                                                                           FILED
                                                                            JUL 18 2011
                            FOR PUBLICATION
                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



THOMAS PAUL WEST,                                No. 11-71987

              Petitioner,                        ORDER

  v.

CHARLES L. RYAN,

              Respondent.



Before: KLEINFELD, WARDLAW, and CALLAHAN, Circuit Judges.




       Thomas Paul West applies to this court for authorization to file a second or

successive petition for a writ of habeas corpus in the District of Arizona. See 28

U.S.C. § 2244(b)(3). We deny his application.

                                 BACKGROUND

       West was convicted of first-degree felony murder, second degree burglary,

and theft in March 1988. In our opinion denying his first federal habeas petition,

we set out the facts surrounding the murder and trial:

       West moved to Arizona from Illinois in June 1987. While living in
       Tucson with a family friend, he met Donald Bortle (“Bortle”). Bortle
       had various items for sale in his home, including assorted electronic
equipment and videotapes of popular movies. West’s friend wanted
to buy some things from Bortle, and West accompanied her to his
house. About two weeks later in mid-July 1987, West broke into
Bortle’s home, beat him severely about the head, and bound his limbs.
He left Bortle to die, stealing his car and various other items,
including several pieces of electronic equipment.

West transported the stolen goods to the desert where he hid them,
and then drove to Glendale where some of his friends lived. After
retrieving the goods from Tucson with an acquaintance, West returned
to Glendale and spent a couple of days with his friends. FN1 He
made several allusions to beating up and robbing “some guy,” but
expressed no remorse about it. West then absconded to Illinois with
much of the stolen property. Soon thereafter, one of West’s
acquaintances contacted the Pima County Sheriff’s Office, and an
investigation led officers to Bortle’s home where they discovered his
dead and decaying body. His hands and feet were bound with a
vacuum cleaner cord and lamp wire, and he had extensive fractures on
the right side of his face. The fractures were so severe that his hard
pallet had detached from his skull. The coroner estimated that he had
bled to death within forty-five minutes to an hour after the beating.

FN1. The record shows that West was buying and taking large
amounts of drugs around the time of the murder and immediately
thereafter. Defense counsel successfully excluded this evidence from
trial but introduced it during sentencing to establish the extent and
effects of West's substance abuse.

West was arrested in Illinois when the car in which he was riding was
stopped for speeding, and the officer discovered he was wanted for
murder in Arizona. A search of the car revealed several pieces of
electronic equipment and other items stolen from Bortle’s home.




                                  2
West v. Ryan, 608 F.3d 477, 480 (9th Cir. 2010). We also set out the facts

surrounding West’s sentencing. Because West challenges his sentence, rather than

his conviction, those facts are important here as well:

       The prosecution sought the death penalty, citing the following
       aggravating factors: (1) the murder was committed for pecuniary
       gain; (2) the murder was committed in an especially cruel and
       heinous manner; and (3) West had a prior conviction for a crime of
       violence (a 1981 manslaughter conviction). FN2

       FN2. The record contains conflicting information as to whether the
       conviction was for voluntary or involuntary manslaughter.

       At the initial sentencing hearing on May 4, 1988, West’s counsel
       argued that a conviction for felony murder precluded imposition of
       the death penalty. Dawley[, West’s counsel,] indicated that, as “a
       matter of strategy,” he and [co-counsel] Fiorillo chose to rely solely
       on this “legal argument” and not to present mitigation witnesses.
       Dawley said that they had looked for mitigating factors, explaining
       that West had been “examined” from “a mental health standpoint,”
       but that he and Fiorillo had determined that the evidence “was not
       worth bringing” to the court.

       The judge disagreed with the defense’s legal theory that the death
       penalty could not be imposed for a felony murder conviction and
       asked West if there was anything he wished to say prior to
       sentencing. West indicated that there were a lot of people who would
       testify that he was not a “wicked mad man,” but that he did not feel
       like “dragging them in” because he felt the court had already made up
       its mind. The court responded that it would consider any such
       evidence and would delay sentencing so that West could present it.
       West agreed, and the court rescheduled the hearing for June 6.

