Michael White v. Charles Ryan , 895 F.3d 641 ( 2018 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL RAY WHITE, No. 15-99011
Petitioner-Appellant,
D.C. No.
v. 3:08-cv-08139-
SPL
CHARLES L. RYAN, Warden,
Director, Arizona Department of
Corrections; JAMES O’NEIL, Warden, OPINION
Arizona State Prison - Eyman
Complex,
Respondents-Appellees.
Appeal from the United States District Court
for the District of Arizona
Steven Paul Logan, District Judge, Presiding
Argued and Submitted October 4, 2017
Pasadena, California
Filed July 11, 2018
Before: Milan D. Smith, Jr., Mary H. Murguia,
and Jacqueline H. Nguyen, Circuit Judges.
Opinion by Judge Nguyen
2 WHITE V. RYAN
SUMMARY *
Habeas Corpus/Death Penalty
The panel reversed the district court’s judgment denying
Arizona state prisoner Michael Ray White’s petition for a
writ of habeas corpus based on ineffective assistance of
counsel at resentencing, and remanded with instructions to
grant a conditional writ.
Regarding counsel’s performance, the panel held (1) that
counsel performed deficiently by failing to challenge
evidence that White committed the murder for pecuniary
gain, and by failing to conduct an adequate investigation of
mitigating factors, including the unreasonable decision not
to hire any experts to assist with the penalty phase; and
(2) that the state post-conviction court’s contrary conclusion
was an unreasonable application of Strickland v.
Washington, 466 U.S. 668 (1984), and Wiggins v. United
States, 539 U.S. 510 (2003).
The panel evaluated prejudice without AEDPA
deference because the state post-conviction court applied a
test for prejudice contrary to Strickland. Reviewing de novo,
the panel concluded that there is a reasonable likelihood that
White would have received a different sentence if counsel
had investigated and presented mitigating evidence.
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
WHITE V. RYAN 3
COUNSEL
Jennifer Y. Garcia (argued), Assistant Federal Public
Defender; Jon M. Sands, Federal Public Defender; Office of
the Federal Public Defender, Phoenix, Arizona; for
Petitioner-Appellant.
John Pressley Todd (argued), Assistant Attorney General,
Capital Litigation Section; Lacey Stover Gard, Chief
Counsel; Mark Brnovich, Attorney General; Office of the
Attorney General, Phoenix, Arizona; for Respondents-
Appellees.
OPINION
NGUYEN, Circuit Judge:
Michael White shot and killed David Johnson (“David”),
the husband of White’s lover, Susan Johnson (“Susan”). The
only question is why. White was initially sentenced to death
based on the state court’s finding of one aggravating
factor—that he committed the murder for pecuniary gain.
David had a life insurance policy, and there was some
evidence that Susan was going to share the payout with
White. After White lost his direct appeal, the state court
granted him post-conviction relief as to the penalty phase
and ordered a new mitigation hearing and sentencing.
During these proceedings, however, White’s new counsel
abandoned any challenge to the sole aggravating factor
relied on by the state court despite compelling evidence that,
rather than financial gain, White acted out of love for Susan
and killed David only after she repeatedly pressured him to
do so. Counsel’s failure to challenge the aggravating factor
was not based on any strategic decision; instead, it was
4 WHITE V. RYAN
simply due to his mistaken belief that the issue already had
been conclusively decided in a prior appeal.
Worse still, counsel utterly failed to investigate White’s
background for mitigating circumstances. Had he done so,
counsel would have found abundant and readily available
evidence that White was suffering from serious mental
illness as well as Graves’ disease and its attendant
neuropsychological effects. White also struggled with low
intellectual functioning and had a troubled and abusive
childhood. None of this background evidence was presented
at his resentencing hearing. Instead, counsel relied on and
presented White’s statement to the probation officer that “he
had a normal childhood and enjoyed growing up.”
White filed a federal petition for a writ of habeas corpus
based on ineffective assistance of counsel at his
resentencing, which the district court denied. 1 We reverse
and remand with instructions to grant a conditional writ.
Under similar circumstances, the United States Supreme
Court has held that even less egregious lapses by defense
counsel violated the defendant’s Sixth Amendment rights.
The state court’s finding that counsel performed reasonably
was an unreasonable application of this precedent, and the
1
The district court certified only the portion of White’s ineffective
assistance claim regarding counsel’s failure to investigate and present
mitigating evidence. This was error. White has but a single claim
regarding his right to the effective assistance of counsel at the penalty
phase of resentencing. See Browning v. Baker, 875 F.3d 444, 471 (9th
Cir. 2017). Because “he ‘has made a substantial showing of the denial’
of that right,” id. (quoting 28 U.S.C. § 2253(c)(2)), we grant his request
to expand the certificate of appealability to include the aggravation
portion of his ineffective assistance claim, which has been fully briefed
and argued.
WHITE V. RYAN 5
state court’s prejudice determination was contrary to
Strickland v. Washington, 466 U.S. 668 (1984).
We hold White’s counsel performed deficiently by
failing to challenge evidence that White committed the
murder for pecuniary gain, and by failing to conduct an
adequate investigation of mitigating factors, including the
unreasonable decision not to hire any experts to assist with
the penalty phase. Reviewing de novo, we conclude that but
for counsel’s errors, it is reasonably likely that the result
would have been different. This was a relatively weak case
for imposition of the death penalty. Even the trial
prosecutors believed that the death penalty was
inappropriate because this was a “run-of-the-mill” case,
Susan was the “mastermind” behind the murder, and White
succumbed to pressure from her to commit the crime. White
had no criminal record when he committed the murder at age
36, pecuniary gain was the only aggravating factor, and there
was substantial evidence that White acted out of love or
infatuation rather than profit.
I. Factual Background
White met Susan in January 1987 when they worked
together at a nursing home in Prescott, Arizona. 2 At the
time, Susan was in a relationship with David. White was
living with another woman, Becky Fisher, whom he had
recently married. White began visiting Susan at her home
every day, and they began a romantic relationship.
That April, White and Susan went to Michigan, where
they lived together and worked at the same nursing home.
David apparently felt “burned” by Susan, but still continued
2
All events relevant to White’s conviction took place in 1987.
6 WHITE V. RYAN
contact with her despite his friends’ “serious misgivings.”
One friend believed that Susan was “taking advantage of
him” based on things that David had said.
In October, Susan returned to Bagdad, Arizona, and
White to Prescott. They continued their sexual relationship
notwithstanding Susan’s engagement and subsequent
marriage to David. White and Susan spoke on the phone up
to six times each day when David was at work, and White
was frequently at Susan’s house. At a restaurant where
White worked for a few weeks that fall, he told a server about
his “girlfriend.” According to White, he and his girlfriend
“were planning on getting married sometime” although “she
was living with someone else in Bagdad.” This other
boyfriend “had money,” which White’s girlfriend “was
going to use . . . to start a business.” White said that he and
his girlfriend were planning to go to Phoenix, where they
would start the business or go to school.
After Susan’s marriage, White began to visit Fisher,
purportedly to visit their children and “get back with” Fisher,
but he used her phone to call Susan. Around November 1,
White told Fisher that Susan had asked him to help kill
David. He explained that Susan “wanted to be with [him].”
White also said that Susan was marrying David “[b]ecause
of his money” and that “as soon as David put everything into
[Susan’s] name . . . something was going to happen to
David.” Several days later, White admitted to Fisher that he
was “confused” and “didn’t know what to do” about Susan’s
request that he kill David. White also told another friend,
Carol Sexton, that “Susan was planning to kill David” and
“wanted [him] to do it.”
In early November, Susan called several insurers about
life insurance policies. She called Colonial Penn Insurance
in Prescott to inquire about the “time frame on life insurance
WHITE V. RYAN 7
policies,” and in particular, “when you can receive monies.”
She also called Mutual of Omaha Insurance in Prescott to
inquire about a $100,000 life insurance policy. Susan
expressed concern about how long it would take the insurer
to pay out if David were accidentally killed in the mine
where he worked. Later that month, Susan told the agent
that the payout would be enough to open a nursing home in
Michigan, where she had family. Susan also arranged with
David’s employer to add herself and her two children from
a previous marriage to David’s life insurance policy.
Around November 10, White and Sexton had another
conversation about Susan. Susan had told White that David
“just took out a big life insurance policy” for $100,000. A
few days later, White told Sexton that “Susan still had the
crazy idea about killing David, and she still wanted [him] to
do it.” Sexton “tried to talk [White] out of it.” White agreed
with Sexton that “you just don’t take another man’s life.”
On November 19, at a pawn shop, White made a down
payment on the .357 magnum revolver that he used to kill
David. He made a second payment the next day, and on
November 27 he returned to pay the remaining balance and
pick up the weapon.
Around November 20, when Fisher was upset with
White for not making child support payments, he told her
that she “didn’t have to worry about money” because he
would be getting $100,000 from Susan. A few days later he
told Fisher that “he didn’t get the money.” Sometime in
November, White asked Fisher if he could stay with her on
December 15 and 16 because he “needed a place to stay.”
When pressed, he admitted to Fisher that “something might
happen to David” and he needed an alibi. Fisher refused.
8 WHITE V. RYAN
On December 12, at approximately 11:00 p.m., David
and Susan’s neighbors heard gunshots at the Johnson
residence. Neighbors saw a man run from the Johnsons’
carport, get into a green car, and drive off. Shortly thereafter,
David walked to a neighbor’s home, where he collapsed,
covered in blood. He had been shot in his chin and lower
back with a .357 magnum revolver. 3 Before he died, David
stated that his assailant was an unknown man wearing a
mask. Susan claimed that David had identified the shooter
as her ex-husband, Clifford Minter. Minter’s name and the
description of the green car were broadcast over the police
radio.
An officer on his way to the murder scene stopped a
green sedan heading away from Bagdad. White was the sole
occupant. White stated that he had just dropped off a
companion in Bagdad and was heading back to Prescott.
Because the officer was looking for Minter, he let White
proceed.
The police soon discovered that Minter was not involved
in the shooting and began to focus their investigation on
White and Susan. White traveled to Phoenix, where he sold
the revolver used to kill David to a pawn shop. While White
was staying at various motels in Phoenix, he and Susan made
several calls to each other.
White was arrested in Phoenix on December 18.
Officers searched his car and found an empty box of
3
These injuries caused only slight blood loss. David ultimately died
when his lungs filled with fluid. Although some of the fluid was blood
aspirated from his chin wound, other contributing factors were his
diminished respiratory reserve from being overweight and the
intravenous fluids being given to him that leaked into his vascular system
and pooled in his lungs.
WHITE V. RYAN 9
.38 caliber bullets, a holster, a ski mask, and a bag of
potatoes. They concluded that the murderer had placed a
potato over the barrel of the revolver to act as a silencer due
to pieces of dried potato with gunpowder particles found at
the scene of the shooting and potato starch found on the
barrel of the revolver and David’s glasses. White’s car also
contained a glove with human blood stains on it and an
envelope. On the back of the envelope was written: “Susie,
I love you. We will be careful. I will call soon. Love,
Michael.”
