Anthony Lee CHANEY, Petitioner-Appellant, v. Terry STEWART, Director, Arizona Department of Corrections, Respondent-Appellee , 156 F.3d 921 ( 1998 )

Opinion by Judge HAWKINS; Partial Concurrence and Partial Dissent by Judge REINHARDT.

MICHAEL DALY HAWKINS, Circuit Judge:

Arizona state prisoner Anthony Lee Chaney (“Chaney”) appeals the denial of his ha-beas corpus petition seeking review of his 1983 conviction and death sentence. Chaney’s petition raises some twenty claims, the bulk of which we affirm for the reasons set forth in the order and memorandum of the district court.¹ We focus on the constitutional parameters of a state’s duty to provide psychiatric testing and expert assistance when a criminal defendant raises mental defect as a defense or mitigating factor.

Facts

Chaney and a companion, Deanna Jo Saunders-Coleman (“Coleman”), having stolen a truck in New Mexico and several guns in Texas, were hiding out in a wooded area outside Flagstaff, Arizona. Their vehicle was approached by Deputy Coconino County Sheriff Robert Cline (“Deputy Cline”). As he walked up to the pair, Deputy Cline radioed in his location and the license number of the Chaney vehicle. When Deputy Cline asked Chaney for identification, Chaney produced an handgun from inside the cab of the pickup and pointed it in Deputy Cline’s face. Chaney had Coleman remove the deputy’s service revolver and then ordered him to the ground. As Deputy Cline begged for his life, Chaney lashed him to a nearby tree with the deputy’s own handcuffs, telling him in substance: “I don’t need a murder-one rap on top of all my other trouble.”

Deputy Cline’s radio call produced information that the vehicle was stolen. When the dispatcher tried to reach Deputy Cline over the radio, Chaney heard it and told Coleman to turn it off. When she was unable to do so, the pair jumped in the stolen truck and sped off. In the meantime, John Jamison (“Deputy Jamison”), a local physician who volunteered his time as a Reserve Deputy and who was on duty as Deputy Cline’s backup that day, heard the radio traffic and headed for the scene.

As Chaney and Coleman drove away from the scene, they saw Jamison’s vehicle approaching. Jamison reported over his radio that he had the stolen truck in sight. Chaney stopped the truck and, as Deputy Jami-son pulled up behind, grabbed an AR-15 assault rifle he was carrying and jumped out of the truck. He began repeatedly firing the rifle as he approached the patrol car. Deputy Jamison’s last words over his radio were: “Goddamn, someone help, please.”

Shell casings found at the scene showed that Chaney fired at least thirty rounds, at least eighteen of which struck Jamison’s patrol vehicle. Expert medical testimony showed that Deputy Jamison suffered three gunshot wounds inflicted from behind. Powder burns and metal fragments in Deputy Jamison’s clothing showed these last rounds were fired at point-blank range. As he climbed back in the truck, Chaney told Coleman: “Oh God, murder one.” The pair sped off, Coleman reloading the AR-15 and Chaney saying: “I just don’t want to go back to jail.”

Deputy Jamison, his left arm nearly detached, somehow managed to drive a short distance. Fellow deputies reached him just as he was dying. As a trained physician, Deputy Jamison knew his condition and told his mates he knew he was dying. Deputy Jamison survived for about forty minutes and died while being put in an emergency vehicle.

After commandeering another truck from a pair of teenage boys at gunpoint, Chaney and Coleman were arrested without incident at a Flagstaff area gas station. Coleman, who eventually cooperated with authorities and testified against Chaney at trial, is serving a twenty-one year prison sentence for her involvement in these events.

State Proceedings

Chaney went to trial in early 1983 on charges of first-degree murder, kidnapping, aggravated assault, armed robbery, burglary, and theft. Because Chaney gave notice of a defense of lack of mental capacity, he was examined by Drs. Gerstenberger and Nolte, two court-appointed psychiatric experts who found him competent to stand trial. Chaney’s court-appointed trial counsel agreed, after reading the Gerstenberger and Nolte reports, that Chaney was legally sane at the time of the offense.

Approximately three weeks before trial, Chaney’s trial counsel saw a television report concerning new research on a “rare and little-understood” condition, temporal lobe dysfunction/epilepsy. Sensing this might have some application to Chaney’s case, counsel contacted Dr. Frank Ervin, a professor of psychiatry affiliated with the Center for Behavioral Neurology in Boston. Chaney’s counsel then moved for the appointment of Dr. Ervin as a defense expert and for authorization to perform three additional tests on Chaney: an electroencephalogram (“EEG”), a CT scan, and a pneumoencephalogram (“PEG”). At the same time, Chaney’s counsel sent a letter to Dr. Gerstenberger, seeking his opinion whether the additional tests were necessary. Dr. Gerstenberger re-examined Chaney, considered additional information supplied by his counsel, and ultimately concluded there was no substantiation that Chaney suffered from the temporal lobe condition.

