.2d 731, 736-37 (Ariz. 1991). To summa-
rize, at about 6 p.m. on July 19, 1987, Cook suggested to his
roommate, John Eugene Matzke, that the two men steal
money from Carlos Cruz-Ramos, a co-worker at a local res-
taurant who recently had moved in with Cook and Matzke.
After Cruz-Ramos realized his money was gone, Cook and
Matzke tied Cruz-Ramos to a chair and tortured him for six
hours. Among other things, Cook and Matzke beat Cruz-
Ramos with a metal pipe; burned his chest, stomach, and gen-
itals with cigarettes; and cut his chest with a knife. Cook also
raped Cruz-Ramos and stapled Cruz-Ramos’s foreskin to a
chair. Matzke finally strangled Cruz-Ramos to death with a
metal pipe, and the two men put his body in a closet.
At around 2:30 or 3 a.m., Kevin Swaney arrived at Cook
and Matzke’s apartment. Swaney was a 16-year-old dish-
washer at the restaurant where Cook and Matzke worked.
Cook originally told Swaney to go away, but then invited him
in. Cook barricaded the door after telling Swaney that he and
Matzke had drugs they wanted to get rid of. Cook took
COOK v. RYAN 8577
Swaney upstairs and showed him Cruz-Ramos’s body. When
they returned downstairs, Swaney was crying. Cook and
Matzke forced Swaney to undress and then gagged him and
tied him to a chair. Matzke told Cook he wanted no part of
any torture, and went to the living room and fell asleep. At
around 4:30 or 5 a.m., Cook woke Matzke. Swaney remained
tied and gagged and was crying. Cook told Matzke they had
to kill Swaney because he (Cook) had raped him. Cook then
strangled Swaney, and the two men put his body in the closet.
Cook and Matzke went to sleep.
Matzke went to work that afternoon but returned home a
few hours later. He and Cook went to a bar and then hung out
with Byron Watkins and other friends by the pool of their
apartment complex, as well as in their apartment. The follow-
ing morning, Matzke showed Watkins the bodies. Watkins
convinced Matzke to go to the police. The two men went to
the police department, whereupon Matzke gave a videotaped
statement.
The police went to Cook and Matzke’s apartment and
arrested Cook. After receiving Miranda warnings, Cook said,
“we got to partying; things got out of hand; now two people
are dead.” Cook then said, “my roommate killed one and I
killed the other.” He specifically admitted choking Swaney to
death. After making these statements, Cook refused to say
anything further.
B. Procedural background
1. Proceedings before and during trial
The long procedural history of this matter is set forth in
Cook, 538 F.3d at 1009-14. As relevant here, Cook and
Matzke were charged with two counts of first-degree murder,
including a death penalty allegation under Arizona Revised
Statute § 13-703. The trial court appointed attorney Claude
Keller (hereinafter “pretrial counsel”) to represent Cook. A
8578 COOK v. RYAN
grand jury returned an indictment on two counts of first-
degree murder against both defendants.
Cook was given two pretrial psychological evaluations.
After a hearing, the trial court concluded that Cook was com-
petent to stand trial. Cook was then given an additional neuro-
logical examination, the results of which were filed with the
trial court. A couple of months later, Cook filed a pro se
motion to waive counsel and have his counsel appointed as
advisory counsel. During the ensuing hearing, Cook asked
that the trial court “not appoint Mr. Keller as my legal advi-
sor.” Cook explained, “Mr. Keller has worked hard for my
defense; cares about the outcome of my trial. My personal
belief[ ] is that he cannot advise me according to my defense.”
Cook asked for a specific attorney, but the trial court said only
someone else was available, whom Cook rejected. The trial
court explained at length the perils of self-representation, but
Cook still wanted to proceed pro se. The court then conducted
extensive questioning pursuant to Faretta v. California, 422
U.S. 806, 835 (1975), and found that Cook knowingly, intelli-
gently, and voluntarily relinquished his right to counsel. The
court granted Cook’s motion and appointed Keller as Cook’s
advisory counsel. This was two weeks before trial.
Matzke entered into a stipulated guilty plea and was sen-
tenced to 20 years in prison. Matzke testified against Cook at
Cook’s trial. At the end of the trial, the jury deliberated for 77
minutes before returning a guilty verdict against Cook on both
first-degree murder counts.
Following his conviction, Cook continued to represent him-
self and presented no mitigating evidence at the sentencing
hearing, stating that the “[o]nly sentence I will accept from
this Court at this time is the penalty of death, your Honor. I
have nothing further.” The court reviewed the presentence
report, the mental health evaluations, the State’s sentencing
memorandum, a letter from Cook, the trial evidence, and mat-
ters from hearings in the case. The court found three aggravat-
COOK v. RYAN 8579
ing factors (the murders were multiple, were committed for
pecuniary gain, and were committed in an especially heinous,
cruel, or depraved manner). The court found no mitigating
factors to offset these aggravating factors and sentenced Cook
to death.
