Libberton v. Ryan

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LAURENCE K. LIBBERTON, 
Petitioner-Appellant,
No. 07-99024
v.
CHARLES L. RYAN, interim Director  D.C. No.
CV-97-01881-EHC
of the Arizona Department of
OPINION
Corrections,
Respondent-Appellee.

Appeal from the United States District Court
for the District of Arizona
Earl H. Carroll, District Judge, Presiding
Argued and Submitted
June 3, 2009—Pasadena, California
Filed October 2, 2009
Before: William A. Fletcher, Richard R. Clifton and
Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge William A. Fletcher
14161
LIBBERTON v. RYAN 14167
COUNSEL
Jose A. Cardenas, LEWIS & ROCA, Phoenix, Arizona,
Denise Irene Young, Tucson, Arizona, for the petitioner-
appellant.
Robert J. Gorman, Jr., Kent E. Cattani, OFFICE OF THE
ARIZONA ATTORNEY GENERAL, Tucson, Arizona, for
the respondent-appellee.
14168 LIBBERTON v. RYAN
OPINION
W. FLETCHER, Circuit Judge:
Laurence Libberton, Steven James, and Martin Norton
were convicted in separate proceedings in Arizona state court
for crimes connected to the murder of Juan Maya. The prose-
cution theory at trial was that Libberton, along with James
and Norton, severely beat Maya, drove him to an isolated
area, killed him, and threw his body down a mine shaft. The
prosecution contended that Libberton and James were essen-
tially equal participants in the murder. The prosecution con-
tended that Libberton, who had recently walked away from a
work furlough program, participated in the killing because he
wanted to use Maya’s car to flee the jurisdiction. The jury
returned a verdict of guilty for first degree murder, robbery,
theft, and kidnapping. The judge sentenced Libberton to
death.
James was convicted of first degree murder and sentenced
to death in a separate trial. Norton, a minor, pleaded guilty in
juvenile court to participating in the murder and was sen-
tenced to three years in prison. In accordance with his plea
agreement, Norton testified at Libberton’s trial. Norton
described Libberton as a central and willing participant in
Maya’s murder.
The federal district court denied Libberton’s petition for a
writ of habeas corpus. Libberton appeals five holdings by the
district court. Two of those holdings were not certified as
appealable issues by the district court, but we certified them
before holding oral argument.
One of Libberton’s arguments concerns whether his current
federal petition for habeas corpus is governed by the Anti-
Terrorism and Effective Death Penalty Act (“AEDPA”).
Because our holding on this issue affects our holdings on the
others, we address it first.
LIBBERTON v. RYAN 14169
The four remaining issues are as follows. First, Libberton
claims that Norton entered into a deal with prosecutors that
affected his testimony at trial. Libberton contends that the
state failed to disclose this deal, in violation of Brady v.
Maryland, 373 U.S. 83 (1963), and Giglio v. United States,
405 U.S. 150 (1972). Second, Libberton claims that prosecu-
tors failed to correct Norton’s false testimony that he had not
been given the aforementioned deal, in violation of Napue v.
Illinois, 360 U.S. 264 (1959). Third, Libberton claims that the
state courts applied an unconstitutional sentencing factor, in
violation of Tennard v. Dretke, 542 U.S. 274 (2004). Fourth,
Libberton claims that his counsel was unconstitutionally inef-
fective in connection with his sentencing, in violation of
Strickland v. Washington, 466 U.S. 668 (1984).
For the reasons that follow, we hold that AEDPA governs
Libberton’s habeas petition. We affirm the district court’s
denial of habeas on Libberton’s first three claims, as num-
bered above. We reverse on his fourth claim. The result is that
we deny Libberton’s petition for a writ of habeas corpus with
respect to the guilt phase of his trial, but grant with respect to
the sentencing phase.
I. Background
A. The Investigation
On November 18, 1981, Laurence Libberton, Martin Nor-
ton, Steven James, and Daniel McIntosh were taken into cus-
tody on suspicion of forgery. Libberton had used
identification belonging to Juan Maya while attempting to
cash a check at a bank. He was apprehended as he was leav-
ing the bank. The others were apprehended while waiting out-
side in Maya’s car. Libberton was booked into county jail on
suspicion of forgery. Norton, James, and McIntosh were
released. After Maya’s father informed police that his son was
missing, police located and interviewed Norton and James.
14170 LIBBERTON v. RYAN
During his first interview with police investigators, Norton
told police Detective Russell Davis different versions of what
had happened on the night of November 16, two days earlier.
Norton initially said that he had been hitchhiking that evening
and had been picked up by Maya. He reported that he had got-
ten into Maya’s car, and Maya had made “sexual advances at
him by trying to kiss him and put his hands in his pants.” Nor-
ton claimed that he responded by punching Maya, getting out
of the car, and fleeing. Norton went to Steven James’s trailer
where he had been living, but Maya followed him in the car.
According to this version of his story, Norton was able to
evade Maya before reaching the trailer. Norton said that he
never saw Maya again.
However, as the interview continued, Norton changed his
story. Norton now said that Maya came to James’s trailer, and
that he saw James and Libberton beat Maya. In this version
of his story, Norton claimed that after severely beating Maya,
James and Libberton put Maya in the back seat of his own
car. James and Libberton then drove away with Maya in the
car, telling Norton that they would be back “in a little while”
and that he should clean up the trailer while they were gone.
When Libberton and James returned hours later, they told
Norton “not to tell a soul about this, or [Norton] would die the
same way [Maya] did.”
Police then interviewed James. James said that Norton
came running up to the door of James’s trailer on the evening
of November 16 and told James that someone, who turned out
to be Maya, was “following him and was trying to rape him.”
James said that he and Norton left the trailer in search of
Maya. They saw him “running down the drive further into the
park.” They chased him, caught him, and brought him back
to the trailer. James said that Norton slapped Maya, and tried
to get him to reveal “where his money was at.” James said
that Norton and Libberton then took Maya out to his car and
put him inside. At that point in the interview, James requested
a lawyer.
LIBBERTON v. RYAN 14171
Shortly thereafter, James voluntarily offered to show inves-
tigators Maya’s body. Police drove with James to his parents’
property southwest of Salome, Arizona. James directed police
to a mine shaft on the property in which they could see
Maya’s body.
Norton was interviewed again on November 26, this time
by Detective Jack Hackworth. Norton had now been charged
with forgery and murder. Norton once again stated that he
was hitchhiking on the evening of November 16 and that
Maya picked him up. Norton said that Maya’s car had electric
locks and that Maya locked the doors once Norton was inside
the car. He said that “he became frightened” after Maya made
sexual advances toward him, and that he told Maya that if he
went with him to a friend’s trailer, Norton “had a friend that
was also queer there and they could make out.” Norton said
that Maya agreed. After reaching the trailer, however, Norton
said that he told James and Libberton that Maya was “a
queer,” and that James and Libberton assaulted him, making
him bleed profusely. James took Maya’s wallet and threw it
to Norton. James pulled out a rusty pistol and pointed it at
Maya, and James and Libberton then dragged Maya outside
to his car. In this version of his story, Norton said that he got
into the car with the others. Norton said that James drove
while Libberton sat in the back seat pointing a gun at Maya.
Norton said that during the drive, James stopped at a gas
station where he purchased a carton of cigarettes and filled
Maya’s car with gas. James used Maya’s credit card and
forged Maya’s name on the receipt. James said during the ride
that they were going to shoot Maya and throw him down a
mine. According to Norton, Maya could hear what Libberton
and James were saying. Norton said that he pleaded with the
other two men not to kill Maya, but that Libberton responded:
“No, if we don’t kill him, he will snitch us off.”
Norton said that once they reached the mine, James pointed
the gun at Maya and walked him up to the opening to the
14172 LIBBERTON v. RYAN
mine shaft. James then shot Maya in the left forearm and
handed the gun to Norton. Norton said that he then passed the
gun on to Libberton, who shot Maya in the head. Maya
appeared to be breathing, so James shot him again. He still
appeared to be alive, so James hit him with a large rock. Lib-
berton did the same. Both James and Libberton then told Nor-
ton to hit Maya with a rock. Norton said that he threw a rock
toward Maya, but missed. James then said, “You either help
kill him or we’ll kill you.” Norton said that he then hit Maya
in the back with a rock.
Norton said that James and Libberton dragged Maya by his
belt up to the mine shaft and threw him in. The three men then
returned to Maya’s car and drove back to Phoenix. Norton
said, “It was pretty quiet [in the car]. Nobody said much other
than both [Libberton] and [James] told me if I told anyone, I
would be in the shaft with him.”
After Norton gave this statement, the Juvenile Division of
the Maricopa Country Superior Court appointed attorney
Robert A. Wertsching to represent him. Norton was fourteen
years old at the time of the crime. During Libberton’s state
post-conviction proceedings in 1994, Libberton submitted an
affidavit signed by Wertsching in which Wertsching stated
that soon after his appointment he had at least two conversa-
tions with the head prosecutor of the juvenile division, during
which they discussed whether the County Attorney would
agree to try Norton as a minor rather than as an adult. Accord-
ing to Wertsching, the prosecutor indicated orally that “if Mr.
