Detrich v. Thornell

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT DAVID SCOTT DETRICH, No. 08-99001 Petitioner-Appellant, D.C. No.4:03-cv- 00229-DCB v. RYAN THORNELL, Director of OPINION Arizona Department of Corrections, Respondent-Appellee. Appeal from the United States District Court for the District of Arizona David C. Bury, District Judge, Presiding Argued and Submitted En Banc January 14, 2026 Pasadena, California Filed June 17, 2026 Before: Mary H. Murguia, Chief Judge, and Sidney R. Thomas, Susan P. Graber, William A. Fletcher, Ronald M. Gould, Carlos T. Bea, Morgan Christen, Jacqueline H. Nguyen, John B. Owens, Bridget S. Bade, and Kenneth K. Lee, Circuit Judges. Opinion by Chief Judge Murguia; Concurrence by Judge Nguyen 2 DETRICH V. THORNELL SUMMARY * Habeas Corpus / Death Penalty The en banc court affirmed the district court’s denial of Arizona death row prisoner David Scott Detrich’s habeas corpus petition under 28 U.S.C. § 2254. The en banc court held that a claim is fairly presented to the state supreme court when the circumstances as a whole fairly apprise the state supreme court that the petitioner seeks from the supreme court some form of substantive or procedural relief with respect to that claim. Including the underlying petition in the appendix, without more, is insufficient. The en banc court held that Detrich procedurally defaulted most of his guilt-phase ineffective assistance of counsel claims by failing to fairly present them to the Arizona Supreme Court, and that Detrich did not establish cause and prejudice to excuse those procedural defaults under Martinez v. Ryan, 566 U.S. 1 (2012). The en banc court held that Detrich did not procedurally default his claim that trial counsel was ineffective for failing to retain a forensic expert to challenge a prosecution witness’s testimony about the victim’s gurgling sounds. Detrich contended that expert testimony would have undermined the witness’s credibility, which in turn would have resulted in a different outcome at trial. The Arizona Supreme Court, however, reasonably concluded * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.  DETRICH V. THORNELL 3 that Detrich was not prejudiced by counsel’s failure to retain an expert for this purpose because overwhelming evidence, apart from the prosecution witness’s testimony, supported the finding that Detrich murdered the victim. Because the state court’s conclusion is objectively reasonable, habeas relief is precluded under the Antiterrorism and Effective Death Penalty Act of 1996. See 28 U.S.C. § 2254(d). Detrich also contended that trial counsel performed deficiently at sentencing by failing to present additional mitigation evidence and by failing to challenge prosecution evidence showing that he committed the offense in an especially cruel, heinous, or depraved manner, which rendered him eligible for the death penalty. The en banc court rejected Detrich’s contention that the Arizona Supreme Court unreasonably applied Strickland v. Washington, 466 U.S. 668 (1984), in concluding that he was not prejudiced by trial counsel’s alleged deficiencies. The en banc court also rejected Detrich’s assertion that the state court’s decision was based on an unreasonable determination of the facts. Section 2254(d) therefore precludes habeas relief on this claim as well. The en banc court declined to grant a certificate of appealability on Detrich’s claim that the Arizona Supreme Court applied an unconstitutional causal nexus test to mitigation evidence at sentencing, as Detrich did not make a substantial showing that it did so in his case. Judge Nguyen concurred in all but one respect and concurred in the judgment. She wrote that Martinez is a specific application of the cause requirement in Coleman v. Thompson, 501 U.S. 722 (1991), for overcoming procedural default and does not replace Coleman’s actual prejudice 4 DETRICH V. THORNELL requirement with a substantiality test. Here, however, the prejudice standard makes no difference. COUNSEL Amy S. Armstrong (argued), Emily K. Skinner, Sam Kooistra, and Jennifer S. Bedier, Arizona Capital Representation Project, Tucson, Arizona; Gregory J. Kuykendall, Kuykendall & Associates, Tucson, Arizona; for Petitioner-Appellant. Jason D. Lewis (argued), Deputy Solicitor General, Section Chief of Capital Litigation; Laura P. Chiasson and Jonathan Bass, Assistant Attorneys General; Kent E. Cattani, Chief Counsel; Capital Litigation Division, Criminal Appeals Division; Thomas C. Horne and Kristin K. Mayes, Arizona Attorneys General; Office of the Arizona Attorney General, Tucson, Arizona, for Respondent-Appellee.  