       On May 11, Dawley sought and obtained another continuance,
       delaying the sentencing hearing until August 1. During the interim,


                                           3
defense counsel sent two investigators to Illinois and Oklahoma to
interview thirteen witnesses about West’s childhood, drug addiction,
and the circumstances surrounding the earlier 1981 homicide.
Counsel also retained a substance abuse expert, Terry Hickey
(“Hickey”), who interviewed West, West’s mother, his brother, and
LuAnn St. Aubin (West's girlfriend at the time of the 1981
homicide). Hickey reviewed the transcripts of the interviews with
West's family and friends, as well as West’s Illinois prison records,
his medical records, and Dr. Allender’s neuropsychological
evaluation.

Meanwhile, the probation office submitted an amended presentence
report (“PSR”), which described positive letters from West’s father,
grandmother, maternal aunt, and a family friend. The letter from
West’s father stated that West was well-liked and that drugs and
alcohol were “the bottom line to all of [his] problems.” Other letters
opined that West needed drug treatment and that he was a good
person when he was not using drugs. The PSR took note of the
numerous interviews conducted by the defense investigators and
advised the court to consider that West’s actions may have been the
result of chronic and acute drug abuse, which may have reduced his
ability to appreciate the wrongfulness of his actions. It also opined
that West’s actions may have resulted from an unstable and abusive
home environment.

In its pre-hearing sentencing brief, the defense argued that West (1)
had an emotionally deprived childhood, (2) suffered from substance
abuse, which diminished his capacity to conform his conduct to
social and legal norms, (3) could be rehabilitated, (4) did not intend
to kill Bortle, (5) could not legally be put to death for felony murder,
and (6) had acted in self-defense and defense of another in
connection with his 1981 homicide conviction.

At the August 1 sentencing hearing, Hickey and five lay witnesses
testified on West’s behalf. The defense also submitted newspaper
articles about the 1981 homicide, hospital records from West’s
drug-related hospitalizations in 1983 and 1986, a rap sheet from the


                                    4
Department of Justice, and transcripts of interviews with thirteen
witnesses who discussed the extent of West’s substance abuse, his
emotionally deprived childhood, and/or the circumstances
surrounding the 1981 homicide. FN3

FN3. LuAnn St. Aubin and Mike Richmond, both of whom
witnessed the 1981 homicide, testified that the victim was a violent
drug dealer who had been terrorizing people at a party and was
participating in an attack on St. Aubin when West shot him.
Although St. Aubin testified at the sentencing hearing that the victim
had pulled a gun on West, she did not offer such testimony during the
manslaughter trial, and Richmond provided a contrary account.
According to Richmond, when West pointed a gun at the victim, the
victim taunted him by saying he “didn't have the balls” to pull the
trigger. West then shot him.

Hickey testified that West came from a chemically dependent family,
that West’s chemical dependency began at age ten, and that it
significantly impaired his judgment. He testified that addicts cannot
reason normally and that they make increasingly bad decisions as
their addiction progresses. He testified that extreme addictions cause
“cognitive impairment[s]” similar to brain damage.

With regard to West’s family, Hickey testified that West’s father was
an alcoholic and that West witnessed physical violence in the family
from an early age. Hickey noted that West’s father withdrew
affection and refused to call the children by their names, calling them
“pothead number one” and “pothead number two.” On
cross-examination, Hickey admitted that West’s prognosis was poor,
noting that West had dropped out of treatment programs in 1983 and
1986, but explaining that it is not uncommon for addicts to fail such
programs on their first attempts.

At the close of evidence, West made a lengthy statement in which he
denied any responsibility for the crime. The sentencing court found
three aggravating circumstances: (1) that West previously committed
a felony involving the use of violence upon another, (2) that West


                                   5
       committed the present offense in expectation of pecuniary gain, and
       (3) that West committed the present

                 offense in an especially cruel and heinous manner, in that, A,
                 the [victim] was hogtied, bound and beaten repeatedly; B,
                 death was not immediate, the deceased was left dying and in a
                 position unable to seek assistance; and C, that the defendant
                 knew or had reason to know that the deceased was dying or
                 had suffered serious physical injuries.

