Armenia Cudjo, Jr. v. Robert Ayers, Jr.

Filing 20

Submitted (ECF) Opening brief for review and filed Motion to file oversized brief. Submitted by Appellant Armenia Levi Cudjo, Jr.. Date of service: 11/20/2009. [7139107] (KFB)

IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

ARMENIA LEVI CUDJO, JR.,
Petitioner-Appellant,
v.
R.K. WONG, Acting Warden,
Respondent-Appellee.

)
) CA No. 08-99028
)
) D.C. No. CV-99-08089-JFW
)
)
)
)
)
)

APPELLANT’S OPENING BRIEF

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
CENTRAL DISTRICT OF CALIFORNIA
HONORABLE JOHN F. WALTER
United States District Judge
SEAN K. KENNEDY
Federal Public Defender
MARK R. DROZDOWSKI
KATHERINE FROYEN BLACK
JOHN L. LITTRELL
Deputy Federal Public Defenders
321 East 2nd Street
Los Angeles, California
Telephone: [phone]
Facsimile: [phone]
Attorneys for Petitioner-Appellant
ARMENIA LEVI CUDJO, JR.

TABLE OF CONTENTS
PAGE
STATEMENT OF JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF THE ISSUES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Certified Issue. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Lethal Injection. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Uncertified Issues. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Exclusion of Evidence of Third Party Culpability. . . . . . . . . . . . . . . . 2
Violation of Right to Confront Witnesses. . . . . . . . . . . . . . . . . . . . . . 2
Prosecutorial Misconduct. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Ineffective Assistance of Counsel at the Guilt Phase.. . . . . . . . . . . . . 3
Ineffective Assistance at Penalty. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Cumulative Error. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
I.

THE PRELIMINARY HEARING. . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

II.

PRETRIAL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

III.

THE GUILT TRIAL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
A.

Opening Statements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
i

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PAGE
B.
C.

The Defense Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

D.

Instructions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

E.

The Prosecutor’s Closing Argument. . . . . . . . . . . . . . . . . . . . 18

F.

Defense Counsel’s Closing Argument. . . . . . . . . . . . . . . . . . . 19

G.

Prosecution’s Rebuttal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

H.
IV.

The Prosecution Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Deliberations and Verdicts. . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

THE PENALTY TRIAL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
A.
B.

The Prosecution Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

C.

The Defense Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

D.

The Prosecutor’s Closing Argument. . . . . . . . . . . . . . . . . . . . 21

E.

Defense Counsel’s Closing Argument. . . . . . . . . . . . . . . . . . . 22

F.
VI.

Opening Statements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

The Verdict and Sentencing. . . . . . . . . . . . . . . . . . . . . . . . . . . 22

THE STATE APPEAL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

VII. THE STATE HABEAS ACTIONS. . . . . . . . . . . . . . . . . . . . . . . . . . 23
VIII. THE PROCEEDING BELOW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
ii

TABLE OF CONTENTS
PAGE
SUMMARY OF ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Certified Issues. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
I.

STANDARDS OF REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
A.
B.

II.

Review of the District Court’s Rulings. . . . . . . . . . . . . . . . . . 34
Review of the State Court’s Decision under AEDPA. . . . . . . 35

THE COURT SHOULD GRANT RELIEF ON THE
UNCERTIFIED CLAIMS; ALTERNATIVELY, IT
SHOULD REMAND SO THAT THE DISTRICT
COURT CAN CONSIDER THE MERITS OF THE
LETHAL INJECTION CLAIM ONCE CALIFORNIA
HAS A NEW LETHAL INJECTION PROTOCOL IN PLACE. . . . 37
A.

The Lethal Injection Claim Should Be Considered
Once It Is Ripe. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

Uncertified Issues. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
III.

STANDARDS OF REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

IV.

COA STANDARDS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

V.