2. State PCR and federal habeas proceedings
Cook, with the help of a lawyer (hereinafter “appellate
counsel”), filed a direct appeal in which he raised 16 issues.
Cook argued, among other things, that the trial court had erred
in allowing him to waive his appointed trial counsel. The Ari-
zona Supreme Court rejected this claim, explaining that
“[w]hile Cook certainly lacked a lawyer’s skills, the record
demonstrates that he was intellectually competent, understood
the trial process, and was capable of making—and did make
—rational decisions in managing his case.” Cook, 821 P.2d at
739.
While his appeal was pending, Cook filed a motion to
relieve his appellate counsel for allegedly failing to communi-
cate with him and explain the issues to him. Cook also filed,
pursuant to Arizona Rule of Criminal Procedure 32, a PCR
petition asserting IAC by his pretrial counsel. Cook’s appel-
late counsel moved to withdraw or, in the alternative, to have
the Arizona Supreme Court clarify his status. The Arizona
Supreme Court denied the motion to withdraw and issued an
order finding Cook’s PCR petition premature, appointing new
counsel for PCR proceedings, and granting additional time to
file an amended PCR petition, if necessary. About nine
months later, the Arizona Supreme Court affirmed Cook’s
conviction and sentence. Cook, 821 P.2d at 756. The United
States Supreme Court denied Cook’s petition for certiorari.
Cook v. Arizona, 506 U.S. 846 (1992).
In September 1993, Cook filed, through counsel John Wil-
liams (hereinafter “first PCR counsel”), a “Supplement to
Petition for Post-Conviction Relief” in Arizona Superior
8580 COOK v. RYAN
Court. The supplemental petition raised nine claims, two of
which were that Cook’s pretrial counsel was ineffective in
failing to investigate and prepare for trial and sentencing, and
that this ineffectiveness forced Cook to choose between inef-
fective counsel and self-representation. In May 1994, Cook’s
first PCR counsel moved to withdraw due to a conflict and the
court appointed a new attorney, Michael Terribile (hereinafter
“second PCR counsel”). In various rulings issued in late 1994
and early 1995, the trial court—which was the same court that
presided over Cook’s trial and sentencing—rejected some of
Cook’s supplemental PCR issues as precluded or not color-
able and denied the others on their merits after holding evi-
dentiary hearings to receive any newly discovered evidence.2
In denying Cook’s pretrial IAC and “forced” self-
representation claims, the court explained that Cook failed to
show prejudice or deficient performance. Specifically: (1)
there was “no evidence of witnesses who could have been cal-
led that would have testified in a way that was beneficial” to
Cook; (2) the court could only speculate as to what might
have happened at trial had Cook not represented himself or
had Cook’s pretrial counsel “done a better job”; (3) Cook did
not show any specific deficiency, and no case required the
judge to inquire into the effectiveness of appointed counsel in
determining whether a waiver of counsel is knowing, intelli-
gent, and voluntary.
Cook, through his second PCR counsel, filed a motion for
rehearing regarding several of the claims asserted in his sup-
plemental PCR petition, as well as one new claim. Cook
sought rehearing of his self-representation/waiver claim, but
not of his pretrial IAC claim. The court denied the motion for
rehearing. Cook then filed a petition for review that simply
2
During one of the evidentiary hearings, Cook’s second PCR counsel
elicited testimony about pretrial counsel’s actions in preparing Cook’s
case, alleged inexperience with capital cases and applicable law, and per-
sonal problems.
COOK v. RYAN 8581
stated, “Daniel Wayne Cook, through counsel and pursuant to
Rule 32.9 of the Arizona Rules of Criminal Procedure, peti-
tions the Arizona Supreme Court for review.” The Arizona
Supreme Court denied the petition and the United States
Supreme Court denied Cook’s petition for certiorari. Cook v.
Arizona, 519 U.S. 1013 (1996).
In January 1997, Cook filed a federal habeas petition in
Arizona district court. The court appointed habeas counsel
and granted Cook’s motion to proceed in forma pauperis.3
Cook asserted 21 claims for relief, among them the claim that
his decision to waive counsel was not knowing, intelligent,
and voluntary, as well as the claim that his pretrial counsel
was ineffective by failing to investigate mitigating evidence.
The district court denied Cook’s waiver claim on its merits,
holding that no clearly established federal law required the
state trial court to inquire into Cook’s dissatisfaction with pre-
trial counsel’s performance before allowing him to waive rep-
resentation. Cook v. Schriro, No. 97-cv-00146-RCB, 2006
WL 842276, at *6-10 (D. Ariz. Mar. 28, 2006) (unpublished).
As for Cook’s independent pretrial IAC claim, the court held
that this claim was procedurally barred because Cook had
failed to preserve it in his motion for rehearing. Under the
version of Arizona Rule of Criminal Procedure 32.9 that
applied to Cook,
[a]ny party aggrieved by a final decision of the trial
court in these proceedings may, within ten days after
the ruling of the court, move the court for a rehear-
ing setting forth in detail the grounds for believing
the court erred.