       The court found West’s emotionally deprived childhood and
       substance abuse problem to be mitigating, but not sufficiently so as to
       outweigh the aggravating factors. It sentenced West to death.

Id. at 481-82.

      West’s conviction was affirmed on direct review by the Arizona Supreme

Court on September 30, 1993. State v. West, 862 P.2d 192 (Ariz. 1993). The

Supreme Court denied certiorari on April 25, 1994. West v. Arizona, 511 U.S.

1063 (1994). On March 26, 1996, West filed his first petition for post-conviction

relief in state court, raising numerous claims including ineffective assistance of

counsel for not presenting sufficient mitigation evidence at sentencing. The

superior court denied the petition without a hearing, and the Arizona Supreme

Court summarily denied the petition.

      On May 6, 1998, West filed a timely petition for a writ of habeas corpus in

the District of Arizona. On November 9, 2007, the district court denied West’s

third amended habeas petition. West v. Schriro, No 98-218 2007 WL 4240859.


                                            6
The court denied West’s motion to reconsider on December 11, 2007. We denied

his appeal in a published decision on June 10, 2010. West v. Ryan, 608 F.3d 477.

The Supreme Court denied certiorari on February 22, 2011. West v. Ryan, 131 S.

Ct. 1473 (2011).

      Following the habeas appeals, Arizona moved for a warrant of execution,

which was issued by the Arizona Supreme Court on May 24, 2011. The warrant

set the execution for July 19, 2011. In opposing the warrant of execution, West

filed a successive petition for post-conviction relief in the Arizona Superior Court,

which that court denied on June 29, 2011. The Arizona Supreme Court summarily

denied review on July 13, 2011, and West filed a petition for a writ of certiorari on

July 15, 2011. That petition is currently pending. West filed the instant

application pursuant to 28 U.S.C. § 2244(b)(3), seeking permission from the Ninth

Circuit to file a second or successive petition for a writ of habeas corpus in the

District of Arizona, on July 15, 2011.

                                    DISCUSSION

I.    West Raised The Claim of Ineffective Assistance in a Prior Petition

      The first step in our consideration of West’s application requires us to

“determine whether a ‘claim presented in a second or successive habeas corpus

application’ was also ‘presented in a prior application.’” Gonzalez v. Crosby, 545


                                           7
U.S. 524, 530 (2005). If it has, “the claim must be dismissed.” Id. The Supreme

Court has clarified that the term “claim” means “an asserted federal basis for relief

from a state court's judgment of conviction.” Id. West alleges that his claims have

not been presented in a previous petition, but, at least as to his first claim, we are

not convinced.

      In his proposed second or successive petition, West makes two claims: (1)

that sentencing counsel rendered ineffective assistance because they failed to

adequately investigate his background and introduce evidence that would have

invalidated all three statutory aggravating factors found by the sentencing court;

and (2) that his recent diagnoses of post-traumatic stress disorder (“PTSD”)

rendered him ineligible for the death penalty because it invalidates all three

aggravating factors. While the PTSD is a new wrinkle, we have seen at least the

first of these claims before. Specifically, in claim A8 of his previous habeas

petition, West contended that his counsel were ineffective at sentencing by failing

to investigate and present mitigation evidence of West’s impaired mental health,

head injuries, childhood abuse, immaturity, substance abuse, and failure to

complete drug rehabilitation. While the current proposed petition focuses on the

effect the evidence of his childhood abuse would have on the aggravating factors

rather than the mitigating effect, this is two sides of the same coin. West’s


                                            8
complaint is that counsel should have discovered the truth about his childhood and

the effect it had on his decision to murder Mr. Bortle.

      The current claim adds nothing new except the contention that the

investigation would have revealed his PTSD. However, even that is not truly new,

because West argued the same thing to this court in his appeal of the prior habeas

denial. In fact, West argued his PTSD warranted relief in seven different places in

his opening brief of the first habeas appeal and three places in his reply brief.