DETRICH V. THORNELL 5 OPINION MURGUIA, Chief Circuit Judge: Arizona death row prisoner David Scott Detrich appeals the district court’s denial of his 28 U.S.C. § 2254 federal habeas petition. Detrich contends that his attorney provided ineffective assistance during the guilt and penalty phases of his trial, in violation of his Sixth and Fourteenth Amendment right to counsel, and that the Arizona Supreme Court applied an unconstitutional causal nexus test to mitigation evidence at sentencing, in violation of his Eighth and Fourteenth Amendment right to individualized sentencing in capital cases. The district court denied habeas relief, and we affirm. Detrich procedurally defaulted most of his guilt-phase ineffective assistance of counsel claims by failing to fairly present them to the Arizona Supreme Court. Detrich, moreover, has not established cause and prejudice to excuse those procedural defaults under Martinez v. Ryan, 566 U.S. 1 (2012). To establish cause under Martinez, Detrich must demonstrate a reasonable probability that the outcome of his state postconviction proceedings would have been different had postconviction review counsel raised the claims in that forum. See Pizzuto v. Ramirez, 783 F.3d 1171, 1178 (9th Cir. 2015). Detrich has not made this showing. Detrich did not procedurally default his claim that trial counsel was ineffective for failing to retain a forensic expert to challenge a prosecution witness’s testimony about the victim’s gurgling sounds. Detrich contends that expert testimony would have undermined the witness’s credibility, which in turn would have resulted in a different outcome at trial. The Arizona Supreme Court, however, reasonably concluded that Detrich was not prejudiced by counsel’s 6 DETRICH V. THORNELL failure to retain an expert for this purpose because overwhelming evidence, apart from the prosecution witness’s testimony, supported the finding that Detrich murdered the victim. Because the state court’s conclusion is objectively reasonable, habeas relief is precluded under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). See 28 U.S.C. § 2254(d). Detrich also contends that trial counsel performed deficiently at sentencing by failing to present additional mitigation evidence and by failing to challenge prosecution evidence showing that he committed the offense in an especially cruel, heinous, or depraved manner, which rendered him eligible for the death penalty. We reject Detrich’s contention that the Arizona Supreme Court unreasonably applied Strickland v. Washington, 466 U.S. 668 (1984), in concluding that he was not prejudiced by trial counsel’s alleged deficiencies. We also reject Detrich’s assertion that the state court’s decision was based on an unreasonable determination of the facts. Section 2254(d) therefore precludes habeas relief on this claim as well. Finally, Detrich contends that the Arizona Supreme Court applied an unconstitutional causal nexus test to mitigation evidence at sentencing. Although the Arizona Supreme Court intermittently applied an improper causal nexus test during the timeframe in which Detrich was sentenced, see McKinney v. Ryan, 813 F.3d 798, 815 (9th Cir. 2015) (en banc), Detrich has not made a substantial showing that it did so in his case, cf. Lee v. Thornell, 118 F.4th 969, 993–94 (9th Cir. 2024); Apelt v. Ryan, 878 F.3d 800, 839–40 (9th Cir. 2017); Greenway v. Ryan, 866 F.3d 1094, 1095–1100 (9th Cir. 2017). We decline to grant a certificate of appealability on this claim. See 28 U.S.C. § 2253(c)(2).  DETRICH V. THORNELL 7 I. Background A. Trial and Direct Review Detrich was charged with first-degree murder, kidnapping, and sexual assault in connection with the 1989 death of Elizabeth Souter. State v. Detrich (Detrich II), 932 P.2d 1328, 1332 (Ariz. 1997). His codefendant, Alan Charlton, was charged with first-degree murder and kidnapping, pleaded guilty to a single count of kidnapping, agreed to testify against Detrich in exchange for dismissal of the murder charge, and was sentenced to ten and one-half years in prison. Id. at 1331 n.1. Souter was Black; Detrich and Charlton are white. At Detrich’s first trial, in 1990, the jury found him guilty of first-degree murder, kidnapping, and sexual abuse, a lesser included offense of sexual assault. Id. at 1332. The trial court sentenced Detrich to death for murder, to twenty- one years in prison for kidnapping, and to four years in prison for sexual abuse. State v. Detrich (Detrich I), 873 P.2d 1302, 1303 (Ariz. 1994). The Arizona Supreme Court affirmed Detrich’s conviction for sexual abuse but reversed his convictions for murder and kidnapping and remanded for a new trial on those charges. Id. In 1994, Detrich was tried and convicted a second time. We summarize the evidence in the second trial below. 