United States v. 2010-12-08 | 08-99035 | ROBERT MOORMANN V. DORA SCHRIRO | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 ROBERT HENRY MOORMANN, No. 08-99035
Petitioner-Appellant, D.C. No.
v. 2:91-CV-01121-  ROSCHARLES L. RYAN,*
Respondent-Appellee. OPINION

Appeal from the United States District Court
for the District of Arizona
Roslyn O. Silver, District Judge, Presiding
Argued and Submitted
February 11, 2010—San Francisco, California
Filed December 8, 2010
Before: Mary M. Schroeder, M. Margaret McKeown and
Johnnie B. Rawlinson, Circuit Judges.
Opinion by Judge Schroeder
*Charles L. Ryan is substituted for his predecessor Dora B. Schriro as
Director of the Arizona Department of Corrections. See Fed. R. App. P.
43(c)(2).
19641

-- 1 of 23 --

COUNSEL
Denise Irene Young, Tucson, Arizona, for petitioner/appellant
Robert Henry Moormann.
Julie S. Hall, Oracle, Arizona, for petitioner/appellant Robert
Henry Moormann.
John Pressley Todd, Phoenix, Arizona, for respon-
dent/appellee Charles L. Ryan.
OPINION
SCHROEDER, Circuit Judge:
Robert Henry Moormann was convicted in Arizona and
sentenced to death in 1985 for the brutal murder of his adop-
tive mother. The murder occurred in a Florence, Arizona
motel room while Moormann was on furlough from the Ari-
19644 MOORMANN v. RYAN

-- 2 of 23 --

zona State Prison. This case has a protracted history in both
the Arizona state courts and in the federal courts. In 2005, we
decided the first appeal from the district court’s denial of
habeas relief. See Moormann v. Schriro (Moormann II), 426
F.3d 1044 (9th Cir. 2005). We affirmed the district court’s
dismissal of the vast majority of Moormann’s claims, but
remanded for consideration of whether the failure of Moor-
mann’s counsel to raise certain claims in Moormann’s direct
appeal to the Arizona Supreme Court constituted sufficient
cause and prejudice to excuse Moormann’s procedural default
of those claims. Id. at 1060.
On remand, the district court again denied Moormann’s
habeas petition. The court then certified three issues for
appeal, all relating to whether Moormann’s counsel in his
direct appeal to the Arizona Supreme Court rendered ineffec-
tive assistance by failing to raise claims alleging ineffective
assistance of trial counsel in (1) failing to pursue alternative
defenses, (2) waiving lesser-included-offense instructions,
and (3) failing at sentencing to present lay witnesses concern-
ing Moormann’s background.
The procedural background and gruesome facts of this case
are set forth in detail in our first opinion and in the Arizona
Supreme Court’s opinion on direct appeal. See id. at 1047-52;
State v. Moorman (Moormann I), 744 P.2d 679, 681-82 (Ariz.
1987).1 We summarize only the essential facts relating to the
crime, the relevant procedural history in the state courts, and
the district court’s disposition of the issues presented to it for
consideration after our original remand.
In January 1984, Moormann was released on a 72-hour fur-
lough from the Arizona State Prison in Florence, where he
was serving a sentence of nine years to life for kidnapping.
His adoptive mother, Roberta, traveled to Florence on Thurs-
1The state court misspelled Moormann’s name in the caption. The cor-
rect spelling is “Moormann.”
19645 MOORMANN v. RYAN

-- 3 of 23 --

day, January 12, to visit him during this furlough. Moormann
and Roberta checked into a room at the Blue Mist Motel that
afternoon.
Sometime between 6:00 and 7:30 a.m. on Friday, January
13, Moormann went to a convenience store and purchased a
steak knife and a buck knife. At about 9:00 a.m., Moormann
went to the front desk of the motel and asked that maid ser-
vice be held because his mother was ill. He also borrowed
some disinfectant spray. At trial, the motel owner’s wife testi-
fied that when she saw Moormann later that afternoon, he
smelled horrible so she gave him some cleaning supplies for
his room. Moormann later left some foul-smelling towels out-
side of his room door.
During the course of the day, Moormann went to multiple
businesses in Florence and asked if he could dispose of some
spoiled meat or animal guts in their dumpsters. After one of
the business owners reported Moormann’s suspicious con-
duct, two Florence police officers went to the Blue Mist
Motel at about 10:30 p.m. to check on Roberta’s welfare.
Moormann told the officers that his mother had been feeling
sick that morning but that she felt better later and had gone
out visiting. The officers looked in the motel’s dumpsters, did
not see anything suspicious, and temporarily left the motel to
continue their investigation.
At about 12:30 a.m. on Saturday, January 14, Moormann
called a lieutenant at the prison and convinced him to dispose
of a box, purportedly containing some dog bones and other
garbage, that Moormann wanted to get rid of in the prison’s
dumpster. The police learned about the box about an hour
later when they called the prison to inquire about Moormann
and to report his suspicious behavior. The bones were exam-
ined and determined to be human. The police arrested Moor-
mann, who quickly confessed to killing his mother and
dismembering her body. The police obtained a warrant to
search Moormann’s motel room and discovered numerous
19646 MOORMANN v. RYAN