Ariz. R. Crim. P. 32.9(a). Moreover, “[o]n denial of a motion
3
The court originally appointed an attorney from the federal public
defender’s office, but he was replaced by a Criminal Justice Act (“CJA”)
attorney. That CJA attorney continues to represent Cook, including in this
appeal.
8582 COOK v. RYAN
for rehearing any party aggrieved may petition the appropriate
appellate court for review of the actions of the trial court.” Id.R. 32.9(c). Thus, a petitioner could (but was not required to)
seek rehearing, but doing so was a prerequisite to further
review. Moreover, failure to file a detailed motion for rehear-
ing waived further review.4 See State v. Gause, 541 P. 2d 396,
397 (Ariz. 1975); State v. Bortz, 821 P. 2d 236, 239 (Ariz. Ct.
App. 1991).
On appeal in 2008, we affirmed the district court’s rulings.
As relevant here, we concluded that “the state trial court’s
determination that Cook’s waiver of his right to counsel was
voluntary . . . was not objectively unreasonable.” Cook, 538
F.3d at 1015. We also affirmed the district court’s ruling that
Cook’s claim that his pretrial counsel was ineffective was
procedurally barred. Specifically, we held that “preclusion for
failure to preserve the issue on motion for rehearing was prop-
er” under Arizona Rules of Criminal Procedure 32.2(a)(3) and
32.9(c), and thus that “Cook must demonstrate cause and prej-
udice in order to excuse his procedural default.” Id. at 1027
(citing Coleman v. Thompson, 501 U.S. 722, 750 (1991)).
Cook argued that he had cause because his second PCR coun-
sel was ineffective in failing to preserve his pretrial IAC claim
in the motion for rehearing and the petition for review. We
rejected this argument, citing a long line of Supreme Court
and Ninth Circuit cases for the proposition that IAC in post-
conviction proceedings does not establish cause. Id. at 1027-
28; see, e.g., Coleman, 501 U.S. at 752-53; see also Sexton v.
Cozner, 679 F.3d 1150, 1158 (9th Cir. 2012) (discussing these
cases); Towery v. Ryan, 673 F.3d 933, 941 (9th Cir.) (per
curiam), cert. denied, 132 S. Ct. 1738 (2012) (same). We also
4
The Arizona Supreme Court changed Rule 32.9 in June 1992 to elimi-
nate the requirement for a detailed motion for rehearing. However, the
court made that change applicable only to defendants sentenced after
December 1, 1992, well after Cook’s sentencing. Cook’s first PCR coun-
sel “realized that the former Rule 32.9 governed the case and filed an
unopposed motion for rehearing to conform to the old rule.” Cook, 538
F.3d at 1026-27.
COOK v. RYAN 8583
cited the fact that Cook had no right to counsel at the motion
for rehearing stage. Cook, 538 F.3d at 1027 (citing State v.
Smith, 910 P.2d 1, 4 (Ariz. 1996) (“After counsel or the pro
per defendant submits the post-conviction petition to the court
and the trial court makes its required review and disposition,
counsel’s obligations are at an end.”)). Because Cook was
unable to show cause, we did not consider whether he suf-
fered prejudice. Id. at 1028 n.13. We affirmed the district
court’s denial of Cook’s habeas petition, and the Supreme
Court denied Cook’s petition for certiorari. Id. at 1031; Cook
v. Schriro, 555 U.S. 1141 (2009).
3. Additional post-trial proceedings
In January 2009, after the Supreme Court denied certiorari,
the State of Arizona sought a warrant of execution.5 The Ari-
zona Supreme Court declined to issue a warrant because liti-
gation regarding the constitutionality of Arizona’s lethal-
injection protocol was then underway. Cook filed a second
PCR petition challenging the lethal-injection protocol, but
also asserting that his pretrial counsel was ineffective in fail-
ing to investigate mitigating evidence. In December 2009, the
trial court denied Cook’s second PCR petition after conclud-
ing, among other things, that Cook’s pretrial IAC claim had
5
In February 2009, Cook sought, and we granted, re-appointment of an
attorney from the federal defender’s office to represent Cook, along with
his CJA attorney, in potential further proceedings. See infra. Specifically,
Cook sought re-appointment of the federal defender’s office on the
grounds that his CJA attorney had “never litigated a death penalty case
through execution,” and that the federal defender’s office would help his
CJA attorney: (1) mount a challenge to Arizona’s lethal injection protocol;
(2) assert unexhausted claims “based on changes in recent state and fed-
eral law”; (3) provide funding for a mental health expert to explore “issues
related to competency”; (4) file a second or successive habeas petition
based on new constitutional rules of law or a showing of actual innocence;
and (5) pursue any due process violations that might occur during clem-
ency proceedings. Cook did not argue that he needed the federal defend-
er’s expertise or resources to conduct an investigation into mitigating
circumstances.
8584 COOK v. RYAN
been previously litigated and therefore was barred. In Septem-
ber 2010, the Arizona Supreme Court denied Cook’s petition
for review, and the State once again sought a warrant of exe-
cution.
