Roger Scott v. Charles Ryan , 686 F.3d 1130 ( 2012 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROGER MARK SCOTT,  No. 11-99002
Petitioner-Appellant,
v.  D.C. No.
2:97-cv-01554-PGR
CHARLES L. RYAN,
OPINION
Respondent-Appellee.

Appeal from the United States District Court
for the District of Arizona
Paul G. Rosenblatt, Senior District Judge, Presiding
Argued and Submitted
November 17, 2011—Stanford, California
Filed August 1, 2012
Before: Alex Kozinski, Chief Judge, Jerome Farris and
Carlos T. Bea, Circuit Judges.
Per Curiam Opinion
8527
SCOTT v. RYAN 8529
COUNSEL
Michael L. Burke, Esq., Jennifer Yolanda Garcia, Esq., Assis-
tant Federal Public Defenders, Federal Public Defender’s
Office, Phoenix, Arizona, for appellant Scott.
Susanne Bartlett Blomo, Esq., Arizona Attorney General’s
Office, Phoenix, Arizona, for appellee Ryan.
OPINION
PER CURIAM:
Roger Scott, an Arizona state prisoner sentenced to death,
appeals the denial of his petition for a writ of habeas corpus
in federal district court. We have jurisdiction pursuant to 28
U.S.C. §§ 1291, 2253, and we affirm.
On remand to the district court from a prior decision of this
court, Scott was allowed to present several pieces of evidence
he contended his counsel was ineffective for not presenting at
his original sentencing hearing. Scott presented evidence that
he had suffered four head injuries, and that these injuries
affected his mental functions at the time of the murder. Scott
seeks a remand to state court for a new sentencing hearing.
We hold that the district court did not abuse its discretion in
finding that Scott was not prejudiced by his counsel’s failure
to submit this additional evidence. We express no opinion as
to whether counsel’s performance at sentencing was deficient.
I. Facts
Scott does not challenge the sufficiency of the evidence to
support his conviction; he challenges only his sentence on the
ground of ineffective assistance of counsel. Accordingly, we
rely on the facts found in the Arizona Supreme Court’s opin-
8530 SCOTT v. RYAN
ion. State v. Scott, 865 P.2d 792, 795-96 (Ariz. 1993). We
recite the facts only as necessary to explain our decision.
This case stems from the premeditated murder of a four-
year-old named Christopher Milke. Christopher’s mother,
Debra Milke, her roommate James Styers, and Styers’s friend,
Roger Scott, were each tried separately for first-degree mur-
der, conspiracy to commit murder, and kidnapping.
Scott gave a full confession to the police of his own role in
the planning and execution of the kidnapping and murder. He
confessed he drove with Styers and Christopher out into the
desert, where Styers shot Christopher. He led the police to
Christopher’s body, the firearm used to kill Christopher
(which was in Scott’s closet), and a pair of bloody shoes worn
by Styers when he shot Christopher.
After a jury trial, Scott was found guilty of first-degree
murder, conspiracy to commit murder, and kidnapping. At the
sentencing hearing, Scott’s attorney, Roland Steinle, did not
present any evidence about head injuries Scott had suffered
prior to the crime. Scott received the death penalty. Scott’s
conviction and sentence were affirmed on direct appeal to the
Arizona Supreme Court. State v. Scott, 865 P.2d at 806.
Scott’s petition for post-conviction relief was then denied, as
was his petition for review by the Arizona Supreme Court
Scott then filed a petition for writ of habeas corpus in fed-
eral court. The district court dismissed a number of claims as
procedurally barred and dismissed Scott’s remaining ineffec-
tive assistance of counsel claims on the merits.
We reversed and remanded to the district court for it to
hold an evidentiary hearing and to rule on the merits of
Scott’s habeas petition.
At the federal evidentiary hearing, Scott presented new evi-
dence concerning his brain damage and contended his counsel
SCOTT v. RYAN 8531
was ineffective for not presenting it earlier. Among this evi-
dence were the reports and testimony from neurologist
Thomas Hyde and neuropsychologist Tora Brawley, both of
whom were defense witnesses.
Dr. Hyde found that Scott “has multiple neurological defi-
cits that within a reasonable degree of medical certainty”
existed at the time of the crime in 1989. In particular, Hyde
found evidence of (1) frontal lobe dysfunction; (2) chronic
cerebellum damage, most likely secondary to alcohol abuse;
and (3) a history of seizures consistent with brain dysfunction
either from closed head injury, chronic alcohol abuse, or both.
In addition to his examination of Scott, Dr. Hyde reviewed
medical records that preexisted the crime in this case and that
could have been easily obtained by Scott’s trial counsel,
Roland Steinle, had he attempted to do so.
