Appeal from the United States District Court for the District of Arizona Paul G. Rosenblatt, District Judge, Presiding D.C. No. CV-97-01239-PGR
The opinion of the court was delivered by: Schroeder, Circuit Judge
Argued and Submitted November 5, 2009-Pasadena, California
Before: Mary M. Schroeder, Marsha S. Berzon and Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Schroeder; Partial Concurrence and Partial Dissent by Judge Ikuta
Aryon Williams was convicted in Arizona state court in 1992 and sentenced to death for the first degree murder of his former girlfriend Rita DeLao, and for the later robbery and attempted murder of Norma Soto. The Arizona appellate courts upheld his convictions and sentence. See State v. Williams, 904 P.2d 437 (Ariz. 1995). In this habeas proceeding, the most significant issues concern a claim of concealment of partially exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963), and the failure of the state court to consider mitigating evidence at sentencing in violation of Lockett v. Ohio, 438 U.S. 586 (1978) and Eddings v. Oklahoma, 455 U.S. 104 (1982).
The evidence at trial included the testimony of Michelle Deloney, Williams' then girlfriend, that Williams had confessed to her he murdered DeLao. The murder occurred in a relatively remote area of Pinal County, Arizona and there were no eyewitnesses and little physical evidence. On the robbery/attempted murder charge, the victim, Norma Soto, testified at trial and identified Williams as her attacker.
Two years after the convictions were affirmed on appeal, an Assistant Attorney General for Arizona turned over to Williams' attorney a packet of jailhouse letters written before trial that suggested that Williams was not the actual murderer. These letters suggested that Williams had paid another man, Patrick Fields, to do the job. The jailhouse letters led Williams to two witnesses who said they had seen Fields disposing bloody clothing in a park a morning around the time of the murder. Fields turned out to have a history of assaulting women.
By the time Williams became aware of this evidence, these federal habeas proceedings had been instituted. The district court stayed the proceedings so that Williams could, in state court, exhaust a Brady claim arising from the jailhouse letters. The state court, however, refused to grant a request for a first extension of time to prepare a post-conviction petition. Williams was, therefore, unable to exhaust state remedies. When he returned to federal court, the district court rejected the State's position that the Brady claim was procedurally barred, but denied the claim on the merits. Like the district court we consider this claim without regard to the deferential strictures of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). We agree with the district court that it is not appropriate to view the claim as procedurally barred because Williams did not have an opportunity to raise it in state court. The district court granted a certificate of appealability ("COA") and we have determined that this claim warrants an evidentiary hearing.
The district court also granted a COA for the claim that the trial court violated Williams' due process rights by failing to provide funds for a mental health expert at sentencing to establish drug dependence as a mitigating factor. Like the district court, we agree that the state court's rejection of this claim was not contrary to or an unreasonable application of Supreme Court precedent.
Of the numerous claims that had not been certified, but that have been briefed pursuant to our rules, we find one to be meritorious. Williams offered his addiction to crack cocaine as a mitigating factor at sentencing. The Arizona Supreme Court refused to consider this as a mitigating factor under applicable Arizona law because Williams did not show he was under the influence of drugs at the time of the murder. Because Williams' challenge to this determination raises a substantial constitutional issue, 28 U.S.C. § 2253(c)(2), we certify the issue and decide it. As we have done in other cases emanating from Arizona courts in the same period, we find that the state court erred by its refusal to consider all mitigating evidence. See Eddings, 455 U.S. at 114-15; Lockett, 438 U.S. at 604-05; Lambright v. Schriro, 490 F.3d 1103, 1114-15 (9th Cir. 2007).
FACTUAL AND PROCEDURAL BACKGROUND
The underlying facts of this case are set out in detail in the Arizona Supreme Court's opinion on direct appeal. State v. Williams, 904 P.2d 437 (Ariz. 1995). We summarize them here.
On Saturday, January 27, 1990, Williams and DeLao made plans to spend the night together at Williams' apartment in Casa Grande. When DeLao called, though, Williams told her not to come over since his girlfriend Deloney was still at his apartment. DeLao came over nonetheless and had an argument with Williams outside the building. DeLao pulled a gun on Williams, but Williams was able to disarm her. Williams briefly returned to his apartment, then left it, and did not return until the following morning.
On Sunday morning, a hunter discovered DeLao's body on a dirt road about twenty minutes from Williams' apartment. DeLao had been shot three times and her body had suffered a number of gruesome injuries. She had been beaten, and tire tracks across her stomach indicated that she had been run over by an automobile. Bullets recovered at the scene were consistent with the gun Williams had taken from DeLao shortly before her death.