In November 2010, while the State’s warrant request was
pending, Cook filed a third PCR petition seeking relief on the
ground that newly discovered information likely would have
led the original state trial court to impose a sentence other
than death. See Ariz. R. Crim. P. 32.1(e), (h) (allowing PCR
relief on grounds of newly discovered evidence). Specifically,
based on an investigation conducted by his federal defender,
Cook presented the declarations of Cook’s mother, sister, and
a former group home parent, all of whom knew Cook as a
child or adolescent. These declarations documented a long
history of physical and sexual abuse by family members, sex-
ual abuse by the group home parent, a gang rape by Cook’s
peers in the group home when Cook was fifteen years old, and
Cook’s own drug and alcohol abuse. Several of the declarants
indicated that no one had contacted them previously.6
In addition, Cook presented the declaration of a psychiatrist
who reviewed information from Cook’s trial and the declara-
tions and records described above. The psychiatrist opined
that, at the time Cook committed the murders, Cook suffered
from post-traumatic stress disorder (“PTSD”), “organic men-
tal syndrome, not otherwise specified,” and alcohol and
amphetamine intoxication. A letter and a declaration from a
clinical psychologist highlighted what the psychologist
believed were deficiencies in Cook’s pretrial competency
evaluations.
Finally, Cook presented the declaration of Eric Larsen, the
lead prosecutor at Cook’s trial in 1988. Larsen declared that
Cook’s pretrial counsel was at the “low end of the compe-
6
As part of his Rule 60(b)(6) motion, Cook submitted additional decla-
rations containing similar statements.
COOK v. RYAN 8585
tency scale” and “did not speak with me about mitigating cir-
cumstances.” Larsen also declared that: he reviewed the
declarations of Cook’s relatives; “[e]vidence of [Cook’s]
brain damage and post-traumatic stress disorder was present
at the time that Mr. Cook was arrested and tried for murder”;
and “[h]ad I been informed of this mitigating information
regarding Mr. Cook’s severely abusive and traumatic child-
hood and his mental illnesses, I would not have sought the
death penalty in this case.”7
In January 2011, the trial court denied Cook’s third PCR
petition. State v. Cook, No. CR-9358 (Maricopa Co. Sup. Ct.
Jan. 27, 2011).8 The judge—who again was the same judge
who presided over Cook’s trial and sentencing—considered
Cook’s additional information and explained that it either
reflected information the court already knew in 1988 or was
irrelevant post-hoc speculation. Thus, the judge still would
have imposed the death penalty. The judge also concluded
that Cook had not been diligent in securing his PTSD diagno-
sis.
The Arizona Supreme Court then issued a warrant of exe-
cution for April 5, 2011. Cook filed a petition for review to
that court of the trial court’s denial of his third PCR petition.
Among other things, he argued that his lack of diligence in
7
Cook asserted in his Rule 60(b)(6) motion that all of this newly discov-
ered mitigation information
could not have been presented in Cook’s 1997 petition for habeas
corpus, because it was not until the Federal Public Defender for
the District of Arizona was appointed co-counsel for Cook in
2009, with its financial and personnel resources to carry out the
necessary investigative and professional investigations and evalu-
ations, that a proper mitigation investigation could be accom-
plished. It was in the process of preparing for clemency . . . that
facts were uncovered to support an application such as is made
here.
8
We take judicial notice of this decision. See Holder v. Holder, 305 F.3d
854, 866 (9th Cir. 2002) (taking judicial notice of state judicial opinion).
8586 COOK v. RYAN
developing the PTSD diagnosis was the result of his first PCR
counsel’s ineffectiveness. The Arizona Supreme Court sum-
marily denied review. Cook filed a petition for certiorari to
the United States Supreme Court and sought a stay of execu-
tion pending the Court’s resolution of the petition in Martinez.
The Court granted a stay pending the resolution of Cook’s
certiorari petition. Cook v. Arizona, 131 S. Ct. 1847 (2011).
4. Martinez
In March 2012, the Supreme Court decided Martinez. The
Court established an equitable, rather than constitutional,
“narrow exception” to the rule previously announced in Cole-
man:
Where, under state law, claims of ineffective assis-
tance of trial counsel must be raised in an initial-
review collateral proceeding, a procedural default
will not bar a federal habeas court from hearing a
substantial claim of ineffective assistance at trial if,
in the initial-review collateral proceeding, there was
no counsel or counsel in that proceeding was ineffec-
tive.
Martinez, 132 S. Ct. at 1320. Thus, under Martinez, a peti-
tioner may establish cause for procedural default of a trial
IAC claim, where the state (like Arizona) required the peti-
tioner to raise that claim in collateral proceedings, by demon-
strating two things: (1) “counsel in the initial-review collateral
proceeding, where the claim should have been raised, was
ineffective under the standards of Strickland v. Washington,
466 U.S. 668 (1984),” and (2) “the underlying ineffective-
assistance-of-trial-counsel claim is a substantial one, which is
to say that the prisoner must demonstrate that the claim has
some merit.” Martinez, 132 S. Ct. at 1318.