Because West’s first claim regarding ineffective assistance of sentencing counsel

was raised in a prior habeas petition, it must be dismissed. 28 U.S.C. § 2244(b)(1).

II.   Requirements For Filing Second or Successive Petition

      Even if West’s claims are distinct enough from those raised in his first

petition so that we may consider them, we must dismiss his application unless he

meets Antiterrorism and Effective Death Penalty Act’s (AEDPA) stringent

standards. 28 U.S.C. § 2244(b)(2)(B). “Permitting a state prisoner to file a second

or successive federal habeas corpus petition is not the general rule, it is the

exception, and an exception that may be invoked only when the demanding

standard set by Congress is met.” Bible v. Schriro, ___ F.3d ___, 2011 WL

2547617, *3 (9th Cir. June 28, 2011). Because West is not claiming that a new




                                           9
rule of constitutional law supports his claim, this demanding standard requires that

we dismiss his application unless

      (i) the factual predicate for the claim could not have been discovered
      previously through the exercise of due diligence; and

      (ii) the facts underlying the claim, if proven and viewed in light of the
      evidence as a whole, would be sufficient to establish by clear and
      convincing evidence that, but for constitutional error, no reasonable
      factfinder would have found the applicant guilty of the underlying
      offense.

28 U.S.C. § 2244(b)(2)(B). While West must satisfy both requirements to prevail

in his application, he cannot satisfy either.

      A.     The Evidence Could Have Been Discovered Previously

      West must first demonstrate that the evidence he now presents is newly-

discovered, i.e., it “could not have been discovered previously through the exercise

of due diligence.” Id. West offers two pieces of evidence he deems newly-

discovered. First, West asserts that he suffered physical and emotional abuse from

his family and he was sexually molested by three different men during his

childhood. This information was not brought out at trial or in mitigation during

sentencing. Second, West was diagnosed after the trial and sentencing as suffering

from PTSD. His medical experts opine that West was suffering from PTSD at the

time he murdered Bortle.



                                           10
             1.     Family and Sexual Abuse

      West cannot demonstrate that the evidence of physical and emotional abuse

by his family or sexual molestation is newly-discovered because it could have been

discovered before trial through the exercise of due diligence. In fact, West knew it

all along, and it is undisputed that his counsel knew of at least some of the

allegations of sexual abuse in 1996. Under the facts of this case, this was not

newly-discovered information which could not have been discovered through the

exercise of due diligence. See King v. Trujillo, 638 F.3d 726, 730 (9th Cir. 2011).

      West now contends that his family life during his childhood was much

worse than he had previously admitted. Prior to trial, West discussed his family

life with Dr. Allender, a court-appointed psychologist, in 1987.1 Dr. Allender

reported on the interview:

      Mr. West characterizes his growing up years as problematic. He
      states that his father loved him a great deal and would get him almost
      anything he wanted. After his father’s work schedule changed
      however, his older brother was left with the responsibility of getting
      him off to school. He states that his brother who is five years older
      was the person who started getting him involved with drugs.


      1
                West was evaluated by two neuropsychologists, Dr. Allender and Dr.
Daniel Overbeck, in the fall of 1987. There is no record of Dr. Overbeck’s
evaluation, so it is unknown what West did or did not disclose to him. See West v.
Ryan, 608 F.3d at 480-81. Even if he had disclosed the purported sexual abuse by
the priest, it is entirely possible that a strategic choice was made not to pursue a
related mitigation claim.