The police arrested Susan on December 23. While in the
booking area of the Yavapai County Jail, she encountered
White. He asked her, “is everything still the same, Susie”?
II. Procedural Background
A. Trial, original sentencing, and first direct appeal
White and Susan were tried separately on the same
charges—conspiracy to commit first degree murder and first
degree murder.
White’s trial counsel, Chester Lockwood, moved for a
competency examination due to his strong suspicion that
White suffered from “mental dysfunction.” In addition to
his strange behavior, White repeatedly disregarded
Lockwood’s instruction not to discuss his case by
communicating with inmates, prosecution witnesses, and
others, including Susan’s counsel and the prosecutor. The
trial court denied the motion without oral argument. The
jury convicted White of both charges.
At sentencing, Lockwood presented no mitigation
evidence other than the presentence report to highlight
White’s lack of a prior felony record. Lockwood argued that
10 WHITE V. RYAN
White did not commit the murder for pecuniary gain because
it was “Susan . . . who wanted the insurance money.”
Lockwood acknowledged that White “may have benefitted
from being with [Susan],” but argued that this fact did not
show “that his participation in the murder was for anything
other than his love or infatuation with Susan.” Lockwood
submitted a five-page sentencing memorandum, only half of
which addressed the death penalty.
The trial court found that the state had proven the sole
statutory aggravating factor alleged—that White committed
the murder for pecuniary gain based on the insurance
proceeds—beyond a reasonable doubt. The court found no
statutory mitigating factors but considered several non-
statutory factors: White’s lack of a prior criminal record, his
natural father leaving home when White was 18 months old,
White’s alcoholic stepfather, White’s substance-dependent
personality, his inability to form and maintain close
relationships, his employment record, his lack of a record of
abusive or violent behavior, and his expression of sorrow for
David’s death. The court found that these mitigating
circumstances did not warrant leniency and sentenced White
to death for the first degree murder, and to imprisonment for
25 years to life for the conspiracy conviction.
White’s appellate counsel, John Williams, moved the
Arizona Supreme Court to remand for appointment of
mental health experts to determine whether White was
competent to assist counsel. Williams asserted, based on
discussions with White, his counselor, and an inmate
acquaintance of White’s, that White appeared to be
“suffering from a severe mental disease or defect which
render[ed] him incapable of assisting counsel.” Specifically,
Williams noted that White claimed that the Arizona
Department of Corrections (“ADOC”) was “monitoring his
WHITE V. RYAN 11
thoughts through some sort of electrical device which [was]
somehow tied into the electro-shock therapy machine at the
prison”; Susan (who was housed at the women’s prison in
Perryville) “visit[ed] him outside his cell to taunt him”; and
“he knows which portion of his head the electrical apparatus
is connected to and is sending counsel a diagram.” In
addition, White’s counselor told Williams that White “is
very mentally unbalanced.” Another inmate stated that
White “has gradually withdrawn from reality since he
arrived at [the prison] and that he is engaging in ‘VERY
bizarre behavior.’” White’s “letters to counsel [were]
bizarre and . . . of no help in the preparation of his case. In
one instance he wrote three letters in one day and stated that
he was intentionally closing to ‘start a new letter.’” The
Arizona Supreme Court denied the motion.
White moved pro se for a medical evaluation because he
believed that the ADOC had “implant[ed] a listening device
in which they could monitor their victims[’] words and
deeds.” The Arizona Supreme Court denied this motion as
well, and affirmed White’s conviction and sentence. See
State v. White (White I), 815 P.2d 869 (Ariz. 1991).
B. First PCR petition
White sought post-conviction relief in the trial court. In
May 1992, after attorney Douglas McVay was appointed, he
requested the appointment of an investigator and
“anticipated that a substantial effort must be made to unearth
all mitigating circumstances.” The PCR court granted the
motion and appointed investigator Arthur Hanratty.
In August 1995, after McVay had been representing
White for more than three years, White moved pro se for a
new trial. His motion consisted of various factual assertions
and diagrams regarding his claimed version of events in
12 WHITE V. RYAN
which Susan shot David. He also claimed that he was being
“tortured” while incarcerated. White’s motion was denied.
Like prior counsel, McVay noticed troubling signs of
mental health issues. At an October 1995 telephonic status
conference, McVay stated, “[o]ne of the difficulties in
representing . . . White is I have a three-inch stack of stuff
from him that I have some questions, sometimes, and I
expressed, sometimes he did not appear to be close to being
lucid; other times he seemed to be quite okay.”
The PCR court held an evidentiary hearing on White’s
amended PCR petition, which alleged ineffective assistance
of counsel at trial, sentencing, and appeal.
1. Prosecutor Marc Hammond’s testimony
Marc Hammond testified. He and his co-counsel, Jill
Lynch, prosecuted White’s case. After the trial, Lynch left
the office, and Hammond handled White’s sentencing and
later Susan’s prosecution alone.
Hammond believed that the death penalty was not
appropriate because Susan was the “mastermind” behind the
crime and White had no prior felony conviction or history of
violence or abuse. Hammond told his supervisor, County
Attorney Charles Hastings, that he “felt that White was just
a run-of-the-mill loser who hooked up with his co-defendant
on the case and that this murder would not have occurred but
for the chemistry between the two of them.” Based on the
evidence, Hammond believed that White “probably would
have gone through his entire life without this kind of an
offense” if not for Susan. Hastings told Hammond that the
office policy was to ask for the death penalty in every first
degree murder case where aggravating circumstances were
WHITE V. RYAN 13
present and to let the judge make the decision. Hammond
felt that he “should follow the policy” or quit.
2. Trial counsel Chester Lockwood’s testimony
Lockwood testified that he simply “miscalculated” the
potential risk of a death sentence. He believed “[i]t couldn’t
be a death penalty case” based on his experience
representing the defendant in State v. Madsen, 609 P.2d 1046(Ariz. 1980). Lockwood “was convinced that [if] White had
committed this offense he didn’t do it for money,” but rather
because “[Susan] . . . convinced him to do it.” Had
Lockwood appreciated the sentencing risk, he would have
handled the case differently, such as developing “lots of
other evidence” in mitigation. After the trial, White’s
appellate counsel pointed out to Lockwood that “White must
have some type of either emotional problem or health-related
problems” because “he didn’t react to things.” Lockwood
stated that at trial he “didn’t take any clue” from White’s
behavior “as to why and how [White] reacted physically
certain ways, but, boy, the mannerisms were all there.” In
fact, White’s behavior “was so obvious” that Lockwood
instructed him “not to answer certain ways” that Lockwood
later came to think “were psychological or physiological for
him.”
Lockwood failed to present mitigation evidence due to
his “serious miscalculation” about the risk of the death
penalty. Just prior to sentencing, Hammond told Lockwood
that the hearing would not be long “[be]cause it’s not a death
penalty case.” Although Lockwood took this as a statement
of Hammond’s opinion rather than a guarantee of what the
trial court would do, Lockwood “wrongfully formed the
opinion that [the court] couldn’t give [White] the death
penalty.”
14 WHITE V. RYAN
Lockwood stated that, in retrospect, he would have hired
a second defense attorney to develop mitigating
circumstances. He felt “there was [a] mitigating
circumstance definitely that should have been developed
psychologically about . . . White.” White’s appellate
counsel, John Williams, similarly testified that the lack of a
mitigation hearing was the “most obvious” sign that
Lockwood was ineffective at sentencing.
The PCR court denied White’s petition as to the trial
claims but granted it as to the sentencing claims and ordered
a new mitigation hearing and sentencing. The Arizona
Supreme Court subsequently denied review of White’s PCR
claims regarding ineffective assistance of counsel at trial.
C. Resentencing proceedings
1. Mitigation hearing
McVay presented two witnesses at the mitigation
hearing: Hammond and White. McVay also submitted an
affidavit from Dr. Philip Keen, the Yavapai County Medical
Examiner, who had testified as a prosecution witness at trial.
Dr. Keen opined that David’s wounds “were not fatal” and,
but for “intervening medical . . . carelessness, [he] wouldn’t
have died in the first place.” Dr. Keen indicated that the
Bagdad Clinic had given David “twice as much [lactate
ringer solution] as they should have to replace the blood loss,
and that was the immediate cause of the death.”
a. Prosecutor Marc Hammond’s testimony
Hammond reiterated his belief that this was not a death
penalty case, but he felt bound by county policy to seek the
death penalty, adding that his co-counsel agreed with him.
He opined that Susan’s punishment, two consecutive 25-
WHITE V. RYAN 15
years-to-life sentences, was the appropriate punishment for
White as well. Hammond believed that Susan was the
“instigator” and “brains behind” the crime, and that “White
was having . . . some difficulty making up his mind whether
he was going to go through with the conspiracy.” White
“had spoken to several witnesses” and said things to the
effect that “Susan wants me to kill her husband. I don’t
know what I’m going to do.” Hammond did not know what
he was thinking when he argued to the court that “there was
no evidence that . . . White was the dupe of Susan.”
Hammond felt it “was pretty clear” that Susan “kept pushing
. . . White until he made up his mind to kill her husband.”
Although Hammond did not think capital punishment
was warranted, he believed that White committed the murder
for pecuniary gain and felt it “was well proven in the
evidence.”
b. White’s testimony
White testified that he tried to be a “model inmate” while
on death row. He did not participate in the gangs there.
White also discussed his six children. His daughter Isabel,
who lived with her mother in Wisconsin, had been
experiencing problems—she was raped and some friends
committed suicide—which “threw her into a drug situation,”
and she “tried to take her own life.” During their
correspondence, White was “able to help her out” because
he had “been through a lot of different things in [his] life.”
He believed he had “saved her life.” Isabel and her mother
were planning to move to Arizona so that they could be
closer to him.
White also was in contact with his other two oldest
children, Jeremiah and Matthew. White felt that he could
assist them avoid some of the mistakes that he had made. He
16 WHITE V. RYAN
had “no association whatsoever” with his three youngest
children.
2. Resentencing memoranda
a. McVay’s memorandum
McVay argued four mitigating factors. First, he
discussed the prosecutors’ belief that the death penalty was
not appropriate. He cited the subsequent change in Arizona
Rule of Criminal Procedure 15.1—requiring prosecutors to
give notice of their intention to seek the death penalty within
30 days of arraignment—as evidence of “the acknowledged
role of the prosecutor in determining the appropriateness of
the death penalty.”
Second, McVay pointed to evidence that White could be
rehabilitated. White had no felony criminal record, did well
in his employment in nursing homes despite problems
accepting responsibility, was productive during various
periods of his life, had no record of prior abusive or violent
behavior, and expressed sorrow for David’s death. McVay
noted White’s exemplary behavior in prison, his contact with
his children and assistance to his daughter, and his
acceptance that his life would be spent in prison and would
have value there.