1. Alan Charlton’s Testimony Charlton testified for the prosecution that he, Detrich, and William Carbonell, all of whom worked together at a wrecking yard in Benson, Arizona, went out drinking after work on Saturday, November 4, 1989. After consuming a great deal of beer, Charlton and Detrich drove to Tucson, where they visited more bars and consumed more alcohol. 8 DETRICH V. THORNELL At one point, they stopped and picked up Souter, who was walking along the road. Detrich asked Souter whether she knew a place where they could purchase cocaine, and Souter directed them to a house where they could do so. Detrich and Souter went into the house, and Detrich purchased a “rock” of cocaine. Charlton testified that he, Detrich, and Souter then drove to Souter’s house. Detrich went into the kitchen and attempted to dissolve and inject the cocaine. Detrich became angry when these efforts were unsuccessful, and he directed his anger at Souter. Detrich was “screaming and hollering that the needle wasn’t any good, or the cocaine wasn’t any good, the needle wouldn’t pick it up.” Detrich entered the living room, grabbed Souter, held a knife to her throat, and told her, “Come on, bitch, we are going for a ride.” As Detrich led Souter to the car at knifepoint, “[y]ou could see the terror in her eyes.” Charlton, Detrich, and Souter got into Charlton’s car. Charlton sat in the driver’s seat, Detrich sat in the middle, and Souter sat up against the passenger door. Detrich instructed Charlton to drive, and Charlton did so. Charlton testified that he looked to his right several times while driving. The first time he looked to his right he saw that Detrich was on top of Souter, “humping her.” The second time he looked over he saw that Souter’s throat had been cut. The third time he looked over he saw that Detrich was hitting Souter and trying to get her to tell him the name of the person who sold them the bad drugs. Detrich asked Souter three times, and each time Souter gurgled something in response. Charlton could not make out what Souter said. The fourth time Charlton looked to his right, Souter had stopped moving, and Detrich asked Charlton if he “wanted a shot of it, it is dead but it is warm, you want a shot of it?” Charlton told Detrich no. Detrich instructed Charlton to pull  DETRICH V. THORNELL 9 over. Charlton did so, and Detrich dragged Souter’s body into the desert. Charlton and Detrich then drove to Carbonell’s house. Charlton described Souter’s killing to Carbonell the next day, and to the police a week later. 2. Tammy Winsett’s Testimony Tammy Winsett, who was present at Souter’s home on the night of the crimes, also testified for the prosecution. She testified that Souter arrived home with two men between midnight and one o’clock in the morning. At one point, Charlton told Winsett that he had killed his ex-wife’s lover and would do the same to Winsett if she betrayed him. Later, Detrich became angry with Souter because of the bad drugs, held a knife to her neck, and told her that she was going to have sex with him. “[Detrich] told [Souter] they could go in the room or do it right there, or they would do it his way, and she did not want to do it his way.” Winsett left the house with Souter’s daughter Caprice to call for help. On her way back to the house, Winsett saw Detrich and Charlton taking Souter to the car over Souter’s protests. Winsett heard Souter say “no” a couple of times. Charlton was driving and Souter was in the passenger seat. 3. Gwen Souter’s Testimony Souter’s daughter Gwen testified for the prosecution as well. Like Winsett, Gwen was present at Souter’s house on the night of the crimes. While Winsett and Caprice interacted with Charlton and Detrich, Gwen stayed in her room in the back of the house with her infant daughter. Gwen heard Souter and two men arrive at the house around midnight or one o’clock in the morning. At one point, Gwen heard one of the men—not Charlton—say, “you must not believe me, I will kill you.” Around this time, Winsett and Caprice came to her door, scared and hysterical. These 10 DETRICH V. THORNELL events terrified Gwen, who hid her daughter under the bed, climbed out of her bedroom window, ran a couple of blocks away, and telephoned the police. 4. William Carbonell’s Testimony Carbonell appeared as a prosecution witness and testified that Charlton and Detrich arrived at his home around four o’clock in the morning on November 5. Charlton and Detrich “looked like they had been in a terrible fight, like they butchered a cow.” Carbonell testified that Detrich was covered in blood, while Charlton had blood on his right side. Detrich II, 932 P.2d at 1332. 