-- 4 of 23 --

items stained with blood or human tissue. Police found the
rest of Roberta’s remains in trash dumpsters near the motel
and in the sewer.
The forensic evidence presented at trial revealed that
Roberta had been suffocated, probably after she had been
beaten and stabbed. Moormann told police that he had tied
Roberta up before he killed her, and the medical examiner
found bruises in and around her mouth that were consistent
with her having been gagged. The medical examiner testified
at trial that the dismemberment of Roberta’s body was very
meticulous and probably took about two hours.
A search of Moormann’s prison cell revealed a forged will,
purporting to be Roberta’s and bequeathing Moormann her
estate in exchange for shares in his business, together with a
forged letter explaining the reasons for the exchange. There
was also evidence at trial that Roberta had planned to move
away from Arizona when Moormann became eligible for
parole in April 1984.
At trial, Moormann presented an insanity defense and
declined the court’s offer to instruct the jury on lesser-
included offenses. The jury convicted him of first-degree
murder after deliberating for two hours.
At sentencing, Moormann’s counsel argued that Moor-
mann’s inability to fully understand his actions and his record
of good behavior in prison weighed against imposing the
death penalty. In support of this mitigation argument, counsel
provided the trial judge with mental health records and letters
from individuals who had known Moormann at various points
in his life, and presented the testimony of two prison employ-
ees who had been acquainted with Moormann during his
incarceration to testify about his good behavior in prison and
his mental deficiencies. Moormann’s counsel also asked the
trial judge to consider all mitigating evidence presented at
trial, including the evidence relating to Moormann’s back-
19647 MOORMANN v. RYAN

-- 5 of 23 --

ground and mental defects that was introduced as part of his
insanity defense. The trial judge found as a mitigating factor
that Moormann had an impaired capacity to appreciate the
wrongfulness of his conduct or to conform his actions to the
requirements of the law. See Ariz. Rev. Stat. § 13-703(G)(1)
(West Supp. 1982-83). The court nevertheless sentenced
Moormann to death on the basis of its finding there were three
statutorily-enumerated aggravating factors: conviction of a
previous offense for which a life sentence could be imposed,
see id. § 13-703(F)(1); pecuniary motive, see id. § 13-
703(F)(5); and the especially heinous, cruel, or depraved man-
ner in which Moormann committed the murder, see id. § 13-
703(F)(6).
Moormann appealed his conviction and sentence to the Ari-
zona Supreme Court, and was appointed new counsel for the
appeal. Appellate counsel raised a number of issues, but none
relating to the ineffectiveness of trial counsel. The Arizona
Supreme Court unanimously affirmed Moormann’s convic-
tion and sentence in October 1987. See Moormann I, 744 P.2d
at 688.
In May 1988, Moormann filed his first petition for state
post-conviction relief (“PCR”) with the Arizona Superior
Court. The court appointed the same lawyer who had handled
Moormann’s direct appeal to the Arizona Supreme Court to
represent him in the initial PCR proceedings. Moormann’s
first PCR petition alleged that he received ineffective assis-
tance of counsel at trial for various reasons. The Superior
Court denied Moormann’s ineffective assistance claims as
procedurally barred under Arizona Rule of Criminal Proce-
dure 32.2, because he did not raise them in the direct appeal
of his conviction and sentence as required by then-existing
Arizona law. See, e.g., State v. Carriger, 692 P.2d 991, 994-
96 (Ariz. 1984); cf. State v. Spreitz, 39 P.3d 525, 526-27,
¶¶ 5-9 (Ariz. 2002).
Moormann filed a second PCR petition with the Arizona
Superior Court in January 1991. The court then appointed
19648 MOORMANN v. RYAN

-- 6 of 23 --

new counsel to represent Moormann, and Moormann’s new
counsel supplemented his pro se PCR petition with the inef-
fective assistance of counsel claims Moormann’s prior coun-
sel had raised in the first PCR petition. Moormann’s new
counsel also added a claim that Moormann’s counsel in his
direct appeal and first PCR proceeding had rendered ineffec-
tive assistance. The court denied Moormann’s second PCR
petition, ruling that all of the claims were either precluded or
waived under state law, because they had either been previ-
ously presented to the state courts and rejected, or they had
not been previously raised in Moormann’s direct appeal or
first PCR petition. Moormann sought review by the Arizona
Supreme Court; the court denied his petition.
In 1991, Moormann filed his federal habeas corpus petition,
which was stayed pending completion of the state PCR pro-
ceedings. The district court denied the petition in April 2000.
On appeal, we affirmed the district court’s denial of the
majority of Moormann’s claims, but vacated the district
court’s judgment and remanded for further proceedings to
determine whether Moormann had shown sufficient cause and
prejudice to excuse the procedural default of any claims
asserted in his federal habeas petition that had been raised in
his first or second state PCR petitions, but had not been raised
by Moormann’s counsel in his direct appeal to the Arizona
Supreme Court. Moormann II, 426 F.3d at 1060. We held that
the failure of Moormann’s appellate counsel to raise these
claims on direct appeal would constitute ineffective assistance
excusing the default if appellate counsel’s failure to assert the
claims on direct appeal actually prejudiced Moormann. Id.
On remand, Moormann contended that his counsel in his
direct appeal rendered ineffective assistance by failing to raise
essentially four claims, three of which related to the effective-
ness of trial counsel’s performance. Moormann argued that
appellate counsel’s ineffective representation in not raising
these claims excused their procedural default. The district
court again denied Moormann’s habeas petition, holding he
19649 MOORMANN v. RYAN