Immediately after deciding Martinez, the Supreme Court
denied Cook’s certiorari petition, Cook v. Arizona, 132 S. Ct.
COOK v. RYAN 8587
1790 (2012), and the State sought a new warrant of execution.
Cook filed a motion before the Supreme Court for leave to
file an untimely petition for rehearing from the Court’s 2009
denial of his petition for certiorari in the federal habeas pro-
ceedings, urging a remand to allow the Ninth Circuit to apply
Martinez to Cook’s pretrial and PCR IAC claims. On May 29,
2012, the Court denied Cook’s motion. Cook v. Schriro, 132
S. Ct. 2709 (2012).
5. Current proceedings
On June 5, 2012, Cook filed in Arizona district court the
Rule 60(b) motion that underlies this appeal. On June 12,
2012, the Arizona Supreme Court issued a warrant of execu-
tion for August 8, 2012. Cook filed a motion for stay of exe-
cution pending the district court’s disposition of his Rule
60(b)(6) motion.
On July 9, 2012, the district court denied Cook’s motions.
Applying the six-factor test from Phelps v. Alameida, 569
F.3d 1120 (9th Cir. 2009); see also Lopez, 678 F.3d at 1135-
37, the court concluded that Martinez does not constitute an
“extraordinary circumstance” justifying relief under Rule
60(b). Although certain factors favored granting relief, others
—namely finality, comity, and the degree of connection
between Cook’s claims and Martinez—did not. Furthermore,
the court held, Cook failed to show that his underlying pretrial
IAC claim was substantial, and therefore he could not estab-
lish cause under Martinez for his procedural default.
Cook timely appeals the district court’s order denying his
Rule 60(b)(6) motion. Cook also seeks a stay of his execution
from this court.
8588 COOK v. RYAN
DISCUSSION
A. Cook’s Rule 60(b)(6) motion is not a second or
successive petition under 28 U.S.C. § 2244(b).
[1] A Rule 60(b)(6) motion constitutes a second or succes-
sive habeas petition under 28 U.S.C. § 2244(b) when it “seeks
to add a new ground” for relief or “it attacks the federal
court’s previous resolution of a claim on the merits . . . .”
Gonzalez v. Crosby, 545 U.S. 524, 532 (2005) (emphasis in
original). “On the merits” means “a determination that there
exist or do not exist grounds entitling a petitioner to habeas
corpus relief under 28 U.S.C. §§ 2254(a) and (d).” Id. at 532
n.4. A habeas petitioner does not seek merits review “when he
merely asserts that a previous ruling which precluded a merits
determination was in error—for example, a denial for such
reasons as failure to exhaust, procedural default, or statute-of-
limitations bar.” Id.[2] We agree with the district court that Cook’s Rule
60(b)(6) motion is not a barred second or successive habeas
petition. In his motion, Cook seeks relief not from the district
court’s ruling on the merits of his claim that his waiver of
counsel was not knowing, intelligent, and voluntary because
his pretrial counsel was ineffective, but from the district
court’s ruling that his separate claim that his counsel was inef-
fective for failing to investigate and prepare a mitigation plan
was procedurally barred.9 The district court correctly inter-
preted the statement in Cook—that “the trial court’s rulings
on Cook’s ineffective assistance of counsel claims were not
contrary to or unreasonable applications of Strickland,” Cook,
538 F.3d at 1016—as being limited to the waiver issue. Sec-
tion 2244(b) therefore did not bar the district court from con-
sidering Cook’s Rule 60(b)(6) motion.
9
Although the two claims are interrelated, as we discuss infra, they are
sufficiently separate to evade § 2244(b)’s bar.
COOK v. RYAN 8589
B. Cook is not entitled to relief under Rule 60(b)(6).
We review the district court’s denial of a Rule 60(b) motion
for abuse of discretion. Delay v. Gordon, 475 F.3d 1039, 1043
(9th Cir. 2007). “ ‘However, as the Supreme Court held in
Gonzalez, 545 U.S. at 536-38, appellate courts may, in their
discretion, decide the merits of a Rule 60(b) motion in the
first instance on appeal.’ ” Lopez, 678 F.3d at 1135 (quoting
Phelps, 569 F.3d at 1134-35). Whether we conduct our review
independently or through the lens of the district court’s dis-
cretion, Cook’s claim to Rule 60(b)(6) relief fails. Even if
Cook otherwise could “show ‘extraordinary circumstances’
justifying the reopening of a final judgment,” Gonzalez, 545
U.S. at 535 (citations omitted), the ground for his motion
Martinez—affords him no relief.