Deloney testified that Williams confessed to her on Monday that he was with several friends who killed DeLao. According to Deloney, Williams said he had only kicked DeLao, and that his friends had killed her. Williams denied ever confessing involvement in DeLao's death. Also on Monday, Williams drove Deloney to the place where DeLao's car had been abandoned, less than a mile from his apartment in Casa Grande. As Williams approached the car, a police officer processing the car stopped them, and Williams told the officer he thought it was DeLao's car.
Deloney testified that, two weeks after the murder, Williams told her that he had killed DeLao, admitting that he shot her, hit her with an iron, and ran over her repeatedly with his car. Williams told Deloney that if she ever told anyone, he would kill her.
Five weeks after the murder, Norma Soto, a Circle-K convenience store clerk, was shot several times during a robbery of the store. Soto survived and identified Williams as her attacker, testifying that he shot her after telling her to stop spreading the story that he had killed DeLao. Police soon arrested Williams for both the murder of DeLao and the robbery/attempted murder of Soto.
An Arizona jury, in a consolidated trial, convicted Williams in 1992 of the murder of DeLao, armed robbery, and the attempted murder of Soto. At trial, Deloney was the State's principal witness on the murder charge. She testified about Williams' confessions. The State also presented evidence that, prior to the murder, Williams had burned DeLao's car, shot at her apartment, and slashed her tires. Soto testified and identified Williams as the man who robbed the store and shot her. Williams testified in his own defense and denied any involvement in either criminal episode. Williams did not have a criminal record, although the State introduced evidence that he had abused crack cocaine and become physically abusive to Deloney. On the stand, Williams denied using drugs on the day of the murder.
At sentencing, Williams sought to have the state provide a mental health expert to explore whether his drug usage had affected his mental state when he killed DeLao. The trial court denied this motion, and the Arizona Supreme Court upheld the decision without discussion. See 904 P.2d at 450 ("Defendant also asserts . . . that the trial court's denial of funds for an expert violated his right to due process and equal protection under the law. Under the facts of this case, we reject these claims as well.").
Williams also offered his addiction to crack as a mitigating circumstance at sentencing. The trial court refused to consider Williams' drug use in mitigation. The Arizona Supreme Court agreed, holding that "[w]ithout a showing of some impairment at the time of the offense, drug use cannot be a mitigating circumstance of any kind." Id. at 453.
After filing two unsuccessful state post-conviction petitions in which he raised the sentencing claims of erroneous denial of a mental health expert and the refusal to consider his addiction as a mitigating factor, Williams instituted federal habeas proceedings. In 1997, while his federal petition was pending, an Assistant Attorney General for Arizona turned over to defense counsel a series of letters, and stated they were discovered "by a secretary during an annual house cleaning at the [Pinal] County Attorney's Office." The State said the letters had "no evidentiary value."
The letters purported to have been written from jail in 1991, prior to Williams' trial, by a woman named Beverly Sweat, to Detective Tom Solis, the lead investigator in the DeLao murder. In the letters, Sweat expressed the desire to provide information she had about a murder, in return for an early release from jail. Solis has denied ever having seen these letters, but has not testified or given a statement under oath to this effect.
The letters contained information Sweat allegedly obtained from a fellow inmate, Yolanda McKaney, that Williams had paid Patrick Fields to kill Rita DeLao and that McKaney had seen a bloodied Fields on one morning around the time of the murder. One letter stated that Sweat was going to have Yolanda McKaney "tell [her] the story about Rita and Patrick Fields." The letter also noted that "Aaron" (apparently a reference to petitioner Aryon Williams) was "going to get" two people: Fields and Milton Barnett. According to this letter, McKaney told Sweat that the day of the DeLao murder, in Casa Grande, she saw Fields who was "all bloody" and who stated that "Aaron" had paid him a thousand dollars to kill DeLao. According to Sweat, Fields told McKaney that he had cut DeLao's eyes out and run over her with a moped. Sweat also stated that she knew "Aaron is guilty of some part of it," and in the subsequent letters, promised that she could obtain additional information, if she obtained an early release.
Counsel for Williams conducted an investigation on the basis of the Sweat letters and in 1999 obtained declarations from three people mentioned in the letters: McKaney, Barnett, and Fields. McKaney's declaration stated that around the time of the DeLao murder, she saw Fields in a park in the small town of Casa Grande, Arizona, less than a mile from where police discovered DeLao's abandoned car the morning after the murder. She saw a bloodied Fields throw a bloody shirt into a dumpster and burn it. Barnett stated that about this same time, and a few blocks from where McKaney saw Fields, he saw a shirtless Fields throw something into a dump-ster. Barnett said that, while sharing a cigarette with Fields, he noticed blood on Fields' clothing. Barnett asked Fields about this blood, and Fields fled. Barnett said he learned of DeLao's murder the next day. Fields' declaration stated he was in county jail at the time of the DeLao murder, but the State later conceded that Fields was not in custody at that time. In the district court Williams produced evidence that Fields had a history of sexual assaults against women. Williams has admitted that he knows Sweat, McKaney, Barnett, and Fields.