-- 7 of 23 --

had not overcome the procedural bar to his remaining claims
because appellate counsel’s representation of Moormann dur-
ing his direct appeal was not constitutionally deficient. Moor-
mann moved for reconsideration, arguing the court erred in
failing to hold an evidentiary hearing on his claims. The court
denied this motion.
The district court certified three issues for this appeal.
Moormann asks us, additionally, to consider a contention that
was not certified, relating to trial counsel’s failure to present
expert witnesses at the sentencing hearing to testify concern-
ing Moormann’s childhood. Because this claim was never
raised in either of the state PCR petitions, our prior decision
requires us to conclude that it is procedurally barred. See
Moormann II, 426 F.3d at 1059 (limiting remand to “those
claims that were presented in [Moormann’s] first and second
PCR” petitions). We deal with each of the certified claims,
and now conclude that none can form the basis for habeas
relief.
I. Applicable Standards for Habeas Review in this Case
[1] All of the issues before us relate to claims of ineffec-
tive assistance of appellate counsel in state court. “The due
process clause of the fourteenth amendment guarantees a
criminal defendant the right to the effective assistance of
counsel on his first appeal as of right.” Miller v. Keeney, 882
F.2d 1428, 1431 (9th Cir. 1989) (citing Evitts v. Lucey, 469
U.S. 387 (1985)). We review claims of ineffective assistance
of appellate counsel under the familiar standard set forth in
Strickland v. Washington, 466 U.S. 668 (1984). See Smith v.
Robbins, 528 U.S. 259, 285 (2000); Pizzuto v. Arave, 280
F.3d 949, 969 (9th Cir. 2002). First, the petitioner must show
that counsel’s performance was objectively unreasonable,
which in the appellate context requires the petitioner to dem-
onstrate that counsel acted unreasonably in failing to discover
and brief a merit-worthy issue. Smith, 528 U.S. at 285; Wild-
man v. Johnson, 261 F.3d 832, 841-42 (9th Cir. 2001). Sec-
19650 MOORMANN v. RYAN

-- 8 of 23 --

ond, the petitioner must show prejudice, which in this context
means that the petitioner must demonstrate a reasonable prob-
ability that, but for appellate counsel’s failure to raise the
issue, the petitioner would have prevailed in his appeal. Smith,
528 U.S. at 285-86.
[2] The analysis in this case, however, is somewhat com-
plicated by the fact that each of Moormann’s claims of inef-
fective assistance of appellate counsel relates to appellate
counsel’s failure to raise issues regarding the effectiveness of
trial counsel’s representation. Thus, to determine whether
appellate counsel’s failure to raise these claims was objec-
tively unreasonable and prejudicial, we must first assess the
merits of the underlying claims that trial counsel provided
constitutionally deficient representation. See Hain v. Gibson,
287 F.3d 1224, 1231 (10th Cir. 2002) (to properly address a
claim of ineffective assistance of appellate counsel, court
must look to the merits of the omitted issue). If trial counsel’s
performance was not objectively unreasonable or did not prej-
udice Moormann, then appellate counsel did not act unreason-
ably in failing to raise a meritless claim of ineffective
assistance of counsel, and Moormann was not prejudiced by
appellate counsel’s omission. See Wildman, 261 F.3d at 840
(“[A]ppellate counsel’s failure to raise issues on direct appeal
does not constitute ineffective assistance when appeal would
not have provided grounds for reversal.”); Pollard v. White,
119 F.3d 1430, 1435 (9th Cir. 1997) (“A hallmark of effective
appellate counsel is the ability to weed out claims that have
no likelihood of success, instead of throwing in a kitchen sink
full of arguments with the hope that some argument will per-
suade the court.”).
We review the district court’s denial of Moormann’s
habeas petition de novo. See McMurtrey v. Ryan, 539 F.3d
1112, 1118 (9th Cir. 2008). The deference required by the
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), 28 U.S.C. § 2254, does not apply because Moor-
mann filed his habeas petition before AEDPA became effec-
19651 MOORMANN v. RYAN

