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Stankewitz v. Wong

October 29, 2012

DOUGLAS RAY STANKEWITZ, PETITIONER-APPELLEE,
v.
ROBERT K. WONG, RESPONDENT-APPELLANT.



Appeal from the United States District Court for the Eastern District of California Anthony W. Ishii, Chief District Judge, Presiding D.C. No. 1:91-cv-00616-AWI

The opinion of the court was delivered by: Fisher, Circuit Judge

FOR PUBLICATION

Argued and Submitted February 6, 2012-Pasadena, California

Before: Diarmuid F. O'Scannlain, Raymond C. Fisher and Jay S. Bybee, Circuit Judges.

Opinion by Judge Fisher; Dissent by Judge O'Scannlain

OPINION

We consider whether Douglas R. Stankewitz received ineffective assistance of counsel at the penalty phase of his capital murder trial. In a prior appeal in this matter, we held that Stankewitz's allegations that his counsel failed to investigate and present readily available mitigation evidence - including evidence of his deprived and abusive upbringing, potential mental illness, long history of substance abuse and use of substantial quantities of drugs leading up to the murder - if true, would establish that he received ineffective assistance. We remanded for an evidentiary hearing so that the state would have an opportunity to challenge Stankewitz's allegations. On remand, however, the state agreed to proceed without an evidentiary hearing. The district court, after considering several thousands of pages of documents describing Stankewitz's troubled background, found that the state had failed to rebut most of Stankewitz's allegations. The court therefore held that Stankewitz's counsel's performance fell below the constitutional standards articulated in Strickland v. Washington, 466 U.S. 668 (1984), and granted his petition for a writ of habeas corpus. We affirm.

I.

We recounted the factual and procedural history in our prior opinion, see Stankewitz v. Woodford, 365 F.3d 706, 708-12 (9th Cir. 2004), and do not repeat it in detail here. In brief, Stankewitz was convicted and sentenced to death in 1978 for the murder of Theresa Greybeal. The California Supreme Court reversed that conviction upon automatic appeal because the trial court failed to address a conflict between Stankewitz and his public defender, Salvatore Sciandra. Before Stankewitz's second trial, the trial court found that a conflict indeed existed between Sciandra and Stankewitz and appointed private counsel, Hugh Goodwin. The jury ultimately convicted Stankewitz and again sentenced him to death. After the California Supreme Court rejected Stankewitz's state postconviction challenges, he filed the present habeas petition in federal court, raising several challenges to the guilt and penalty phases of his trial. The district court denied the petition in its entirety without holding an evidentiary hearing as to any of Stankewitz's claims.

We affirmed the district court with respect to Stankewitz's guilt-phase challenges. See Stankewitz v. Woodford, 94 F. App'x 600 (9th Cir. 2004) (unpublished). We reversed, however, as to Stankewitz's claim that Goodwin rendered ineffective assistance of counsel during the penalty phase of Stankewitz's trial by failing to investigate and present available mitigating evidence. See Stankewitz, 365 F.3d 706.

With respect to that claim, we undertook a detailed review of the mitigating circumstances Stankewitz alleged, Good-win's investigation and penalty phase performance and the totality of the evidence introduced at trial, and held that Stankewitz's allegations, if true, established that Goodwin's performance was both deficient and prejudicial under Strickland. We observed that Goodwin's penalty phase presentation was "minimal, consisting of testimony from six witnesses (only four of whom were actually in court) and covering only approximately 50 pages in the transcript." Id. at 716. Two witnesses focused only on the "power of God" to help persons change their lives and provided no specific information about Stankewitz (aside from one witness' admission that he had no reason to believe that Stankewitz was religious). See id. A third witness, by stipulation, testified only that he admired the work of prison chaplains. See id. at 716 & n.4. We described this strategy as one that "had little hope of succeeding, and indeed seemed predestined to fail." Id. at 716. From the remaining three witnesses, Goodwin elicited only vague references to Stankewitz's history: the observation of sores and needle marks on his arm the day after the shooting, one beating he received as a child, his placement in foster homes and the difficulties encountered on Indian reservations. See id. at 716-17. We noted that Goodwin elicited this testimony "in a cursory manner that was not particularly useful or compelling." Id. at 724 (quoting Douglas v. Woodford, 316 F.3d 1079, 1090 (9th Cir. 2003)). Goodwin also focused little on the actual details of Stankewitz's life during his closing argument. See id. at 717.

We also observed that Goodwin failed to conduct even the most basic investigation of Stankewitz's background. Goodwin never hired an investigator or interviewed Stankewitz's teachers, foster parents, psychiatrists, psychologists or anyone else who may have examined or spent time with Stankewitz during his upbringing. See id. at 719. He did not interview anyone involved in Stankewitz's first trial and thus did not know about the existence of any diagnoses relating to Stankewitz's mental capabilities. See id. He did not procure a psychological examination of Stankewitz, even though he believed that Stankewitz was not mentally competent. See id. Furthermore, the six witnesses who did testify at the penalty phase were obtained with little effort. Stankewitz's sister-inlaw, for instance, became a witness because of a chance meeting with Goodwin in the courthouse. See id. at 720-21. Another witness merely had her testimony from Stankewitz's first trial read into evidence. See id. at 720. Goodwin's key witness, Probation Officer Joe Walden, met Stankewitz only once when Stankewitz was six years old and affirmed that Goodwin did nothing to help him prepare to testify. See id. at 724. The remaining three witnesses, two of whom provided no testimony specific to Stankewitz and one of whom provided only a two-sentence stipulation regarding the work of jail chaplains, advanced Goodwin's apparent interest in the power of religion, but provided no mitigating information about Stankewitz. See id. at 711-12, 716 n.4, 721. Goodwin also failed to investigate and rebut the prosecution's aggravating evidence. See id. at 720 (describing Goodwin's failure to investigate or rebut the prosecution's testimony indicating that Stankewitz shot a police officer, despite readily available evidence that would have undermined the prosecution's argument).