1. Martinez does not apply to Cook’s claims.
[3] In Faretta v. California, 422 U.S. 806, 835 (1975), the
Supreme Court explained that, “[w]hen an accused manages
his own defense, he relinquishes, as a purely factual matter,
many of the traditional benefits associated with the right to
counsel. For this reason, in order to represent himself, the
accused must ‘knowingly and intelligently’ forgo those relin-
quished benefits.” The Court also explained that, “whatever
else may or may not be open to him on appeal, a defendant
who elects to represent himself cannot thereafter complain
that the quality of his own defense amounted to a denial of
‘effective assistance of counsel.’ ” Id. at 834 n.46.
[4] In this case, Cook was represented by pretrial counsel
from August 1987 through April 1988. Cook then made a
knowing, intelligent, and voluntary waiver of his right to coun-
sel,10 and represented himself at his trial and sentencing hear-
ing. Even if Cook’s pretrial counsel performed deficiently
10
As discussed supra, we previously rejected Cook’s claim that his
waiver was not voluntary. See Cook, 538 F.3d at 1015.
8590 COOK v. RYAN
during the seven months he represented Cook (a contention
we reject below), Cook could have corrected those errors once
he decided to represent himself.11 Faretta therefore precludes
Cook from complaining about the “quality of his own
defense.” It follows that the reason given by the Supreme
Court for creating an exception to the Coleman rule in
Martinez—“[t]o protect prisoners with a potentially legitimate
claim of ineffective assistance of trial counsel”—does not
apply to Cook. Martinez, 132 S. Ct. at 1315 (emphasis added).12
[5] In short, Cook’s trial counsel was, at his own request,
Cook. Accordingly, he cannot claim he was denied effective
assistance of counsel. Nor can Cook be prejudiced by PCR
counsel’s alleged failures to assert IAC by trial counsel
where, again, Cook chose to forego trial counsel. Nonetheless,
11
This is particularly true because Cook already knew much, if not all,
of the information he now faults his counsel for failing to develop. Indeed,
Cook admits that much of his “new” mitigation information was “avail-
able” before and during his trial in 1988. Cook has to admit this: even if
he was not completely aware of the mental impairments he now alleges
he had at the time he committed the murders, he plainly was aware of his
own troubled childhood and adolescence. Yet Cook apparently never told
his pretrial or PCR counsel about that mitigation information, never pre-
sented the information during the penalty phase of his trial (instead saying
that he would accept only the death penalty, and that he had “nothing fur-
ther”), and never presented the information in his federal habeas proceed-
ings, even though he has been represented by the same counsel since his
habeas proceedings commenced in 1997.
Cook points to the district court’s decision to deny his request for fund-
ing in 2000. However, while Cook said he needed funds for a “documents
investigator/mitigation specialist” and a mental health examination, his
pretrial IAC claim was not among the claims for which he said he needed
those things. Cook also suggests that it was not until he had the additional
resources of the federal defender’s office in 2009 “that a proper mitigation
investigation could be accomplished.” But Cook did not seek that assis-
tance to develop a mitigation case. See supra. Finally, even if these expla-
nations had merit, they fail to explain Cook’s inaction before 2000.
12
We do not hold that a Martinez claim can never be available to a
defendant who represents himself. Here, however, the conduct of the trial
and sentencing phases, and Cook’s strategy, were his own.
COOK v. RYAN 8591
even if Martinez applied to Cook notwithstanding Faretta, he
is not entitled to relief because his pretrial IAC claim is not
substantial.
2. Cook’s underlying pretrial IAC claim is not
substantial.
[6] To succeed under Martinez, a petitioner must “demon-
strate that the underlying ineffective-assistance-of-trial-
counsel claim is a substantial one, which is to say that the
prisoner must demonstrate that the claim has some merit.”
Martinez, 132 S. Ct. at 1318. “Thus, Martinez requires that a
petitioner’s claim of cause for a procedural default be rooted
in ‘a potentially legitimate claim of ineffective assistance of
trial counsel.’ ” Lopez, 678 F.3d at 1137-38 (quoting Marti-
nez, 132 S. Ct. at 1315); see also Martinez, 132 S. Ct. at 1319(“When faced with the question whether there is cause for an
apparent default, a State may answer that the ineffective-
assistance-of-trial-counsel claim is insubstantial, i.e., it does
not have any merit or that it is wholly without factual support
. . . .”).
As an initial matter, Cook argues that the district court
applied too exacting a standard to his pretrial IAC claim. In
Cook’s view, the court evaluated whether Cook would suc-
ceed on his IAC claim, rather than whether his claim was
“substantial,” i.e., “has some merit.”13 Martinez, 132 S. Ct. at
1318. We disagree. Here, while the district court explained
13
In explaining that an underlying trial IAC claim must have “some
merit,” Martinez referenced, not as direct but as generally analogous sup-
port, Miller-El v. Cockrell, 537 U.S. 322 (2003), which sets forth the stan-
dards for issuing certificates of appealability under 28 U.S.C. § 2253.
Under Miller-El, a certificate of appealability should issue where the “res-
olution [of a habeas petitioner’s claim] [is] debatable amongst jurists of
reason.” Id. at 336. A court should conduct a “general assessment of the[ ]
merits,” but should not decline to issue a certificate “merely because it
believes the applicant will not demonstrate an entitlement to relief.” Id. at
336-37.