                                          11
In 2010, however, West reported a much different relationship with his parents in

interviews with Dr. Smith, a clinical psychologist referred by the Arizona Federal

Public Defender:

      “I was moving around constantly. My mom would dump me on
      anybody – neighbors, my grandma, any relative that would take me. I
      even stayed with my friends’ parents. At home, my mom and dad
      argued all the time. They had vicious physical fights. I just wanted to
      escape it – wanted it to stop, but they fought over everything. I would
      get in between to try to stop my dad from hurting my mom and then
      he would hit me. He hit us over and over. Bloodied my brother’s
      nose, bloodied and bruised my mom. I would get so scared that they
      would kill one another that I would just scream at them. One time, I
      got so scared I pissed myself.” Mr. West shared that he had no real
      relationship with his father. He explained that “My dad was basically
      absent except when he was terrorizing us. He never spent any time
      with us as a family, playing ball with my brother and me or anything.
      All he ever did was call me and my brother assholes, dumb shits,
      worthless mother fuckers. The neighbors called the police over and
      over again, but since dad was a fireman the police simply looked the
      other way. No charges were ever pressed, even when my mom was
      clearly beaten. My mom would get in the car and leave and then my
      dad would do the same thing, leaving me and my brother home alone
      for days at a time. That is what it was like growing up in my house –
      a fucking nightmare.”

The only explanation for the stark difference in stories is in Dr. Allender’s May 7,

2011 letter:

      When asked specifically why he had told me he had a good
      relationship with his father back in 1987 he explained that his
      relationship with his father was like fire and ice. That his father
      would buy him lots of things like a go cart, a mini bike, a pinball
      machine when he was being nice, but then had the other side of being


                                         12
       abusive physically and emotionally. He also described being in a bit
       of a stupor from the psychiatric medications he was on during the time
       [Dr. Allender] was evaluating him.

There is no question that, to the extent West contends his abusive home life is a

mitigating factor, West knew about his home life and the alleged family abuse at

trial and at sentencing. There is no legitimate reason for his failure to disclose it

before this late date.

       Dr. Allender’s May 7, 2011 letter also describes West’s failure to report

sexual abuse:

       When asked why he never told people about his abuse Mr. West
       mentioned reasons often reported by victims including, “I was
       ashamed, I thought it was my fault,” “no one wanted to hear about it,”
       and “I tried to block it out.” When asked why he had not brought
       these things up to me in 1987 he said that his attorney had suggested
       to him that he should only answer questions that I asked and not
       volunteer any other information, especially about the alleged crime.

Regardless, West was at all times aware of the three instances of sexual abuse he

now raises. Notably, he does not argue that his counsel was ineffective for failing

to inquire about sexual abuse. Rather, he complains only that counsel was not

successful in discovering what West already knew and not getting the court to pay

for yet another mental health expert.

       Even if counsel had been successful in securing funding for another mental

health expert, it is pure speculation that the information about his abuse would


                                           13
have come out. The mental health defense efforts at the time were not focused on

West’s background, but rather on whether he had an organic brain injury.

Accordingly, it is by no means clear that the mental health expert, if appointed,

would have addressed the psychological consequences of West’s sexual abuse.

West acknowledges that his post-conviction relief counsel was aware of one of the

childhood sexual abuse allegations as early as 1996. While West identifies several

requests for funding for defense investigations that were denied in 1996 and 1997,

the evidence shows that counsel diligently pursued mitigation evidence based on

organic brain injury and substance abuse, but sexual abuse was at best peripheral.

Similarly, after the Federal Public Defender took over West’s representation in

January 2008, it obtained a court order to have West evaluated by a

neuropsychologist, who reported in August 2008 that West described childhood

sexual abuse by the teacher and the priest. While that report was filed in this court,

West did not raise any arguments based on the sexual abuse issue at any point in

that first federal habeas proceeding.

      To the extent West contends his first post-conviction relief counsel was

ineffective for not discovering the sexual abuse in 1997 and for not obtaining

funding to investigate, the facts do not support his claim. West’s first post-

conviction relief counsel, Carla Ryan, explained in her motion for a funded mental


                                          14
health expert, that West “apparently was sexually abused, on numerous occasions,

by a teacher. Therefore, a mental health expert is also needed to explain how the

family environment and the sexual abuse affected Petitioner’s emotional

development.” The court denied this request, but did so without prejudice to

bringing the motion again with additional evidence. Thus, West had ample

incentive at the time to more fully disclose his background and history of sexual

abuse. He might have satisfied the diligence requirement if he had done so then,

but he chose not to.