1 Detrich told Carbonell that “he killed a girl”—“he had gone to some house . . . to get some drugs, and some bad drugs, and he grabbed the girl out of the house by knife point and jumped in the car and they left. That is when he killed her.” Detrich told Carbonell that he killed the woman by cutting her throat with a knife. Carbonell ultimately reported the crimes to the police. 5. Dr. Thomas Henry’s Testimony Dr. Thomas Henry, the medical examiner who autopsied Souter’s body, also testified for the prosecution. He testified that Souter suffered more than forty knife wounds, including numerous defensive-type wounds to her hands, as well as bruises throughout her body. Three of the knife wounds were potentially fatal—one to the abdomen, one to the left side of the neck, and a deep cutting wound across the front 1 Darci Bell, Detrich’s sister, stated in a 2004 declaration that she washed Detrich’s clothes the day after the murder and that they did not have blood on them. See Detrich v. Ryan (Detrich V), 740 F.3d 1237, 1255 (9th Cir. 2013) (en banc) (plurality opinion) (discussing this evidence). Although Detrich discussed this evidence in his Martinez remand motion and in the briefs he filed during successive state postconviction proceedings, he does not mention the evidence in his current briefing.  DETRICH V. THORNELL 11 of Souter’s neck and throat. None of the wounds would have rendered Souter immediately unconscious, but the most serious wound—to Souter’s throat—would have killed her within fifteen to twenty minutes. The combination of the wounds would have contributed to her dying even sooner. Dr. Henry found no evidence of sexual assault, but the absence of such evidence was not conclusive as to whether an assault occurred. 6. Detrich’s Defense Detrich was represented by attorney Harold Higgins. Higgins presented two defenses: a mere-presence defense and a misidentification defense. With respect to the misidentification defense, Higgins pointed to evidence that Winsett and Gwen Souter had initially told police that the man who threatened Souter looked or sounded Hispanic, which Detrich is not. Detrich’s mere-presence defense relied on testimony from Phillip Shell, who shared a jail pod with Charlton in 1990. Shell testified in person at Detrich’s first trial in 1990. At the second trial, in 1994, Shell’s testimony was read into the record because Higgins was unable to arrange Shell’s presence as a live witness. 2 In Shell’s telling, Charlton killed Souter because he was angry that Detrich “was kissing with a black woman . . . that had just ripped him off.” Charlton called Detrich “a Nigger lover” and referred to Souter as “[t]hat black bitch.” Charlton “was hoping that he was going to turn State’s evidence” and “would say anything . . . he had to make up to get [Detrich] the death penalty.” 2 Whether Shell was willing to testify at the second trial is disputed. We need not resolve that dispute to decide this appeal. 12 DETRICH V. THORNELL Charlton’s estranged wife, Deborah Charlton, provided additional evidence of Charlton’s racism. She testified that Charlton disliked Black people and referred to Black people as “mud ducks.” She also testified that Charlton liked martial arts paraphernalia; owned two knives, one of which he routinely carried on his person; and had once brandished a knife and threatened to kill her if she left him. On cross- examination, Deborah acknowledged that she had described Charlton as a nonviolent person at Charlton’s sentencing. 7. Verdict and Sentencing The jury deliberated for an hour before finding Detrich guilty of first-degree murder and kidnapping. On the murder charge, eleven jurors found Detrich guilty on a felony murder theory, nine found him guilty on a premeditation theory, and eight found him guilty on both theories. The sentencing phase of the trial occurred in February 1995 and included a one-day aggravation-mitigation hearing and a one-day sentencing hearing. To render a defendant death-eligible in Arizona, the prosecution must prove at least one statutory aggravating circumstance. Ring v. Arizona, 536 U.S. 584, 593 (2002) (citing former Ariz. Rev. Stat. § 13-703(F)). Here, the prosecution pursued a single aggravator (the (F)(6) aggravator), arguing that Detrich “committed the offense in an especially heinous, cruel or depraved manner.” Ariz. Rev. Stat. § 13-703(F)(6) (1994) (now codified at Ariz. Rev. Stat. § 13-751(F)(4)). The (F)(6) aggravator encompasses a cruelty prong and a heinous or depraved prong. “A murder is especially cruel if the jury finds the victim consciously suffered physical or mental pain and that the defendant knew or should have known that the victim would suffer.” State v. Allen, 513 P.3d 282, 326 (Ariz. 2022) (quoting State v. Allen, 460 P.3d 1236, 1243–  DETRICH V. THORNELL 13 44 (Ariz. 