Finally, we observed that, in comparison to the meager mitigation evidence that Goodwin presented to the jury, Stankewitz made compelling allegations in his habeas petition regarding his deprived and abusive upbringing, potential mental illness, long history of drug use and consumption of substantial quantities of drugs in the days leading up to Greybeal's murder. See id. at 717-19.

Based on those circumstances, we held that Stankewitz's allegations, if true, would establish that he received ineffective assistance at his penalty phase proceeding. See id. at 722. We remanded for an evidentiary hearing so that "the state [would] have the opportunity to challenge Stankewitz's allegations." Id. at 725.

On remand, the district court expanded the record to include the files of the public defender in Stankewitz's first trial, Sciandra, and many other documents proffered by Stankewitz. See Rules Governing Section 2254 Cases 7 (permitting the district court to expand the record). In total, several thousands of pages of documents were added to the record, including many reports by probation officers and other employees at juvenile institutions, psychological evaluations and declarations by family members and others close to Stankewitz. The parties then agreed to brief the merits based on the evidence in the record. Stankewitz argued that he was entitled to relief based on the documentary evidence, but, in the alternative, requested an evidentiary hearing to resolve any contested facts that precluded relief. The state took the position that no evidentiary hearing was necessary and that Stankewitz's petition should be denied.

In September 2009, the district court issued an order granting Stankewitz a writ of habeas corpus. The court credited most of Stankewitz's allegations, noting that many were proved by official documents in the record. The court found that "[e]ven accepting the Warden's objections to some of Stankewitz's allegations, the evidence shows Stankewitz was already severely emotionally damaged by the time he was removed from his home at age six." Furthermore, Stankewitz's evidence reflected "a deprived background, being institutionalized early in his life and essentially raised in institutions" and that Stankewitz "was hardened by the years of criminal associations and surroundings." Relying on a social evaluation conducted when Stankewitz was nineteen, the court found that

[f]rom an early life developmental standpoint, Stankewitz has suffered from early childhood losses, prolonged separation from parents, poor institutional surrogate care. This has resulted in poor social adjustment as manifested by frequent runaways, behavior problems, scholastic under-achievement and finally culminating in anti-social behavior which has occurred both in and out of institutional placements.

Furthermore, although it found that some of Stankewitz's allegations relating to childhood abuse had limited support, the court found that "the record as a whole shows Stankewitz was psychologically and emotionally damaged by his upbringing." The court also observed that Stankewitz had a very severe substance abuse problem that began at age 10, and that he had binged on substantial quantities of alcohol, heroin and methamphetamine leading up to the murder.

The court denied the state's motion for reconsideration. The state now appeals. It challenges both the district court's findings of fact and the legal conclusion that Goodwin rendered ineffective assistance, and urges us to deny Stankewitz's habeas petition or, in the alternative, remand again for an evidentiary hearing.

II.

We recognized in our prior decision, and the parties agree, that the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) does not apply to Stankewitz's ineffective assistance claim. See Stankewitz, 365 F.3d at 713. We review Stankewitz's claim under the standard articulated in Strickland, 466 U.S. 668, which requires that Stankewitz show Goodwin's representation was both deficient and prejudicial. See id. at 687. We review de novo the legal question of whether Stankewitz received ineffective assistance of counsel and review the district court's factual findings for clear error. See Stankewitz, 365 F.3d at 714.

III.

As an initial matter, the state challenges some of the district court's findings regarding Stankewitz's background. We begin by addressing these challenges, but hold that each of the court's findings was adequately supported by the record.

First, the state challenges the district court's conclusion that Stankewitz was severely emotionally damaged by his upbringing. The state acknowledges that Stankewitz was born into a dysfunctional family but argues that Stankewitz could not have been damaged because he spent very little time with his family after he was removed from his home at the age of six.

[1] We have no trouble concluding that the district court did not clearly err by concluding that Stankewitz was severely damaged by his upbringing. We described many of Stankewitz's allegations pertaining to "his difficult and traumatic youth" in our prior opinion. Stankewitz, 365 F.3d at 717-18. As the district court found, most of these allegations have been substantiated by documentary evidence added to the record. The documents illustrate that Stankewitz was born into a poverty-stricken home described by police and probation reports as dirty, covered in cockroaches and fleas, and without electricity or running water. There was often not enough food for Stankewitz and his nine siblings, who were "highly neglected." A psychiatric evaluation of Stankewitz's mother, Marian, confirms that she had been an alcoholic since she was a child and that she was severely intellectually impaired. Marian was arrested several times for crimes that include assault, grand theft auto and drunk driving, and she was ultimately convicted of voluntary manslaughter for shooting and killing a man while she was drunk at a party. According to Marian, after she got married, she would regularly drink three to four six packs of beer or two fifths of a gallon of whiskey in a night, including while she was pregnant with Stankewitz. A probation report described Stankewitz's mother as "incapable of caring for herself and all of her children and certainly incapable of caring for Doug." Stankewitz's father, Robert, was an alcoholic truck driver and leader of a motorcycle gang. According to his rap sheet, he was arrested several times between 1951 and 1968 for crimes that include wife beating, robbery, non-support, public drunkenness, forgery, disturbing the peace and contributing to the delinquency of a minor. A judge described Robert as an "outlaw" and "a definite menace to society" who had "low intelligence," was "without education," had "no respect for the rights or feelings of other [sic]" and "like[d] ...


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