Following a hearing at which Drs. Gersten-berger and Nolte were questioned at length and opined that there was very little likelihood that Chaney suffered from the temporal lobe condition, the state trial court denied the request for additional testing and appointment of Dr. Ervin as a defense expert. When trial commenced some eight days after this hearing, Chaney’s trial counsel announced that he had brought in Dr. Ervin and a second expert, Dr. Leo Alexander, at his own expense. Drs. Ervin and Alexander were permitted to examine Chaney, to review all available medical records, medical and expert reports, and test results, and to testify at Chaney’s trial.

Prior to trial, two of the three requested additional tests—the CT scan and the EEG—were performed on Chaney at the Barrow Neurological Center under the supervision of Drs. Goldensohn and White, two experts hired by the State as possible rebuttal witnesses. Records of these tests, as well as the Goldensohn-White reports, were among the materials considered by Drs. Er-vin and Alexander in their evaluations of Chaney.

At trial, the defense called Drs. Ervin and Alexander and the two court-appointed competency experts, Drs. Nolte and Gerstenber-ger. Both court-appointed experts testified that there was no evidence of organic brain disease, including temporal lobe disorder, and that further testing of Chaney was not likely to be productive. Coleman, who had lived with Chaney for some time, was asked about observable behavior traits normally associated with temporal lobe disorder. She testified she had observed none of them. Coleman also testified that she believed Chaney knew exactly what he was doing at the time of the killing—a fact Dr. Goldensohn found particularly important. Dr. Golden-sohn, a nationally-known psychiatrist, opined it was “inconceivable” that Chaney was suffering from temporal lobe disorder at the time of the shooting of Deputy Jamison. Dr. White testified to the same effect. Dr. Ervin testified he was “65% certain” that Chaney did have the neurological disorder but could not be certain without further testing. Dr. Ervin conceded on cross-examination that these tests were “clumsy” diagnostic tools at best. Dr. Alexander testified, without qualification, that Chaney suffered from temporal lobe disorder at the time of the shooting.

The trial jury found Chaney guilty, and a sentencing proceeding was scheduled. Chaney’s trial counsel renewed the request that the court appoint Dr. Ervin as a defense expert, this time to assist in the sentencing phase. The state trial court refused the request but agreed to consider the trial testimony of both Drs. Ervin and Alexander as a potentially mitigating factor. The trial court ultimately concluded that Chaney did not qualify for application of the mitigating factor mental defect not constituting a defense to the crime.² Chaney was thereafter sentenced to death.

Was Chaney deprived of his constitutional rights in the denial of request for expert psychiatric-neurological assistance at trial?

We conclude that any error resulting from the state trial court’s denial of Chaney’s request for the appointment of a psychiatric or neurological expert at trial is subject to harmless error analysis and, under that standard, any constitutional error did not have a “substantial and injurious effect or influence in determining the jury’s verdict” in the guilt phase of Chaney’s trial. See Brecht v. Abrahamson, 507 U.S. 619, 638, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). The experts Chaney sought to have appointed actually testified at trial. Further, both Drs. Ervin and Alexander were given access to a battery of test results (including at least two tests the defense had earlier requested) bearing upon Chaney’s mental and physical condition. The jury heard from a total of five experts, including two neurologists and three psychiatrists. They also heard from Chaney’s girlfriend as to his appearance and demeanor at the time of the murder of Deputy Jamison. Given this extensive testing, and Dr. Ervin’s admission that the only tests that were not conducted were clumsy, we cannot say that Chaney was prejudiced without them.

Bid Chaney suffer a due process violation when denied expert psychiatric-neurological assistance at sentencing?

A more troubling question is presented by the state trial court’s refusal to appoint a defense-requested expert for the sentencing phase of Chaney’s trial. The initial request was very close in time to the start of trial, and the state court was concerned with the safety implications involved in allowing the testing. Whether or not those concerns continued, Chaney still must establish that his constitutional rights were violated. Chaney presents two arguments to establish that they were. First, he relies on the Supreme Court’s decision in Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). Ake held that a state must provide indigent criminal defendants with expert psychiatric assistance if the defendant’s mental condition is a significant factor at trial to satisfy Fourteenth Amendment due process requirements. See id. at 83, 105 S.Ct. 1087. But Ake was not the law when Chaney was convicted and as such is a “new rule” that cannot be applied on collateral review under Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989).³ While Teague does recognize certain exceptions, none apply here.

Second, Chaney argues that Arizona has created a liberty interest in the provision of state-paid psychiatric assistance to indigent criminal defendants in the sentencing phase. Ariz.Rev.Stat. 13-4013(B) provides:

When a person is charged with a capital offense the court ... shall upon application of the defendant and a showing that the defendant is financially unable to pay for such services, appoint such ... expert witnesses as are reasonably necessary adequately to present his defense at trial and at any subsequent proceeding.