Third, McVay focused on the gross disparity between
White and Susan’s sentences. McVay argued that their
culpability was equal because Susan planned the crime and
pushed White to commit it. McVay claimed that the “weight
of their mitigating circumstances” was similar because
White, like Susan, had no prior record of crime or violence
and was a caring parent whose death would likely be
“devastating” for his children.
WHITE V. RYAN 17
McVay conceded that Susan had mitigating factors that
White did not—a difficult childhood, marriage, and divorce,
as well as a jury recommendation of leniency. McVay
acknowledged White’s statement to the probation officer
“that his childhood was normal,” but added, “one is left to
wonder about that conclusion when [White’s] natural father
left the home when [he] was 18 months old and his first
stepfather was an alcoholic.” McVay speculated that it was
“not inconceivable” that a jury might recommend leniency
for White if told the prosecutor’s opinion that Susan was the
“mastermind” behind the murder who had “pushed” White
to commit it. And McVay argued that Susan’s additional
mitigating factors were balanced by White’s potential for
rehabilitation.
Fourth, McVay argued that the aberrant nature of
White’s actions and his lack of a criminal record were
themselves mitigating factors.
b. White’s letters and memoranda
White submitted at least two pro se filings. In a
statement dated December 3, 1996, White claimed that the
ADOC placed biometric implants in him against his will to
transmit and receive electrical signals between his auditory
cortex and remote computers in order to monitor his thought
processes and cause him to hear voices and other sounds. He
believed that the ADOC used the implants as mental and
physical torture and that ADOC employees derived sexual
satisfaction from these acts. He claimed the implants caused
him brain damage and memory loss. White also pointed out
that the ADOC had classified him as “mentally unfit” and
that he might not have long to live due to his Graves’ disease.
White argued that he should be sentenced to “time served”
as a deterrent so that the ADOC would never again use
implants and torture a human being.
18 WHITE V. RYAN
In a “Victim Witness Report” 4 dated December 4, 1996,
White similarly alleged that he was being tortured with
various types of implants, “such as Laser Mic, S, and
Telemeters,” exposing him to radiation and causing physical
and mental damage. White claimed that since 1988, the
ADOC had “raped” his memories and deprived him of all of
his privacy because of the “mind to mind contact.” ADOC
employees sent him thought signals from the “Implant
Projection Room,” projected multiple personalities into his
mind and forced him to perform sexual and violent acts for
as long as six hours.
White believed that for nine years, each of the six
“defendant[s]” and “co-conspirator[s]” had forced their
thoughts into him, inflicting a total of 54 years of torture on
him. His bones were aging faster than those of a pregnant
woman, and he conservatively estimated that he has suffered
32 years of bone loss. He then calculated that the 54 years
of torture plus the 32 years of bone loss, combined with a
“Normal sentence Reduction Rate of 18 Years,” amounted
to 104 years of sentencing relief for which he was eligible.
3. Resentencing decision
The PCR court resentenced White to death, finding “no
evidence which would invalidate [its] previous finding . . .
that [White] committed the crime of first degree murder for
the receipt of something of pecuniary value.” The court
4
White sent pleadings captioned “Witness Report” by “Victim
White” to the Arizona Supreme Court, among other recipients, on more
or less a weekly basis from at least April to October 1995. These
pleadings alleged similar acts of torture and apparently related to one of
several civil lawsuits he attempted to file against the ADOC and various
ADOC employees.
WHITE V. RYAN 19
cited White’s statements that Susan had asked him to help
her kill David, that Fisher did not have to worry about child
support because he would be getting $100,000, and that he
would use the money to start a business. The court also cited
its mistaken belief that White and Susan had attempted to
collect the insurance proceeds immediately after the
murder. 5
Turning to the statutory mitigation factors, 6 the trial
court again found that none were present. The court
5
There was no evidence that they attempted to collect on David’s
policy, and the prosecutor made no such argument in support of the
pecuniary gain aggravator. During trial, Hammond represented to the
court that Susan had made an insurance claim, though he and his co-
counsel disagreed whether she had done so before or after her arrest.
This evidence, if it existed, was never presented to the jury. Although
one witness overheard Susan ask White “something about insurance
papers” a few days after the murder, the context of this conversation was
unclear. More importantly, there was no evidence that White had
pressured Susan to collect on the policy that would indicate his interest
in (as opposed to knowledge of) the pecuniary gain. See Madsen,
609 P.2d at 1053 (overturning pecuniary gain aggravator where the
insurance agent, rather than the defendant beneficiary, “brought up the
subject of the insurance policy,” because “the receipt of the money must
be a cause of the murder, not a result of the murder”).
6
Arizona expressly provides that the following non-exclusive
circumstances are “relevant in determining whether to impose a sentence
less than death”:
1. The defendant’s capacity to appreciate the
wrongfulness of his conduct or to conform his
conduct to the requirements of law was
significantly impaired, but not so impaired as to
constitute a defense to prosecution.
20 WHITE V. RYAN
considered several non-statutory mitigation factors: White
had no record of prior felonies; his natural father left home
when he was 18 months old and his first stepfather was an
alcoholic; he had “dependent personality traits” and had a
history of using and being addicted to heroin, cocaine, and
amphetamine; he was unable to form and maintain close
relationships; he was “unable to take responsibility well”
despite having “done well at his employment” and having
“been productive during various periods of his life”; he
expressed sorrow for David’s death; he had no prior record
of abusive or violent behavior; he had tried to be a model
inmate since his arrest; his and Susan’s relative culpability;
he had contact with and was able to help some of his
children; he accepted that the remainder of his life would be
spent in prison and would have value there; he believed “that
he is controlled by biotelemetry implants”; he probably
2. The defendant was under unusual and substantial
duress, although not such as to constitute a
defense to prosecution.
3. The defendant was legally accountable for the
conduct of another . . . , but his participation was
relatively minor, although not so minor as to
constitute a defense to prosecution.
4. The defendant could not reasonably have foreseen
that his conduct in the course of the commission
of the offense for which the defendant was
convicted would cause, or would create a grave
risk of causing, death to another person.
5. The defendant’s age.
Ariz. Rev. Stat. Ann. § 13-751(G) (formerly codified at Ariz. Rev. Stat.
§ 13-703(G) (1996)).
WHITE V. RYAN 21
helped his daughter Isabel with her problems; and he
believed that he could be rehabilitated.
The court rejected the prosecutors’ opinions as
“irrelevant.” It found that White and Susan’s sentences were
not disparate because White “was the triggerman [who]
planned, plotted, and executed [the] killing.” White was
criminally responsible for the murder regardless of any fault
of the medical personnel because David would not have died
but for the gunshot wounds that White inflicted. Finally, the
court found that White’s “aberrant behavior in connection
with [his] rehabilitation argument” was “nonsensical.” The
court concluded that “there are no mitigating factors which
are sufficiently substantial to call for a sentence other than
death. The mitigating circumstances are insufficient to
warrant leniency.”
D. Appeal from the resentencing proceedings
By a three-to-two vote, the Arizona Supreme Court
affirmed the death sentence. State v. White (White II),
982 P.2d 819 (Ariz. 1999). The majority rejected the trial
court’s complete dismissal of the prosecutors’ opinions
about the appropriateness of a capital sentence as
“inconsistent with prevailing authority.” Id. at 825. It
nevertheless concluded that the prosecutors’ opinions were
“easily outdistanced by White’s and [Susan’s] premeditated
scheme to murder David . . . and thereby reap the benefits of
his life insurance,” which was “an expectation of pecuniary
gain in the most classic sense.” Id.The majority agreed with White that “the potential for
rehabilitation [is] a mitigating factor,” but observed that
there was “no clear test under Arizona law as to how a
defendant might demonstrate [it].” Id. at 826. Other cases
had relied on expert testimony, the majority explained, but
22 WHITE V. RYAN
none was offered by White. The majority agreed with the
trial court that White’s “own testimony [was] not sufficient.”
Id. The majority concluded that the other asserted mitigating
factors carried little or no weight. Id. at 827–30.
The dissent argued that the majority, despite recognizing
the trial court’s clear error in treating the prosecutors’
opinions as irrelevant, nonetheless afforded the opinions
insufficient weight. Noting that the “pecuniary gain
aggravator covers such a wide range of behavior that it easily
lends itself to uneven application,” id. at 831, the dissent
would not have applied the aggravator because “death is
reserved for the worst of the worst” and “both this crime and
its perpetrator fall short of the mark.” Id. at 832.
Citing “the inflexible policy of the Yavapai County
Attorney . . . to automatically seek capital punishment in
every case where evidence of at least one statutory
aggravating factor was present,” the dissent would have
“treat[ed] [the prosecutors’] failure to exercise . . . discretion
as a non-statutory mitigating circumstance.” Id. The dissent
also criticized the majority’s analysis of the sentencing
disparity given that Susan “masterminded and solicited the
killing of her husband, duping [White] into committing the
crime.” Id.The United States Supreme Court denied certiorari.
White v. Arizona, 529 U.S. 1005 (2000). On January 8,
2001, the Arizona Supreme Court issued its mandate.
WHITE V. RYAN 23
E. Second PCR petition
1. Protective PCR petition and preliminary
investigations
Concurrently with issuing the mandate, the Arizona
Supreme Court appointed counsel Daphne Budge to
represent White in post-conviction proceedings. Budge filed
a preliminary PCR petition on July 5, 2001, to stop the clock
on the one-year federal statute of limitations, 28 U.S.C.
§ 2244(d). The PCR court authorized funding for a paralegal
and mitigation expert. Budge was unable to obtain White’s
trial records because Lockwood had given them to Williams,
who was by then deceased. After three years, Budge was
replaced by David Goldberg.
2. PCR counsel David Goldberg’s requests for
expert funding
Goldberg moved for $4,500 in funding for
neuropsychologist Marc Walter to prepare a comprehensive
neurological evaluation of White. Goldberg explained that
this evaluation would support a claim of ineffective
assistance of counsel at sentencing by showing that White
had been “chronically seriously mentally ill since prior to the
commission of the murder,” which would have been “a
major statutory and non-statutory mitigating circumstance.”
The ADOC had provided to Goldberg “594 pages of
medical and psychological records pertaining to [White]
since his initial incarceration in 1988,” and “[e]arly progress
notes indicate[d] [he] was suffering from paranoia and
hallucinations.” Medical records further reflected that White
was suffering from untreated hyperthyroidism. According
to Goldberg, McVay “never bothered to obtain [White’s]
records” even though he must have known that White was
24 WHITE V. RYAN
likely mentally ill given White’s several letters to McVay
indicating that doctors were prescribing him anti-psychotic
medications and containing allegations of torture with brain
implants and “other nonsensical ramblings.”
The PCR court denied the request, as well as a motion to
fund a rehabilitation expert, without explanation. However,
the court granted Goldberg’s request for additional funding
for mitigation expert Keith Rohman.
