Argument Preview: Schriro v. Landrigan on 1/9

The following argument preview was written by Elizabeth Barchas, a student at Harvard Law School.

On Tuesday, the Court will hear arguments in Schriro v. Landrigan, No. 05-1575. The questions presented are: 1) whether a Ninth Circuit decision that a state court unreasonably determined the facts of a sentencing hearing contravened the deferential standard of review under the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA); and 2) whether the Ninth Circuit erred in holding that the state court’s analysis of an ineffective assistance of counsel claim was objectively unreasonable. Kent E. Cattani, Chief Counsel of Arizona’s Capital Litigation Section, will argue for the petitioner. Don Verrilli of Jenner & Block will argue on behalf of the respondent.

An Arizona state court convicted Jeffrey Landrigan of first-degree murder, which he committed after escaping from an Oklahoma prison where he was serving sentences for an earlier murder and for a prison stabbing. At the sentencing hearing, the trial judge found two statutory aggravating circumstances: 1) Landrigan’s prior felony conviction involving the use or threat of violence; and 2) the murder had been committed for financial gain. Landrigan’s defense counsel had located Landrigan’s birth mother and ex-wife to present mitigating evidence, but Landrigan instructed them not to testify. He also interrupted and contradicted his attorney repeatedly during the sentencing hearing. When the trial judge asked Landrigan to confirm that he did not want his attorney to present mitigating evidence, Landrigan responded, “Yeah.” The court sentenced Landrigan to death, and the Arizona Supreme Court upheld his death sentence on appeal.

Landrigan raised a number of claims in state post-conviction proceedings, including ineffective assistance of counsel based on his trial attorney’s failure to investigate and present mitigating evidence at the sentencing hearing. Landrigan claimed that his counsel had failed to develop evidence regarding his birth mother’s abuse of drugs and alcohol while pregnant with him, his adoptive mother’s alcoholism and its negative effect on his upbringing, and his birth father’s violent history. The court denied Landrigan’s request for an evidentiary hearing in connection with the ineffective assistance of counsel claim, holding that Landrigan had explicitly waived the presentation of mitigating evidence. The Arizona Supreme Court denied Landrigan’s petition for review.

Landrigan next filed a federal habeas corpus petition, including a claim that his counsel’s failure to present mitigating evidence regarding a biological component of Landrigan’s tendency toward violence constituted ineffective assistance. The district court rejected this claim and denied an evidentiary hearing. Bypassing the deficient performance prong of the Strickland v. Washington analysis, the district court held that Landrigan had not demonstrated prejudice from his trial attorney’s failure to discover and present mitigation evidence. A unanimous three-judge panel of the Ninth Circuit affirmed the district court’s ruling.

Upon en banc consideration, however, the Ninth Circuit reversed and withdrew the panel decision. Noting that the Supreme Court’s decisions in Rompilla v. Beard and Wiggins v. Smith had clarified the duty of an attorney to present mitigating evidence even when dealing with uncooperative capital defendants, the Ninth Circuit held that Landrigan had raised a colorable claim of ineffective assistance of counsel. The court noted that AEDPA did not bar Landrigan’s claim because Landrigan had tried to develop the factual basis for the claim in his state habeas petition but had been denied an evidentiary hearing. Analyzing Landrigan’s claim under Strickland, the court concluded that the trial attorney’s representation fell below an objective standard of reasonableness during the sentencing hearing. Although Landrigan objected to the testimony of the two family members located by his counsel, there was no indication he would have precluded the introduction of other mitigating evidence. Examining Landrigan’s colloquy with the trial judge against this backdrop, the Ninth Circuit concluded that Landrigan had not waived the right to assert a Sixth Amendment claim and had also demonstrated a reasonable probability that his attorney’s alleged shortcomings were prejudicial. Thus, it remanded to the district court for an evidentiary hearing. To determine whether the Ninth Circuit’s decision contravened the appropriate standard of review under AEDPA, the Supreme Court granted certiorari.