2020)). The term heinous or depraved, on the other hand, is used to describe “a defendant’s vile state of mind and attitude at the time of the murder.” State v. Ross, 886 P.2d 1354, 1361 (Ariz. 1994). “This is generally assessed by reference to the defendant’s words or actions both preceding and during the crime’s commission.” State v. Robinson, 509 P.3d 1023, 1038 (Ariz. 2022). “Specifically, the jury must consider ‘1) whether the defendant relished the murder; 2) whether the defendant inflicted gratuitous violence on the victim; 3) whether the defendant needlessly mutilated the victim; 4) the senselessness of the crime; and 5) the helplessness of the victim.’” Id. (quoting State v. Murdaugh, 97 P.3d 844, 856 (Ariz. 2004)). “‘[A] finding of either cruelty or heinousness/depravity will suffice to establish’ the (F)(6) factor.” State v. Newell, 132 P.3d 833, 850 (Ariz. 2006) (quoting State v. Djerf, 959 P.2d 1274, 1286 (Ariz. 1998)). Detrich challenged his eligibility for the death penalty under Enmund v. Florida, 458 U.S. 782 (1982), and Tison v. Arizona, 481 U.S. 137 (1987). Under Enmund and Tison, “the Eighth Amendment permits imposition of the death penalty in the case of a ‘felony murderer who actually killed, attempted to kill, or intended to kill’” or “‘whose participation [in the felony] is major and whose mental state is one of reckless indifference to the value of human life.’” Ross v. Davis, 29 F.4th 1028, 1043–44 (9th Cir. 2022) (alteration in original) (quoting Tison, 481 U.S. at 150, 152). Detrich proposed five mitigating circumstances: diminished capacity based on voluntary intoxication; abusive background; lack of previous convictions involving serious injury or threat thereof; remorse for the victim; and the minimal sentence received by Charlton. 14 DETRICH V. THORNELL Regarding Detrich’s abusive background and history of substance abuse, the record before the sentencing court included three statements from Detrich’s sister, Diana Jo Stevens; a presentence report; a 1985 psychological report by Dr. Larry Zimmerman; a 1985 clinical evaluation approved by Dr. George Penn, a psychiatrist; and a 1991 psychological evaluation by Dr. Catherine Boyer. Dr. Boyer conducted a general psychological evaluation after the first trial, at the request of Detrich’s then-defense attorney, “for the purposes of sentencing, in particular, to determine the extent to which there may be mitigating factors.” 3 This evidence documented Detrich’s “very unstable childhood marred with frequent moves and a considerable amount of abuse and neglect.” Detrich was born in 1959. He was born with a cleft palate and a cleft lip for which he underwent corrective surgery that left visible scars. Detrich’s parents divorced when he was young, and he and his siblings were shuffled back and forth between their parents during a yearslong custody battle. Detrich’s father, Norman, effectively kidnapped the children at one point while the children were in the legal custody of their mother. Detrich had a poor relationship with his mother, Patricia, because he thought she did not care about him. Detrich also had a poor relationship with his father, because his father was an absentee parent who failed to intervene to prevent the children’s stepmother, Jean, from abusing them; Norman worked long hours and was seldom home. Detrich’s stepmother subjected Detrich and his three siblings to frequent and severe physical and psychological 3 Detrich was represented by James Glanville during his first trial in 1990. Glanville was not involved in Detrich’s defense during the second trial.  DETRICH V. THORNELL 15 abuse. In one particularly serious incident, Jean knocked Detrich’s brother down a flight of concrete stairs and then threatened to shoot the boy if he reported the abuse to his father. The evidence showed that Jean cruelly punished Detrich for wetting his bed. She once tied Detrich by the neck to a post in the yard and told him that he was no better than a dog. She also held Detrich underwater in a bathtub, and she publicly humiliated Detrich in front of other children on account of his bedwetting. Detrich began drinking at around age nine, with the encouragement of his stepfather, Kenneth “Skip” Murdie. His stepfather took him to all-night drinking parties and, on one occasion, on a weeklong drinking spree. Detrich had a good relationship with his stepfather, but his stepfather was physically abusive toward Detrich’s mother. Detrich began using drugs, including marijuana and speed, at a young age as well. His mother also abused drugs. In 1985, Detrich reported that he had abused most street drugs at one time or another. Detrich’s abuse of alcohol led to a host of problems. He totaled his