Among these records were reports of two CT scans per-
formed on Scott in 1987 and 1988. Both of these CT scans
revealed atrophy of Scott’s brain that was unusual for a per-
son his age. Scott had told Steinle that he had suffered “brain
shrinkage” as a result of numerous head injuries, including a
bicycle accident in the seventh grade with a car, two motorcy-
cle accidents, and a car accident—all of which rendered Scott
unconscious.
Dr. Hyde opined that Scott’s neurological deficits would
have had a significant impact on his behavior. He observed
that, “[p]articularly the cognitive deficits, the frontal lobe dys-
function would affect his judgment, reasoning, problem solv-
ing, behavior under stress, his decision making.”
Dr. Brawley and a forensic psychiatrist working at his
direction concluded Scott has an IQ of 88, which falls in the
low-average range. The testing also revealed deficits in
Scott’s executive decision making and frontal lobe function-
ing. Dr. Brawley observed, “[p]atients with frontal lobe dys-
function often exhibit poor judgment, difficult problem
8532 SCOTT v. RYAN
solving due to an inability to explore options (decreased cog-
nitive flexibility), poor sequencing ability, and problems fully
comprehending consequences of behavior.”
The state’s experts—Dr. Harry Tamm, a neurologist, and
Dr. James Seward, a neuropsychologist—did not dispute the
findings of Drs. Hyde and Brawley as to Scott’s current con-
dition. They disagreed with the defense experts as to whether
the neurological and neuropsychological deficits from which
Scott suffers were present in 1989 when he committed the
crimes.
Following post-hearing briefing, the district court issued an
order denying Scott all relief, holding that Steinle’s failure to
investigate the evidence of Scott’s brain injuries was not inef-
fective assistance of counsel, and that even if it was, Scott
was not prejudiced by it. Scott v. Ryan, No. CV-97-1554-
PHX-PGR, 2011 WL 240746, at *24-25 (D. Ariz. Jan. 24,
2011).
II. Standard of Review
Where, as here, there is no state court decision on the mer-
its, the district court reviews the merits de novo. See Pirtle v.
Morgan, 313 F.3d 1160, 1167-68 & n.4 (9th Cir. 2002); Cone
v. Bell, 556 U.S. 449, 466-67, 472 (2009). Here, Pirtle applies
because, although the claims were presented to the state post-
conviction court, that court dismissed the claims on purely
procedural grounds. We held that dismissal was erroneous.
Scott v. Schriro, 567 F.3d 573, 581 (9th Cir. 2009) (per
curiam).
In reviewing an ineffective assistance of counsel claim, the
district court is bound by Strickland v. Washington, 466 U.S.
668 (1984). Under Strickland, counsel is ineffective if: (1)
“representation fell below an objective standard of reason-
ableness” and (2) “there is a reasonable probability that, but
SCOTT v. RYAN 8533
for counsel’s unprofessional errors, the result of the proceed-
ing would have been different.” Id. at 688, 694.
In an appeal of a death sentence, “we must [assess preju-
dice by] compar[ing] the evidence that actually was presented
to the [court] with the evidence that might have been pre-
sented had counsel acted differently,” Lambright v. Schriro,
490 F.3d 1103, 1121 (9th Cir. 2007) (per curiam) (internal
quotation marks omitted), and determine whether “absent the
errors, the sentencer . . . would have concluded that the bal-
ance of aggravating and mitigating circumstances did not war-
rant death.” Strickland, 466 U.S. at 695.
We in turn review the district court’s legal holdings de
novo and its factual findings for abuse of discretion to see if
those findings are “illogical, implausible, or without support
in inferences that may be drawn from the facts in the record.”
United States v. Hinkson, 585 F.3d 1247, 1263 (9th Cir. 2009)
(en banc), cert. denied, 131 S. Ct. 2096 (2011).
III. Scott Was Not Prejudiced by Steinle’s Failure to
Present Further Mitigating Evidence.
[1] At trial, Steinle’s theory of defense was that Scott was
an unwitting “dupe” with a personality disorder that made
him easily manipulated by Styers and Debra Milke. Because
the evidence provided through Scott’s confession demon-
strated he did not act in an impulsive way and that in fact he
helped carefully to plan the murder, evidence of a brain injury
would not have helped his defense. We find that Scott was not
prejudiced by Steinle’s decision not to investigate Scott’s
head injuries further and need not decide in this case whether
that decision constituted deficient performance.
On remand, the district court allowed Scott to present the
new evidence of his head injuries that he wants to present to
the state court in a new sentencing hearing. After considering
this evidence, the district court held:
8534 SCOTT v. RYAN
Based on its review of this information, considered
in the light of the new evidence concerning Petition-
er’s current neurological status, the Court concludes
that Petitioner has not met his burden of proving that
he was prejudiced by Steinle’s performance at sen-
tencing . . . . Assuming evidence existed at the time
to support a finding that Petitioner suffered from
[cognitive] defects, Petitioner has not established
that a mitigation case based on that evidence would
have been more persuasive than the theory Steinle
did present at sentencing.