-- 9 of 23 --

tive. See Lindh v. Murphy, 521 U.S. 320, 336 (1997);
Moormann II, 426 F.3d at 1047-48.
II. Alternative Defenses — The Christensen Argument
Moormann argues his appellate counsel rendered ineffec-
tive assistance when he failed to assert on direct appeal the
ineffectiveness of trial counsel in relying exclusively on the
insanity defense rather than investigating and pursuing alter-
native defenses to the first-degree murder charge. He specifi-
cally contends his trial counsel should have presented a
defense under State v. Christensen, 628 P.2d 580 (Ariz.
1981), on the basis of Moormann’s purported character trait
of acting impulsively and reflexively in response to stressful
circumstances. He argues that the assertion of this defense
would have prevented the jury from convicting him of first-
degree murder.
[3] In Christensen, the Arizona Supreme Court held that a
defendant charged with committing premeditated murder may
put on evidence tending to show that the defendant has a char-
acter trait of acting without reflection. Id. at 583. The defen-
dant may then use this character evidence to establish that he
acted impulsively and did not premeditate the homicide he is
accused of committing. Id. The defendant in Christensen had
been charged with the premeditated murder of his ex-wife. Id.
at 582. Having admitted to the homicide, the defendant
attempted to introduce at trial expert testimony from a psychi-
atrist establishing that he had difficulty dealing with stress,
and that in stressful circumstances his actions were more
reflexive than reflective. Id. The Arizona Supreme Court
reversed the trial court’s exclusion of this expert testimony,
holding the evidence was admissible under Arizona’s counter-
part to Federal Rule of Evidence 404(a)(1) (permitting an
accused to offer evidence of a pertinent trait of his own char-
acter). Id. at 582-83. The court, however, went on to limit its
holding by stating that although a defendant may use expert
testimony to establish that he possesses a character trait of
19652 MOORMANN v. RYAN

-- 10 of 23 --

acting impulsively, the expert “may not testify specifically as
to whether a defendant was or was not acting reflectively at
the time of a killing.” Id. at 583-84.
Moormann contends that had trial counsel conducted a
thorough investigation into Moormann’s background, counsel
would have discovered evidence that competent experts could
have used to validate Moormann’s claim that Roberta sexu-
ally abused him up to and through the day of her death. Those
experts could then opine that Roberta’s abuse exacerbated
Moormann’s multiple disabilities and caused him to panic,
lose control, and kill Roberta without the reflection necessary
for a premeditated murder. In support of this argument, Moor-
mann relies on declarations from licensed mental health pro-
fessionals discussing the likelihood that Moormann and
Roberta had an incestuous relationship and diagnosing the
mental deficiencies he would have suffered as a result of this
relationship and other aspects of his background.
We need not address the reasonableness of trial counsel’s
decision to rely exclusively on a defense of insanity, however,
because trial counsel’s failure to investigate and pursue a
Christensen defense did not prejudice Moormann. See Strick-
land, 466 U.S. at 697 (“If it is easier to dispose of an ineffec-
tiveness claim on the ground of lack of sufficient prejudice,
which we expect will often be so, that course should be fol-
lowed.”). Even if trial counsel had conducted a more thorough
investigation into Moormann’s background, uncovered the
information produced during these habeas proceedings, and
supplied it to competent experts to testify about Moormann’s
purported trait of acting impulsively and reflexively in
response to stressful situations, there is no reasonable proba-
bility the presentation of this expert testimony at Moormann’s
trial would have resulted in the jury acquitting him of the
first-degree murder charge. As the district court correctly
pointed out, no expert would have been allowed to testify that
Moormann acted impulsively at the time of the murder. See
Christensen, 628 P.2d at 583-84. Instead, the experts’ testi-
19653 MOORMANN v. RYAN

-- 11 of 23 --

mony “would have been limited to a general description of
[Moormann’s] behavioral tendencies.” Summerlin v. Stewart,
341 F.3d 1082, 1095 (9th Cir. 2003) (en banc), rev’d on other
grounds sub nom. Schriro v. Summerlin, 542 U.S. 348 (2004).
This testimony would have had limited probative value given
the evidence that Moormann planned the killing.
Under Arizona law at the time of Roberta’s murder, “pre-
meditation” required that the defendant act “with either the
intention or the knowledge that he will kill another human
being, when such intention or knowledge precedes the killing
by a length of time to permit reflection.” Ariz. Rev. Stat. § 13-
1101(1) (West 1978). An act was not done with premeditation
if it was “the instant effect of a sudden quarrel or heat of pas-
sion.” Id. Premeditation could, however, be “as instantaneous
as successive thoughts of the mind.” State v. Kreps, 706 P.2d
1213, 1216 (Ariz. 1985).
Overwhelming evidence supported the prosecution’s theory
that Moormann premeditated Roberta’s murder. Moormann
told police shortly after his arrest that he tied Roberta up with
torn pieces of a towel before he killed her. Although the medi-
cal examiner could not verify that Roberta’s hands and ankles
had been tied, because Moormann severed them from her
body postmortem, the medical examiner did discover several
small bruises on Roberta’s face and additional bruising and
fibers inside her mouth that were consistent with her having
been gagged prior to her death. Police also found pieces of
torn towel in the dumpsters where they discovered parts of
Roberta’s dismembered body, thus tending to corroborate
Moormann’s admission that he had tied her up before he
killed her. The evidence that Moormann bound and gagged
Roberta indicated he had sufficient time to reflect before he
killed her, and that the slaying was not the result of a sudden
quarrel or heat of passion.
The prosecution also presented evidence that Roberta had
been hit with a “moderate degree of force” on multiple parts
19654 MOORMANN v. RYAN

