Miles v. Ryan

713 F.3d 477, 2013 WL 1197473
CourtCourt of Appeals for the Ninth Circuit
DecidedAugust 27, 2012
DocketNo. 10-99016
StatusPublished
Cited by29 cases

This text of 713 F.3d 477 (Miles v. Ryan) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Miles v. Ryan, 713 F.3d 477, 2013 WL 1197473 (9th Cir. 2012).

Opinions

Opinion by Judge GRABER; Partial Concurrence and Partial Dissent by Judge BERZON.

ORDER

The opinion filed on August 27, 2012, slip op. 9797, and appearing at 691 F.3d 1127, is amended as follows:

On slip opinion page 9827 [691 F.3d at 1144], replace lines 6 through 15 with the following:

Even though Petitioner has now uncovered, during federal habeas proceedings, some new information that was not presented to the state courts during post-conviction review, that evidence is insufficient to demonstrate that his lawyer’s investigation during the state-court proceedings was objectively unreasonable. As detailed above, his counsel conducted an extensive investigation during post-conviction review, obtaining a psychologist to perform further testing and hiring an investigator who visited Petitioner’s home town and interviewed many people who knew him and his mother.

With this amendment, Judges Graber and Tallman have voted to deny Petitioner-Appellant’s petition for rehearing and petition for rehearing en banc. Judge Berzon has voted to grant the petition for rehearing and petition for rehearing en banc.

The full court was advised of the petition for rehearing en banc. A judge of the court called for a vote on whether to rehear the matter en banc. The majority of the nonrecused active judges failed to vote in favor of en banc rehearing.

Petitioner-Appellant’s petition for rehearing and petition for rehearing en banc are DENIED. No further petitions for rehearing or for rehearing en banc shall be entertained.

OPINION

GRABER, Circuit Judge:

Petitioner Kevin Artice Miles appeals the district court’s denial of his habeas [480]*480petition, brought pursuant to 28 U.S.C. § 2254. Petitioner challenges only his capital sentence; he does not challenge his underlying felony murder conviction, arising from his role in a car-jacking.1 Petitioner argues that his counsel was ineffective at sentencing because she failed to focus on Petitioner’s drug addiction (rather than on intoxication), enlisted an unqualified expert, and failed to investigate Petitioner’s social history thoroughly enough.

We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253, and we affirm.

FACTUAL AND PROCEDURAL HISTORY

A. The Crime

On an afternoon late in 1992, Petitioner was standing on a street corner in Tucson, Arizona, with Levi Jackson and Ray Hernandez. Jackson was carrying a pistol that the three of them had just obtained together; he had told Petitioner and Hernandez of his plan to commit a car-jacking. Specifically, according to Petitioner’s post-arrest statement to the police, Jackson had told them that he was “gonna get somebody’s car, take ’em off in the middle of the desert, and shoot ’em.” At the time, Jackson and Hernandez were both 16 years old. Petitioner was 24 years old.

When Patricia Baeuerlen drove up and stopped at the corner, Jackson approached her car and asked for “a light.” When she turned to reach her cigarette lighter, Jackson pointed the weapon at her and told her to move over. He unlocked the car to allow Petitioner and Hernandez to enter and sit in the rear. While Jackson drove the car out to the desert, Hernandez held the pistol, but Petitioner also held it at some point. They drove Baeuerlen out of the city, into the desert, and stopped at a dirt road. There, Jackson told Baeuerlen to get out of the car and take off her shoes and jacket. She obeyed. After taunting and harassing Baeuerlen for five to ten minutes, Jackson suddenly shot her in the chest. Baeuerlen died as a result of the gunshot. According to testimony presented at trial and sentencing, Jackson — not Petitioner — -shot Baeuerlen as he and Petitioner were walking away from Baeuerlen and returning to the car. Throughout the ordeal, starting with the drive to the desert, Baeuerlen was pleading for her life.

After the shooting, Jackson, Petitioner, and Hernandez drove away. According to Petitioner’s post-arrest statement, he thought that Baeuerlen was still alive when they left her in the desert. No one sought help for Baeuerlen. Later the same day, Petitioner used Baeuerlen’s ATM card, and a PIN that he had found in her belongings, to take money out of her bank account. The next day, Petitioner drove Baeuerlen’s car to Phoenix, where he went shopping at malls, exchanged Baeuerlen’s children’s Christmas presents for other goods, and went drinking with old friends. Petitioner told those friends about the murder, insisting that he did not pull the trigger, but smiling and laughing as he related the events.

[481]*481B. Arrest and Interrogation

In the early hours of the following morning, that is, the second day after the murder, police arrested Petitioner in Chandler, Arizona, following a high-speed chase in Baeuerlen’s car. The police found Baeuer-len’s ATM card, credit card, jewelry, and other personal items in his possession. Later that morning, Tucson detectives began a tape-recorded interrogation that lasted about five hours. During the interrogation, Petitioner initially explained his possession of the car by telling the detectives two different stories, neither of which placed him at the scene of the murder. But, after several hours of interrogation, Petitioner admitted to his involvement in the murder. Specifically, he admitted to knowing of Jackson’s plan to car-jack and shoot someone, to participating in obtaining the pistol with Jackson and Hernandez, to holding the weapon at some point during the drive out to the desert, and to watching Jackson shoot Baeuerlen.

C. Trial and Sentencing

Soon after Petitioner’s arrest, Barbara Sattler was appointed as his counsel and represented him through trial and sentencing. After a jury convicted Petitioner of first-degree felony murder, dangerous kidnapping, and dangerous armed robbery,2 the trial court reviewed a pre-sentence report (“PSR”) and held a sentencing hearing.

The PSR states that the crime occurred at around 1:30 p.m. and that Petitioner reported having used crack cocaine “four or five hours earlier” and not having slept the night before. The PSR also contains statements from Petitioner that he expected to get money from the car-jacking and that he wanted to commit another robbery with the pistol. The PSR repeats Petitioner’s assertions that he did not believe that Jackson would kill Baeuerlen and that Petitioner thought that Jackson would have killed him if he had tried to stop the murder.

The social history section of the PSR contains the following information. Petitioner was adopted at the age of 4 months. His adoptive mother was an alcoholic who nevertheless maintained employment, eventually rising past jobs as a waitress and cook to become a nursing home administrator. Although Petitioner is black, his adoptive mother was white, which caused some degree of social problems; those problems grew worse when Petitioner and his mother moved to a more affluent neighborhood. Petitioner found a way to fit in by becoming a “class clown” and by playing basketball.

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Cite This Page — Counsel Stack

Bluebook (online)
713 F.3d 477, 2013 WL 1197473, Counsel Stack Legal Research, https://law.counselstack.com/opinion/miles-v-ryan-ca9-2012.