stepfather’s truck while drinking and driving as a teenager. He had three drunk driving arrests in his teens and twenties. He spent time in a state hospital’s alcohol treatment program in 1986. Detrich’s brother, Danny, died in an automobile accident when Detrich was a young man. Detrich later married his brother’s widow, but the marriage ended in divorce. The divorce depressed Detrich, and he attempted suicide. Detrich spent several years in the military before receiving an other-than-honorable discharge. The sentencing record also contained evidence regarding Detrich’s mental health. This evidence suggested that Detrich’s cognitive functioning was within the normal 16 DETRICH V. THORNELL range. Dr. Penn found no evidence of delusional thinking or a thought disorder and reported that Detrich’s “intelligence was clinically estimated to be above average.” Dr. Zimmerman reported that “[r]esults of group psychological tests estimate his intelligence to be in the lower portion of the bright-normal range.” Dr. Boyer noted that Detrich’s “[t]hought processes were logical and coherent,” that he “appears free of any major mental disorder or other significant psychiatric disturbance,” that his “[c]ognitive functioning appeared grossly intact,” and that his “stated academic history, spoken vocabulary and performance on written materials suggest at least average intellectual functioning.” The mental health evidence also mentioned Detrich’s impulsivity. Dr. Penn found that Detrich’s “judgment was grossly intact with occasional impulsive responses” and noted that Detrich “repeatedly acts in a self-sabotaging and self-destructive way.” Dr. Zimmerman cited Detrich’s “considerable poor judgment and poor impulse control,” described Detrich as “an impulsive individual with poor judgment and a low tolerance for frustration,” and noted that “[w]hen under stress [Detrich] may involve himself in acting-out behavior that is poorly planned.” Dr. Boyer reported that Detrich’s score on the component of the Minnesota Multiphasic Personality Inventory-2 (MMPI-2) test associated with impulsivity was not elevated. But Dr. Boyer diagnosed Detrich with probable antisocial personality disorder, which is associated with impulsivity. See Antisocial Personality Disorder, American Psychological Association Dictionary of Psychology (updated Nov. 15, 2023), https://perma.cc/KD6A-JM5Y. Dr. Boyer noted that Detrich indicated that “he is someone with a potential for a serious loss of temper, although he does  DETRICH V. THORNELL 17 not believe that this has ever happened. He suggested that, at times, he has frightened others with his anger.” Dr. Boyer cited a 1986 incident in which Detrich was charged with holding his wife at knifepoint and threatening to kill her. Those charges were dismissed when Detrich was committed to the state hospital for substance abuse treatment. The mental health evidence also corroborated Detrich’s extensive history of alcohol and drug abuse. Dr. Penn noted that Detrich “has abused alcohol and many street drugs severely in the past,” and Dr. Boyer reported that Detrich “has had a lifelong problem with alcohol and drug abuse, the alcohol in particular leading to problems in his life.” Finally, the mental health evidence suggested a connection between Detrich’s abusive childhood and his antisocial behavior as an adult. Dr. Penn noted that Detrich had been “reared in an unstable environment where child abuse and neglect as well as apparent poor nurturance were commonplace,” that Detrich suffered from “chronically low self-esteem,” and that Detrich “repeatedly acts in a self- sabotaging and self-destructive way to insure that he remains unsuccessful and incompetent, as if to fulfill his own perception of low self-worth.” Dr. Zimmerman wrote that Detrich “possesses much anger towards parental figures which he has not resolved. Undoubtedly, this has had considerable influence upon his behavior and affected his life-style.” Dr. Boyer reported that “Detrich’s ability to relate to others appears to have been adversely affected by his developmental experiences.” She opined that Detrich’s “early childhood experiences, physical abuse at the hands of his stepmother and apathy from his mother” likely “had a significant effect on his ability to trust in relationships with women.” Dr. Boyer raised the possibility that Souter’s murder “represented the eruption of angry, violent feelings 18 DETRICH V. THORNELL toward significant women in his past who have hurt him, which were displaced onto the victim.” It was also “likely that his long-term substance abuse has functioned as a means of coping with memories or feelings related to his childhood experiences.” At the sentencing hearing, the trial