8592 COOK v. RYAN
that Cook “cannot establish” deficient performance or preju-
dice, the court was clear that it was applying the “Martinez
test of substantiality.” Lopez, 678 F.3d at 1138.
[7] Cook’s pretrial IAC claim—that his pretrial counsel
was ineffective in failing to investigate and to prepare a miti-
gation case for sentencing—does not meet Martinez’s test. An
IAC claim has merit where counsel’s “performance was
unreasonable under prevailing professional standards,” and
(2) “there is a reasonable probability that but for counsel’s
unprofessional errors, the result would have been different.”
Hasan v. Galaza, 254 F.3d 1150, 1154 (9th Cir. 2001) (citing
Strickland, 466 U.S. at 687-91, 694).
First, Cook cannot show that his pretrial counsel performed
deficiently. Cook’s lawyer represented Cook for just seven
months. During that time, the lawyer obtained two mental
health evaluations, hired an investigator who interviewed sev-
eral witnesses, filed a host of motions, and caused the trial
court to hold a competency hearing. In particular, Cook’s two
mental health evaluations provided detailed information about
Cook’s background, mental state at the time of the murders,
and competency to stand trial. The first evaluation, conducted
by Dr. Daniel Wynkoop, a psychologist, described Cook’s
unstable home life, juvenile delinquency, continuing drug and
alcohol use, sexual abuse, emotional instability, and repeated
hospitalizations for depression. The second evaluation, con-
ducted by Dr. Eugene Almer, a psychiatrist, recapped much
of the first evaluation but also detailed the unstable life of
Cook’s parents and siblings, Cook’s medical history, and
other topics. Dr. Almer reviewed Dr. Wynkoop’s evaluation,
“extensive” medical records, and a taped interview of Cook’s
mother and stepfather that was conducted after the murders.
Although both doctors explained that Cook likely had been
using drugs and alcohol when he committed the murders, they
also explained that he did not have significant cognitive defi-
cits or organic brain problems. Finally, both doctors con-
cluded that Cook was competent to assist his pretrial counsel
COOK v. RYAN 8593
in his defense, with Dr. Wynkoop adding that Cook “could
provide considerable data if he so chose.”
[8] As the district court explained, it is apparent from these
evaluations that Cook’s pretrial counsel obtained extensive
records and background information about his client during
the limited period during which he represented Cook. It is
also apparent that the state trial court, which reviewed these
evaluations, the presentence report, the State’s sentencing
memorandum, a letter from Cook, the trial evidence, and the
testimony from evidentiary hearings, was aware of that infor-
mation when it imposed the death penalty. Given these facts,
we cannot say that Cook’s pretrial counsel performed deficient-
ly.14
Our conclusion is bolstered by the unique procedural his-
14
Thus, this is not a case where a lawyer knew his client had or might
have mitigating circumstances but did nothing to investigate them. Cf.
James v. Ryan, 679 F.3d 780, 807-10 (9th Cir. 2012), petition for cert.
filed, ___ U.S.L.W. ___ (U.S. June 28, 2012) (No. 12-11) (finding defi-
cient performance where counsel “failed to conduct even the most basic
investigation of James’s social history” despite “obvious indications” of a
troubled childhood and mental health problems).
Nor is this a case in which counsel discovered initial mitigating infor-
mation and then did nothing further despite continuing to represent his cli-
ent through sentencing. Cf. Wiggins v. Smith, 539 U.S. 510, 523-28 (2003)
(holding that counsel performed deficiently where they considered only
basic social history documents, conducted no further investigation after
learning of possible leads, and presented no mitigating information at the
sentencing hearing); Williams v. Taylor, 529 U.S. 362, 370, 396 (2000)
(counsel performed deficiently where he failed to, among other things,
present known mitigating information during sentencing); James, 679 F.3d
at 807-10 (finding deficient performance where counsel learned of sub-
stantial mitigating information following guilty verdict but failed to pre-
sent it during the sentencing hearing).
As discussed above, Cook’s pretrial counsel took actions that were rea-
sonable “under prevailing professional norms,” Strickland, 466 U.S. at
688, especially in light of the short period during which Cook allowed his
counsel to represent him.
8594 COOK v. RYAN
tory of this case, and in particular Cook’s own role in it. First,
Cook’s pretrial counsel represented him for at most seven
months, before Cook successfully moved to represent himself.
In doing so, Cook accepted responsibility for preparing for his
trial and sentencing hearing. Second, the information Cook’s
pretrial counsel allegedly failed to discover or to develop dur-
ing this short period was peculiarly within Cook’s knowledge,
but he withheld that information from his counsel and the
court. Indeed, Dr. Wynkoop noted that Cook could provide
considerable data if he chose to. Instead, Cook declined to
provide any information, going so far as to say at sentencing
that the “[o]nly sentence I will accept from this Court at this
time is the penalty of death, your Honor. I have nothing fur-
ther.”15
Even if Cook’s pretrial counsel could be faulted for not
developing information that Cook withheld, Cook cannot
show that he suffered any prejudice as a result of that alleged
error. First, whether Cook’s pretrial counsel had developed
further mitigation information would have made no difference
given that Cook already knew the information but affirma-
tively chose not to present it. See Schriro v. Landrigan, 550
U.S. 465, 477 (2007) (“The District Court was entitled to con-
clude that regardless of what information counsel might have
uncovered in his investigation, Landrigan would have inter-
rupted and refused to allow his counsel to present any such
evidence.”).