Norton would give a full and accurate statement to the County
Attorney and would testify consistently with that statement at
the trials of the adults who participated in the homicide
offense, the County Attorney would not seek to have [Norton]
transferred to adult court.” Norton subsequently met with
Myrna Parker, a Deputy County Attorney, who conducted her
own interview of Norton. Parker was later the lead prosecutor
in Libberton’s criminal trial.
LIBBERTON v. RYAN 14173
Norton’s statement to Parker was more detailed than his
previous statements to the police. Although the broad outline
of his story remained the same, some of the details were
inconsistent with those in the previous statements. Based on
Wertsching’s affidavit, Libberton contends that Norton made
a deal with prosecutors that he would be tried as a juvenile;
that he made this deal after providing his statements to police
but before providing his statement to Parker; and that this deal
was not disclosed to Libberton before his trial. Because Lib-
berton contends that prosecutors violated Giglio in failing to
disclose the deal, and Napue in failing to correct Norton’s
false testimony that there had been no such deal, it is impor-
tant to compare the statements Norton gave before and after
the alleged deal. We therefore recount his statement to Parker
in detail.
Before beginning the substance of the tape-recorded inter-
view, Parker stated that at that time there was no deal between
Norton and the prosecutors:
The end result of this interview with you is that we
are going to attempt to set up an agreement between
you, your attorney and the county attorney’s office
regarding the charges that are now pending against
you in the death of Juan Maya. None of that has been
put down in writing at this time, and in fact we
haven’t even explored what those possibilities may
be. It will all depend upon your truthfulness during
this interview today.
Wertsching’s statements in his post-trial affidavit regarding
the existence of an agreement contradict this statement by
Parker.
Norton began the interview by explaining that he had
known James for only about a week before Maya was killed,
but that he had effectively moved into his trailer. He
described James as heavy, with a lot of tattoos, and as “real
14174 LIBBERTON v. RYAN
mean.” James claimed that he had killed a number of people
and that he had family in the mafia. James was a heavy drug
user. Norton described Libberton as having a “bad attitude,”
though Norton said he “kind of liked me.” Norton knew that
James had a .44 magnum handgun that he kept under a chair
in his living room. James had acquired the gun from a friend
“because his wife had been kidnapped from what I hear and
he wanted [it] for protection.” Norton was unaware of any
weapons owned by Libberton.
Norton said that earlier on the night of the crime, he had
been at James’s trailer with James, Norton’s friend “Ralph,”
Daniel McIntosh, and Libberton. They smoked pot and drank
alcohol. At approximately 10:30 pm, Ralph and Norton left
the trailer to get dinner. They intended to “dine and dash,”
meaning to eat at a restaurant and leave without paying, but
the restaurant management called the police before they could
leave. The police took Ralph and Norton to their respective
homes. Norton said that he stayed home for about ten min-
utes, where he “got something to drink and smoked a couple
of joints.” He left after his mother gave him a pack of ciga-
rettes.
Norton said that he then walked towards James’s trailer,
attempting to hitchhike. He was soon picked up by Maya.
Maya drove Norton toward James’s trailer, but before arriving
he stopped, turned off the motor, and moved closer to Norton.
According to Norton, Maya did not say anything to indicate
what he was doing, but directed Norton not to interfere. Maya
attempted to remove Norton’s pants, but Norton pushed him
away. According to Norton:
I couldn’t think of a way to get away from him so
I told him I said well let’s go in the trailer because
I have a friend in there who’s gay and he’ll give you
what you want and you don’t have to get me, and he
said boy I don’t know, I don’t know you very good.
LIBBERTON v. RYAN 14175
Norton led Maya into the trailer where they encountered
James and Libberton. Norton “quickly went around [James]
and [ ] said [James] get him away from me and he looked at
me and looked at him and I said he’s a queer, get him away
from me and [James] kicked him.”
Norton said that Maya then attempted to flee. James and
Libberton chased him, ultimately catching him and bringing
him back to the trailer. James, Libberton, and Norton began
to beat Maya. During a pause in the beating, James pulled out
his gun, pointed it at Maya, and told Maya to hand over his
wallet. James demanded that Maya pull down his pants so
James could see if he had anything else hidden on him. Lib-
berton, who had found the title to Maya’s car in the wallet,
walked over to Maya and demanded that he sign over the title
to Libberton. Maya did so.
James then asked what they were going to do with Maya.
Libberton suggested letting him go, but James said they could
not do that. James asked Norton what he thought, and Norton
suggested beating him up some more. James responded that
they would have to kill him. Norton said that Libberton
looked at [James] kind of funny and [James] said
[gap in the transcription] and [Libberton] said well
I think your [sic] right in a way and then [James]
said in a way, in a way what? [Libberton] said in a
way that if we’re caught we’ll be [gap in the tran-
scription] for murder. [James] said there’s no way
we’ll get caught because I know a perfect place to
put a body.
Norton said that Libberton and James then began to discuss
the plot to murder Maya. The four of them left James’s trailer
and departed in Maya’s car. James drove while Libberton sat
in the back seat with the gun pointed at Maya.
Norton said that James stopped at a gas station where he
filled the car with gas and bought a carton of cigarettes, both
14176 LIBBERTON v. RYAN
paid for with Maya’s credit card. Norton described the car as
“totally quiet all the way” out to the mine. At some point dur-
ing the trip, the car was stopped for speeding. James quickly
got out of the car and walked back to the police officer, who
apparently did not give James a ticket. The officer never came
close enough to the car to see Maya, and Libberton kept the
gun pointed at him in the car. After they began driving again,
Maya fell asleep. When they were approximately five miles
from the mine, Norton asked James not to kill Maya. James
responded that “we went this far, we’re going to go all the
way.”
Norton said that when they arrived at the mine, Libberton
opened the door of the car to let Maya out. Norton said, “I
shook [Maya’s] hand and I said [Maya], I’m sorry this has to
happen.” James stood at the top of a hill next to the mine and
told the others to come up. Libberton walked behind Maya,
holding the gun on him. James allowed Maya to finish a ciga-
rette, after which Maya began pleading for his life. James
pointed the gun at Maya and pulled the trigger. The gun
apparently misfired. Maya then jumped at James, grabbed the
gun, and pulled it toward his chest. James tried and failed to
recover his weapon, and Libberton attempted to retrieve the
gun by hitting Maya with a rock. Maya held onto the gun until
Libberton, using a board handed to him by Norton, hit him on
the back. James then grabbed the gun and tried to shoot Maya
again. It is unclear from Norton’s statement if a bullet hit
Maya, but Norton reported seeing blood on Maya’s right arm.
James then handed the gun to Norton, but Norton either did
not or could not shoot it. Norton then handed the gun to Lib-
berton. According to Norton, Maya was still breathing at this
point, but was “almost dead.”
[Maya] was just going uh uh breathing really hard
and rapidly and [Libberton] put the gun about 10
inches from his head and pulled the trigger. He
wasn’t breathing anymore. A gurgling sound started
coming out. [James] didn’t know what was going on.
LIBBERTON v. RYAN 14177
That son of a bitch ain’t dead yet. So he picked up
a real heavy rock, it was heavy because he barely put
it up and slammed it down on his head. . . . [James]
threw the rock on his head, [Libberton] picked up the
exact same rock and threw it on his head, and then
[James] pointed over to me and said it’s your turn to
throw the rock on his head.
Norton threw a different rock that hit Maya’s head. James
then walked over to Maya and determined that he was dead.
Norton said that Libberton and James dragged Maya by his
belt loops up to the mine shaft and dropped him in. The three
of them then returned to Maya’s car. James then said, “Nor-
ton, you say one word to anybody, I mean anybody, even
Ralph, I’ll kill you.” Libberton added, “[Y]ea, you’ll find
your body right next to [Maya].” They then drove back to
Phoenix. Norton said that he slept the entire way. After arriv-
ing at James’s trailer, James and Libberton went to pick up
Dan McIntosh and directed Norton to clean up the trailer.
At the end of the interview, Parker asked why Norton had
told a different story to police. Norton replied that he had
been scared because he knew that he could be charged with
murder.
At some point after his interview with Parker, Norton
signed an undated plea agreement in which he agreed to tes-
tify in any proceeding relating to Maya’s murder, and to do
so in a manner consistent with the statement he had provided
to Parker. In exchange for his testimony, the state agreed not
to prosecute Norton as an adult. Norton agreed to “admit in
Juvenile Court to the allegations of First Degree Murder, Kid-
napping, and Armed Robbery.”
B. Guilt-Phase Trial
Libberton was charged with first degree murder, aggravated
robbery, kidnapping, and theft. Trial began on June 23, 1982,
14178 LIBBERTON v. RYAN
in Maricopa County Superior Court. Libberton was repre-
sented by George Lim.
Norton testified on June 28. Parker, acting as lead prosecu-
tor, questioned him. The substance of Norton’s testimony was
largely consistent with what he had said in his interview with
Parker. We recount here only the inconsistencies:
First, Norton testified that Libberton agreed without hesita-
tion with James’s suggestion that they had to kill Maya in
order to conceal their other crimes. In his interview with Par-
ker, however, Norton had said that Libberton had suggested
that they let Maya go, and that James had then convinced him
that they should kill Maya. Lim pointed out this discrepancy
on cross-examination, and Norton responded that “[i]t was
either me or him,” and that “I can’t remember everything that
happened.” Later in his testimony, Norton stated that both he
and Libberton had suggested releasing Maya.