Upon discovering a school record showing that White
had been evaluated with an IQ of 74 as a child, Goldberg
moved for appointment of an independent expert to conduct
IQ testing. The PCR court denied this motion in part but, at
the state’s urging, appointed Dr. Ann Herring to conduct an
initial IQ evaluation to comply with Atkins v. Virginia,
536 U.S. 304 (2002) (holding that execution of the
intellectually disabled violates the Eighth Amendment). Dr.
Herring reported that White’s verbal IQ at the time was 95
and his full-scale IQ was 91, both of which fell within “the
low end of the average range.” White’s performance IQ was
86, which fell within “the low average range.” Dr. Herring
concluded that White was “of average general intelligence
with verbal slightly stronger than nonverbal intellectual
abilities.”
Goldberg renewed his motion for funding for a
neuropsychologist, this time proposing to hire Dr. Herring at
an estimated cost of $4,000. Goldberg explained that he was
“attempting to prove . . . that prior PCR counsel was
ineffective for failing to investigate and present mitigation
evidence related to [White’s] mental functioning and
illnesses.” Goldberg was concerned that White’s “low
average IQ” would “not carry much weight” without an
expert such as Dr. Herring to explain it and provide meaning.
The PCR court denied the motion without explanation.
WHITE V. RYAN 25
3. Amended PCR petition
Goldberg filed an amended PCR petition on May 2,
2005, which included a declaration by Rohman with
numerous exhibits. Rohman believed, based on his 17 years
of experience conducting mitigation investigations in capital
cases, including regular trainings with mental health
professionals, that there were “strong indications of mental
and physical illnesses suffered by . . . White.” However, he
acknowledged that he was “not qualified to diagnose
psychiatric illness, neurological illnesses or damage, or
thyroid disease,” and did “not have the qualifications to
provide expert testimony on the impact of drug and alcohol
addiction on . . . White or the impact of thyroid aliments on
his behavior.” In every other capital case where Rohman
had served as a mitigation specialist, at least one mental
health expert—“many times” three or four—was appointed
to assist the defendant.
Rohman’s investigation turned up 13 categories of
mitigation evidence that in his opinion should have been
presented at resentencing to show that White’s “capacity to
appreciate the wrongfulness of his conduct or to conform his
conduct to the law was significantly impaired.”
a. Hyperthyroidism
In August 1988, while in custody, White was diagnosed
with hyperthyroidism stemming from Graves’ disease.
White was successfully treated with radioactive iodine for
several months at the Maricopa Medical Center.
Graves’ disease causes symptoms including insomnia,
disorganized thinking, paranoia, erratic behavior, mood
swings, nervousness, anxiety, and increased heart rate and
blood pressure. White recalled feeling nervous and anxious
26 WHITE V. RYAN
most of his life. As he and various relatives recounted, he
had stomach ulcers as a child and nervously chewed his
fingernails all of the time. He was hyperactive and unable
to sit still or focus in school. He had wide emotional swings
and explosive fits, and he was always screaming. His school
attendance and academic performance slipped during
adolescence. His IQ, which measured 86 at age 13 and 91 at
age 14, dropped to 74 at age 16. He repeated seventh grade
and struggled to finish eighth grade at age 15. He had not
finished tenth grade by age 17.
As an older teen and adult, White experienced excess
energy. To control it, he engaged in physical activity,
sometimes working double shifts or two jobs. His three ex-
wives recall him being hyperactive, nervous, and unable to
sit still. He slept fitfully and could not seem to “shut down”
his mind. His second wife, Ellouise Boettcher, thought that
White was insane because of his irrational thought patterns
and paranoia. His third wife, Fisher, remembered his
making peculiar religious comments, such as telling her that
Lucifer lived down the street from him and that St. Peter was
coming to take care of Lucifer. Fisher observed White
talking to himself when nobody else was around.
b. Psychological impairments
ADOC mental health experts diagnosed White as
suffering from schizophrenia and other psychiatric
disorders. Although untreated Graves’ disease can account
for cognitive dysfunction, White’s “outlandish and paranoid
ideas” persisted years after he received thyroid treatment,
suggesting that he suffered from both Graves’ disease and
psychiatric disorders.
WHITE V. RYAN 27
i. Irrational thoughts and behavior
Boettcher thought White was “insane” because at times
he would place his family at risk but irrationally think they
were not at risk. When Boettcher was pregnant with their
third child, Jeremiah, the family lived “on the desert
ground.” After Jeremiah was born, they kept him by the
river in a bassinet covered with a mosquito net. Boettcher
insisted that they move after Jeremiah’s face “turned beet red
and poured sweat.” Fisher recalled that White sometimes
would not get medication that the doctor said was necessary
for their infant son when he was extremely ill.
ii. Paranoid thoughts and behavior
When White and Boettcher were living in Maine, White
“came home one day and thought their car was being
watched. They immediately left town on a bus and never
went back to their apartment for their possessions.”
Fisher recalled White exhibiting bizarre and paranoid
behavior during the two years before David’s murder. White
became angry when she tried to register to vote. He told her
that their lives would be over if the government found them.
He always insisted on using back roads and staying off
highways when they traveled. When Fisher observed White
talking to himself and asked him who he was talking to, he
would say, “nothing, never-mind.”
iii. Grandiose illusions and delusional
thoughts
Throughout his life, White told many people, including
Fisher and his first wife, Nadeen Higginson, that he was a
police informant, CIA agent, or federal narcotics agent.
When White met Susan, he told her he was a doctor but was
28 WHITE V. RYAN
actually a nurse’s aide. Dr. Fred Markham, who examined
White while he was in custody, reported that White claimed
to have had four years of law school and was planning to go
to medical school as soon as he went to college, though in
fact he had not completed high school. White told the
probation officer that he graduated from the Florida Air
Academy despite having attended for only one semester in
eighth or ninth grade.
iv. Diagnoses while in custody
Within weeks of his incarceration, White was observed
to be suffering from visual and auditory hallucinations and
paranoia. White was “sure he saw a bullet” and heard
someone putting together a gun in his cell. In October 1988,
White attempted to demonstrate thought-broadcasting to a
doctor. He displayed “bizarre facial expressions” and
appeared to be responding to internal stimuli. In November
1988, an inmate reported that White seemed “around the
bend” and talked to himself all day. A March 1989 ADOC
memo stated that White was suffering from “a biological
mental disorder,” and he was diagnosed with organic anxiety
disorder. The following month, White was taking
Chlorazepam, which is used to treat seizures and panic
disorders.
An ADOC psychiatrist suggested that White’s
“occasional bizarre behavior may well be attributed to the
thyroid condition.” By August 1989, his medical records
indicated that his thyroid was functioning normally
following iodine treatment. However, he continued to be
diagnosed with organic anxiety disorder.
White wrote many letters to the courts and others
describing ADOC’s torture of him through the use of
implanted devices. He wrote letters to Boettcher and their
WHITE V. RYAN 29
children, asking them not to leave him in prison because
experiments were being conducted on him. He wrote to
ADOC Director Samuel Lewis, Arizona Attorney General
Grant Woods, U.S. Attorney Janet Napolitano, Senator John
McCain, and President Bill Clinton, among others,
requesting that they stop the torture. In a 1992 letter, he
described witnessing the recent execution of another inmate
through the inmate’s eyes, which he claimed the ADOC had
forced him to watch via an implanted “laser mic.” White
attempted to file five lawsuits against the ADOC, but each
one was dismissed as “irrational and wholly incredible.”
c. Borderline intellectual functioning or low
intelligence
White repeated the second and seventh grades. He
received all F’s in sixth grade. In seventh through tenth
grades, he received 25 F’s, 41 D’s, 27 C’s and 5 B’s. White
withdrew from school during eleventh grade after failing all
subjects but math, in which he received a D. His IQ scores
ranged from 74, associated with “Borderline Intellectual
Functioning,” in the ninth grade, to 91 in his second seventh
grade year. On the stanine scale, 7 his scores ranged from 1,
the lowest possible, to 3.2.
As an adult, White held low-skilled jobs, each of which
was, according to Rohman, “essentially a repetitive, manual
occupation appropriate for someone of low intelligence.”
These included picking mushrooms, working on a fishing
wharf in Maine, washing dishes and cooking at restaurants,
cleaning houses, selling rabbit fur and Native American
7
A stanine score is on a nine-point scale where 5 reflects average
performance relative to other pupils at that grade level. Only 4% of
students have a score of 1, while 23% score at 3 or below.
30 WHITE V. RYAN
jewelry, assisting as a nurse’s aide, and doing odd jobs for
church members in exchange for land or housing.
Except for White’s relationship with Susan, his
significant relationships with women “began when the
women were unsophisticated and poorly educated teens.”
As a teenager, White fathered two children with two
different women, one of whom (Higginson) he married. He
married Boettcher when he was 25 and she was 18 and had
just come from a childhood of abuse. He met Fisher when
he was 33 and she was 19. Fisher had never left the town of
Wickenberg, Arizona, and believed White when he told her
that he was an undercover CIA agent. Rohman opined that
White continued to have relationships “with young women
with emotional and psychological problems” even as he aged
because these “deficiencies . . . allowed Michael to
emotionally dominate them.”
Rohman asserted that White’s low intelligence
manifested itself in various situations throughout his adult
years. White once bought a horse but left it tied to a water
pipe for several days without food or water while he left
town. The horse pulled the water pipe, which burst and
flooded the yard. White apparently did not know his
mother’s correct maiden name when he married Boettcher
based on their marriage certificate. When he and Boettcher
moved to Oregon with their infant son, they camped out in a
lean-to hoping to get squatter’s rights to the property, not
realizing that the homesteading law had been repealed in
1975.
Rohman also cited the facts of the offense as evidence of
White’s low intelligence and limited ability to reason. White
shared Susan’s plan for him to murder David with both
Fisher and Sexton. His idea to use a potato as a silencer—
which would not work, according to an expert at Susan’s
WHITE V. RYAN 31
trial—was apparently taken from a Hawaii 5-0 episode.
Rather than disposing of the weapon where it would not be
found, he sold it to a pawn shop. He left the ski mask and
bag of potatoes in his car for a week after the murder even
though they linked him to the crime.
d. Susan’s culpability
Rohman recognized that the trial court found that
White’s greater sentence as compared to Susan’s was not
disparate because he was the perpetrator. Rohman focused
on showing that Susan “was the motivating force and actor
in this crime” because she manipulated White, who was
“psychologically vulnerable and emotionally impaired.”
Sexton testified at Susan’s trial that White told her that
“Susan had planned to kill David and she wanted [White] to
do the shooting.” White “tried to talk Susan out of it,” telling
her “it was a crazy idea.” Three days later he called Susan
again and she “still had the same idea.” One day White told
Sexton that “he just [gave] up the whole idea.” Sexton
thought that White was “infatuated” with Susan because
“[h]e just didn’t talk about anything else but [her].” Sexton
believed that White would not have committed the crime if
Susan had not manipulated him.