-- 12 of 23 --

of her body, and that she had been stabbed five or six times
with the tip of a knife before she died. The evidence indicated
that Moormann went to the convenience store and purchased
the knives before he killed Roberta, and that he beat and
stabbed her before he suffocated her. Moormann partially cor-
roborated this theory of events when he told police that he hit
Roberta a few times before tying her up and then suffocating
her. All of these actions demonstrate that Moormann had
ample time to reflect before killing Roberta, and they under-
cut his claims that he either killed her in a moment of rage or,
alternatively, he accidentally suffocated her while the two
were having sex.
The prosecution’s theory of premeditation was further sup-
ported by the evidence of motive. The documents found in
Moormann’s prison cell relating to Roberta’s will indicate he
may have been attempting to obtain her assets before her
planned move away from Arizona. One of Roberta’s friends
testified at trial that Moormann called her on the morning of
the murder and asked her to give him a ride to Mesa, Arizona,
so that he could see a lawyer. The jury could have inferred
this related to the forged will and his plan to obtain control of
Roberta’s estate. Indeed, the trial court concluded at sentenc-
ing that this evidence demonstrated that Moormann commit-
ted the murder with an expectation of pecuniary gain.
[4] In contrast to the overwhelming evidence of premedita-
tion, there was little evidence to support a theory that Moor-
mann killed Roberta on an act of impulse, even if trial counsel
had successfully introduced expert testimony establishing that
Moormann acted impulsively and reflexively in response to
stressful circumstances. Moormann told the police after his
arrest that his mother had made him take his father’s place
and do things he could not handle, which caused him to lose
control and kill Roberta, but he also admitted during the taped
portion of his confession that he tied his mother up after they
argued and before he suffocated her, indicating he had time
to reflect. While Moormann later told a forensic psychiatrist
19655 MOORMANN v. RYAN

-- 13 of 23 --

that he had an incestuous relationship with Roberta and that
he had accidentally suffocated her with a pillow while they
were having sex, the medical examiner testified that he found
no evidence of sexual activity and tests run on the sheets and
bedspread from the motel room found no evidence of semen.
[5] Trial counsel did not therefore render ineffective assis-
tance by failing to investigate and pursue a Christensen
defense, because there is no reasonable probability that the
presentation of such a defense would have produced a differ-
ent verdict at Moormann’s trial. See Strickland, 466 U.S. at
694. For this reason, the failure of Moormann’s appellate
counsel to argue trial counsel’s ineffectiveness in not present-
ing a Christensen defense as a basis for reversal of Moor-
mann’s conviction was neither deficient representation nor
prejudicial. Counsel was not required to raise a meritless issue
on direct appeal, and there is no reasonable probability that
had counsel raised this claim, the Arizona Supreme Court
would have reversed Moormann’s conviction. See Jones v.
Smith, 231 F.3d 1227, 1239 n.8 (9th Cir. 2000) (no prejudice
when appellate counsel fails to raise an issue on direct appeal
that is not grounds for reversal); Miller, 882 F.2d at 1434
(appellate counsel remains above objective standard of com-
petence and does not cause client prejudice when counsel
declines to raise a weak issue on appeal); Boag v. Raines, 769
F.2d 1341, 1344 (9th Cir. 1985) (“Failure to raise a meritless
argument does not constitute ineffective assistance.”).
III. Waiver of Lesser-Included-Offense Instructions
The jury was instructed on first-degree murder and on
Moormann’s insanity defense. The trial court did not instruct
the jury on the lesser-included offenses of second-degree mur-
der and manslaughter because Moormann’s trial counsel, after
consultation with Moormann, reported they had agreed not to
request such instructions; the State opposed giving them. In
Moormann’s direct appeal to the Arizona Supreme Court, his
appellate counsel argued the lesser-included-offense instruc-
19656 MOORMANN v. RYAN