Second, Norton testified that while James was speaking
with the police officer who stopped the car on the way to the
mine, Libberton told Maya that if he said anything Libberton
would shoot him. Norton had not mentioned this in his inter-
view with Parker.
Third, Norton testified that once they arrived at the mine
Libberton walked up to the mine shaft first, Maya went up
behind him, and James followed Maya with the gun. In his
interview with Parker, Norton had said that James had led the
way up the hill, and that Libberton had followed Maya with
the gun. Lim pointed out this discrepancy on cross-
examination. Norton responded that his earlier statement to
Parker “might have been mistaken.”
Finally, Norton never testified that he had held James’s
gun. In his interview with Parker, he had stated he had held
the gun, but that he either did not or could not shoot it.
LIBBERTON v. RYAN 14179
Parker was at pains to emphasize during her examination
that Norton’s earlier statements had not been given in consid-
eration for a deal of any kind. Parker asked: “When you were
interviewed at Durango by Detective Hackworth, did he
promise you anything?” Norton responded: “No.” “[D]id you
know whether or not you would be treated as a juvenile or an
adult in the prosecution?” Norton responded: “No.” “Did you
indicate that you would testify against Laurence Libberton
and Steven James?” Norton responded: “No.” Parker next
asked whether Norton had been offered any deal when she
had interviewed him. Norton responded: “No.” Parker then
established that Norton had entered into a plea agreement
after his interview with her, whereby he agreed to testify
truthfully against Libberton and James, and that Norton had
then pled guilty and was sentenced in juvenile court.
Parker delivered her closing statement on June 30. She
emphasized that, other than the plea agreement, Norton had
never been offered anything in exchange for telling a particu-
lar story. Specifically, she told the jury that “at no time when
[Norton] talked to Detective Hackworth, initially, or at no
time when he talked to me, did he have anything, nothing,
except a conscience, probably at that point. That’s why he got
up there and told what happened.” Elsewhere, Parker noted
that Norton “received no deal other than he would testify
down in Juvenile Court. And when he first talked about testi-
fying, he had received nothing.”
The jury deliberated for less than a day and returned a ver-
dict of guilty on all charges.
C. Penalty-Phase Trial
A sentencing hearing was held on October 20, 1982. At that
time, Arizona law provided that the judge rather than the jury
decide whether to impose the death penalty. This procedure
was later declared unconstitutional in Ring v. Arizona, 536
14180 LIBBERTON v. RYAN
U.S. 584 (2002). However, Ring is not applied retroactively.
Schriro v. Summerlin, 542 U.S. 348 (2004).
The prosecution called two witnesses to testify at the sen-
tencing hearing. The defense also called only two witnesses.
(As we discuss below, an effective defense counsel would
have discovered and presented extensive additional evidence.)
The judge also had before him two psychological reports that
were prepared in advance of the hearing, as well as a presen-
tence report (“PSR”) prepared by the Arizona state probation
office. The judge sentenced Libberton to death on October 25,
1982.
D. Direct Appeal
Libberton appealed his conviction and sentence to the Ari-
zona Supreme Court. That Court addressed six issues: (1)
whether the verdict forms were improper; (2) whether the sen-
tencing judge’s failure to find beyond a reasonable doubt that
Libberton killed Maya was reversible error; (3) whether per-
mitting a judge to find aggravating and mitigating circum-
stances was unconstitutional; (4) whether it was
unconstitutional for the Arizona statute not to provide guide-
lines on balancing aggravating and mitigating circumstances
in capital cases; (5) whether it was fundamental error to admit
evidence of Libberton’s absence from work furlough; and (6)
whether one of the aggravating factors was properly applied
to Libberton. See Arizona v. Libberton, 685 P.2d 1284,
1286-87 (Ariz. 1984). The state Supreme Court affirmed on
each issue.
E. State Court Post-Conviction Proceedings
Libberton filed a number of state post-conviction petitions
(“PCR Petitions”). His first was filed on July 27, 1984. It
claimed ineffective assistance of trial counsel (“IAC”) “at
every critical stage of the proceeding.” This petition was sum-
marily denied on October 16, 1984. Libberton filed a second
LIBBERTON v. RYAN 14181
PCR Petition on April 26, 1985, in which he claimed IAC by
his appellate counsel. This petition was summarily denied on
March 13, 1986. In both petitions, Libberton requested an
opportunity to present evidence relating to his claims. Both
requests were denied.
In December 1986, Libberton sought habeas corpus in fed-
eral district court, asserting thirty-nine claims. Inter alia, the
petition claimed that Libberton’s trial counsel had been
unconstitutionally ineffective during both the guilt and pen-
alty phases. Libberton asked the district court for leave to
conduct discovery. Inter alia, he asked for permission to
depose McIntosh, who had been with Libberton at the time of
his arrest but had not participated in Maya’s murder. Libber-
ton noted that McIntosh’s deposition was necessary in order
to preserve his testimony because he planned to leave the state
within a few weeks. Libberton later withdrew this request
because McIntosh decided not to leave the state. Proceedings
relating to Libberton’s federal petition were stayed on June
30, 1987 to permit Libberton to exhaust some of his claims in
state court.
Libberton filed a third PCR Petition in state court on Sep-
tember 14, 1987, asserting forty-eight claims. Some of those
claims had been raised in previous PCR Petitions, but were
raised again to “avoid any argument by the state that peti-
tioner is procedurally barred from raising them in later federal
habeas corpus proceedings for failing to raise them now.” The
PCR petition further noted that “there is newly discovered
evidence relating to petitioner’s claims of ineffective assis-
tance of trial and appellate counsel.” The petition claimed that
Libberton was denied effective assistance of counsel at both
trial and sentencing. Libberton again requested funds to pur-
sue discovery, as well as an evidentiary hearing.
On February 10, 1988, the state court denied Libberton’s
third PCR Petition. The judge who ruled on the petition was
the same judge who had presided over Libberton’s trial and
14182 LIBBERTON v. RYAN
had imposed the death sentence. The court wrote, “Having
presided at the trial of this case, this court is of the opinion
that nothing defendant has raised in his current petition for
post-conviction relief would have affected the outcome of the
trial or the sentencing.” The court wrote, “[T]he defendant
received nothing but effective assistance of three very experi-
enced and qualified criminal attorneys.” The court denied
funds to pursue discovery and denied an evidentiary hearing.
Libberton returned to federal district court, filing a second
amended habeas petition on September 30, 1991. On April 8,
1992, Libberton asked the court for leave to conduct discov-
ery. Specifically, he asked for and was granted permission to
depose Lim, McIntosh, and a third man, Harry Dean. Soon
thereafter, lawyers working on James’s federal habeas petition
asserted for the first time that Norton had received an undis-
closed deal from prosecutors. James and Libberton had been
aware, at the time of their trials, of the conditions of Norton’s
plea agreement. But James’s attorneys now asserted that Nor-
ton had received an earlier, undisclosed deal, before his inter-
view with Parker, wherein he agreed to provide a statement
and then to testify in a manner consistent with that statement
in return for an agreement that he would not be tried as an
adult. James’s attorneys supported their assertion with an affi-
davit signed by Norton’s attorney, Robert Wertsching.
The district court dealing with James’s federal habeas peti-
tion concluded that
for purposes of challenging a witnesses’ credibility,
there may be a significant difference between a state-
ment given in reliance upon a negotiated deal, and an
unsolicited statement which is given and then, to
ensure the witnesses’ testimony at trial, a plea agree-
ment is negotiated. One provides incentive for a wit-
ness to testify, while the other may provide
motivation for the statement itself.
LIBBERTON v. RYAN 14183
In light of the Wertsching affidavit, the district judge dealing
with Libberton’s federal habeas petition agreed to let him
return to state court to exhaust any claims relating to the affi-
davit.
The parties in Libberton’s case stipulated to dismiss his
federal habeas petition without prejudice in order to allow
him to exhaust any Wertsching-related claims. The written
stipulation provided that “Libberton’s Third Amended Peti-
tion for Writ of Habeas Corpus may be dismissed without
prejudice.” The stipulation went on to provide, “Petitioner
shall, if necessary, file an amended federal petition for writ of
habeas corpus within 30 days after conclusion of the state post
conviction and related proceedings.” The district court signed
the stipulation, and the order was filed on February 9, 1994.
Libberton returned, once again, to state court, filing a
fourth PCR Petition on September 12, 1994. He once again
sought discovery, which was denied. Libberton claimed in his
PCR Petition that the prosecution had unconstitutionally
failed to inform him of Norton’s “secret” plea agreement
described in the Wertsching affidavit. The state submitted an
affidavit by Parker, who denied that there had been such a
deal. She stated, “I never made any promise of any kind to
Norton’s attorney that Norton would not be transferred for
prosecution as an adult if he cooperated by testifying against
Libberton and James.” Warren Smoot, the Chief of the Juve-
nile Division at the time of Libberton’s prosecution, and Wil-
liam Molner, an assistant to Smoot, submitted similar
affidavits.