The night of David’s death, Susan seemed more scared
than upset. Two days afterwards, Susan’s kindergarten-age
daughter, Heather, told her teacher, “Mommy’s kind of
anxious right now.” The teacher replied, “And sad?”
Heather said, “Just anxious.” That night, Susan went
drinking with a friend. She appeared to be in a good mood.
She took off her wedding rings and said, “I’m not going to
get anywhere with these.” She went home with the bar’s
bouncer, whom she had just met, and had sex with him. The
following night, she told the bouncer that David was
32 WHITE V. RYAN
murdered over a narcotics transaction, that the police had
arrested an old boyfriend of hers, but that he was innocent
and a federal narcotics agent was working with her to clear
him.
Several people described Susan as manipulative and a
liar. James Clubb, a high school classmate, described her as
very manipulative—the “kind of person who would go out
and get what she wanted no matter what.” Susan testified
that she was originally going to blame the crime on her own
brother. Hammond, the prosecutor, believed that she clearly
“was the instigator and she kept pushing . . . White until he
made up his mind to kill her husband.”
e. Family history of violence and criminality
White’s natural father could be aggressive and hostile.
He was expelled from junior high school for fighting with a
student and hitting a teacher with a chair. As an adult,
White’s father was followed home from a bar by the police
after he got into a fight there. One time he became angry
when White’s mother did not immediately clear the dishes
from the dining table after he finished eating. He kicked the
dinner table across the room and ordered her to pick it up.
One of White’s stepfathers, Eugene Perlow, frequently
struck White with his hands and a belt while bending him
over a chair. Once when White reached across the dinner
table, Perlow back-handed him, knocking him to the ground.
White’s mother became upset, and White ran away from
home for the first time.
One of Perlow’s sons, six years White’s senior, was
abusive to him. They would play a game called “who could
hit the easiest.” White usually lost and wound up hurt. He
recalled getting hit in the shoulder and nose, which left scars.
WHITE V. RYAN 33
Once, this stepbrother locked White in the trunk of a car and
left him there while he went to a drive-in movie. White’s
behavioral problems started around the time he was exposed
to his violent step-family. Perlow was stricter with White
than with his own children, but White’s mother generally did
not intervene.
White’s uncle unsuccessfully tried to kill a truant officer
with six sticks of dynamite and later went to prison for
robbery. White’s first cousin is serving a life sentence for
first degree murder.
f. Family history of alcoholism and substance
abuse
White’s maternal grandfather was a violent, abusive
alcoholic who died of cirrhosis of the liver. White’s uncle
died of alcohol-related issues. White’s first cousin also had
a history of using alcohol, marijuana, cocaine, heroin, and
methamphetamines. He was arrested for selling rock
cocaine and possessing paraphernalia. He committed four
misdemeanors as a child and was jailed on three occasions.
White’s mother was addicted to prescription medication
while he was a baby and toddler. White’s stepfather Millard
Forrester was an alcoholic who would have screaming
arguments with his mother.
White first experimented with drugs around the age of
14. By the age of 19, he smoked marijuana on virtually a
daily basis. White reported being high on marijuana almost
daily during his trial. He also used LSD, cocaine, heroin,
and methamphetamines. Around the age of 25, he moved to
San Francisco, where he became addicted to heroin and
contracted Hepatitis C.
34 WHITE V. RYAN
White believed that his use of LSD, cocaine, and
marijuana contributed to the demise of his first marriage to
Higginson, since he refused her requests to go to counseling.
His second wife, Boettcher, thought he did not like life and
that he needed the drugs to live with himself. When sober
for a few months, White “seemed like he could be a decent
person,” but once he began using again he would become
irritable and abusive if he ran out of the drugs.
g. Family instability and lack of a father
Between the ages of one and thirteen, White had four
different father figures. His birth parents separated when he
was 18 months old. Around this time, his mother met
George Willard, a customer at the restaurant where she
worked. White’s mother became pregnant with Willard’s
son, Michael’s half-brother Norman. White, his mother, and
Norman moved in with Willard and Willard’s daughter from
another relationship. After White’s mother and Willard
separated a year later, Norman maintained a relationship
with Willard but White was not allowed to do so.
White’s mother married Forrester when White was about
three years old. Forrester regularly took them on camping,
hunting, and fishing trips. White felt like they were building
a family and called Forrester “Dad.” After three or four
years, the marriage ended due to Forrester’s alcoholism.
White was not supposed to talk to Forrester after that, but he
recalled running up to him at school one day to talk to his
“Dad.”
Around the time of the divorce, White was diagnosed
with stomach ulcers from “nerves,” which stopped after two
years of medication and a restricted diet. White thought the
ulcers were caused by family stress.
WHITE V. RYAN 35
When White was 13, his mother married Perlow, who
was her much older supervisor. He brought two of his
children from a former marriage into the home, and they
received preferential treatment. White and Norman felt like
outsiders in the family.
Throughout his life, White talked about finding his
natural father. White asked his mother for help, but she
refused. As a teenager, White went to California to search
for him. Higginson recalled that at age 21, White insisted
that she call him by his father’s name, “Ray.”
h. Neglectful parenting
White suffered a broken collarbone at age two,
reportedly from falling off a picnic table. His arm needed to
be kept in a sling, but his mother failed to ensure that this
happened. At the age of four, White suffered a severe head
injury from striking his head while running around a pool.
His mother did not take him to a doctor. White still has a
dent in his forehead from this incident. Around the same
age, he slipped on wet wood and sustained a hairline fracture
to his hip. White’s mother smoked cigarettes throughout her
pregnancy with White which, according to Rohman, may
have contributed to White’s low intelligence and childhood
behavioral problems.
White was asked to step into an adult role as a very
young child. Around the age of five, he was made
responsible for caring for and feeding Norman, who was in
diapers at the time, while his mother was at work. After his
mother and Forrester divorced, when White was seven years
old, his mother told him that he was now the “man” of the
family.
36 WHITE V. RYAN
White’s mother was lax in disciplining White and
generally ignored his misbehavior. She also neglected his
education and did not insist that he go to school. The family
moved frequently, forcing White to attend several different
schools—three for second grade alone. When he had to
repeat seventh grade, his mother did not seek tutoring help.
Boettcher, White’s second wife, recalled that White’s
mother favored Norman over White. White’s mother was
very critical of and “cold” to White. She told him that she
had become “higher class” than when he was a child and did
not want him to “ruin their name.”
i. Transience
Rohman believed it “may be impossible to know how
many times [White] moved from house to house, and
community to community as he was growing up.” White
lived, at a minimum, with his birth father in Los Angeles,
with maternal uncles and cousins for approximately a year
after the separation, with Willard and his daughter for a year,
in and out of various relatives’ homes for several years after
that relationship ended, with Forrester for three to four years,
again with various relatives after that divorce, and in
numerous homes with Perlow and his children. White
attended at least 10 different schools from kindergarten
through high school, and there were “gaps of several grades”
where Rohman was “unable to even identify what school he
attended.”
j. Head injury
Rohman opined that the head injury White sustained
from running around the pool when he was four years old
likely caused him damage to his brain. The dent in White’s
forehead indicated that White took the brunt of the fall with
WHITE V. RYAN 37
the front of his head, potentially wounding his frontal lobe.
Rohman cited evidence that frontal lobe injury can cause
behavioral and personality abnormalities, such as
impulsivity, aggression, poor judgment and insight, poor
self-regulation of behavior, mood swings, attentional and
memory deficits, amotivation, apathy, and disorganization.
k. Hyperactivity
White displayed many symptoms of Attention Deficit
Hyperactivity Disorder (“ADHD”) as a child. As early as
kindergarten, White’s teachers reported they could not keep
him in his seat long enough to focus on schoolwork. At
home, White was a very nervous child with little impulse
control. White recalled being jittery for as long as he could
remember. His writing was impaired by shaky hands, a
symptom of Graves’ disease. White had trouble
concentrating in school. Around the time he was in second
grade, White’s mother took him to a counselor or
psychologist for these problems. Without testing White, the
counselor diagnosed him as hyperactive, recommending
medication and opining that White would eventually “grow
out of this behavior.” White’s mother refused to medicate
him and stopped taking him to the counselor after several
visits because she “did not see any progress.” This was the
only mental health-related treatment that White received as
a child.
l. Inability to support himself and poverty
Higginson, White’s first wife, recalled that White could
not earn enough to support her and their son, Shawn. She
believed that the pressure of this failure caused White to
leave them when Shawn was four years old.
38 WHITE V. RYAN
White and Boettcher, his second wife, moved to
Wisconsin to live on a farm. White was supposed to make
monthly payments to Boettcher’s father, who had taken out
a loan for the farm. White was never able to do so, and after
eight months he and Boettcher were forced to move away.
White traded in a trailer for two mules, a harness, and a
wagon. After he converted the wagon, he took Boettcher and
their two kids back to Wickenberg, Arizona, to two gold
claims. In addition to the mules, White had horses, chickens,
goats, and dogs. They had no running water where they
lived, so they hauled it. While White looked for work,
Boettcher would stay in the truck with the kids in the desert.
Boettcher eventually got a job working as an aide at a
hospital.
White and Boettcher lived mainly on charity during this
time. They were extremely poor, living by the riverbank in
a tent and sleeping on the ground in the dirt. Because there
was no water in the river, the family was always filthy.
When Boettcher went into labor with their third child, the
pastor’s wife and other people from the church cleaned her
up and took her to the hospital.
White and Fisher, his third wife, lived in Texas for
months without a bed while she was pregnant. They slept on
the floor of a room. They stayed in “rundown hotels,”
usually the cheapest in town.
In mid-1987, the pastor of a church in Prescott gave
White rides to and from church and fed him. White “seemed
like a loner” and down on his luck. He always sat by himself
at church, dressed shabbily. He once worked in the pastor’s
yard for money. Shortly before the murder, White was
sleeping on the floor of an upholstery shop and showering at
Sexton’s home.
WHITE V. RYAN 39
m. Inability to maintain relationships
In high school, White began dating Joan Quinn when
they were around 15 years old. Quinn became pregnant, and
her parents forced her to give the baby up for adoption and
forbade her from talking to White. White recalled having
only one other friend in high school.
White met Higginson when he was 19 years old.
Higginson did not think White had any friends of his own
during their four years together. Although White blamed the
failure of their relationship on his drug problem, Higginson
believed it was caused by his inability to support the family
financially or deal with issues in their marriage. When
White and Higginson’s son Shawn was 12, White went to
Oregon to visit him. He wanted Shawn to know that he had
a father, because White never saw his own father. White
spent only a couple of hours with Shawn and called it a “nice
visit.”
White met Boettcher in San Francisco. They began
doing drugs together and traveling around the United States.