-- 14 of 23 --

tions should have been given by the court sua sponte. Appel-
late counsel did not argue, however, that trial counsel
provided ineffective assistance by waiving the lesser-
included-offense instructions.
On habeas, Moormann contends his trial and appellate
counsel were ineffective and seeks habeas relief on the
ground that his appellate counsel should have asserted in the
direct appeal to the Arizona Supreme Court that trial counsel
provided ineffective assistance by waiving the lesser-
included-offense instructions. Moormann argues the evidence
presented at trial warranted these instructions and reasonably
competent trial counsel would have requested them. He
asserts he was prejudiced because had the jury been instructed
on these lesser-included offenses, it would have acquitted him
of the first-degree murder charge.
The trial record reflects that Moormann’s trial counsel con-
sulted with him and then declined the trial court’s offer to
instruct the jury on the lesser-includeds. At the close of evi-
dence, the trial judge and the attorneys retired to chambers to
work on the jury instructions. Although the discussions that
ensued took place off the record, the court the next day, after
counsel had made their closing arguments and the jury had
retired to deliberate, made the following record concerning
those discussions:
THE COURT: Now, I guess there is some record
that should be made insofar as the forms of verdicts
are concerned and then later you may want to make
a record on the instructions.
. . . .
The record may . . . show at the time of settling
instructions and discussing verdicts, the question
arose as to whether the jury would be instructed on
the second degree murder and on manslaughter.
19657 MOORMANN v. RYAN

-- 15 of 23 --

Counsel and the Court discussed that matter. The
Court stated that it was inclined to give the instruc-
tion on those two if requested to do so by Defense
Counsel. State opposed the giving of any form of
verdict other than the first—on first degree murder,
and cited State versus Vickers as authority along
with the case is [sic] cited in the Vickers case.
I requested Mr. Kelly [Moormann’s trial counsel]
to consider whether or not he wished to request those
instructions and forms of verdict on the lesser
offenses. He stated that he wished to do so and that
he also wished to discuss it with his client.
This morning before we started court, Mr. Kelly
informed me that he did not wish to have forms of
verdicts as to second degree murder and as to man-
slaughter. Nor did he wish to have the jury instructed
on those. I stated a further record could be made by
the attorneys on that matter at the first convenient
time with the same effect as if made before we
started argument.
Now you can make any further record.
MR. KELLY: Not on that matter, Your Honor.
I did — I did discuss with my client the various
options concerning charging the jury and the forms
of verdict, and it was agreed after speaking with him
the course of action that we took.
The jury was therefore instructed solely on first-degree mur-
der and the insanity defense.
Although Moormann’s counsel in the direct appeal of his
conviction argued the trial court erred in not sua sponte
instructing the jury on the lesser-included offenses of second-
19658 MOORMANN v. RYAN

-- 16 of 23 --

degree murder and manslaughter, the Arizona Supreme Court
rejected this argument. Moormann I, 744 P.2d at 688. It con-
cluded Moormann had waived his constitutional right to the
lesser-included-offense instructions, and that the decision not
to request those instructions was strategic. Id. The court
stated:
While the parties were discussing jury instruc-
tions, the trial judge said he was inclined to give the
jury an option of convicting Moorman of second
degree murder or manslaughter instead of first
degree murder. In response, Moorman’s attorney
said he and his client had discussed the matter and
decided that they wanted the jury instructed only on
first degree murder. Moorman was not present when
this record was made. In his brief on appeal, Moor-
man claims that he does not recall any discussion of
lesser-included offenses or any agreement with his
lawyer on the issue. Moreover, Moormann contends
that even if he objected to the giving of lesser-
included instructions, the trial court had an obliga-
tion to give the instructions under Beck v. Alabama.
We need not review the record in depth to deter-
mine whether the evidence supported the lesser-
included instructions. We see no reason why a mur-
der defendant cannot knowingly waive his constitu-
tional right to lesser-included instructions.
Apparently, the decision not to request instructions
on second degree murder or manslaughter was stra-
tegic. We have no evidentiary record on Moor-
mann’s claims that his attorney never discussed the
matter with him. We therefore do not decide that
issue.
Id. at 687-88 (citations omitted).
In these habeas proceedings, Moormann has submitted a
declaration by his trial counsel to support his threshold con-
19659 MOORMANN v. RYAN

-- 17 of 23 --

tention that trial counsel did not act in a reasonably competent
fashion when he declined the court’s offer to instruct the jury
on the lesser-includeds. In his declaration, trial counsel stated
there was no strategic decision to forgo the instructions and
that Moormann did not understand the proceedings:
I do not remember the details regarding the discus-
sions Robert and I had on the lesser included offense
instructions. But I do know that I did not make a
strategic decision to not request those instructions. I
tried talking to Robert about the instructions, but
Robert did not understand legal decisions or the con-
sequences of those decisions. When I discussed legal
issues with Robert, I was not sure he understood
what we were talking about, or even the meaning of
the words I used. But the judge had earlier found
Robert competent to stand trial, and as a result, I did
not think there was anything I could do about Rob-
ert’s inability to understand much of what was going
on. I believed Robert suffered delusions and as a
result, did not always understand the content of what
he was saying, or what I was saying.
Moormann asserts this declaration demonstrates that trial
counsel unreasonably relied on Moormann’s preferences con-
cerning the giving of lesser-included-offense instructions,
even though he knew Moormann was mentally unfit to make
legal decisions about his defense.
[6] We do not decide whether trial counsel’s waiver of the
lesser-included-offense instructions in these circumstances
fell below prevailing standards of professional competence,
because Moormann did not suffer any prejudice from appel-
late counsel’s failure to raise the ineffectiveness claim in
Moormann’s direct appeal. See Smith, 528 U.S. at 286 n. 14
(“The performance component [of an ineffective assistance of
appellate counsel claim] need not be addressed first.”). The
ineffectiveness claim would have been similar or in addition
19660 MOORMANN v. RYAN