      West’s primary argument regarding diligence is that we have already found

he was diligent, citing West v. Ryan, 608 F.3d at 484-85. West misreads our prior

opinion. We held that West’s prior counsel had been diligent in seeking an

evidentiary hearing regarding her need for funding for a mental health expert and

investigator. We did not hold that West had been diligent in disclosing

information about his childhood; he clearly was not. If we were to rule that West

had been diligent in pursuing and developing evidence of sexual abuse and abuse

by family members by failing to disclose the information, even to his counsel, for

twenty years, we would be creating a strong incentive for capital defendants to

withhold the strongest mitigation evidence until the eve of execution. We are not

prepared to create that incentive.


                                         15
             2.    PTSD

      The state court concluded that although West’s diagnosis of PTSD had not

been made at the time of trial, West was not diligent in obtaining the diagnosis.

We agree. Dr. Allender and Dr. Smith based their diagnoses on conversations with

West regarding information known by him at the time of trial. There was no new

information that led to the diagnoses; the only new turn of events is that West has

now chosen to disclose that he is the victim of sexual abuse, which apparently

resulted in his PTSD. West argues that his allegations of sexual abuse were only

corroborated within the past few weeks. This proves too much, because Dr.

Allender and Dr. Smith both diagnosed PTSD before the allegations of sexual

abuse were corroborated.2 Moreover, Dr. Allender first indicated that he suspected

PTSD in his 2008 letter based only on the physical and emotional abuse in the

West household growing up with no indication that West had been sexually

abused. Thus, there is no legitimate reason why the diagnosis would not have been

made in 1987, or at least by August 1, 1988, if West had disclosed the information



      2
             There was evidence that indicated Fr. Burke, one of West’s accused
abusers, had previously sexually abused boys in the area around the same time.
However, this does not conclusively corroborate West’s claim that Fr. Burke
abused him. More importantly, however, neither expert indicated they would not
have believed West absent this corroboration, and at the time they reached their
diagnoses there was no corroboration of the other two accused abusers.

                                         16
he had available to him. See State v. Jensen, 735 P.2d 781, 784 (Ariz. 1987)

(recognizing PTSD as a diagnostic mental disorder in 1983).

      The evidence of family and sexual abuse is not newly discovered. While

West’s PTSD diagnosis was not made until well after the trial and sentencing,

West at all times possessed the information that forms the basis of the diagnosis.

Had West been forthcoming with the events of his childhood in 1987, there is no

reason to think that the diagnosis would not have been made. West cannot

withhold the information he claims is critical mitigating evidence and then

complain when it is not considered. West chose not to reveal the information at

trial and sentencing, and made at least a partial disclosure in his post-conviction

proceedings in 1997. He cannot now claim that the information he chose to

withhold for over 20 years is new.

      B.     The Actual Innocence Requirement

      Even if the evidence were accepted as newly-discovered, we must still deny

West’s application unless it “would be sufficient to establish by clear and

convincing evidence that . . . no reasonable factfinder would have found [him]

guilty of the underlying offense.” Bible, 2011 WL 2547617 at *3 (quoting 28

U.S.C. § 2244(b)(2)(B)(ii)). Here, West challenges only his death sentence, and

not his conviction. When a “capital defendant challenges his death sentence in


                                          17
particular, he must show by ‘clear and convincing evidence’ that no reasonable

juror would have found him eligible for the death penalty in light of the new

evidence.” Calderon v. Thompson, 523 U.S. 538, 559-60 (1998) (quoting Sawyer

v. Whitley, 505 U.S. 333, 348 (1992)). Thus, West has the burden of showing, by

clear and convincing evidence, that no reasonable sentencing judge aware of his

family and sexual abuse and resulting PTSD would have sentenced him to death.

      The state trial court found three aggravating circumstances in the penalty

phase: (1) prior conviction of a violent crime in Illinois; (2) murder committed for

pecuniary gain; and (3) murder committed in an especially cruel and heinous

manner. West contends each of these findings is completely negated by the PTSD

diagnosis and, had the sentencing court known of his PTSD, it would not have

been able to sentence him to death.