The state argues that the Ninth Circuit did not properly defer to the state court’s factual findings that Landrigan waived the presentation of mitigation evidence, which were based on Landrigan’s having actively thwarted his attorney’s representation during the sentencing hearing. In reversing those findings, the Ninth Circuit exceeded the scope of review available under AEDPA and ignored 28 U.S.C. § 2254(d)’s mandate that a habeas petitioner must demonstrate that the state court’s decision unreasonably applied or was contrary to clearly established federal law.

Landrigan responds that 28 U.S.C. § 2254 does not apply at this juncture because the Ninth Circuit did not grant Landrigan’s habeas petition but rather merely remanded for an evidentiary hearing. Because Landrigan stated a colorable ineffective assistance of counsel claim and had not failed to develop the factual basis for this claim — which is the only limitation on evidentiary hearings as required by 28 U.S.C. § 2254(e)(2) — the Ninth Circuit properly concluded that Landrigan was entitled to an evidentiary hearing. Accusing the state of blurring the distinction between whether Landrigan is entitled to further process and whether Landrigan is actually entitled to relief under the Sixth Amendment, Landrigan argues that the Ninth Circuit did not overstep its bounds by ordering an evidentiary hearing. Instead, the court correctly concluded that Landrigan’s post-conviction counsel exercised diligence in investigating a Sixth Amendment claim and demonstrating that further evidentiary development could affect the resolution of the claim. While § 2254(d) could limit the court’s power to grant relief after receiving and evaluating evidence, Landrigan is initially entitled to an evidentiary hearing to develop and prove the relevant facts.

The state also objects to the Ninth Circuit’s determination that the state court unreasonably applied Strickland in analyzing Landrigan’s ineffective assistance claim. Because the presentation of mitigation evidence can be waived at sentencing and because the information provided to Landrigan prior to his waiver was not inadequate, the state court’s decision did not violate clearly established federal law. To the contrary, Landrigan’s attorney conducted an investigation that was adequate to advise him regarding mitigation; Landrigan merely chose to undermine his counsel’s sentencing presentation. The Ninth Circuit’s analysis of the prejudice prong of Strickland fails to defer to the state court’s factual finding that Landrigan would not have allowed for the presentation of any mitigating evidence. Finally, even absent consideration of Landrigan’s waiver, Landrigan’s claim fails because the evidence he now seeks to introduce is only marginally mitigating and would not have changed the outcome of the sentence.

Landrigan again argues that § 2254(d) is inapplicable at this stage of the case since he must first be given an opportunity to develop the factual basis of his Sixth Amendment claim via an evidentiary hearing. Landrigan’s trial attorney insufficiently investigated and developed mitigation evidence prior to sentencing. Instead of thwarting his counsel’s efforts, Landrigan submitted to an initial psychological evaluation and agreed to three continuances to develop mitigation evidence. Because better efforts from counsel would have unearthed Landrigan’s troubled family and social history and resulted in a strong mitigation case, the sentencing outcome may have been different. Landrigan contends that his behavior at the sentencing hearing was itself a product of his trial counsel’s deficient performance, so an evidentiary hearing is additionally necessary to evaluate the state’s argument that he waived the presentation of mitigation evidence.

Landrigan’s arguments have the support of the National Association of Criminal Defense Lawyers (NACDL), which filed an amicus brief arguing that Landrigan should receive an evidentiary hearing to determine whether his waiver of mitigation evidence was knowing, intelligent, and voluntary and whether his counsel’s advice was based on a reasonable investigation.

California and twenty-six other states filed as amici in support of petitioner. They urge the Court to reject the Ninth Circuit’s “unrealistic and non-deferential” standard for reviewing the performance of trial counsel in the investigation of mitigation evidence, which – they warn – now demands a “perfect investigation.” The Criminal Justice Legal Foundation also submitted an amicus brief in support of the state, arguing that the Ninth Circuit’s substitution of its own judgment in place of the state court’s contravened AEDPA’s deferential standard of review. Because the state court reasonably determined that Landrigan waived the presentation of mitigation evidence, a further evidentiary hearing regarding Landrigan’s Sixth Amendment claim is unnecessary.