-- 18 of 23 --

to the claim appellate counsel did make, which was that the
trial court erred in not sua sponte instructing the jury on the
lesser-includeds. The Arizona Supreme Court concluded that
Moormann made a strategic waiver of his right to have the
jury instructed on the lesser-includeds, and there was no rea-
son for the trial court to countermand that decision with a sua
sponte instruction. Moormann I, 744 P.2d at 688. The finding
of a strategic decision, supported by the trial record, would in
all likelihood have foreclosed any holding of ineffective assis-
tance of trial counsel as well.
[7] Trial counsel’s declaration does not change this result.
Although counsel made the bare assertion that the decision to
waive lesser-included-offense instructions was not strategic,
he admitted that he did not remember the details of the discus-
sions he had with Moormann on the subject. There is nothing
in trial counsel’s declaration to contradict the Arizona
Supreme Court’s finding that Moormann knowingly waived
the lesser-included-offense instructions. Moormann’s appel-
late counsel therefore did not provide ineffective assistance by
failing to raise this issue in Moormann’s direct appeal.
IV. Failure to Call Lay Witnesses at Sentencing
Regarding Moormann’s Childhood
Moormann argues his appellate counsel provided ineffec-
tive assistance by not asserting a claim on direct appeal that
trial counsel’s failure to call any lay witnesses at the penalty
phase to testify about Moormann’s troubled childhood and
adolescence constituted ineffective assistance. Moormann
contends that reasonably competent trial counsel would have
conducted a more thorough investigation into Moormann’s
past by interviewing family members, neighbors, fellow stu-
dents, former doctors, teachers, and foster families, and gath-
ering social, family, and criminal justice records. From such
an investigation, Moormann asserts, trial counsel would have
gleaned critical mitigation evidence about Moormann’s back-
ground that could have been presented to the trial judge at
19661 MOORMANN v. RYAN

-- 19 of 23 --

sentencing through the testimony of lay witnesses. Moormann
contends this evidence would have spared him from a capital
sentence.
In support of this claim, Moormann proffered in these
habeas proceedings numerous records and documents con-
cerning his biological mother, his foster care and adoption,
and his education that were not presented to the trial court at
sentencing. Moormann also proffered declarations from one
of his foster parents, a former classmate, two educators from
his elementary school, and multiple medical professionals
who treated him as a child or adolescent. These declarations
indicate Moormann had a troubled childhood; that he suffered
from behavioral, mental, social, and emotional problems; and
that others in the community generally considered him to be
“strange” or “abnormal.” Two of the declarations briefly dis-
cuss Moormann’s relationship with Roberta, but neither pro-
vides firsthand information about sexual abuse.
[8] The Supreme Court held in Strickland that “counsel has
a duty to make reasonable investigations or to make a reason-
able decision that makes particular investigations unneces-
sary.” 466 U.S. at 691. Even if trial counsel for a capital
defendant conducts an investigation into mitigating evidence
that is unreasonable under prevailing professional norms,
however, counsel’s failures to uncover and present additional
mitigation evidence at the penalty phase must still prejudice
the defendant before counsel’s inadequate performance will
be found to constitute a Sixth Amendment violation. See Wig-
gins v. Smith, 539 U.S. 510, 534 (2003). To assess prejudice,
“we reweigh the evidence in aggravation against the totality
of available mitigating evidence.” Id.; see also Stankewitz v.
Woodford, 365 F.3d 706, 716 (9th Cir. 2004) (“[A] penalty
phase ineffective assistance claim depends on the magnitude
of the discrepancy between what counsel did investigate and
present and what counsel could have investigated and pres-
ented.”).
19662 MOORMANN v. RYAN