THE COURT SHOULD GRANT A COA AND RELIEF
ON CUDJO’S CLAIM THAT HIS CONSTITUTIONAL
RIGHTS WERE VIOLATED BY THE EXCLUSION
OF CULVER’S TESTIMONY OF GREGORY
CUDJO’S CONFESSION.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
iii

TABLE OF CONTENTS
PAGE
A.

Summary of Claim. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

B.

Standards of Review and AEDPA Standards.. . . . . . . . . . . . . 44

C.

The California Supreme Court Opinion.. . . . . . . . . . . . . . . . . 44

D.

The District Court Opinion. . . . . . . . . . . . . . . . . . . . . . . . . . . 49

E.

The Trial Court’s Exclusion of the Testimony of
John Culver Regarding Gregory Cudjo’s Confession to
the Murder Was Unreasonable and Contrary to Clearly
Established Federal Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
1.

The Right To Present Critical Evidence of
Third-Party Culpability Was Clearly Established
At the Time of Trial. . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

2.

The State Had No Legitimate Interest in
Excluding Culver’s Testimony; the Judge’s
Exclusion of Culver’s Testimony On the Sole
Ground That the Judge Believed that Culver Was
Not Credible Violated Clearly Established
Federal Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

3.

The Exclusion of John Culver’s Testimony Had
a Substantial and Injurious Effect On the Verdict
And Requires Habeas Relief. . . . . . . . . . . . . . . . . . . . . 63

iv

TABLE OF CONTENTS
PAGE
VI.

THE COURT SHOULD GRANT A COA AND RELIEF
ON CUDJO’S CLAIM THAT HIS CONSTITUTIONAL
RIGHTS WERE VIOLATED WHEN THE COURT
ADMITTED ALTERNATE SUSPECT CUDJO’S
PRELIMINARY HEARING TESTIMONY
INCULPATING CUDJO. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
A.

Summary of Claim. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65

B.

Standards of Review and AEDPA Standards.. . . . . . . . . . . . . 65

C.

The California Supreme Court Decisions. . . . . . . . . . . . . . . . 66

D.

The District Court’s Decision. . . . . . . . . . . . . . . . . . . . . . . . . 66

E.

The Admission of Gregory’s Preliminary Hearing
Testimony Prejudicially Violated Cudjo’s Rights to
Confront Witnesses and Present a Defense. . . . . . . . . . . . . . . 66

VII. THE COURT SHOULD GRANT A COA AND RELIEF
ON CUDJO’S CLAIM THAT THE PROSECUTOR
COMMITTED PREJUDICIAL MISCONDUCT BY
HIGHLIGHTING CUDJO’S RACE IN HIS GUILT
PHASE CLOSING ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . 70
A.

Summary of Claim. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70

B.

Standards of Review and AEDPA Standards.. . . . . . . . . . . . . 71

C.

The California Supreme Court Decision. . . . . . . . . . . . . . . . . 71

D.

The District Court Decision. . . . . . . . . . . . . . . . . . . . . . . . . . . 72

v

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PAGE
E.

The Prosecutor’s Racial Remark Prejudiced Cudjo and
Requires Relief. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72

VIII. THE COURT SHOULD GRANT A COA AND RELIEF ON
CUDJO’S CLAIM THAT HIS TRIAL COUNSEL WAS
PREJUDICIALLY INEFFECTIVE BY FAILING TO
INVESTIGATE AND PRESENT EVIDENCE OF GREGORY
CUDJO’S SECOND JAILHOUSE ADMISSION OF GUILT. . . . . 75
A.
B.

Standards of Review and AEDPA Standards.. . . . . . . . . . . . . 75

C.

The California Supreme Court Decision. . . . . . . . . . . . . . . . . 75

D.

The District Court Decision. . . . . . . . . . . . . . . . . . . . . . . . . . . 76

E.

IX.