             1.     Prior Conviction of Violent Crime – 1981 Manslaughter

      West contends that had the Illinois judge in 1981 known West suffered from

PTSD, he would not have convicted him, and therefore the prior Illinois conviction

should not have been considered by the Arizona court. The Supreme Court has

held “that once a state conviction is no longer open to direct or collateral attack in

its own right because the defendant failed to pursue those remedies while they

were available (or because the defendant did so unsuccessfully), the conviction


                                           18
may be regarded as conclusively valid.” Lackawana Cnty. Dist. Attorney v. Coss,

532 U.S. 394, 403 (2001). The Court noted a possible exception to this rule in a

case where, “after the time for direct or collateral review has expired, a defendant

may obtain compelling evidence that he is actually innocent of the crime for which

he was convicted, and which he could not have uncovered in a timely manner.” Id.

at 405 (emphasis added).

      West has not presented “compelling evidence” of actual innocence. In

support of this argument, he submitted a letter from the Illinois judge (unsworn,

but declared to be “true to the best of [the judge’s] information and belief”) in

which, 30 years after the fact, the judge states “I may well have acquitted Mr. West

at that bench trial had I known that he suffered from PTSD at the time of the

shooting.”

      This evidence is insufficient to meet the “compelling evidence” standard for

at least two reasons. First, there is no evidence establishing that West suffered

from PTSD at the time of the 1981 shooting.3 Second, the evidence on which this

argument rests, the physical and emotional abuse and sexual abuse, was known to



      3
              Both Dr. Smith and Dr. Allender opine that West was suffering PTSD
in 1987. Neither states that he suffered PTSD prior to 1987 in general, or
specifically in 1981 at the time he shot and killed Billy Oldham at a party (because
another girl was beating up his girlfriend).

                                          19
West since 1981. Even if PTSD was not a recognized diagnosis in 1981, it was in

1983. See State v. Jensen, 735 P.2d at 784 (noting that the “American mental

health community” recognized PTSD as a diagnostic mental disorder in 1983).

West failed to contest the conviction for 30 years.

      Most importantly, however, is the requirement that “the challenged prior

conviction must have adversely affected the sentence that is the subject of the

habeas petition.” Coss, 532 U.S. at 406. West cannot show that his prior

manslaughter conviction had the requisite adverse affect on his current sentence.

In affirming West’s death sentence, the Arizona Supreme Court accepted “the trial

judge’s finding that the circumstances of defendant’s previous manslaughter

conviction were not mitigating,” but nonetheless stated that “we believe this to be

an appropriate death penalty case even if it be assumed that the Illinois voluntary

manslaughter conviction was not properly proved.” State v. West, 862 P.2d 192,

211, 212 n.4 (Ariz. 1993).

             2.    Murder Committed for Pecuniary Gain

      The mere showing that a murder occurred during the commission of a

robbery is not sufficient to establish that the murder was committed with the

expectation of pecuniary gain. Woratzeck v. Stewart, 97 F.3d 329, 334 (9th Cir.

1996). “To establish the pecuniary gain aggravating circumstance, the state must


                                         20
prove that the expectation of pecuniary gain was a motive, cause, or impetus for

the murder and not merely a result of the murder.” State v. Prasertphong, 76 P.3d

438, 440 (Ariz. 2003) (internal quotation and alteration omitted). West contends

that the murder was committed due to an exaggerated startle response attributable

to his PTSD, and was nothing more than a killing during a “robbery gone bad.”

The circumstances surrounding Bortle’s murder do not support the argument.