-- 20 of 23 --

[9] The problem here is that essentially all of the material
information from the potential lay witnesses identified by
Moormann during these habeas proceedings was actually
before the sentencing court during the penalty phase of Moor-
mann’s trial. Extensive evidence of Moormann’s history of
behavioral, mental, social, and emotional difficulties was
presented at trial, and trial counsel requested the court con-
sider this evidence in mitigation of Moormann’s crime during
the penalty phase. The evidence included the testimony of Dr.
Daniel Overbeck, Moormann’s psychological expert, who
reviewed Moormann’s medical, psychological, school, jail,
parole, prison, and police records, and testified about Moor-
mann’s mental health background from the age of two
through the time of trial. Trial counsel also submitted a packet
of sentencing materials to the court that included a letter from
a family physician who had known Moormann since he was
twelve years old, and a letter from Moormann’s fourth grade
teacher. The letter from the teacher provided a summary of
Moormann’s difficulties as a child and student, and attached
a report from a doctor who had evaluated Moormann when he
was in the fifth or sixth grade. We therefore agree with the
district court that even if trial counsel acted unreasonably by
not conducting a more thorough investigation into Moor-
mann’s childhood background, the failure to present lay wit-
ness testimony on the subject at sentencing did not prejudice
Moormann.
Despite the cumulative nature of the new evidence as it
relates to Moormann’s mental state, Moormann contends its
absence nevertheless prejudiced him because it would have
tended to make his allegations that Roberta sexually abused
him more believable. The record, however, does not bear out
this assertion. None of the declarations from the potential new
lay witnesses proffered by Moormann in these habeas pro-
ceedings provides any corroboration of Moormann’s allega-
tions that Roberta sexually abused him as a child. At most, the
declarations describe an overly protective mother who had an
odd relationship with her son. Moormann does not point to a
19663 MOORMANN v. RYAN

-- 21 of 23 --

single potential lay witness who knew him as an adolescent
or child that could testify to facts supporting his allegations of
sexual abuse.
[10] The new documents Moormann proffered to the dis-
trict court in these habeas proceedings did provide a more
detailed account of his background, particularly with respect
to his biological mother. This evidence, however, was cumu-
lative of the evidence already before the trial court at sentenc-
ing. Moreover, the evidence was most relevant to show as a
mitigating factor that Moormann’s capacity to appreciate the
wrongfulness of his conduct or to conform his actions to the
law was significantly impaired. See Ariz. Rev. Stat. § 13-
703(G)(1) (West Supp. 1982-83); State v. Mauro, 766 P.2d
59, 81 (Ariz. 1988) (reducing capital sentence to life sentence
because significant impairment of defendant’s capacity to
control his conduct was a “sufficiently substantial” mitigating
circumstance to outweigh the two aggravating factors found
by the trial court). Yet the trial court found this mitigating fac-
tor to have been proven beyond a reasonable doubt on the
basis of the evidence it already had before it. The new mate-
rial would not have affected the result because the court found
the three aggravating factors—conviction of a previous
offense for which a life sentence could be imposed; pecuniary
motive; and the especially cruel, heinous, or depraved manner
in which the crime was committed—outweighed the single
mitigating factor. Thus, there is no reasonable probability that
the cumulative evidence identified in these habeas proceed-
ings would have affected the sentence imposed by the trial
judge. Moormann therefore suffered no prejudice at the pen-
alty phase of his trial. See Wong v. Belmontes, 130 S. Ct. 383,
388 (2009).
[11] Even assuming there was a plausible argument that
trial counsel should have done more, there was no reasonable
probability that the Arizona Supreme Court would have
reversed Moormann’s capital sentence, even if appellate
counsel had raised the issue on direct appeal. The Arizona
19664 MOORMANN v. RYAN

-- 22 of 23 --

Supreme Court agreed with the trial court that the State
proved beyond a reasonable doubt the three aggravating fac-
tors, and held that these aggravating factors outweighed the
single mitigating circumstance established by Moormann.
Moormann I, 744 P.2d at 688. Since the potential lay wit-
nesses identified by Moormann in these habeas proceedings
could only offer mitigating evidence cumulative of the one
mitigating factor the trial judge had already found, and the
remaining information was cumulative of information already
before the sentencing court, there is no reasonable probability
the Arizona Supreme Court would have concluded trial coun-
sel rendered ineffective assistance at the penalty phase by not
presenting such evidence. Appellate counsel’s failure to raise
this claim on direct appeal did not prejudice Moormann, and
there was no Fourteenth Amendment due process violation.
See Smith, 528 U.S. at 285-86.
CONCLUSION
We conclude that Moormann has not established that his
appellate counsel rendered constitutionally deficient represen-
tation by failing to raise claims of ineffective assistance of
trial counsel in Moormann’s direct appeal to the Arizona
Supreme Court. The district court therefore properly held that
Moormann has not shown the cause and prejudice necessary
to excuse the procedural default of his ineffective assistance
of trial counsel claims. See Moormann II, 426 F.3d at 1060.
Accordingly, we affirm the district court’s denial of Moor-
mann’s petition for a writ of habeas corpus. Moormann was
not entitled to an evidentiary hearing on these claims because
even if the new evidence proffered in these federal habeas
proceedings is assumed to be true, he would not be entitled to
the relief he seeks. See Turner v. Calderon, 281 F.3d 851, 890
(9th Cir. 2002).
AFFIRMED.
19665 MOORMANN v. RYAN

-- 23 of 23 --