Summary of Claim. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75

The Failure To Present Evidence of Gregory
Cudjo’s Confession, Individually and in Combination
with the Trial Court’s Exclusion of Gregory’s
Separate Confession to Culver, Prejudiced Cudjo
And Resulted In Unfair Trial And An Unreliable
Verdict. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78

THE COURT SHOULD GRANT A COA AND RELIEF
ON CUDJO’S CLAIM OF INEFFECTIVE ASSISTANCE
AT THE PENALTY PHASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
A.

Summary of Claim. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92

B.

Standards of Review and AEDPA Standards.. . . . . . . . . . . . . 92

C.

The California Supreme Court Decision. . . . . . . . . . . . . . . . . 93
vi

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PAGE
D.

The District Court Decision. . . . . . . . . . . . . . . . . . . . . . . . . . . 93

E.

Counsel’s Deficient Performance Prejudiced Cudjo. . . . . . . . 95
1.
2.

Clark’s Deficient Performance at the Penalty
Phase.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96

3.
X.

Ineffective Assistance Standards. . . . . . . . . . . . . . . . . . 95

Prejudice.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101

THE COURT SHOULD GRANT A COA AND RELIEF
ON CUDJO’S CUMULATIVE ERROR CLAIMS. . . . . . . . . . . . . 113
A.

Summary of Claims. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113

B.

Standards of Review and AEDPA Standards.. . . . . . . . . . . . 113

C.

The California Supreme Court Decision. . . . . . . . . . . . . . . . 114

D.

The District Court Decision. . . . . . . . . . . . . . . . . . . . . . . . . . 114

E.

The Cumulative Effect of Errors Rendered Cudjo’s
Defense Far Less Persuasive Than It Otherwise
Would Have Been and Requires Guilt and Penalty
Relief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116
1.

Cudjo Is Entitled to Guilt Relief. . . . . . . . . . . . . . . . . 118

2.

At a Minimum, Cudjo Is Entitled to Penalty
Relief. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123
vii

TABLE OF CONTENTS
PAGE
STATEMENT OF RELATED CASES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124
CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126

viii

TABLE OF AUTHORITIES
FEDERAL CASES

PAGE(S)

Ainsworth v. Woodford,
268 F.3d 868 (9th Cir. 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
Alcala v. Woodford,
334 F.3d 862 (9th Cir. 2003). . . . . . . . . . . . . . . . . . . . . . . . 61, 116, 120, 121
Allen v. Woodford,
395 F.3d 979 (9th Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . 106, 107, 108, 109
Bains v. Cambra,
204 F.3d 964 (9th Cir. 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
Barber v. Page,
390 U.S. 719 (1968). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68, 69
Barefoot v. Estelle,
463 U.S. 880 (1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Bates v. Bell,
402 F.3d 635 (6th Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
Baze v. Rees,
128 S. Ct. 1520 (2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37, 38, 40
Beardslee v. Woodford,
395 F.3d 1064 (9th Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39, 40
Bradshaw v. Richey,
546 U.S. 74 (2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
Brecht v. Abrahamson,
507 U.S. 619 (1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63, 64, 117, 118
ix

TABLE OF AUTHORITIES
FEDERAL CASES

PAGE(S)

Brown v. Myers,
137 F.3d 1154 (9th Cir. 1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
California v. Trombetta,
467 U.S. 479 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Campbell v. Kincheloe,
829 F.2d 1453 (9th Cir. 1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
Chambers v. Mississippi,
410 U.S. 284 (1973). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
Chia v. Cambra,
360 F.3d 997 (9th Cir. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54, 61
Clark v. Murphy,
331 F.3d 1062 (9th Cir. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Cooper v. Rimmer,
379 F.3d 1029 (9th Cir. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Correll v. Ryan,
539 F.3d 938 (9th Cir. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . 99, 100, 101
Crane v. Kentucky,
476 U.S. 683 (1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
Crawford v. Washington,
541 U.S. 36 (2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Davis v. Alaska,
415 U.S. 308 (1974). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67

x

TABLE OF AUTHORITIES
FEDERAL STATUTES

PAGE(S)