The state court concluded that it was unnecessary to decide
whether there had, in fact, been a secret deal because, in its
view, Libberton’s claims would fail in any event. The court
reasoned that Norton’s earlier statements to police, which pre-
dated Norton’s alleged deal with the prosecutor and his inter-
view with Parker, were already incriminating. Because those
earlier statements would have been available to bolster or
14184 LIBBERTON v. RYAN
rehabilitate Norton’s trial testimony, the state court concluded
that the jury would likely have returned the same verdict even
if such a deal had been made.
The state court also had before it an affidavit signed by
Norton in October 1991, almost ten years after Libberton’s
trial. This affidavit had not previously been presented to either
state or federal court. In the affidavit, Norton offered descrip-
tions of Libberton’s role in the murder, and descriptions of the
murder itself, that contradicted his statements to police and to
Parker, as well as his trial testimony.
In the affidavit, Norton described James as the clear leader
of the assault and the subsequent murder. James “beat Maya
up pretty bad and told Libberton and me to hit Maya too. We
did as he ordered.” Norton further stated that it had been
James who ordered Maya to sign the title of his car over to
Libberton. In his interview with Parker and in his trial testi-
mony, Norton had said that it had been Libberton rather than
James who had forced Maya to sign over the title. Norton also
stated that both he and Libberton had “said that beating
[Maya] up was enough and we should let him go. James said
Maya would call the cops or come back to kill us. He insisted
that Maya had to be killed.” Norton went on, “Libberton and
I both tried to talk James out of killing Maya. I specifically
remember Libberton saying that he did not want to kill Maya
and that Maya had done nothing to him.” Norton explained
that both he and Libberton went along with James because
they were “scared” and “knew that James could kill us if we
stood in his way.”
Norton stated in the affidavit that on the way to the mine,
Libberton had never actually pointed the gun at Maya and had
never threatened him. At trial, however, Norton had testified
that Libberton had pointed the gun at Maya and threatened to
kill him. Norton further stated in the affidavit that James had
ordered him and Libberton to participate since “he wanted
[them] to be involved as he was.” Norton concluded that
LIBBERTON v. RYAN 14185
“James was the leader in everything that happened on that
night,” and that “[d]uring that night, Libberton tried many
times to talk James out of killing Maya. To the extent Libber-
ton participated, it was because James told him to. Acting
alone, Libberton would not have killed Maya. Libberton did
not want Maya to be killed.”
The state court refused to consider Norton’s affidavit
because it “raises grounds that have been precluded” by Lib-
berton’s previous petitions. According to the court, the infor-
mation in the affidavit could have been “discovered through
the exercise of due diligence before the prior three petitions
for Post-Conviction Relief were filed. . . . The affidavit now
presented could have been prepared in 1982, or at any time
thereafter.”
The state court denied Libberton’s fourth and final PCR
Petition on November 21, 1996. Libberton petitioned the Ari-
zona Supreme Court for review on May 12, 1997. Libberton’s
petition was denied on June 24, 1997.
F. Current Federal Habeas Proceeding
Libberton filed a habeas petition in federal court on Sep-
tember 9, 1997, and an amended petition on February 17,
1998. The amended petition asserted forty-seven claims for
relief. The district court denied the petition in its entirety on
September 18, 2007.
Five questions are before us on appeal. First, is Libberton’s
federal habeas petition governed by AEDPA? Second, did the
State violate Brady v. Maryland, 373 U.S. 83 (1963), and
Giglio v. United States, 405 U.S. 150 (1972), by failing to
reveal an alleged deal between Norton and prosecutors?
Third, did the State violate Napue v. Illinois, 360 U.S. 264
(1959), by failing to correct Norton’s allegedly false testi-
mony that there had been no such deal? Fourth, did the State
violate Tennard v. Dretke, 542 U.S. 274 (2004), by requiring
14186 LIBBERTON v. RYAN
a causal nexus between mitigating evidence and the crime of
conviction? Fifth, did Libberton’s trial counsel provide
unconstitutionally ineffective assistance with respect to the
penalty phase, in violation of Strickland v. Washington, 466
U.S. 668 (1984)?
II. Standard of Review
We have jurisdiction pursuant to 28 U.S.C. § 2253. We
review de novo a district court’s denial of habeas corpus.
Lopez v. Schriro, 491 F.3d 1029, 1036 (9th Cir. 2007). We
review for clear error a district court’s findings of fact. Rich-
ter v. Hickman, ___ F.3d ___, 2009 WL 2425390, at *5 (9th
Cir. Aug. 10, 2009).
[1] AEDPA provides that a petitioner is not entitled to
habeas relief on any claim “adjudicated on the merits” by the
state court unless that adjudication:
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the
Supreme Court of the United States; or
(2) resulted in a decision that was based on an unrea-
sonable determination of the facts in light of the evi-
dence presented in the State court proceeding.
28 U.S.C. § 2254(d). The Supreme Court has explained that
“[t]he threshold question under AEDPA is whether [peti-
tioner] seeks to apply a rule of law that was clearly estab-
lished at the time his state-court conviction became final.”
Williams v. Taylor, 529 U.S. 362, 390 (2000).
“Clearly established” federal law consists of the holdings of
the Supreme Court at the time the petitioner’s state court con-
viction became final. Id. at 365. A state court decision is
“contrary to” Supreme Court law if “the state court applies a
LIBBERTON v. RYAN 14187
rule that contradicts the governing law set forth in [Supreme
Court] cases.” Id. at 405. “A state-court decision will also be
contrary to this Court’s clearly established precedent if the
state court confronts a set of facts that are materially indistin-
guishable from a decision of this Court and nevertheless
arrives at a result different from our precedent.” Id. at 406. An
unreasonable application of Supreme Court precedent occurs
when a “state-court decision . . . correctly identifies the gov-
erning legal rule but applies it unreasonably to the facts of a
particular prisoner’s case.” Id. at 407-08.
This standard under AEDPA is somewhat different when
the state court does not provide a reasoned decision. When a
state decision is unreasoned, we must “independently review
the record to determine whether the state court clearly erred
in its application of Supreme Court law. That is, although we
independently review the record, we still defer to the state
court’s ultimate decision.” Pirtle v. Morgan, 313 F.3d 1160,
1167 (9th Cir. 2002) (internal citation omitted).
III. Discussion
A. Applicability of AEDPA
[2] Libberton argues that AEDPA does not apply to his fed-
eral habeas petition. He concedes that his most recent federal
petition was filed after the effective date of AEDPA, but he
contends that it relates back to the filing date of his earlier
pre-AEDPA petition, and is therefore governed by pre-
AEDPA law. The district court rejected this argument and
analyzed the petition under AEDPA. For the reasons
explained below, we agree with the district court.
In effect, Libberton argues that the district court never
really dismissed his earlier pre-AEDPA habeas petition, and
that his post-AEDPA petition was merely an amendment to
the earlier petition. First, he points us to the wording of the
district court’s dismissal of his pre-AEDPA petition. That
14188 LIBBERTON v. RYAN
order, while termed a “dismissal,” also provided that “Peti-
tioner shall, if necessary, file an amended federal petition for
writ of habeas corpus within 30 days of the conclusion of the
state post conviction and related proceedings.” (Emphasis
added.) Libberton places great weight on the word “amend-
ed,” contending that the district court must have retained
jurisdiction over his pre-AEDPA petition in order for him to
be able to amend it.
Second, Libberton contends that his case is analogous to
Rhines v. Weber, 544 U.S. 269 (2005). In Rhines, the
Supreme Court approved the procedure of staying and abey-
ing a habeas petition, whereby a district court retains jurisdic-
tion over a habeas petition while state law claims are being
exhausted. Because Libberton’s habeas petition was dis-
missed to enable him to exhaust his Wertsching-related claims
in state court, Libberton argues that his case was functionally
stayed and abeyed, despite the order’s use of the term “dis-
missed.”
[3] Neither the language of the district court’s dismissal of
Libberton’s earlier petition nor Rhines is sufficient to main-
tain Libberton’s argument. First, there is more to the language
of the order than Libberton suggests. The district court’s dis-
missal order explicitly “incorporate[d] to the extent applicable
the order issued by the Honorable Roger G. Strand” in Steven
James’s habeas proceeding, in which the Wertsching affidavit
had first been presented. Unlike Libberton, James had specifi-
cally requested that Judge Strand stay and abey his case.
Judge Strand declined to do so. He discussed the typical justi-
fications for stay and abeyance rather than dismissal and con-
cluded that none of those justifications applied to James’s
case. The incorporation of Judge Strand’s order, which explic-
itly refused to stay and abey James’s habeas petition, into the
dismissal of Libberton’s petition is incompatible with a con-
clusion that Libberton’s case was stayed and abeyed.
[4] Second, Rhines does not help Libberton. Rhines did
approve the use of the stay-and-abeyance procedure in certain
LIBBERTON v. RYAN 14189
circumstances, but it cannot be read to convert the district
judge’s dismissal in this case into a stay and abeyance. In
Rhines, the petitioner requested a stay, and the Supreme Court
noted that, had the district court denied the request, it may
have been error. 544 U.S. at 278. Libberton, however, never
requested a stay, and thus the district judge never denied one.
On the contrary, Libberton and the state submitted a stipula-
tion and a proposed order, and the district judge adopted it.