      West intended to steal Bortle’s property. West had been to Bortle’s house

shortly before the murder and carefully examined the extensive amount of

electronics equipment Bortle had for sale. Moreover, West ran out of cocaine on

the day of the murder and did not have enough money to buy more. When Bortle

interrupted him, West savagely beat Bortle, hogtied him stuck him in a closet, and

left him to die. And then West continued to do what he came for – he stole

Bortle’s electronic equipment and then stole his car to carry it away. West’s

alleged PTSD may help explain why West was motivated to steal Bortle’s

property, but it does nothing to undermine the finding the murder was committed

for pecuniary gain. West offers no other explanation for the savageness of the

beating he inflicted upon Bortle or hogtying him and leaving him in the closet

other than to allow him to complete the robbery.

             3.    Especially Cruel and Heinous Manner of Killing


                                         21
      West contends that because he was suffering from PTSD, no reasonable

factfinder could have found the manner in which he killed Bortle was especially

cruel or heinous. While West offers conclusory statements that a PTSD diagnosis

would defeat the factors used to establish heinousness, he does not actually explain

how PTSD affects any of the factors that the court weighed to establish that the

manner in which he murdered Bortle was especially cruel and heinous. Rather, he

primarily argues that the evidence was insufficient to establish the factors. West

submits that an exaggerated startle response stemming from his PTSD explains his

reaction. However, while a startle response might explain an initial, violent

reaction, it does nothing to explain why West took further affirmative actions to

hogtie Bortle, to move him into a closet where he left him to die, or why, after that

savage outburst, he went on to steal Bortle’s possessions and his car. Moreover, it

does nothing to undercut the evidence of his behavior after the murder. Lisa

Murray testified that she overheard West tell Richard Wojahn that West had “beat

the fuck out of this old man and thrown him in a closet” in Tucson. When Lisa

confronted him, West told her “not to worry about it” and that she “would have to

live with it.” He also bragged to others about getting cuts and bruises on his hand

from beating up “the old man he ripped off.” State v. West, 862 P.2d at 208.

Taken together with the evidence of the cold-blooded and methodical nature of the


                                          22
crime itself, this severely undercuts West’s argument that this aggravating factor

would have been negated by evidence that he committed the crime in the midst of a

startle response.

      West’s argument that he is actually innocent of the death penalty under

Tison v. Arizona, 481 U.S. 137, 157-58 (1987), fails because his cruel, calculated

conduct in hogtying Bortle and abandoning him to die following the beating shows

“the reckless disregard for human life implicit in knowingly engaging in criminal

activities known to carry a grave risk of death [and] represents a highly culpable

mental state, a mental state that may be taken into account in making a capital

sentencing judgment when that conduct causes its natural, though also not

inevitable, lethal result.” Id.; see also Landrigan v. Trujillo, 623 F.3d 1253, 1257-

58 (9th Cir. 2010). West’s reliance on the trial testimony of the prosecution

pathologist suggesting that Bortle may have been rendered unconscious by the first

blow does not advance the Tison claim. Even if the PTSD startle response theory

were accepted, and even if Bortle had been rendered unconscious right away, it

would not overcome West’s subsequent behavior of binding the bloody victim,

throwing him in a closet, and leaving him to die while later boasting about what

happened.




                                          23
      West has not shown that a PTSD diagnosis would have changed the outcome

of any of the three aggravating factors found by the sentencing court. At best, it

would have supported the mitigating factor the court found – his family life.

However, he has not satisfied his burden of showing, by clear and convincing

evidence, that strengthening this one mitigating factor would have mandated a

different outcome.

                                  CONCLUSION

      West has not satisfied his burden of proving, by clear and convincing

evidence, that the evidence he now proffers is newly-discovered or that no

reasonable factfinder would have found him eligible for the death penalty had he

been aware of the evidence. Accordingly, West’s application to file a second or

successive petition for writ of habeas corpus is DENIED.




                                         24
Counsel:

For Petitioner-Appellant West: Jon M. Sands, Arizona Federal Public Defender,
                               Timothy M. Gabrielson, Paula K. Harms, Assistant
                               Arizona Federal Public Defenders, Tucson,
                               Arizona

For Respondent-Appellant Ryan:     Thomas C. Horne, Attorney General,
                             Jonathan Bass, Assistant Attorney General,
                             Tucson, Arizona