In 2002, the district court placed the federal proceedings in abeyance to allow Williams to exhaust a Brady claim based upon the Sweat letters and the subsequent investigation. The Arizona courts never considered the merits of this claim, however, because the Superior Court denied Williams an extension of time to file his state petition, finding that Williams had failed to show good cause under Arizona Rule of Criminal Procedure 32.4(c). The Arizona Supreme Court then summarily denied review.
Back in federal court, Williams moved for "Discovery, Expansion of the Record and [an] Evidentiary Hearing" on the Brady claim. The State opposed on the ground that this claim was procedurally barred.
The district court refused to treat the Brady claim as procedurally barred, holding in effect that the state courts had prevented exhaustion without following any well established rule that would have rendered the petition untimely. The district court noted that the State had failed to cite any case denying a first request for an extension of time in a capital case. To the contrary, Williams cited a number of examples where the state courts had granted such requests. Thus, the district court found that Rule 32.4(c) was not "firmly established and regularly followed." See Ford v. Georgia, 498 U.S. 411, 423-24 (1991).
The district court also granted Williams additional discovery related to the investigation of the Sweat letters. The court declined to order an in-court hearing, finding it appropriate to consider documentation and review written evidence, rather than hear witnesses. The court said that it did so because of what it determined to be the "narrow focus" of the Brady claim.
After completion of discovery and briefing, the district court denied the Brady claim on the merits, holding that Williams was not prejudiced because the letters did not contain any material information. The court noted that none of Williams' new information directly impeached or undercut the evidence presented at trial-evidence the jury found sufficient to convict. Rather, the district court found the letters provided further evidence that Williams was culpable by suggesting he had paid Fields to kill DeLao. The court also pointed to inconsistencies in the various declarations, noting that the fact the information originated in a jailhouse undermined its credibility.
The district court issued a COA on the Brady claim and the claim that Williams was entitled to a mental health expert at sentencing. We additionally certify the claim that addiction should have been considered a mitigating factor at sentencing.
 First, we address as a threshold matter the State's renewed contention that Williams' Brady claim is procedurally barred, even though Williams was prevented from raising it because the state trial court denied him a first extension of time. In this court, as in the district court, the State has not cited to a single other instance of an Arizona court denying a first extension of time to file a habeas petition in a capital case. The State, therefore, has not shown the denial was pursuant to a well established rule against first extensions in capital cases. Procedural default must be based on the application of a well established rule. See Ford, 498 U.S. at 423-24.
 Because this claim was denied in state court on an inadequate procedural ground, there was thus no failure on the part of Williams. We agree with the district court that Rule 32.4(c) was arbitrarily applied in this case. As the district court concluded "every first request for an extension of time in a capital case" had been granted previously in Arizona courts.
 As a result of the state court's arbitrary application of its rules, there is no state court decision to which this court can defer. The deference AEDPA requires for state court determinations, therefore, does not apply and our review of this claim is de novo. See Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).
 A state commits a Brady violation where 1) the evidence in question is favorable to the accused, 2) the state "wilfully or inadvertently" suppressed the information, and 3) the suppression prejudiced the defendant. See Strickler v. Greene, 527 U.S. 263, 281-82 (1999). Prejudice exists where the state suppresses "material" information; evidence is material if had it been disclosed "there is a reasonable probability . . . the result of the proceeding would have been different." Kyles v. Whitley, 514 U.S. 419, 433 (1995) (citation omitted).
The Brady materials here consist of the packet of Sweat letters that turned up in the District Attorney's office years after trial, and led counsel to obtain the declarations of McKaney, Barnett, and Fields. See Paradis v. Arave, 240 F.3d 1169, 1178-79 (9th Cir. 2001) (noting that Brady material consists of admissible evidence or inadmissible evidence that could have been used to impeach a government witness). The Sweat letters thus suggested there were witnesses who, around the time of DeLao's murder, saw a bloodied Patrick Fields disposing of bloody clothing into dumpsters about a half a mile from where police found DeLao's abandoned car. When defense counsel followed up on these leads after the letters were disclosed, she obtained declarations from the witnesses identified in the letters substantially reiterating this information. The Sweat letters further suggested that there might be a witness who could testify that Williams did not commit the murder himself, but paid Fields to do it.
Williams contends that this information is sufficient to justify habeas relief. The State contends, however, with some validity, that the new evidence does not undermine Deloney's testimony that Williams confessed his involvement in the murder to her. Nor does it, according to the State, have any impact on the evidence that Williams was the last known person to be with DeLao, and that they had an argument when DeLao threatened Williams with the firearm that was used in her murder. The Sweat letters are also consistent with Williams' first confession to Deloney that he had only kicked DeLao, and that someone else killed her. See 904 P.2d at 441. ...