During the eight years they were together, White never
maintained any long-term friendships with others. He was
extremely possessive of her. He would bring home the
groceries so that she had no reason to leave the house without
his permission. They moved frequently. White would
sometimes come home and tell her they were leaving that
day. They were married in Wisconsin, and their children
were likely born in South Carolina, Arizona, and California.
Even when they accepted charity from the church in
Wickenberg, White and Boettcher remained isolated from
the community.
White and Fisher met in 1985 while working together at
a nursing home. They left together to travel around the
40 WHITE V. RYAN
country. They returned to Arizona, had two children, and
were married in December 1986. White met Susan the
following month. He wanted to build a stable family with
Susan and never seemed to leave her side while they were
together in Michigan.
4. Further denial of funding for a neuropsychologist
and changes of counsel
After Goldberg withdrew from the representation to
pursue a nursing degree, the Arizona Supreme Court
appointed Thomas Gorman to replace him. Gorman, who
also later withdrew, felt that White was “clearly presently
mentally ill and not presently competent or able to assist in
his case in any way.” Gorman believed that White’s claims
involved “complex medical and psychological issues never
previously presented to any court” and required
“consultation with experts.”
After attorney Kerrie Droban replaced Gorman as
White’s counsel, she renewed Goldberg’s motion to fund a
neuropsychologist on the ground that a comprehensive
neuropsychological evaluation was necessary to establish
White’s ineffective assistance of counsel claim and bolster
the mitigation expert’s findings. The court denied the
motion without explanation.
5. Evidentiary hearing
The superior court held an evidentiary hearing on
November 5, 2007, at which McVay and Rohman testified. 8
8
Droban attempted to examine a third witness, John Sears, to testify
“about the general standards for capital defense litigation and the
particular funding issues relative to this case.” The court denied
WHITE V. RYAN 41
a. Resentencing counsel McVay’s testimony
McVay became involved in White’s case when he
encountered a lawyer who told him that Judge Hancock was
looking for a PCR lawyer with death penalty experience. At
the time, McVay’s practice involved “[m]ostly [criminal]
appeals” with “a substantial domestic relations component.”
He was unsure whether, prior to White’s case, he had had
any experience with capital sentencing proceedings or had
read the applicable 1989 American Bar Association
guidelines for capital litigation (“ABA guidelines”).
The only other person McVay hired to work on White’s
case, an investigator, was a former police officer who had no
known specialization in mitigation evidence. McVay did not
hire a mitigation expert because he “felt that the investigator
that [he] had was sufficient to the purpose.” He did not recall
reviewing the transcript of Susan’s trial prior to White’s
resentencing. He spoke with White’s trial counsel,
Lockwood, but “not at considerable length.”
McVay recalled receiving “a number of letters” from
White about biotelemetry implants in his brain but did not
order copies of White’s medical or psychological records
from the ADOC because he “just flat didn’t think of it.”
McVay was unaware that ADOC records diagnosed White
with “a biological mental disorder,” Graves’ disease, and a
thyroid problem that may cause occasional bizarre behavior,
and documented White’s complaints of auditory
hallucinations, his observed “bizarre facial expressions” that
Droban’s request without explanation. The court also denied Droban’s
renewed motions for funding for a neuropsychologist, a rehabilitation
expert, a lethal injection expert, and a defense investigator.
42 WHITE V. RYAN
seemed “to be responding to internal stimuli,” and,
according to another inmate, his talking to himself all day.
Although it occurred to McVay that White did not
genuinely believe his claims of brain implants, McVay had
no strategic reason not to request the ADOC records.
McVay stated that in hindsight, he should have obtained the
records and requested a mitigation specialist.
McVay assumed that his investigator would have
obtained White’s school records, but he never saw them and
was unaware that White’s IQ had been measured at 74. He
had no strategic reason not to request the school records.
McVay felt White’s life circumstances and social history did
not warrant further investigation based on “the facts of the
case,” “some information [he received] from the
investigator,” and the few times he spoke with White.
While aware of his duty to contest aggravating factors,
McVay thought he had stipulated to the existence of the
pecuniary gain aggravating circumstance because “the issue
was resolved on the [first] direct appeal.” He thought the
Yavapai County Attorney’s policy of seeking the death
penalty whenever there was any evidence of an aggravating
circumstance “was so offensive and such [an] abandonment
of what . . . their prosecutorial role should be that . . . it
would be extremely persuasive.”
b. Mitigation expert Rohman’s testimony
Rohman testified that a mitigation investigation
proceeds without an agenda, “looking for signs of mental,
emotional, [or] physical impairments that might impact [the
defendant’s] conduct [and] development,” as well as any
other relevant evidence. He attempted to corroborate
WHITE V. RYAN 43
mitigation evidence from multiple sources to strengthen the
presentation.
A mitigation specialist uses the information collected to
identify other experts that may be useful, such as
psychologists, psychiatrists, and neuropsychologists, who in
turn use it in their own investigations and as the basis for
their testimony. In 1996, it was standard for defense counsel
in capital litigation to follow the recommendations of the
ABA guidelines, including the use of mitigation specialists.
Based on Rohman’s review of the ADOC records and
White’s other medical records, he recommended obtaining a
medical expert in hyperthyroidism and Graves’ disease, a
psychiatrist or psychologist to look at how the illness
impacted White’s life, and an expert in special education
needs to evaluate the disease’s impact on White’s
developmental history and educational background.
Regarding the effects of White’s low IQ, Rohman believed
an expert in the area of learning disabilities, mental
retardation, and particularly neurology, would be
appropriate. 9 In Rohman’s nearly two decades of work on
capital litigation, this was the only case in which a mental
health professional was not appointed.
9
The PCR court repeatedly stopped Rohman from offering an
opinion as to how White’s background, symptoms, and diagnosed
afflictions could potentially affect his behavior on the ground that
Rohman was unqualified. Yet in finding that there was no prejudice
from McVay’s failure to investigate and present evidence of White’s
hyperthyroidism, the PCR court stated that it “would have concluded that
[the] symptoms did not contribute to his conduct.”
44 WHITE V. RYAN
6. PCR court’s decision denying White’s petition
The PCR court summarily denied relief and dismissed
the petition. On March 24, 2008, the court adopted the
state’s proposed findings of fact and conclusions of law. It
found that “White did not make the showing necessary to
obtain a neuropsychologist”—“that his sanity would be or
was a significant factor in his defense”—because there was
no evidence that he was mentally impaired when he
murdered David. The court concluded that White “failed to
show that any impairment would carry significant weight in
mitigation and failed to show that impairment as alleged
would play a significant role in his defense against the death
penalty.”
As for McVay’s failure to challenge the pecuniary gain
aggravator, the court concluded that it “was based on sound
trial strategy” and McVay’s representation was reasonable
under the circumstances; that “[t]here was no reasonable
probability that this Court would not have found the
aggravator proven had McVay challenged it with the
proffered evidence”; and that “[t]he State was not required
to prove that pecuniary gain was White’s exclusive motive
for killing [David].” Therefore, McVay neither performed
deficiently nor prejudiced White.
The court next turned to the various types of mitigation
evidence that White asserted McVay should have presented
and one by one rejected them as a basis for granting White’s
PCR petition. The court determined that McVay either had
no reason to investigate the mitigation evidence or made a
strategic decision not to do so. For each category of
mitigation evidence, the court stated that even if it had
considered the evidence, the evidence was insufficient to call
for leniency and the court would have imposed the same
sentence.
WHITE V. RYAN 45
The Arizona Supreme Court denied review of the PCR
court’s decision on October 28, 2008.
F. Federal habeas proceedings
White filed a habeas petition in the district court on
December 22, 2008. The district court stayed the
proceedings pending a competency determination.
Following White’s examination by a court-appointed expert,
the parties stipulated that he was incompetent to assist
counsel. White was transferred to the Arizona State
Hospital, but a disagreement between the hospital and an
ADOC doctor prevented the development of a restoration
plan.
Later, the Supreme Court held that a stay of federal
habeas proceedings on account of a petitioner’s
incompetency is inappropriate if “there is no reasonable
hope of competence.” Ryan v. Gonzales, 568 U.S. 57, 77
(2013). In light of Gonzales, the district court lifted its stay,
and denied White’s amended petition on July 10, 2015.
III. Jurisdiction and Standard of Review
We have jurisdiction under 28 U.S.C. § 2253(a), and we
review the district court’s denial of habeas relief de novo.
Earp v. Davis, 881 F.3d 1135, 1142 (9th Cir. 2018). Because
White filed his federal habeas petition after April 24, 1996,
it is subject to the Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”). See Murray v. Schriro, 745 F.3d
984, 996 (9th Cir. 2014) (citing Valerio v. Crawford,
306 F.3d 742, 763 (9th Cir. 2002) (en banc)).
Under AEDPA, we may not grant habeas relief on
White’s ineffective assistance claim unless the state court
adjudication of it “was contrary to, or involved an
46 WHITE V. RYAN
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States,”
28 U.S.C. § 2254(d)(1), or “was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding,” id. § 2254(d)(2). In making
this determination, we look to the last reasoned state court
decision to address the claim. See Wilson v. Sellers, 138
S. Ct. 1188, 1192 (2018). Here, the last such decision was
the PCR court’s March 24, 2008 findings of fact and
conclusions of law.
IV. Discussion
The clearly established federal law governing ineffective
assistance of counsel claims is Strickland. See Cullen v.
Pinholster, 563 U.S. 170, 189 (2011). To meet that standard
requires a showing that counsel performed deficiently in a
way that prejudiced the defense. Strickland, 466 U.S. at 687.
A. Deficient performance
Deficient performance means that “counsel’s
representation fell below an objective standard of
reasonableness” as measured by “prevailing professional
norms.” Id. at 688. Given the “countless ways to provide
effective assistance in any given case,” we “must indulge a
strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance.” Id. at
689. Our examination of counsel’s performance “must be
highly deferential,” id. at 689, and when conducted through
AEDPA’s lens our review is “doubly deferential,” Cheney v.
Washington, 614 F.3d 987, 995 (9th Cir. 2010) (quoting
Yarborough v. Gentry, 540 U.S. 1, 5–6 (2003) (per curiam)).
WHITE V. RYAN 47
1. McVay’s failure to challenge the aggravating
factor
The PCR court, citing Strickland, concluded that
McVay’s failure to challenge the pecuniary gain aggravator
was “based on sound trial strategy.” It was clear, however,
that McVay did not make a strategic choice. Rather, his
decision not to challenge the State’s evidence that White
acted for pecuniary gain was based on his erroneous belief
that “the issue was resolved on the [first] direct appeal.” A
decision based on a misunderstanding of the law is not sound
trial strategy. See Strickland, 466 U.S. at 690–91 (requiring
deference only to “strategic choices made after thorough
investigation of [the] law” or after reasonable professional
judgment not to investigate); see also United States v. Span,
75 F.3d 1383, 1390 (9th Cir. 1996).
At resentencing, the parties were entitled to present new
arguments and evidence regarding the pecuniary gain factor
and the court was required to find anew that the state had
established the factor before reimposing the death penalty.