DePetris v. Kuykendall,
239 F.3d 1057 (9th Cir. 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Douglas v. Woodford,
316 F.3d 1079 (9th Cir. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110, 113
Frantz v. Hazey,
533 F.3d 724 (9th Cir. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Gerlaugh v. Stewart
129 F.3d 1027 (9th Cir. 1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
Graham v. Collins,
506 U.S. 461 (1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
Green v. Georgia,
442 U.S. 95 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58, 98, 103
Hendricks v. Calderon,
70 F.3d 1032 (9th Cir. 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112, 113
Hitchcock v. Dugger,
481 U.S. 393 (1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
Holmes v. South Carolina,
547 U.S. 319 (2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
Jackson v. Calderon,
211 F.3d 1148 (9th Cir. 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111
Jones v. Ryan,
583 F.3d 626 (9th Cir. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112

xi

TABLE OF AUTHORITIES
FEDERAL STATUTES

PAGE(S)

LaGrand v. Stewart,
133 F.3d 1253 (9th Cir. 1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Lambert v. Blodgett,
393 F.3d 943 (9th Cir. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Lambright v. Stewart,
220 F.3d 1022 (9th Cir. 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Lambright v. Stewart,
241 F.3d 1201 (9th Cir. 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112
Lilly v. Virginia,
527 U.S. 116 (1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65, 67, 68
Lockyer v. Andrade,
538 U.S. 63 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Lord v. Wood,
184 F.3d 1083 (9th Cir. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
Luna v. Cambra,
306 F.3d 954 (9th Cir. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
Mak v. Blodgett,
970 F.2d 614 (9th Cir. 1992). . . . . . . . . . . . . . . . . . . . . . . 112, 116, 121, 122
Mayfield v. Woodford,
270 F.3d 915 (9th Cir. 2001). . . . . . . . . . . . . . . . . . . . . . . . . 34, 43, 110, 113
McCleskey v. Kemp,
481 U.S. 279 (1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72

xii

TABLE OF AUTHORITIES
FEDERAL STATUTES

PAGE(S)

Miller-El v. Cockrell,
537 U.S. 322 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42, 43
Miller v. Stagner,
757 F.2d 988 (9th Cir. 1985). . . . . . . . . . . . . . . . . . . . . . . . . . . 50, 54, 55, 61
Morales v. Hickman,
415 F. Supp. 2d 1037 (N.D. Cal. 2006). . . . . . . . . . . . . . . . . . . . . . 39, 40, 41
Morales v. Tilton,
465 F. Supp. 2d 972, 981 (N.D. Cal. 2006). . . . . . . . . . . . . . . . . . . . . . 38, 39
Moses v. Payne,
555 F.3d 742 (9th Cir. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . 52, 55, 59, 62
O'Neal v. McAninch,
513 U.S. 432 (1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
Ohio v. Roberts,
448 U.S. 56 (1980). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Padilla v. Terhune,
309 F.3d 614 (9th Cir. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60, 65, 67
Panetti v. Quarterman,
127 S. Ct. 2842 (2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35, 37
Parle v. Runnels,
505 F.3d 922 (9th Cir. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . 116, 117, 120
Poland v. Stewart,
117 F.3d 1094 (9th Cir. 1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39, 40

xiii

TABLE OF AUTHORITIES
FEDERAL STATUTES

PAGE(S)

Powell v. Galaza,
328 F.3d 558 (9th Cir. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Reynoso v. Giurbino,
462 F.3d 1099 (9th Cir. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Richter v. Hickman,
578 F.3d 944 (9th Cir. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116
Riley v. Payne,
352 F.3d 1313 (9th Cir. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
Rock v. Arkansas,
483 U.S. 44 (1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52, 55, 58
Rompilla v. Beard,
545 U.S. 374 (2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98, 111
Sanders v. Ratelle,
21 F.3d 1446 (9th Cir. 1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
Sandstrom v. Montana,
442 U.S. 510 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Shackleford v. Hubbard,
234 F.3d 1072 (9th Cir. 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Silva v. Woodford,
279 F.3d 825 (9th Cir. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34, 112
Skipper v. South Carolina,
476 U.S. 1 (1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103

xiv

TABLE OF AUTHORITIES
FEDERAL STATUTES

PAGE(S)