While the order did refer to any later petition as “amended,”
the order was clearly titled a dismissal.
[5] We therefore conclude that AEDPA applies to Libber-
ton’s petition.
B. Giglio Claim
As he did in the district court, and in state court before that,
Libberton argues that the prosecution’s failure to disclose its
alleged secret deal with Norton constitutes a violation of due
process under Brady v. Maryland, 373 U.S. 83 (1963) and
Giglio v. United States, 405 U.S. 150 (1972). Neither the state
court nor the district court made a finding as to whether such
a deal in fact existed, but each court concluded that even if it
did, the oral agreement was not material evidence, and there-
fore no Giglio error occurred. We agree with these courts that
the agreement, if it existed, was not material within the mean-
ing of Giglio. The state court’s reasoned opinion rejected this
claim, and the opinion is neither objectively unreasonable nor
clearly contrary to binding Supreme Court law.
[6] In Giglio, a defendant learned during the course of his
appeal that “the Government had failed to disclose an alleged
promise made to its key witness that he would not be prose-
cuted if he testified for the Government.” Id. at 150-51. The
Court noted that “[w]hen the reliability of a given witness
may well be determinative of guilt or innocence, nondisclo-
sure of evidence affecting credibility falls within this general
rule.” Id. at 154 (quotation marks omitted). The Court went
14190 LIBBERTON v. RYAN
on to conclude that the nondisclosure was material under
Brady:
Here the Government’s case depended almost
entirely on Taliento’s testimony; without it there
could have been no indictment and no evidence to
carry the case to the jury. Taliento’s credibility as a
witness was therefore an important issue in the case,
and evidence of any understanding or agreement as
to a future prosecution would be relevant to his cred-
ibility and the jury was entitled to know of it.
Id. at 154-55. The Court therefore reversed the judgment and
remanded for a new trial.
[7] The pivotal question under Brady and Giglio is whether
the evidence withheld from the jury is material. The Supreme
Court has explained this materiality standard as follows:
[The] touchstone of materiality is a “reasonable
probability” of a different result, and the adjective is
important. The question is not whether the defendant
would more likely than not have received a different
verdict with the evidence, but whether in its absence
he received a fair trial, understood as a trial resulting
in a verdict worthy of confidence.
Kyles v. Whitley, 514 U.S. 419, 434 (1995).
Libberton argues that Giglio requires that he be granted a
new trial or at least a resentencing. He contends that in his
case, as in Giglio, the prosecution never disclosed its oral deal
with Norton, and that Libberton was only made aware of the
deal ten years after it was made. Libberton contends that the
prosecution’s statements at trial illustrate the materiality of
the alleged oral deal. Cf. Kyles, 514 U.S. at 444 (“The likely
damage [of suppressed impeachment evidence] is best under-
stood by taking the word of the prosecutor . . . .”). In her clos-
LIBBERTON v. RYAN 14191
ing argument at trial, lead prosecutor Parker emphasized that
at the time of her interview with Norton, he had “received no
promises.” She did so because the jury was aware that Norton
had signed a plea agreement in which the prosecution agreed
to prosecute Norton as a juvenile in exchange for his testi-
mony. Parker sought to avoid an inference that Norton’s testi-
mony was biased because of this agreement by pointing to the
statements Norton had given before signing the deal, includ-
ing his interview with her. Libberton argues that the undis-
closed deal gave Norton a motivation to lie in his interview
with Parker, and that if the jury had been aware of the deal
it would have been reasonably likely to reach a different ver-
dict.
[8] We disagree. Unlike in Giglio, the key witness in this
case, Norton, had already given a deeply incriminating state-
ment to Detective Hackworth before the alleged deal was
entered into. Therefore, the government could have pointed to
a statement untainted by any secret deal, if such a deal
existed, in order to corroborate Norton’s trial testimony.
Unlike in Giglio, where the jury was unaware of any deal with
prosecutors, the jury in Libberton’s case was well aware that
Norton had reached a plea agreement with prosecutors
whereby he agreed to testify in exchange for being prosecuted
as a minor. The question is not whether Norton made a deal
with prosecutors, but only when he did so. Given the avail-
ability of Norton’s earlier statement to Hackworth as corrobo-
ration of his trial testimony, it is unlikely that the jury would
have reached a different conclusion as to Libberton’s guilt
even if it had known of the alleged oral agreement.
C. Napue Claim
Libberton makes a related claim under Napue v. Illinois,
360 U.S. 264 (1959). In Napue, the prosecuting attorney
asked the key witness whether “he had received [a] promise
of consideration in return for his testimony.” Id. at 265. The
witness responded that he had not. However, “[t]he Assistant
14192 LIBBERTON v. RYAN
State’s Attorney had in fact promised him consideration, but
did nothing to correct the witness’ false testimony.” Id. The
Court noted that “it is established that a conviction obtained
through use of false evidence, known to be such by represen-
tatives of the State, must fall under the Fourteenth Amend-
ment,” and that “[t]he same result obtains when the State,
although not soliciting false evidence, allows it to go uncor-
rected when it appears.” Id. at 269.
[9] Libberton argues that a Napue violation occurred when
Parker failed to correct Norton’s testimony that he had not
received a deal before she interviewed him. A Napue viola-
tion, however, also requires that the false evidence be mate-
rial. See, e.g., Jackson v. Brown, 513 F.3d 1057, 1075-76 (9th
Cir. 2008) (“A jury’s finding should be overturned as a result
of . . . [a] Napue violation[ ] if and only if [it is] material.”).
While the precise materiality standard under Napue is slightly
different than under Giglio, the result in this case is the same.
Instead of asking whether there was a “reasonable probabili-
ty” of a different outcome, a Napue violation requires a court
to ask whether there is “any reasonable likelihood that the
false testimony could have affected the judgment of the jury.”
Hayes v. Brown, 399 F.3d 972, 985 (9th Cir. 2005) (en banc).
For the reasons explained above, we conclude under AEDPA
that Libberton’s Napue argument does not succeed.
D. Tennard Claim
Libberton argues that the state trial court failed to consider
all relevant mitigating evidence. He contends that Tennard v.
Dretke, 542 U.S. 274 (2004), which was handed down while
his case was pending before the district court, provides him
relief. This argument was never presented to any state court
and is therefore not exhausted. See Picard v. Connor, 404
U.S. 270, 275 (1971). “A federal court may not grant habeas
relief to a state prisoner unless the prisoner has first exhausted
his state court remedies” by “fully and fairly presenting each
LIBBERTON v. RYAN 14193
claim to the highest state court.” Scott v. Schriro, 567 F.3d
573, 582 (9th Cir. 2009). See also 28 U.S.C. § 2254(b)(1)(A).
E. Ineffective Assistance of Counsel with Respect to
Penalty Phase
Libberton claims that his counsel provided unconstitution-
ally ineffective assistance with respect to the penalty phase.
1. Expansion of the Record
Libberton’s argument in support of his IAC claim relies in
part on evidence that was not presented to the state courts.
The district judge in Libberton’s federal habeas proceeding
concluded that Libberton had not been diligent in pursuit of
some evidence, and he therefore declined to admit it. For the
reasons that follow, we conclude that Libberton diligently
pursued the disputed evidence, and we therefore consider the
evidence he sought unsuccessfully to present to the district
court.
[10] “Rule 7 of the Rules Governing § 2254 cases allows
the district court to expand the record without holding an evi-
dentiary hearing.” Cooper-Smith v. Palmateer, 397 F.3d 1236,
1241 (9th Cir. 2005) (citing 28 U.S.C. foll. § 2254, R. 7).
However, before the record may be supplemented with new
evidence, a petitioner must meet the same standard that is
required for an evidentiary hearing. Id. In order to be awarded
an evidentiary hearing, a petitioner must either: (1) satisfy the
requirements of 28 U.S.C. § 2254(e), or (2) show that he “ex-
ercised diligence in his efforts to develop the factual basis of
his claims in state court proceedings.” Id. at 1241; see also
Holland v. Jackson, 542 U.S. 649, 652-53 (2004). Libberton
argues that he diligently pursued evidence in his state court
proceedings, and that we should therefore expand the record
to include his new evidence.
[11] While “diligence” has not been precisely defined in
this context, the Supreme Court has advised that “[d]iligence
14194 LIBBERTON v. RYAN
will require in the usual case that the prisoner, at a minimum,
seek an evidentiary hearing in state court in the manner pre-
scribed by state law.” Williams v. Taylor (Williams II), 529
U.S. 420, 437 (2000). Williams II specifies that the proper
question when considering a petitioner’s diligence “is not
whether the facts could have been discovered but instead
whether the prisoner was diligent in his efforts.” Id. at 435. In
this case, Libberton repeatedly asked the state court to grant
an evidentiary hearing in which he could develop the facts
relating to his IAC claim. He also repeatedly asked the state
court to provide funds to aid him in his investigation. These
requests were consistently rejected by the state court. Despite
his indigence and the state court’s refusal to provide an evi-
dentiary hearing, Libberton was nonetheless able to acquire
some affidavits relevant to an assessment of his counsel’s
conduct at sentencing. He presented these affidavits to state
court. That court refused to give him an opportunity to
develop more evidence and rejected his claims on the merits.