See Ariz. Rev. Stat. § 13-703(C), (E) (1996); State v.
Rumsey, 665 P.2d 48, 53 (Ariz. 1983) (stating that the statute
governing capital sentencing procedure at least
presumptively applies on resentencing, entitling the parties
“to introduce new contentions or evidence with regard to
aggravating circumstances”), aff’d, 467 U.S. 203 (1984). In
once again finding the pecuniary gain aggravator, the court
commented on the lack of evidence to alter its original
finding. There was no strategic reason for McVay not to
have challenged the pecuniary gain factor.
In concluding that McVay acted reasonably, the PCR
court relied on our decision in Coleman v. Calderon,
150 F.3d 1105, 1113 (9th Cir.), rev’d on other grounds,
525 U.S. 141 (1998) (per curiam). Coleman does not
48 WHITE V. RYAN
support the PCR court’s decision. The claim in Coleman
was that counsel “failed to properly investigate the physical
evidence.” 150 F.3d at 1113. We observed that “[i]n any
given case . . . , one would expect an attorney to examine the
physical evidence, especially in a prosecution involving the
death penalty.” Id. Yet the attorney’s performance was not
constitutionally deficient in part because he hired an expert
to examine the evidence. Id. Here, McVay made no attempt
to uncover—let alone examine—evidence rebutting a
pecuniary motive.
2. McVay’s failure to investigate and present
mitigating evidence
“[C]ounsel has a duty to make reasonable investigations
or to make a reasonable decision that makes particular
investigations unnecessary.” Strickland, 466 U.S. at 691.
McVay initially “anticipated that a substantial effort must be
made to unearth all mitigating circumstances.” Yet he failed
to investigate any mitigating circumstances relating to
White’s background despite having ample time to do so.
For example, McVay did not order White’s readily
obtainable medical and other records from his time in
custody. Normally, “a particular decision not to investigate
must be directly assessed for reasonableness in all the
circumstances, applying a heavy measure of deference to
counsel’s judgments.” Id. But that presumes counsel made
a judgment not to investigate. The state court was well
aware that McVay did not. McVay testified that he had no
strategic reason for not acquiring White’s records. When
asked why he did not obtain them, he testified that he “just
flat didn’t think of it.” We “may not indulge ‘post hoc
rationalization’ for counsel’s decisionmaking that
contradicts the available evidence of counsel’s actions.”
WHITE V. RYAN 49
Harrington v. Richter, 562 U.S. 86, 109 (2011) (quoting
Wiggins v. United States, 539 U.S. 510, 526–27 (2003).
McVay knew that White’s mental health was an issue.
The record, which McVay should have reviewed, was filled
with evidence that White suffered from mental illness.
Before trial, Lockwood requested a competency hearing
because he “strongly suspect[ed]” that White “would not be
able to adequately assist defense counsel” on account of his
“strange behavior.” White’s first appellate counsel,
Williams, also requested a competency hearing because
White appeared to be “suffering from a severe mental
disease or defect which renders him incapable of assisting
counsel.” The Arizona Supreme Court discussed appellate
counsel’s assertion that “after [White] was sent to prison, he
began exhibiting bizarre behavior.” White I, 815 P.2d at 883.
White I dismissed White’s claim that this behavior may have
been “the result of a mental impairment that predated the
murder” due to the lack of a record on direct appeal. Id. The
state supreme court advised White that he “may present this
issue for determination by the trial court” in a PCR petition.
Id.At the first PCR hearing, McVay elicited testimony from
Lockwood that White’s appellate counsel thought “White
must have some type of either emotional problem or health-
related problems” because of his behavior, and Lockwood
realized that White’s “mannerisms” in fact “were
psychological or physiological for him.” Lockwood
expressed regret because he “definitely . . . should have . . .
developed [a] psychological[]” mitigating circumstance.
And McVay should have suspected something was wrong
when he received “a number of letters” from White about the
biotelemetry implants in his brain.
50 WHITE V. RYAN
The PCR court found that “White behaved normally and
rationally during face-to-face meetings with [McVay].”
That White sometimes behaved normally is irrelevant when,
as McVay told the court ten months before the resentencing,
“sometimes [White] did not appear . . . close to being lucid.”
To the extent the PCR court found that White always
behaved normally in front of McVay, that was an
unreasonable factual determination. It was also irrelevant
given the substantial evidence that McVay had from other
sources regarding White’s questionable mental health.
The PCR court found that McVay “questioned whether
White truly believed the accusations he made in
correspondence.” At the second PCR hearing, more than a
decade after the events in question, McVay agreed that it had
“cross[ed] his mind” that White may not genuinely have
believed that he had implants in his brain because McVay
recalled him behaving normally on the few occasions they
met. But McVay at least suspected that White might have
mental health issues worth investigating, because he directed
his investigator to speak with White’s mother “regarding her
capability in affording a mental examination,” which McVay
and his investigator had “spoke[n] about.”
While McVay’s skepticism about White’s letters and the
possibility of malingering was understandable, McVay was
not a neutral factfinder—he was an advocate. Given the
substantial evidence from multiple sources that White may
have mental health issues and the possibility that such issues
would have a mitigating effect on his sentence, it was
unreasonable of McVay not to investigate further or request
funding for an expert investigation.
The PCR court concluded that McVay “was not required
under Strickland to request White’s mental health records
absent some suggestion that they might contain information
WHITE V. RYAN 51
with mitigating value.” The court’s factual premise was
unreasonable given the evidence of White’s mental illness.
Moreover, even if there had been no readily available
evidence, McVay had an obligation to thoroughly
investigate White’s background, and his decision not to do
so was unreasonable. “It is unquestioned that under the
prevailing professional norms [in 1988, four years before
McVay began representing White], counsel had an
‘obligation to conduct a thorough investigation of the
defendant’s background.” Porter v. McCollum, 558 U.S. 30,
39 (2009) (per curiam) (quoting Williams v. Taylor, 529 U.S.
362, 396 (2000)) (reviewing de novo); see also Robinson v.
Schriro, 595 F.3d 1086, 1108–09 (9th Cir. 2010) (“Certain
forms of investigation are fundamental to preparing for
virtually every capital sentencing proceeding. At the very
least, counsel should obtain readily available documentary
evidence such as school, employment, and medical records,
and obtain information about the defendant’s character and
background.” (citing Boyde v. California, 494 U.S. 370, 382
(1990); Ainsworth v. Woodford, 268 F.3d 868, 877 (9th Cir.
2001))).
Medical history, including any mental illness, is the first
category that the 1989 ABA Guidelines direct counsel to
consider presenting at a mitigation hearing. The guidelines
direct counsel to make “efforts to discover all reasonably
available mitigating evidence,” including medical and
mental health evidence. 1989 ABA Guidelines § 11.4.1(C),
(D)(2)(c). The commentary admonishes counsel not to “sit
idly by, thinking that investigation would be futile.”
The Supreme Court has “long . . . referred [to the ABA
guidelines] as ‘guides to determining what is reasonable.’”
Rompilla v. Beard, 545 U.S. 374, 387 (2005) (quoting
Wiggins, 539 U.S. at 524). In Rompilla, the Court
52 WHITE V. RYAN
specifically highlighted the 1989 guidelines “devoted to
setting forth the obligations of defense counsel in death
penalty cases.” Id. at 387 n.7. Here, as in Rompilla, we have
been presented with no “reason to think the [relevant ABA]
standard impertinent.” Id. at 387.
The PCR court turned counsel’s obligation to investigate
on its head. It is one thing for counsel to decide not to
investigate further if counsel has made some effort and there
is reason to believe further effort in a particular area would
be fruitless. “Questioning a few more family members and
searching for old records can promise less than looking for a
needle in a haystack, when a lawyer truly has reason to doubt
there is any needle there.” Id. at 389; see also id. at 383
(“[R]easonably diligent counsel may draw a line when they
have good reason to think further investigation would be a
waste.”). Here, however, “counsel did not even take the first
step of interviewing witnesses or requesting records.”
Porter, 558 U.S. at 39; cf. Rompilla, 545 U.S. at 381(observing that “a number of counsel’s choices in this case
are subject to fair debate” in contrast to “a case in which
defense counsel simply ignored their obligation to find
mitigating evidence”).
The State points out, with respect to the hyperthyroidism
investigation, that “Judge Hancock found that White had
informed the court in his pro per sentencing memorandum
that he suffered from this condition and there was no
evidence that White told McVay about that condition or
asked him to proffer it as mitigation.” The state contends
that the reasonableness of McVay’s actions “may be
determined or substantially influenced” by White’s own
actions. Strickland, 466 U.S. at 691. This quotes Strickland
out of context. “Counsel’s actions are usually based, quite
properly, on informed strategic choices made by the
WHITE V. RYAN 53
defendant and on information supplied by the defendant.”
Strickland, 466 U.S. at 691 (emphasis added). In the usual
case, “when the facts that support a certain potential line of
defense are generally known to counsel because of what the
defendant has said, the need for further investigation may be
considerably diminished or eliminated altogether.” Id.(emphasis added).
Here, there is no evidence that McVay relied on White’s
statement to the court about his Graves’ disease when
deciding whether to investigate. White submitted that
statement to the court five days before he was resentenced,
whereas McVay had been preparing for the resentencing for
more than four years. White’s claim of having Graves’
disease was only one of many claims in his memorandum.
Most were fantastical, such as his claim that he was being
tortured by biotelemetry implants. Even if McVay had
believed that White had Graves’ disease, McVay “[did]n’t
know what Graves’ Disease is.” At a minimum, he would
have needed to hire an expert to explain Graves’ disease and
how it can potentially affect someone in White’s
circumstances. As the PCR court repeatedly pointed out,
even a mitigation specialist (which McVay did not hire) is
unqualified to make those assessments. In Rohman’s nearly
two decades of experience in death penalty mitigation, he
had never before seen a case in which a mental health
professional was not appointed.
The State cites the reasonable performance in Strickland
where the “attorney did not conduct any extensive interview
of family and friends.” In Strickland, however, “[t]he
aggravating circumstances were utterly overwhelming” and
“counsel could reasonably surmise from his conversations
with [the defendant] that character and psychological
evidence would be of little help.” 466 U.S. at 699. Here, in
54 WHITE V. RYAN
contrast, there was only one aggravating factor and the
evidence of it was fairly weak. Evidence of mental health
and other problems in White’s life would certainly have been
important. And it was unreasonable to surmise that further
investigations into White’s mental health would have been
of little help based solely on a few uneventful interactions
with him in light of the considerable evidence known to
McVay that White likely suffered from mental health issues.
In Strickland, moreover, the attorney’s strategy
reasonably “ensured that contrary character and
psychological evidence and respondent’s criminal history,
which counsel had successfully moved to exclude, would not
come in.” Id. Here, McVay had no countervailing strategic
reason to think that mental health and other background
evidence might harm White’s case. Its usefulness simply did
not occur to him.
