1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

WO

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Milo McCormick Stanley, 

Petitioner, 

vs.

Charles L. Ryan, et al., 

Respondents. 

)

)

)

)

)

)

)

)

)

)

)

)

No. CV-98-0430-PHX-GMS

DEATH PENALTY CASE

ORDER

On September 29, 2006, the Court determined that Petitioner was not entitled to

habeas corpus relief under 28 U.S.C. § 2254. (Doc. 67.) On appeal, the Ninth Circuit Court

of Appeals determined that Petitioner was entitled to an evidentiary hearing on his claim

alleging ineffectiveness from sentencing counsel’s failure to provide defense mental health

experts with evidence of Defendant’s mental state from jail psychiatrist Dr. Karleen

Hammitt’s observations that might have provided relevant mitigation at sentencing. Stanley

v. Ryan, 598 F.3d 612 (9th Cir. 2010). On February 17, 2011, this Court scheduled an

evidentiary hearing for September 7-8, 2011, and the parties undertook discovery and other

pre-hearing preparation. Subsequently, the United States Supreme Court issued an opinion

in Cullen v. Pinholster, 131 S. Ct. 1388 (2011), which addressed the limitations of habeas

review under 28 U.S.C. § 2254(d)(1), and this Court ordered supplemental briefing. (Doc.

108.) The parties filed briefs concerning the impact of Pinholster, and Respondents filed a

motion to vacate the impending evidentiary hearing. (Docs. 111-13, 116.) After review of
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

- 2 -

the filings, the Court informally notified the parties that it intended to vacate the evidentiary

hearing and that an order explaining the Court’s decision would follow.

Under the Antiterrorism and Effective Death Penalty Act of 1996, a petitioner is not

entitled to habeas relief on any claim “adjudicated on the merits” by a 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 unreasonable determination of

the facts in light of the evidence presented in the State court proceeding. 

28 U.S.C. § 2254(d). In Pinholster, the Court held that in determining the reasonableness

of a state court’s ruling under § 2254(d)(1), federal courts are “limited to the record that was

before the state court that adjudicated the claim on the merits.” 131 S. Ct. at 1398.

In its Order determining that Petitioner was not entitled to habeas relief on his claim

of ineffectiveness relating to the jail psychiatrist’s interview and observations of the

Defendant, this Court found that the state court’s adjudication of the issue was not based on

an objectively unreasonable application of law under § 2254(d)(1):

Contrary to Petitioner’s argument, the PCR court did not “fail[] to

consider the circumstances surrounding counsel’s so-called tactical decision”

to exclude Dr. Hammitt’s testimony. (Doc. 52 at 32.) Petitioner’s argument

is premised on the significance of trial counsel’s failure to disclose to Drs.

Bindelglas and Garcia-Bunuel Petitioner’s statement to Dr. Hammitt regarding

his reported sensation of watching himself carry out the shootings, which these

doctors indicated would have provided support for a diagnosis of dissociative

reaction. However, as the PCR court noted, Dr. Hammitt herself, to whom the

crucial statement was made on the morning after Petitioner’s arrest, did not

conclude that Petitioner exhibited symptoms of psychosis or that his feeling

of watching himself commit the crimes was the product of anything more than

intoxication and shock. (Doc. 53, Ex. 9 at 25, 31.) In denying relief, the PCR

court explicitly addressed the rationale underlying trial counsel’s decision to

assert the physician-patient privilege, finding that the Hammitt information

could have compromised the claim that Petitioner experienced a dissociative

reaction and thereby undermined the insanity defense. (M.E. 5/19/97 at 7.)

. . . .

Petitioner has not shown that the PCR court applied Strickland in an

objectively unreasonable manner when it rejected Petitioner’s challenge to

counsel’s handling of the Hammitt interview. 

(Doc. 67 at 33-35; see also id. at 40 n.13.) Although Petitioner did not request a hearing to
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

1

Petitioner alleges that in its remand order the Ninth Circuit determined that the state

court’s adjudication of the claim was objectively unreasonable under 28 U.S.C. § 2254(d).

This assertion is without merit. As the Ninth Circuit noted in its opinion, “it is important to

keep in mind that our decision in no way affects Stanley’s conviction, and it may not affect

his sentence. All this decision does is give Stanley the opportunity to establish whether his

counsel’s failure to fully inform the defense mental health experts undermines confidence

in the sentence of death imposed.” 598 F.3d at 623. Because this Court has already

determined that the state court’s determination was not objectively unreasonable, it need not

hold a subsequent evidentiary hearing to reconsider the issue. 

- 3 -

present new evidence in support of his habeas claims, the Court nonetheless also determined

that an evidentiary hearing was not warranted. (Id. at 49.) 

In the Ninth Circuit’s decision remanding this case for a hearing, the two-judge

majority concluded that Petitioner had presented a “colorable” claim to the state court and

that “the district court [had] abused its discretion in denying his petition without an

evidentiary hearing.” 598 F.3d at 626. The majority further found that an evidentiary

hearing was not barred by 28 U.S.C. § 2254(e)(2) because Petitioner had not “failed to

develop” the factual basis of his claim in state court in view of the fact the state court denied

his claim without holding a hearing. Id.

1

 This mandate to further develop the factual record

beyond what was presented to the state court, however, runs contrary to the limits

subsequently set forth by the Supreme Court in Pinholster. 

Although this Court is bound by decisions from the Ninth Circuit Court of Appeals,

where “intervening Supreme Court authority is clearly irreconcilable with . . . prior circuit

authority,” “‘district courts should consider themselves bound by the intervening higher

authority and reject the prior opinion of [the Ninth Circuit] as having been effectively

overruled.’” Day v. Apolonia, 496 F.3d 1027, 1031 (9th Cir. 2007) (quoting Miller v.

Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc). Thus, with respect, it appears to this

Court that the intervening Pinholster decision has abrogated the need for an evidentiary

hearing in this matter. 

Accordingly,

IT IS HEREBY ORDERED that Respondents’ motion to vacate the federal
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

- 4 -

evidentiary hearing scheduled for September 7 and 8, 2011, is GRANTED. (Doc. 116.)

Petitioner’s motions to schedule the testimony of Dr. Garcia-Bunuel and Barbara Spencer

are DENIED as moot. (Docs. 121, 122.)

IT IS FURTHER ORDERED vacating the August 30, 2011, pre-hearing status

conference.

IT IS FURTHER ORDERED that Petitioner’s claim of ineffective assistance of

counsel based on sentencing counsel’s failure to provide defense mental health experts with

evidence that might have been used in mitigation at sentencing, raised as part of Claim 5 in

Petitioner’s Amended Petition for Writ of Habeas Corpus (Doc. 33), is DENIED WITH

PREJUDICE. The Clerk of Court shall enter judgment accordingly.

IT IS FURTHER ORDERED granting a Certificate of Appealability on the

following issue:

Whether a subpart of Claim 5, alleging that Petitioner’s right to effective

assistance of counsel under the Sixth and Fourteenth Amendments was

violated by sentencing counsel’s failure to provide defense mental health

experts with evidence that would have provided mitigation at sentencing, fails

on the merits.

DATED this 25th day of August, 2011.