[12] Despite Libberton’s diligence in state court, the district
court concluded that Libberton was not diligent with respect
to some evidence that he failed to present to the state court.
While the district court is correct that this new evidence could
possibly have been discovered while Libberton was litigating
in state court, the question is simply “whether the prisoner
was diligent in his efforts.” Williams II, 529 U.S. at 435.
Given the wealth of evidence that Libberton was able to pre-
sent to the state court despite the state court’s refusal to pro-
vide funds to aid in his investigation, and despite the lack of
an evidentiary hearing in state court, Libberton was remark-
ably successful in finding and presenting evidence to state
court. He did not discover all of the relevant evidence, as is
apparent from the new affidavits he sought to present to the
district court. But it is clear that he was diligent in pursuing
it. Cf. Correll v. Stewart, 137 F.3d 1404, 1413 (9th Cir. 1998)
(“Simply put, the state cannot successfully oppose a petition-
er’s request for a state court evidentiary hearing, then argue
in federal habeas proceedings that the petitioner should be
LIBBERTON v. RYAN 14195
faulted for not succeeding.”). We therefore expand the record
to include a deposition of his trial counsel, George Lim, as
well as affidavits of Martin Norton and Dan McIntosh.
2. Ineffective Assistance with Respect to Sentencing
Libberton argued to the district court that his counsel at
trial and sentencing, George Lim, was unconstitutionally inef-
fective. He appeals the denial of his ineffectiveness claim
only as to sentencing. Partly in reliance on the evidence not
presented to the state court and excluded by the district court,
we conclude that Libberton’s representation with respect to
sentencing was unconstitutionally ineffective.
a. Preliminary Observations
[13] Before reaching the merits of Libberton’s IAC claim,
we note two things. First, the state court’s order denying his
IAC claims was unreasoned. That order provided no citations
to state or federal law and simply noted that “defendant
received nothing but effective assistance of three very experi-
enced and qualified criminal attorneys.” Libberton had only
one attorney at trial and at sentencing; we assume that the
court was also referring to his appellate counsel. The state
court concluded, without addressing any of Libberton’s argu-
ments or evidence, that “nothing defendant has raised in his
current petition for post-conviction relief would have affected
the outcome of the trial or the sentencing.” Given this lack of
reasoning, we “independently review the record to determine
whether the state court clearly erred in its application of
Supreme Court law.” Pirtle v. Morgan, 313 F.3d 1160, 1167
(9th Cir. 2002); see also Musladin v. Lamarque, 555 F.3d
830, 835 (9th Cir. 2009). We also note that the state court did
not have before it some of the evidence that is now before us.
This new evidence, which Libberton diligently pursued but
did not discover while in state court, adds substantially to Lib-
berton’s ineffectiveness arguments.
14196 LIBBERTON v. RYAN
Second, a common shorthand for an IAC claim is “ineffec-
tive assistance during the penalty phase.” If taken literally,
this shorthand is misleading. The question is whether a defen-
dant’s counsel was ineffective with respect to the penalty
imposed, irrespective of when during the proceedings the
counsel was ineffective. It is often the case that a counsel’s
ineffectiveness is manifested during the penalty phase, as the
common shorthand suggests. For example, defense counsel
may have failed to discover a witness who would have testi-
fied favorably during the penalty phase. But ineffectiveness is
often manifested earlier. For example, defense counsel may
have failed to discover impeaching evidence that could have
been used against an unfavorable witness who testified during
the guilt phase, and which would have portrayed the defen-
dant in a light that would have assisted him at the penalty
phase. As we wrote in Daniels v. Woodford, 428 F.3d 1181,
1210 (9th Cir. 2005), “The combination of counsel’s guilt and
penalty phase deficiencies . . . den[ied] Daniels effective rep-
resentation and prejudiced the outcome of his penalty phase
trial.” See also Moore v. Johnson, 194 F.3d 586, 619 (5th Cir.
1999) (“[C]ounsel’s deficient performance, including coun-
sel’s performance during the guilt phase of Moore’s trial,
prejudiced the outcome of the punishment phase of Moore’s
trial.”); Slagle v. Bagley, 475 F.3d 501, 528 (6th Cir. 2006);
Cargle v. Mullin, 317 F.3d 1196, 1208-09 (10th Cir. 2003).
b. Merits of Penalty Phase IAC Claim
[14] Strickland v. Washington, 466 U.S. 668 (1984), pro-
vides that, in order to establish ineffective assistance of coun-
sel, one must show both deficient performance and prejudicial
effect. To establish deficient performance, a “defendant must
show that counsel’s representation fell below an objective
standard of reasonableness.” Id. at 688. To establish prejudice
he must show “that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceed-
ing would have been different.” Id. at 694.
 LIBBERTON v. RYAN 14197
Three recent Supreme Court opinions address an attorney’s
obligation to conduct an investigation in preparation for a sen-
tencing hearing in a capital case. All three cases were decided
under the standards established in AEDPA.
First, in Williams v. Taylor, 529 U.S. 362, 395 (2000), an
attorney’s “representation during the sentencing phase fell
short of professional standards.” The Supreme Court
explained that defendant’s counsel “failed to conduct an
investigation that would have uncovered extensive records
graphically describing Williams’ nightmarish childhood, not
because of any strategic calculation but because they incor-
rectly thought that state law barred access to such records.”
Id. Had this investigation occurred:
the jury would have learned that Williams’ parents
had been imprisoned for the criminal neglect of Wil-
liams and his siblings, that Williams had been
severely and repeatedly beaten by his father, that he
had been committed to the custody of the social ser-
vices bureau for two years during his parents’ incar-
ceration (including one stint in an abusive foster
home), and then, after his parents were released from
prison, had been returned to his parents’ custody.
Id. The Court noted that “[o]f course, not all of the additional
evidence was favorable to Williams.” Id. at 396.
The Court disagreed with the state court’s analysis of preju-
dice, noting that it “was unreasonable insofar as it failed to
evaluate the totality of the available mitigation evidence—
both that adduced at trial, and the evidence adduced in the
habeas proceeding—in reweighing it against the evidence in
aggravation.” Id. at 397-98. The Court held that if all the miti-
gation evidence had been presented to the jury, it “might well
have influenced the jury’s appraisal of his moral culpability,”
and that “[m]itigating evidence unrelated to dangerousness
may alter the jury’s selection of penalty, even if it does not
14198 LIBBERTON v. RYAN
undermine or rebut the prosecution’s death-eligibility case.”
Id. at 398.
[15] Second, in Wiggins v. Smith, 539 U.S. 510, 521
(2003), defendant’s IAC claim “stem[med] from counsel’s
decision to limit the scope of their investigation into potential
mitigating evidence.” The state argued that the limited inves-
tigation “reflect[ed] a tactical judgment not to present mitigat-
ing evidence at sentencing and to pursue an alternative
strategy instead.” Id. The Court rejected this argument. The
Court noted that Wiggins’s counsel investigated three sources
of mitigating evidence: a psychologist’s report, the presen-
tence report, and social service records. Id. at 523. Despite the
fact that funds were available, Wiggins’s counsel did not
order a report from a forensic social worker. Id. at 524. The
Court further noted that ABA Guidelines require that investi-
gations into mitigating evidence “should comprise efforts to
discover all reasonably available mitigating evidence and
evidence to rebut any aggravating evidence that may be intro-
duced by the prosecutor.” Id. (quotation marks omitted). The
Court concluded that “[t]he record of the actual sentencing
proceedings underscores the unreasonableness of counsel’s
conduct by suggesting that their failure to investigate thor-
oughly resulted from inattention, not reasoned strategic judg-
ment.” Id. at 526. Given the fact that counsel did not
investigate beyond the evidence described above, the Court
concluded that they “chose to abandon their investigation at
an unreasonable juncture, making a fully informed decision
with respect to sentencing strategy impossible.” Id. at 527-28.
The Court concluded that the “mitigating evidence counsel
failed to discover and present in this case is powerful,” and
that the failure to discover it was prejudicial. Id. at 534. Wig-
gins had been abused as a young child, including “physical
torment, sexual molestation, and repeated rape during his sub-
sequent years in foster care.” Id. at 535. Wiggins was also
homeless for a time, and had “diminished mental capacities.”
Id. “Given both the nature and the extent of the abuse peti-
LIBBERTON v. RYAN 14199
tioner suffered, we find there to be a reasonable probability
that a competent attorney, aware of this history, would have
introduced it at sentencing in an admissible form.” Id. “Had
the jury been able to place petitioner’s excruciating life his-
tory on the mitigating side of the scale, there is a reasonable
probability that at least one juror would have struck a differ-
ent balance.” Id. at 537.
Third, in Rompilla v. Beard, 545 U.S. 374, 381 (2005), the
Court described the defense attorney’s pre-sentence investiga-
tion, noting that “[t]his is not a case in which defense counsel
simply ignored their obligation to find mitigating evidence.”