court found beyond a reasonable doubt that Detrich “intended to kill the victim and in fact, alone, killed the victim,” satisfying Enmund and Tison. The trial court also found beyond a reasonable doubt that Detrich killed Souter in an especially cruel manner and that the offense was committed in an especially heinous and depraved manner, satisfying both prongs of the (F)(6) aggravator. The trial court found five mitigating circumstances: (1) that Detrich’s capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law was significantly impaired by alcohol or drugs but not so impaired as to constitute a defense to prosecution, Ariz. Rev. Stat. § 13-703(G)(1) (1994) (now codified at Ariz. Rev. Stat. § 13-751(G)(1)); (2) that Detrich comes from an abusive background, including both physical and mental abuse; (3) that Detrich felt some remorse for the killing; (4) that Detrich did not have prior convictions involving violence; and (5) that Detrich had a long history of alcohol and substance abuse. The trial court sentenced Detrich to death for first-degree murder and to twenty-one years in prison for kidnapping. On direct appeal, the Arizona Supreme Court upheld Detrich’s convictions and sentences, including the trial court’s findings on the (F)(6) aggravator. Detrich II, 932 P.2d at 1338–39. 4 To establish cruelty, the prosecution was 4 The Arizona Supreme Court “independently review[ed] the aggravating and mitigating circumstances to ensure that the trial court  DETRICH V. THORNELL 19 required to prove beyond a reasonable doubt that Souter “consciously suffered physical pain or mental distress.” Id. at 1338. The Arizona Supreme Court found “overwhelming evidence that the victim was conscious throughout much of the crime” in light of Souter’s defensive-type wounds and Charlton’s testimony that Souter attempted to speak, but was able only to gurgle, in response to Detrich’s questioning. Id. at 1338–39. The Arizona Supreme Court further found that Souter experienced physical pain because she suffered forty cutting and stab wounds, including “a deep cutting wound that stretched across the victim’s neck from ear to ear, cutting through the voice box, the esophagus, and into the cerebral column,” as well as numerous bruises. Id. at 1339. The Arizona Supreme Court also found that Souter suffered mental distress because she experienced uncertainty as to her fate when Detrich held a knife to her neck, told her that he was going to kill her, and dragged her to the car. Id. Separately, the Arizona Supreme Court found that the murder was committed in an especially heinous or depraved manner. Id. First, offering Charlton a “shot” at Souter’s “dead but warm” body “showed an abhorrent lack of regard for human life” and established that Detrich “relished the murder.” Id. Second, the sheer number of wounds established that Detrich “engaged in gratuitous violence beyond that necessary to cause death.” Id. Third, “the victim was helpless,” and fourth, “the murder was senseless.” Id. The Arizona Supreme Court concluded that the aggravating factor outweighed the mitigating factors and affirmed the death sentence. Id. at 1340. The United States properly imposed the death penalty.” Detrich II, 932 P.2d at 1338. The court therefore independently found that the murder was especially cruel and especially heinous or depraved. Id. at 1338–39. 20 DETRICH V. THORNELL Supreme Court denied certiorari. Detrich v. Arizona, 522 U.S. 879 (1997). B. State Postconviction Review Proceedings Detrich filed his first petition for state postconviction relief in the trial court in 1999. He was represented by postconviction review counsel, and his petition alleged claims of ineffective assistance of counsel with respect to both the guilt and the sentencing phases of the trial. As to the guilt phase, the petition alleged in relevant part that trial counsel was ineffective for failing to retain forensic experts to address the physical evidence in the case, including the seat covers from Charlton’s car, the pattern of blood on Detrich and Charlton, bloodstained jeans found in the back of the car, and Souter’s wounds, and for failing to secure Shell’s appearance at the second trial. Regarding the sentencing phase, the petition alleged that trial counsel was ineffective for failing to develop and present mitigation evidence and for failing to rebut the (F)(6) aggravator. Detrich relied on declarations from his sister, mother, and stepfather to argue that trial counsel should have discovered and presented additional mitigation evidence pertaining to his childhood—evidence that Detrich underwent three surgeries to correct his cleft palate and lip; that he stopped breathing and required emergency surgery following the