Strickland’s counsel chose a reasonable strategy “to rely
as fully as possible on [the defendant’s] acceptance of
responsibility for his crimes” given the court’s “well known”
views on its importance. Id. McVay adopted a strategy of
blaming the victim’s death on the attending medical
personnel notwithstanding that it was, he acknowledged, “a
problematical issue” given “the look on the Court’s face.”
In Porter, the Supreme Court concluded that counsel—
who had just “a little over a month prior to the sentencing
proceeding” for the investigation—was deficient because
“[h]e did not obtain any of [the defendant’s] school, medical,
or military service records or interview any members of [the
defendant’s] family.” 558 U.S. at 39. As here, counsel also
“ignored pertinent avenues for investigation of which he
should have been aware.” Id. at 40. The only difference is
that McVay had far longer to investigate this type of
WHITE V. RYAN 55
evidence, and his failure to do was correspondingly more
egregious.
Although Strickland was applied de novo in Porter
rather than with AEDPA deference, it is hard to see how
even with the requisite deference to the PCR court McVay’s
failure to investigate was reasonable. As in Wiggins, which
applied AEDPA deference in deeming counsel’s
performance deficient, the investigation was largely limited
to the presentence report. See Wiggins, 539 U.S. at 524(faulting counsel for “abandon[ing] their investigation of
petitioner’s background after having acquired only
rudimentary knowledge of his history from a narrow set of
sources”). “In assessing the reasonableness of an attorney’s
investigation . . . , a court must consider not only the
quantum of evidence already known to counsel, but also
whether the known evidence would lead a reasonable
attorney to investigate further.” Id. at 527.
McVay’s failure to investigate and present mitigating
evidence, as well as evidence rebutting the State’s evidence
of pecuniary gain, was objectively unreasonable in light of
Strickland and Wiggins. The PCR court’s contrary
conclusion was an unreasonable application of those cases.
B. Prejudice
“In assessing prejudice [under Strickland], we reweigh
the evidence in aggravation against the totality of available
mitigating evidence.” Wiggins, 539 U.S. at 534. Prejudice
requires “a reasonable probability that, absent the errors, the
sentencer—including an appellate court, to the extent it
independently reweighs the evidence—would have
concluded that the balance of aggravating and mitigating
circumstances did not warrant death.” Strickland, 466 U.S.
at 695. A “reasonable probability” means “a probability
56 WHITE V. RYAN
sufficient to undermine confidence in the outcome.” Id. at
694.
The PCR court’s prejudice determination was contrary
to Strickland in two respects. First, the court determined
whether it would have imposed a death penalty if it had
considered the mitigation evidence that McVay failed to
present. However, the test for prejudice is an objective one.
See Strickland, 466 U.S. at 695 (“The assessment of
prejudice should proceed on the assumption that the
decisionmaker is reasonably, conscientiously, and
impartially applying the standards that govern the decision.
It should not depend on the idiosyncracies of the particular
decisionmaker . . . .”). It considers the likelihood of a
different result not just by the trial court but by an appellate
court that “independently reweighs the evidence.” Id. The
Arizona Supreme Court “is required” to conduct “an
independent review of the death penalty as imposed.” White
II, 982 P.2d at 829. The PCR court erred by applying a
subjective test of prejudice that failed to consider the
probability of a different outcome in the Arizona Supreme
Court.
The PCR court’s prejudice determination was also
contrary to Strickland because the court analyzed prejudice
separately for each of 12 different types of mitigating
evidence that McVay failed to present rather than
considering the prejudice resulting from the omission of this
evidence in the aggregate. The test is whether it is
reasonably likely that the result of the proceeding would
have been different but for counsel’s “errors.” Strickland,
466 U.S. at 694 (emphasis added). In reweighing the
aggravating and mitigating evidence, a state court’s failure
“to evaluate the totality of the available mitigation
evidence—both that adduced at trial, and the evidence
WHITE V. RYAN 57
adduced in the habeas proceeding”—is an unreasonable
application of Strickland’s prejudice test. Williams,
529 U.S. at 397–98.
The State argues that the PCR court’s consideration of
the cumulative mitigating evidence is implicit in its ruling
because the court recited “the totality of the mitigation that
[it] had considered during the course of the case.” But the
State is referring to the procedural history portion of the
ruling in which the court set forth the mitigation evidence it
previously had considered at resentencing. Nowhere in its
ruling did the PCR court state that it was considering the
totality of the mitigating evidence that McVay should have
presented. It did not even set forth a correct statement of the
law suggesting it was applying the correct standard despite
the appearance to the contrary.
The PCR court’s analysis of prejudice was flatly
inconsistent with its considering the mitigation evidence
cumulatively. For example, in rejecting the claim that
McVay should have investigated evidence of Susan’s
relative culpability, the court gave only one reason for
determining there was no prejudice: “White has failed to
show prejudice because this Court did in fact consider the
exact evidence in finding that White’s conduct was more
egregious that Susan’s.” That would hardly be a sufficient
reason for a lack of prejudice if the court were weighing all
of the evidence McVay should have uncovered against the
aggravating factor. More generally, there was no reason for
the court to engage in 12 separate prejudice analyses if it
were truly assessing the cumulative impact of counsel’s
errors. With respect to each type of mitigating evidence, the
PCR court concluded that, had the evidence been presented,
the court would have found it insufficient to call for
leniency.
58 WHITE V. RYAN
Because the PCR court applied a test for prejudice
contrary to Strickland, we do so independently without
AEDPA deference. See Crace v. Herzog, 798 F.3d 840, 846,
850 (9th Cir. 2015). “This is not a case in which the new
evidence ‘would barely have altered the sentencing profile
presented to the sentencing judge.’” Porter, 558 U.S. at 41(quoting Strickland, 466 U.S. at 700). The judge at White’s
resentencing “heard almost nothing that would humanize
[White] or allow [the court] to accurately gauge his moral
culpability.” Id. The court heard only that the prosecutors
did not personally view this as a death penalty case; White
had no prior felony convictions; White believed himself
capable of being rehabilitated (in part because he had no
prior felony convictions); and Susan was at least as culpable.
In fact, White’s sentencing memorandum acknowledged that
White “claimed that his childhood was normal.” The court
was “left to wonder about that conclusion” and informed
only that White’s “natural father left the home when [White]
was 18 months old and his first stepfather was an alcoholic.”
McVay’s presentation of mitigating background
evidence did not discuss White’s four father figures, the
physical and emotional abuse and neglect that he suffered
growing up, and the poverty, transience, and difficulties
forming relationships that he experienced throughout his life
as related by his family and three ex-wives. Nor did the court
hear about White’s childhood IQ test score in the
“Borderline Intellectual Functioning” range and his dismal
performance in school when he was even able to attend. This
“graphic description of [his] childhood, filled with abuse and
privation, or the reality that he was ‘borderline [intellectually
disabled],’ might well have influenced the [court’s] appraisal
of his moral culpability.” Williams, 529 U.S. at 398 (citing
Boyde, 494 U.S. at 387); see also Penry v. Lynaugh, 492 U.S.
302, 319 (1989) (discussing “the belief, long held by this
WHITE V. RYAN 59
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” (quoting California v. Brown,
479 U.S. 538, 545 (1987) (O’Connor, J., concurring))),
abrogated on other grounds by Atkins v. Virginia, 536 U.S.
304 (2002).
Moreover, White’s schizophrenia (or biological mental
disorder), Graves’ disease, and possible ADHD were not
presented to the sentencing court at all. Because the state
courts steadfastly refused funding for experts who could
explain the likely effect of these issues, alone or in
combination, at this stage we can only speculate how these
factors might have impacted White’s decision to commit the
crime. Regardless, they are independently relevant as “the
kind of troubled history [the Supreme Court has] declared
relevant to assessing a defendant’s moral culpability.”
Wiggins, 539 U.S. at 535 (citing Penry, 492 U.S. at 319).
“On the other side of the ledger, the weight of evidence
in aggravation is not as substantial as the sentencing judge
thought.” Porter, 558 U.S. at 41. There was only one
aggravating factor—that White committed the murder for
pecuniary gain. Even without McVay attempting to rebut
this finding, two out of the five justices on the Arizona
Supreme Court in White II felt that it was insufficient to
warrant death. “[A] verdict or conclusion only weakly
supported by the record is more likely to have been affected
by errors than one with overwhelming record support.”
Strickland, 466 U.S. at 696.
Evidence from multiple sources showed that Susan
repeatedly pressured White into perpetrating the crime on
her behalf and that White struggled with the decision but
eventually agreed because he was infatuated or in love with
60 WHITE V. RYAN
her. Susan was described as manipulative and a liar; White
as psychologically vulnerable and emotionally impaired.
Susan was the one who, days before marrying a man while
seeing White on the side, contacted insurers to arrange a
payoff from the murder of her soon-to-be husband.
Susan herself made statements suggesting White acted
out of love rather than pecuniary gain. As the PCR court
found, “Susan made statements to police asserting that
White did not expect to receive a portion of [David’s]
insurance proceeds and killed [David] because [David] had
abused Susan.” Although she gave contradictory testimony
at her own trial suggesting White was interested in the
money, this could have been discredited as a self-serving
story concocted after the fact to shift blame onto White.
The strongest evidence of White acting out of a
pecuniary motive was his statement to Fisher indicating he
expected Susan to give him $100,000, presumably from the
insurance proceeds. While this statement supported the
pecuniary gain finding, it was not unambiguous. Clearly,
White expected that Susan was going to share the insurance
proceeds with him. But a neutral factfinder could have
reasonable doubts as to whether the insurance funds were a
causal factor in White’s agreeing to commit the murder or
whether he simply succumbed to Susan’s pressure because
he loved her. See Madsen, 609 P.2d at 1053 (“[T]he receipt
of the [insurance] money must be a cause of the murder, not
a result of the murder.”). A finding that White acted solely
out of love because Susan manipulated him would have been
considerably more likely if the sentencer had learned of
White’s troubled background, mental health issues, and low
intelligence. Consequently, there is a reasonable likelihood
White would have received a different sentence if McVay
had investigated and presented mitigating evidence.
WHITE V. RYAN 61
V. Conclusion
The Sixth Amendment guarantees that criminal
defendants receive reasonably effective assistance of
counsel at sentencing. See Strickland, 466 U.S. at 686–88.
The PCR court’s determination that White received what the
Constitution requires was both contrary to and an
unreasonable application of Strickland. White is therefore
entitled to habeas relief. Accordingly, we reverse the district
court’s judgment and remand with instructions to grant a
conditional writ with respect to White’s sentence unless the
State, within a reasonable period, either holds a new
sentencing hearing or vacates White’s sentence and imposes
a lesser sentence in accordance with state and federal law.
REVERSED and REMANDED.