Smith v. Stewart,
189 F.3d 1004 (9th Cir. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112
Stallings v. Bobby,
464 F.3d 576 (6th Cir. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
Strickland v. Washington,
466 U.S. 668 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
Summer v. Mata,
449 U.S. 539 (1981). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Taylor v. Illinois,
484 U.S. 400 (1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Taylor v. Maddox,
366 F.3d 992 (9th Cir. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Terry Williams v. Taylor,
529 U.S. 362 (2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
Thomas v. Hubbard,
273 F.3d 1164 (9th Cir. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121
United States v. Bailey,
444 U.S. 394 (1980). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
United States v. Cabaccang,
481 F.3d 1176 (9th Cir. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6, 7, 11
United States v. Cabrera,
222 F.3d 590 (9th Cir. 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72

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TABLE OF AUTHORITIES
FEDERAL STATUTES

PAGE(S)

United States v. Grey,
422 F.2d 1043 (6th Cir. 1970). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
United States v. Scheffer,
523 U.S. 303 (1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52, 61
Valerio v. Crawford,
306 F.3d 742 (9th Cir. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Washington v. Texas,
388 U.S. 14 (1967). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
Whelchel v. Washington,
232 F.3d 1197 (9th Cir. 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69, 72
Whorton v. Bockting,
549 U.S. 406 (2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Wiggins v. Smith,
539 U.S. 510 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
Michael Williams v. Taylor,
529 U.S. 420 (2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111
Terry Williams v. Taylor,
529 U.S. 362 (2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
Wood v. Alaska,
957 F.2d 1544 (9th Cir. 1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
Woodford v. Garceau,
538 U.S. 202 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

xvi

TABLE OF AUTHORITIES
FEDERAL STATUTES

PAGE(S)

Woodford v. Visciotti,
537 U.S. 19 (2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106, 107
STATE CASES
Morales v. CDCR,
168 Cal. App. 4th 729 (Cal. Ct. App. 2008). . . . . . . . . . . . . . . . . . . . . . . . . 39
People v. Cudjo,
6 Cal. 4th 585 (1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
People v. Watson,
46 Cal. 2d 818, 299 P.2d 243 (1956). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
FEDERAL STATUTES
28 U.S.C. § 1291. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
28 U.S.C. § 2253(c)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29, 30, 42
28 U.S.C. § 2254. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
Fed. R. App. P. 4(a)(1)(A).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Fed. R. Evid. 702. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55, 56, 57
U.S. Const. amend. VI.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66

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PAGE(S)

STATE STATUTES
Cal. Evid. Code § 1230. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79, 84
Cal. Pen. Code § 190.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98, 102
Govt. Code § 11340.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

MISCELLANEOUS
1 ABA Standards for Criminal Justice 4-.41. . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
American Bar Association Standard 4-4.1 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100

xviii

STATEMENT OF JURISDICTION
This is an appeal from a judgment and order denying Armenia Cudjo’s
habeas corpus petition and disposing of all parties’ claims. (ER 3, 194; ER 1). The
district court had subject matter jurisdiction under 28 U.S.C. § 2254. The
judgment and order are final. 28 U.S.C. § 1291. This Court has jurisdiction over
this appeal pursuant to 28 U.S.C. §§ 1291 and 2253. The judgment and order
denying federal habeas relief were entered on October 23, 2008. (ER 3, 1) The
order sua sponte granted a certificate of appealability (“COA”) on Cudjo’s lethal
injection claim but denied a COA on all other claims. (ER 194). Cudjo timely
filed a notice of appeal on November 18, 2008. (Fed. R. App. P. 4(a)(1)(A); ER
26, 258).
STATEMENT OF THE ISSUES
Certified Issue
Lethal Injection
1.