Scott v. Ryan, 2011 WL 240746, at *25.
[2] The record supports the district court’s finding that
Scott was not prejudiced by Steinle’s failure to investigate his
head injuries further. Scott’s confession revealed he was an
active participant in the planning, preparation, execution, and
cover-up of the crime, and that he was able to appreciate the
wrongful nature of his crime.
Scott gave a taped interview to Detective Mills, detailing
the events leading up to, resulting in, and attempting to cover
up the murder of Christopher. Detective Mills started the
interview by asking Scott if Detective Saldate had informed
him of his Miranda rights. Detective Mills then proceeded to
reiterate the Miranda warnings. Scott admitted he came to the
police station voluntarily and he had been treated pretty well,
without any physical abuse or force.
Scott explained that he, Jim Styers, and Debra Milke all
discussed murdering Debra’s four-year-old son, Christopher.
Scott was promised $250 by Styers, which was to come from
a life insurance policy Debra had on Christopher through her
work. Scott stated that at first Styers and Debra Milke offered
to pay him $150, and then the price went up to $250. The sen-
tencing judge was entitled to infer from this evidence that
Scott bargained for the increase in payment.
SCOTT v. RYAN 8535
Even more telling of Scott’s active participation in the mur-
der is the fact that on a prior attempt to kill Christopher, Scott
had decided the location “wasn’t good” and had Styers abort
the plan. This evidence shows that, despite his neurological
deficits, Scott understood that they were planning a crime,
and he took steps to assure they would not get caught.
On the day of the murder, Scott was aware beforehand that
he would aid Styers in killing Christopher. Styers, with Chris-
topher in the car, picked up Scott. After getting food, Styers
drove as far as Sun City before Scott took over driving. Once
near 99th Avenue the three got out of the car. Styers enticed
Christopher into the desert with his binoculars and the sugges-
tion they look for snakes, while Scott drove on. When Scott
was North of the wash he heard three evenly separated gun
shots. From there, he turned the car around, picked up Styers
and drove toward the Metrocenter Mall as they had planned.
Between 99th Avenue and 83rd Avenue, Styers threw gun
casings out of the passenger-side window.
Upon arriving at the Mall, Scott and Styers split up. They
then pretended to meet for the first time that day when Styers
brought a Sears’ employee to Scott. Styers had told the
employee that Christopher had gone missing at Sears, and she
was helping to look for him. Scott then said he had arrived at
the mall with his friend “Phil,” who did not exist. Also while
at the Mall, Scott disposed of Styers’s blood-stained shoes
between some bushes north of Sears. The gun Styers had
given him remained with Scott on his bus ride back home and
was in Scott’s closet at the time of the interview.
[3] The new evidence that Scott had brain damage does not
explain his actions in this case and is insufficient to overcome
their egregious nature: helping plan the murder; recommend-
ing that there was too much traffic in one place to commit the
murder and that they should relocate to a more remote area;
negotiating over his fee for participating in the murder; and
attempting to cover up the murder by hiding Styers’s shoes
8536 SCOTT v. RYAN
and the murder weapon and by going along with Styers’s
story that Christopher had disappeared at the mall. We cannot
say that Scott was prejudiced by Steinle’s tactical decision.
Even considering the totality of mitigation evidence that
Scott introduced at the district court on remand—evidence of
his head injuries, brain shrinkage, and seizures; evidence that
the State once offered him a plea bargain to testify against
Styers and Debra Milke; and evidence that the victim’s father,
Mark Milke, thought the trial court should show Scott
leniency—we cannot say it would have made any difference
in the outcome. Accordingly, Scott was not prejudiced by
Steinle’s failure to present it at sentencing.
Finally, we decline to expand the certificate of appeala-
bility. It is clear from the record that Scott’s counsel did not
render ineffective assistance of counsel in his challenge to
Scott’s confession for all the reasons aptly stated in the dis-
trict court’s opinion. Scott v. Ryan, 2011 WL 240746, at *4.
The district court’s order denying Scott’s petition for writ
of habeas corpus is therefore affirmed.1
AFFIRMED.
1
Scott’s motion for a remand pursuant to Martinez v. Ryan, 132 S. Ct.
1309 (2012), is denied. Scott was already given a remand by our first
opinion and on remand he had an opportunity to present all the new evi-
dence he thought relevant to the district court, although none had been
presented to the state post-conviction court. The State’s motion to strike
Scott’s motion for a remand is denied as moot.