Death Row Inmate Has Habeas Claims Revived

     (CN) - A man convicted of a double murder at a Yuma, Ariz., rest stop deserves a second chance to present evidence that he suffers from fetal alcohol syndrome and brain damage, the full 9th Circuit ruled.
     Gregory Dickens and Travis Amaral had decided that robbery was the best course of action when they were short on money in September 1991, but they flipped a coin to decide who would do the deed.
     When 16-year-old Amaral won, Dickens, then 26, gave him the option of holding up a highway rest stop or a convenience store.
     At the rest stop, Dickens waited in the car as Amaral approached Bryan and Laura Bernstein.
     Both 22, the couple had just graduated from Cornell University and were passing through Arizona on their way to a graduate program with the University of California at Los Angeles. They were married three years.
     Carrying Dickens' .38-caliber revolver, Amaral robbed the couple, asked if they were ready to die and then shot both in the head. Dickens then drove through the rest stop to make sure "everything was taken care of" and picked up Amaral.
     In 1992, San Diego police officers arrested Dickens on charges of sexually abusing Amaral and other boys, and assault with a deadly weapon. During that investigation, Amaral told officers that he and Dickens were involved in the Yuma double homicide.
     Dickens was sentenced to death on felony murder and armed robbery charges for his part in the murders.
     After exhausting his options for post-conviction relief and losing his appeal in state court, Dickens filed unsuccessfully for habeas relief.
     A divided panel of the 9th Circuit affirmed the denial but were unanimous that recent Supreme Court precedent required the lower court to consider whether Dickens procedurally defaulted his claim of ineffective assistance of counsel.
      Martinez v. Ryan, published in 2012, found that substantial ineffective assistance of counsel could establish cause for the default of a claim of ineffective assistance of trial counsel.
     The court agreed to rehear the case en banc and a majority reached the same conclusion Thursday as the smaller panel had.
     "The new allegations and evidence Dickens presented to the federal district court fundamentally altered Dickens's previously exhausted IAC claim," Judge N.R. Smith wrote for the court, abbreviating ineffective assistance of counsel.
     Dickens should be afforded a chance to present new evidence of his health conditions, according to the ruling.
     The ruling nevertheless refuses to disturb the death sentence imposed against Dickens.
     This sentence accounts for the fact that Dickens watched Amaral shoot the Bersteins, made sure no one witnessed the murders, and picked Amaral up instead of checking on the couple - qualifying him as a major participant in the murders.
     There was also sufficient evidence to convict Dickens because he knew Amaral intended to rob the Bernsteins. Dickens testified that he knew of the intent to commit a robbery, and that he had seen Amaral carrying guns on several occasions before the murders, and was aware that Amaral was dangerous.
     Among four minority opinions, Judge Consuelo Callahan wrote in a partial dissent that the holding could lead other state defendants to "concoct" new ineffective assistance claims.
     "Why wouldn't a defendant hold back or forego developing one claim in his first postconviction petition in the hope that he may earn another round of postconviction proceedings by raising it for the first time in his federal habeas petition?" Callahan questioned.
     Chief Judge Alex Kozinski joined Callahan. Five other judges wrote a separate partial dissent that said the court should have gone further and vacated the Dickens' death sentence.