15
Even though Cook never told his counsel about his own background,
Cook argues that the need for a more “thorough” investigation nonetheless
was made apparent by his pretrial motion for a competency hearing, in
which he revealed that he had been a patient at two mental hospitals and
received treatment at a mental health clinic, and that a car had run over
his head. However, that information was more fully developed during, and
as a result of, the dual competency evaluations. As for the alleged car acci-
dent, Dr. Almer discussed it in his report, even though the neurology
expert who examined Cook’s hospital records found no record of a head
injury. When confronted with this fact, Cook claimed his records had been
“transferred.” The expert also conducted a neurological exam of Cook and
concluded that it was “[c]ompletely normal.”
COOK v. RYAN 8595
Second, the same trial judge who sentenced Cook to death
in 1988 has stated that Cook’s additional information would
not have made any difference. See id. at 476 (“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 who sentenced Landrigan and discussed
these issues with him.”). In ruling on Cook’s third PCR peti-
tion, the judge considered much of Cook’s “new” mitigation
information, particularly his PTSD diagnosis. The judge
explained that Cook’s “subsequent diagnosis of post-
traumatic stress disorder simply gave a name to significant
mental health issues that were already known to the Court at
the time of sentencing.” Thus, the judge, writing as the court,
determined “unequivocally that if it had known in 1988 that
the Defendant had been diagnosed with post-traumatic stress
disorder at the time of the murders it still would have imposed
the death penalty.”
The trial judge also explained that the declaration of Eric
Larsen, the prosecutor-turned-criminal-defense-attorney who
said he would not have sought the death penalty had he
known about Cook’s mitigating circumstances, represented
“the ultimate in speculation.” Given the prosecutor’s back-
ground and practices in 1987 and 1988, as well as the “fairly
regular basis” on which the prosecutor’s office sought the
death penalty during that period, it was “unfathomable” that
the death penalty would not have been sought in a case “in-
volving the torture, mutilation, and eventual killing of 2 com-
pletely innocent victims.” That was true “even for a defendant
who was known to have been diagnosed” with PTSD. We
think these observations, made by the same judge who sen-
tenced Cook nearly 25 years ago, are persuasive.
[9] In sum, Cook fails to set forth a substantial claim that
his pretrial counsel performed deficiently or that, even if he
did, Cook suffered prejudice. This conclusion supports the
district court’s denial of Rule 60(b)(6) relief.
8596 COOK v. RYAN
C. Cook has not established that he is entitled to a stay
of execution.
[10] “[L]ike other stay applicants, inmates seeking time to
challenge the manner in which the State plans to execute them
must satisfy all of the requirements for a stay, including a
showing of a significant possibility of success on the merits.”
Hill v. McDonald, 547 U.S. 573, 584 (2006). As discussed
supra, we reject Cook’s Martinez claim on the grounds that
Martinez does not apply, and that, even if it does, Cook’s pre-
trial IAC claim is not substantial. Because Cook therefore
fails to show “a significant possibility of success on the mer-
its,” we must deny his request for a stay.
We also conclude that Cook fails to meet two of the three
remaining requirements for a stay: “that the balance of equi-
ties tips in his favor[ ] and that an injunction is in the public
interest.” Winter v. Natural Res. Def. Council, Inc., 555 U.S.
7, 20 (2008). As discussed supra, Cook has delayed for 25
years disclosing much of the information on which he now
premises his pretrial IAC claim. Cf. Hill, 547 U.S. at 584(explaining that where a prisoner has delayed bringing his
claim, the equities cut sharply against him); Gomez v. U.S.
Dist. Court, 503 U.S. 653, 654 (1992) (per curiam) (noting
that the “last-minute nature of an application” or an appli-
cant’s “attempt at manipulation” of the judicial process may
be grounds for denial of a stay). In addition, the citizens of the
State of Arizona—especially the families of Carlos Cruz-
Ramos and Kevin Swaney—have a compelling interest in see-
ing that Arizona’s lawful judgments against Cook are
enforced.
CONCLUSION
The district court properly denied Cook’s Rule 60(b)(6)
motion for relief from judgment. Martinez does not apply to
Cook given Cook’s decision to represent himself. Even if
Martinez does apply, Cook has not established that his pretrial
COOK v. RYAN 8597
counsel IAC claim is substantial. Cook also fails to meet the
requirements for a stay of execution. The district court’s judg-
ment is AFFIRMED, and Cook’s motion for a stay of execu-
tion is DENIED.