Defense counsel interviewed some members of Rompilla’s
family and examined the reports of three mental health
experts. In all, Rompilla’s lawyers spoke with five members
of Rompilla’s family in a “detailed manner” in an attempt to
unearth mitigating information. Id. Those family members,
however, “didn’t really feel as though they knew him all that
well.” Id. at 382. During Rompilla’s post-conviction process,
new counsel pursued evidence that his trial counsel had never
investigated, including school records, records of Rompilla’s
juvenile and adult incarcerations, and evidence of Rompilla’s
history of alcohol abuse. Id. Most important, Rompilla’s post-
conviction attorneys investigated the court file on Rompilla’s
prior conviction, which his trial counsel had not done. Id. at
383.
The Court concluded that the unexamined court file led to
mitigating evidence of sufficient persuasive power that coun-
sel’s ineffective assistance had prejudiced Rompilla. The file
revealed that both Rompilla’s parents were severe alcoholics
who drank constantly, and that Rompilla’s father “frequently
beat Rompilla’s mother.” Id. at 391-92. Rompilla’s father
abused him physically and verbally. Id. at 392. Medical
experts discovered that Rompilla had organic brain damage
and had likely suffered from fetal alcohol syndrome. Id. The
Court concluded that “[t]his evidence adds up to a mitigation
case that bears no relation to the few naked pleas for mercy
14200 LIBBERTON v. RYAN
actually put before the jury, and although we suppose it is
possible that a jury could have heard it all and still have
decided on the death penalty, that is not the test.” Id. at 393.
Since the mitigating evidence, taken as a whole, “might well
have influenced the jury’s appraisal of [Rompilla’s] culpabili-
ty,” the Court remanded either for resentencing or for stipula-
tion to a life sentence. Id. (quotation omitted and alteration in
original).
i. Strickland’s Deficient Performance Prong
[16] Under the Court’s analysis in Williams, Wiggins, and
Rompilla, Lim’s performance at Libberton’s sentencing hear-
ing was deficient. Lim called only two mitigating witnesses,
both of whom were only tenuously connected to Libberton.
One had not seen Libberton in ten years. The other was the
mother of an ex-girlfriend. Lim did not interview Libberton’s
sister, who could have been easily located. And while Lim did
talk with Libberton’s mother, he did not ask her to testify. As
a consequence, the only information from Libberton’s family
that made its way to the judge was contained in the PSR. The
PSR contained Libberton’s father’s damning conclusion that
“his son is a liar and a thief.” The PSR paraphrased Libber-
ton’s father as stating that he “does not doubt that the defen-
dant actually committed this crime and, in fact, believes
[Libberton] may have been the leader in planning the crime.”
Lim made no attempt to impeach the father’s comments.
[17] Lim also did not pursue evidence of James’s primary
responsibility for the crime. He said at the sentencing hearing
that Libberton had not been the driving force behind the mur-
der, but he did not present any testimony or evidence to that
effect. He could have interviewed a number of witnesses, all
of whom would have confirmed James’s violent nature and
mental state on the day of the crime. Lim also did not investi-
gate Norton’s background; as seen above, Norton described
Libberton at trial as an equal participant with James in Maya’s
murder. If Lim had conducted an adequate investigation of
LIBBERTON v. RYAN 14201
Norton’s background, he would have discovered powerful
psychological evidence showing Norton to be an unreliable
witness.
[18] The Supreme Court has found deficient performance
even where a lawyer did far more than Lim did in this case.
The Court in Rompilla wrote, “This is not a case in which
defense counsel simply ignored their obligation to find miti-
gating evidence, and their workload as busy public defenders
did not keep them from making a number of efforts, including
interviews with Rompilla and some members of his family,
and examinations of reports by three mental health experts
who gave opinions at the guilt phase.” 545 U.S. at 381. The
Court went on to specify that the lawyers “spoke with five
members of Rompilla’s family (his former wife, two brothers,
a sister-in-law, and his son).” Id.
[19] Lim’s deposition, in conjunction with the minimal pre-
sentation of mitigating evidence at Libberton’s sentencing,
conclusively establishes that Lim’s performance was worse
than that of the attorneys in Rompilla. During the four months
between conviction and the sentencing hearing, Lim spent
very little time preparing for sentencing. In his deposition,
Lim did not recall interviewing any witnesses for trial, and
only a very few witnesses for sentencing. The two witnesses
he did present at sentencing had only tangential knowledge of
Libberton’s family history, and had no knowledge whatsoever
about the details of the crime and Libberton’s role in it. Lim
obtained funds to hire an investigator, but the investigator
never interviewed anyone. Lim acknowledged in his deposi-
tion that “[p]erhaps it might have helped to interview a couple
of the witnesses.” He further admitted in his deposition that
he never interviewed Norton, and that he never tried “to talk
to anybody to find out background information about Norton,
whether he was a truthful person.” No possible strategy could
justify this lack of diligence in pursuing mitigating evidence.
Under Williams, Wiggins, and Rompilla, Lim’s conduct fails
the first prong of Strickland.
14202 LIBBERTON v. RYAN
ii. Strickland’s Prejudice Prong
[20] The state PCR court and the federal district court con-
cluded that Libberton had failed to establish prejudice. We
disagree. The Supreme Court has explained that the prejudice
inquiry requires us to “reweigh the evidence in aggravation
against the totality of available mitigating evidence.” Wiggins,
539 U.S. at 534. We therefore begin by recounting the evi-
dence that was presented to the jury. We then describe the
evidence Lim failed to discover and present, and analyze how
that evidence would have materially changed the sentencing
calculus.
a. The evidence at sentencing
The prosecution and Libberton each called two witnesses to
testify at the sentencing hearing. The state’s witnesses, Carl
Hass and Bill Fitzgerald, both testified that Libberton had
walked away from a work furlough program in the days
before Maya’s murder.
Lim called Nancy Henry and Geraldine Smith. Henry was
a friend of Libberton’s mother, but she explained that until the
time of the crime she had not seen Libberton in ten years. She
testified that Libberton had a “love-hate relationship with his
father,” and that “he tries to please his father but can’t.” She
testified that Libberton’s father “disappointed him a lot,” and
“at times ran him down.” She further explained that she had
visited Libberton in jail, and he admitted to having used
drugs. Finally, she testified that she did not consider Libber-
ton a violent person, and that “he is more of a follower.”
Smith testified that she was the mother of one of Libber-
ton’s ex-girlfriends. She had known Libberton for a few
years, and he had lived in her home for approximately a
month. Like Henry, Smith testified that Libberton had “diffi-
culties with his father,” and that he “would try and go for-
ward, [but] his dad would knock him down, and now he is
LIBBERTON v. RYAN 14203
here today because of his dad.” She explained that Libber-
ton’s father had refused to pay Libberton for work done at the
father’s business, and that Libberton “broke into his dad’s
place, because his dad owed him money and his dad wouldn’t
pay him.” She also reported that Libberton had used drugs
regularly, and that he was not a violent person. On cross-
examination, Smith admitted that she had not talked with Lib-
berton in a long time, “not since my daughter and him broke
up.” Smith also explained that Libberton had suffered an
injury as a child falling out of a vehicle, that he had once been
hit by his stepmother over the head, and that he had once been
hit over the head with a bat. As a consequence, “[h]e had ter-
rible, terrible headaches” and tried to go see a doctor. How-
ever, his father would not help him pay, so he never went.
In Lim’s closing, he emphasized that Libberton had a trou-
bled relationship with his father, and that there was no record
of Libberton having previously committed any violent crimes.
Lim also pointed to Libberton’s psychological issues, and said
that he had previously tried to get psychological help. Lim
stated that “Libberton appeared to be a follower rather than
the instigator and that Mr. James apparently wanted the per-
son killed,” and that Libberton was really “like a blind sheep.”
The sentencing court also had before it a presentence report
(“PSR”), and reports from Drs. Paul Bindelglas and George
Dee. Libberton’s father told the PSR investigator that while
the crime was “uncharacteristic of his son’s behavior,” he
“does not doubt that the defendant actually committed this
crime and, in fact, believes he may have been the leader in
planning the crime.” While the PSR’s social history explained
that Libberton had moved frequently as a child, it reports no
childhood abuse. The PSR stated that Libberton had been
treated by a psychiatrist for “emotional problems he experi-
enced as an adolescent,” and that he had never received psy-
chological treatment that he alleged was promised to him by
a state court.
14204 LIBBERTON v. RYAN
Dr. Bindelglas described Libberton as “a young man from
a broken home who seems to have some effeminate manner-
isms but no overt homosexual activities.” It was Bingelglas’s
opinion that “[a]lthough Mr. Libberton is sane legally, I do
feel he has severe psychological problems.” Moreover, Bin-
delglas stated that “I do not believe Mr. Libberton acted with
premeditation. He is much too impulsive for that.” Dr. Dee
reported that Libberton suffered from chronic depression, and
had “severe emotional problems.” He further concluded that
“[w]ithout intensive treatment he would be like a time bomb
waiting to go off.”
b. Evidence that Lim Could Have Discovered
[21] Evidence that Lim could have discovered in the course
of a proper investigation would have dramatically trans-
formed the case for mitigation. In our view, the evidence that
Lim failed to discover is sufficiently persuasive that, had it
been presented to the sentencing judge, there is a reasonable
probability that he would have imposed a different sentence.