Chaney argues that the word “shall” creates a due process liberty interest in the experts he sought for the sentencing phase of his murder trial. A “negative implication from mandatory language” in a statute does not necessarily create a protected interest. Sandin v. Conner, 515 U.S. 472, 483-84, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995) (disapproving of Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983)). State law may create a liberty interest when it protects an individual against arbitrary action of government. See Wolff v. McDonnell, 418 U.S. 539, 558, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974); Picray v. Sealock, 138 F.3d 767, 770 (9th Cir.1998). Procedural requirements do not create a liberty interest unless they cause a “significant substantive reduction” in decision-making, see Goodisman v. Lytle, 724 F.2d 818, 820 (9th Cir.1984), or create an imperative that mandates action unless certain clearly-defined exceptions are found to apply, see Baumann v. Arizona Dep’t of Corrections, 754 F.2d 841, 844 (9th Cir.1985) (noting that the Ninth Circuit endorses a restrictive interpretation of Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979)).

Chaney argues that the appointment of experts in capital cases is mandatory in Arizona, citing Arizona v. Tison, 129 Ariz. 526, 633 P.2d 335 (1981), cert. denied, 459 U.S. 882, 103 S.Ct. 180, 74 L.Ed.2d 147 (1982). Tison upheld the denial of a defense request for the appointment of an expert to conduct a public opinion survey to assist in jury selection in a highly publicized criminal trial, but noted that “constitutional considerations” might mandate the appointment of an expert whose findings might have some bearing on the ultimate question of guilt or innocence. See id. at 342.

Arizona cases discussing the meaning of Section 13-4013(B), however, do not suggest that appointment and expenditure is mandatory. See, e.g., Arizona v. Clabourne, 142 Ariz. 335, 690 P.2d 54, 61 (1984); Arizona v. Gretzler, 126 Ariz. 60, 612 P.2d 1023, 1053 (1980). To the contrary, they hold the trial court has broad discretion to determine whether reasonable necessity has been demonstrated. See Arizona v. Williams, 183 Ariz. 368, 904 P.2d 437, 450 (1995) (abuse of discretion only if denial of appointment substantially prejudiced the defendant); Clabourne, 690 P.2d at 61 (same).

We do not have this case on direct review to determine whether the trial court should have appointed the defense-requested experts during either the guilt or sentencing phases. Even if there were error in the guilt phase, it was harmless as Chaney was able to call the requested experts. The failure to appoint at the sentencing phase is, to be sure, more problematic — but to prevail on his habeas petition, Chaney must show that he had a liberty interest in the appointment of the sought experts. That, in turn, requires a showing that the discretion of Arizona courts to appoint such experts is significantly reduced in a substantive manner or eliminated if certain exceptions do not apply.⁴

Appellant’s Motion to Stay Proceedings is denied as moot.

AFFIRMED.

1 . Chaney raised the following errors in his petition: (1) improper restriction on scope of voir dire concerning jurors' views on the insanity defense and neurological illnesses; (2) violation of right to remain silent; (3) undue restriction on scope of cross-examination of particular witness; (4) state failure to collect and preserve exculpatory evidence; (5) improper admission of tape recordings into evidence; (6) unconstitutional restriction on types of juror misconduct on which to base a motion for new trial; (7) trial court’s refusal to consider non-statutoiy mitigating evidence; (8) trial court’s improper consideration of presentence report at sentencing; (9) improper failure to consider and weigh mitigating evidence; (10) improper restriction on admissible mitigating evidence; (11) erroneous conclusion that Chaney’s mental state was not mitigating factor; (12) improper election to sentence Chaney for first-degree premeditated murder; (13) ineffective assistance of counsel; (14) denial of assistance of counsel; (15) trial court’s concealment that state agent had breached attorney-client confidentiality; (16) trial court’s ex parte communication with material witness; and (17) judicial misconduct when trial judge failed to recuse himself.

2 . Arizona's death penalty statute contains a non-exhaustive list of potential mitigating factors, including: "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.” Ariz.Rev. Slat. 13-703(G)(1).

3 . Chaney's conviction was final for Teague purposes in July 1984 when the Arizona Supreme Court affirmed his conviction and death sentence. See Snook v. Wood, 89 F.3d 605, 612 (9th Cir.1996).

4 . See Williams, 904 P.2d at 450 ("[T]he trial court should exercise its discretion in favor of an examination when it finds that it needs more information to determine whether a mitigating factor might exist.... However, the rule is discretionary...."); Clabourne, 690 P.2d at 61 ("Whether additional experts are reasonably necessary is a decision within the sound discretion of the trial court.”); Arizona v. Greenawalt, 128 Ariz. 150, 624 P.2d 828, 833-34 (1981) ("The determination of what expenditures are reasonably necessary to enable the defendant to present an adequate defense is within the sound discretion of the trial court."); Gretzler, 612 P.2d at 1053 (“[The statute] is not to be construed as mandating, in every case, an appointment of investigators or experts, nor the expenditure of public money for their use, merely upon application .... This determination ... rests in the sound discretion of the trial court.”) (internal quotations omitted). These cases, not a concession made in a separate case, control the interpretation of the statute at issue.