third of those surgeries; that his parents subjected the children to a bitter custody battle following the couple’s divorce; that Detrich’s father essentially kidnapped the children while Detrich’s mother had legal custody of them; that he was severely and frequently physically abused by his stepmother; that his stepmother publicly humiliated him for wetting the bed; that his father was often away from home; that his brother encouraged him to get into fistfights;  DETRICH V. THORNELL 21 that his stepfather encouraged him to consume alcohol at a young age; that he started using marijuana at a young age; and that he was involved in several motorcycle and automobile accidents as a youth, including one involving a vehicle rollover. Detrich also relied on a report prepared by Dr. Robert Briggs, a neuropsychologist, to argue that trial counsel should have retained a mental health expert to present additional mitigation evidence regarding Detrich’s mental health. Dr. Briggs tested and assessed Detrich’s neuropsychological functioning in 2000. Dr. Briggs reported that Detrich: earned a Halstead Impairment Index of 0.3. This indicates that 30% (two out of seven) of the component tests were within the brain- damaged range. A value of this magnitude represents performance in the normal range of neuropsychological function. On the General Neuropsychological Deficit Scale, the patient earned a score of 25. This score indicates an overall clinical level within the normal range (0–26). Mr. Detrich displayed a relatively consistent pattern of neuropsychological results in which he had good and intact functions with a few impaired performances. Dr. Briggs concluded that Detrich’s brain was biologically intact. He wrote that Detrich’s neuropsychological functioning was “in the normal range” while noting that this was “a recovered picture”: “As would be expected in a history of reported head injuries and drug use, improvement 22 DETRICH V. THORNELL in function occurs as time (and sobriety) from the incidents increase.” Dr. Briggs suggested that Detrich’s impulsive and antisocial behavior as an adult was related to his abusive childhood: This client’s match with profile Type D of the Megargee typology suggests that he is an impulsive and nonreflective person who may have a history of serious legal offenses. His problems have probably resulted from a hedonistic, amoral lifestyle and an inability to delay gratification. He is likely (and has been noted) to have come from a chaotic, tense, and noncohesive home where inconsistent discipline was a hallmark. He may have (and did have) had significant interpersonal difficulties in the past. Anger and violence may (and have) resulted when he is provoked. His basic problem seems to be that he is impulsive and insists on having his own way regardless of the law or the feelings of other people. . . . There[] is little doubt that Mr. Detrich is exhibiting antisocial characteristics. Given the history, it is believed that decision- making, especially when compromised by alcohol, was not based on any consequence- driven thought process, but rather a learned behavior that bypassed right or wrong. When subjected to the abuse noted by Mr. Detrich and collateral sources, it is believe[d] that the  DETRICH V. THORNELL 23 mindset was developed in which instinct took over and reason could not be accessed. Dr. Briggs also noted that an individual with Detrich’s profile “is usually viewed as having a severe Personality Disorder, such as an Antisocial or Paranoid Personality.” Detrich relied on a declaration from Michael Sweedo, a criminalist, to argue that trial counsel should have retained a forensic expert to challenge Charlton’s testimony that Souter’s gurgling reflected a conscious attempt to speak. As noted, the state courts relied in part on Charlton’s testimony about Souter’s gurgling to find that Souter was conscious during the attack, which in turn supported the courts’ finding that Detrich committed the murder in an especially cruel manner. Detrich II, 932 P.2d at 1338–39. Sweedo challenged the proposition that Souter’s gurgling represented a conscious attempt to speak: I believe that the assistance of a physician properly trained in forensic pathology would be necessary to make a final analysis; but there is cause to believe that after the victim in this case was slit from ear to ear, the wound penetrating all the way back to her neck bone, there is very little probability that the victim would have been engaging in conversation of any nature, and the possibility of any prolonged consciousness, after the removal of the oxygen supply to the brain of the victim would not be likely. The petition argued that this testimony was relevant not onl