[22] First, Libberton presents evidence showing that the
crime was the result of James’s instigation and that Libberton
was merely a follower. Lim had stated in his closing argument
at sentencing that Libberton was merely a follower in murder-
ing Maya, but the only evidence supporting that statement
was Henry’s rather vague statement that Libberton was “more
of a follower.” That vague statement was directly contradicted
by Libberton’s own father’s statement in the PSR that he
believed his son “may have been a leader in planning the
crime.”
Daniel Severance explained in an affidavit presented to the
federal habeas court that he had been with James on Novem-
ber 16, the day Maya was killed. He explained that “James
was . . . very emotionally upset on that date because his girl-
friend had recently left him. He had even cried about her
departure, which was very unusual for Mr. James.” James was
LIBBERTON v. RYAN 14205
also “extremely violent as a result of drinking due to the situa-
tion involving his girlfriend.” Severance recalled that, in the
days immediately preceding Maya’s murder, he and James
cleaned James’s gun after his girlfriend finally departed, and
even practiced firing it outside the trailer. Severance further
explained that “James also became very upset involving any
situation with Martin Norton, who Mr. James looked at as a
son.” He believed that “Mr. James was in a very bizarre emo-
tional state as a result of his girlfriend’s departure,” and that
he “had no doubt . . . that Mr. James intended to do exactly
what he said he would do . . . , which was kill the individual
with Mr. Norton.” While Severance did not know Libberton
well, he believed Libberton “was simply at the wrong place
at the wrong time while Mr. James did exactly what he indi-
cated he was going to do which was to kill.” Finally, Sever-
ance averred that he was never contacted by Lim, but could
have been easily located in Phoenix.
This same portrait of James emerges from an affidavit sub-
mitted by his former girlfriend, Diana Hodge. She stated that
after moving out of James’s trailer she “feared for [her] life
because of the things that Mr. James said and did.” When she
moved out of the trailer, she “solicited the help of two large
black males to help [her] move.” She explained that towards
“the end of the move from the trailer, Mr. James arrived in a
very intoxicated state and he was also very high on drugs. He
was extremely upset and made the comment ‘When I find
you, I’ll kill you.’ He made the same threat later by tele-
phone.” Hodge further stated that she was
convinced that Mr. James would have killed me or
anyone else for revenge because he was so upset that
I left. In my opinion, he was in a horrible state of
mind after I left him and he had the ability to kill
someone because of his deranged mind. I think Ste-
phen James had the capacity to kill.
She stated that Lim “never made any attempt to contact me
during the first one or two years after the incident. I was liv-
14206 LIBBERTON v. RYAN
ing in the Phoenix area and certainly could have been located
had they made an attempt to do so.”
Dan McIntosh could have further corroborated James’s role
as the leader and Libberton’s role as a follower. McIntosh
explained in an affidavit that “James borrowed [the] gun from
a man who lived nearby” because “[h]e was upset because his
girlfriend had moved out to live with two black men.” He also
recalled that James once showed him “Polaroid photographs
of gallows he had built,” and that “he had hung his dog from
the gallows.” After being arrested James “telephoned [McIn-
tosh] and threatened to kill [him] and [his] family if [he] testi-
fied against” James. Despite the fact that McIntosh testified
in the guilt phase of trial, he was never contacted by Lim with
regard to sentencing.
Libberton also seeks to rely on Norton’s post-trial affidavit
to support his argument that he was merely a follower. It is
important to Libberton that he present evidence Lim could
have used to impeach Norton, for the portrayal of Libberton
as a coequal in Maya’s murder was entirely the result of Nor-
ton’s testimony. Norton was the only eyewitness other than
James and Libberton. Norton testified that Libberton was not
merely a follower, but an eager participant in the crime. As
noted above, Norton signed this affidavit about ten years after
the trial. It is unlikely that Lim, even if he had been diligent,
could have obtained such an affidavit, or such testimony, at
the time of sentencing. At the time of Libberton’s sentencing
phase trial, Norton had just been convicted and sentenced
himself, and the contents of his affidavit directly contradict
much of his testimony at trial. His plea bargain depended on
his having provided truthful testimony at trial. We therefore
do not rely on Norton’s affidavit.
[23] However, other evidence was readily available that
Lim could have used to impeach Norton. Norton’s juvenile
record included evidence that could have seriously impeached
his testimony. His intake summary at the Maricopa County
LIBBERTON v. RYAN 14207
Juvenile Court Center noted that “[a]t times he will lapse into
saying most anything that comes to his mind, or tell stories,
in answer to a question, that are obviously not true. Also, he
seems to feel very much threatened when the subject of
homosexuality is brought up.” Norton’s psychological evalua-
tion noted that he “has a very difficult time perceiving any sit-
uation in a matter-of-fact way. He has a very overpersonalized
and at times distorted perception of the environment which
makes it difficult for him to maintain any stability.” The eval-
uation goes on to find “significant and marked identity and
psychosexual confusion and once again, Martin attempts to
deal with this through overcompensation and projection.” Had
this evidence been presented at trial and at the sentencing
hearing, it would have seriously undermined Norton’s por-
trayal of Libberton as a coequal participant with James in
Maya’s murder.
[24] Second, Libberton presents evidence showing that he
was seriously abused during his childhood. The Supreme
Court has repeatedly held that evidence of childhood abuse is
a relevant mitigating factor. See, e.g., Wiggins v. Smith, 539
U.S. 510, 535 (2003) (“Petitioner thus has the kind of trou-
bled history we have declared relevant to assessing a defen-
dant’s moral culpability.”); Penry v. Lynaugh, 492 U.S. 302,
319 (1989), abrogated on other grounds by Atkins v. Virginia,
536 U.S. 304 (2002) (“[E]vidence about the defendant’s back-
ground and character is relevant because of the belief, long
held by this society, that defendants who commit criminal acts
that are attributable to a disadvantaged background . . . may
be less culpable than defendants who have no such excuse.”
(quotation marks omitted)). Libberton’s mother and sister
were available to testify, and could have painted a sympa-
thetic portrait of Libberton. Lim had spoken to Libberton’s
mother, but he did not call her to testify at the sentencing
hearing. In her affidavit, she described Libberton’s father as
abusive. She explained that Libberton’s father “had a very hot
temper and when he would get angry, he would fly into a
rage.” She recalled that after she and her husband divorced
14208 LIBBERTON v. RYAN
she “received a telephone call from Child Protective Services
. . . informing me that Steven and Larry had been dropped off
there by their father. Dave had severely beaten the boys and
taken them to the juvenile center stating that he [no] longer
wanted them.”
Libberton’s sister, Susan Farias, corroborated and gave fur-
ther details of Libberton’s abuse by his father. She explained
in her affidavit that their father “was physically abused as a
child and in turn abused us.” She explained that while “Larry”
was apparently her father’s favorite child when he was young,
as he grew older “he was beaten more” than the other chil-
dren. Their father “would take his belt, fold it in half and snap
it a few times before he hit” his children. After Libberton’s
parents divorced, Libberton’s step-father also abused him.
Libberton’s abusive childhood was further described by
Helen Robichaux, a childhood friend of Libberton’s. She
recalled in an affidavit that Libberton’s father “had a very vio-
lent temper and was a difficult man to get along with.” She
also “remember[ed] Larry coming to school after he had been
punished. Sometimes he would still be bruised from the pun-
ishment.”
[25] However, the only family member whose opinion was
put before the sentencing court was Libberton’s father. The
same father who abused Libberton as a child was quoted in
the PSR as saying not only that his son could have partici-
pated in such a murder, but that he was likely to have been
the leader in the conspiracy. Libberton’s mother and sister
could have seriously undercut his father’s opinion, but Lim
failed to put them on the stand.
[26] In sum, Lim failed to find and present extensive evi-
dence that would have showed James’s greater culpability in
Maya’s murder, would have showed Libberton’s abusive
childhood, and would have contradicted the very damaging
evidence supplied by Libberton’s father. We conclude that the
LIBBERTON v. RYAN 14209
failure to find and present this evidence was prejudicial.
Lim’s failures create a reasonable probability that, had the
above-described evidence been presented to the sentencing
judge, he would have imposed a lesser sentence. Strickland,
466 U.S. at 694. Because Libberton has satisfied both Strick-
land prongs, we grant his petition with regard to sentencing.
Conclusion
Libberton’s arguments as to the guilt phase of his trial all
fail. Even if it is true that Martin Norton entered into an
undisclosed deal with prosecutors before being interviewed
by the prosecutor, this would not be material. Libberton has
failed to establish that, had the alleged oral deal been revealed
to the judge, there would have been a reasonable probability
of a different outcome. Because he cannot meet that standard
of materiality, his arguments under Brady, Giglio, and Napue
fail. We do not reach the merits of Libberton’s Tennard argu-
ment, as it was not exhausted in state court.
However, we conclude that his counsel rendered unconsti-
tutionally ineffective assistance with respect to sentencing.
[27] We therefore AFFIRM the judgment of the district
court with respect to all of Libberton’s guilt-phase claims.
However, we REVERSE the judgment of the district court
and remand with instructions to grant the writ of habeas cor-
pus with respect to sentencing. We instruct the district court
to grant the state a reasonable amount of time in which to
resentence Libberton. If the state chooses not to resentence,
Libberton’s sentence will automatically be converted to life in
prison in accordance with Arizona law.