The district court did not review Mr. Cudjo’s lethal injection claim

because California currently has no lethal injection protocol in place. If this Court
determines that all of Mr. Cudjo’s uncertified claims fail to meet the standard for a
Certificate of Appealability (“COA”), should this Court remand the lethal injection
claim to the district court for further proceedings?
1

Uncertified Issues
Exclusion of Evidence of Third Party Culpability
2.

The California Supreme Court held that the trial court wrongly

excluded John Culver’s testimony that Cudjo’s brother Gregory admitted that he
had killed Amelia Prokuda, the victim in this case. Was the ruling by the state
supreme court that Cudjo’s constitutional rights were not violated by the exclusion
of Culver’s testimony reasonable where, according to that court, “[b]y Culver’s
account, Gregory made his statement spontaneously . . . within hours after a
murder for which Gregory, who had no alibi, was in custody as a prime suspect”;
“the only eyewitness . . . never identified the assailant and gave a description
which more closely resembled Gregory than the defendant”; “much of the other
evidence . . . was as consistent with Gregory’s guilt as with defendant’s”; and
“there was no comparable direct evidence of Gregory’s guilt?”
Violation of Right to Confront Witnesses
3.

Is the California Supreme Court’s decision that the admission of

Gregory Cudjo’s preliminary hearing testimony inculpating Appellant did not
violate Appellate’s right to confront witnesses reasonable where that testimony
was the strongest evidence of Appellant’s guilt and Gregory refused to testify at
trial and therefore could not be examined by Appellant?
2

Prosecutorial Misconduct
4.

The California Supreme Court held that the prosecutor committed

misconduct when he argued in his guilt phase closing that “what [defendant] wants
you to believe, and what I believe to be perhaps the most telling thing in this
whole case, is that . . . this woman is going to have intercourse with a strange man
-- frankly any man -- a black man, on her living room couch with her five year old
in the house.” Was the state court’s decision that Cudjo was not prejudiced by the
remark reasonable in a case where the victim was a white woman, the defendant an
African-American man, the prosecutor argued that Cudjo raped the victim, and, as
the dissent noted, “[t]he prosecution’s case was far from compelling”?
Ineffective Assistance of Counsel at the Guilt Phase
5.

The district court found that trial counsel performed deficiently by

failing to investigate and present evidence that Gregory Cudjo made a second
jailhouse confession -- “I’m in here for murder, and I did it” -- but that Appellant
was not prejudiced as a result. Is it reasonably probable that at least one juror
would have had a reasonable doubt of Cudjo’s guilt if the defense had presented
evidence of Gregory’s admission when the only eyewitness never identified the
assailant and gave a description that more closely resembled Gregory than
Appellant and much of the other evidence was as consistent with Gregory’s guilt
3

as with Appellant’s?
Ineffective Assistance at Penalty
6.

The district court found that trial counsel performed deficiently by

failing to investigate and present mitigating evidence of Cudjo’s life history and
evidence of Gregory’s confession of guilt to Culver. In a case where at penalty the
prosecution presented no aggravating evidence and the defense merely recalled
Cudjo to tersely reaffirm his innocence, is it reasonably probable that at least one
juror would have voted against death if counsel had presented mitigating evidence
of Cudjo’s traumatic childhood, exposure to domestic violence, depression, head
injuries, seizure disorder, substance abuse, and likely brain damage, and evidence
Gregory’s confession?
Cumulative Error
7.

Does the cumulative impact of errors undermine confidence in the

outcome and require relief?
STATEMENT OF THE CASE
A felony complaint filed on March 25, 1986 charged Armenia Cudjo
(“Cudjo,” “Appellant,” or “Armenia”) with the first degree murder of Amelia
Prokuda while engaged in a robbery and a burglary. (ER 2286). Prokuda had
been killed four days earlier in Littlerock, California, near Palmdale, in Los
4

Angeles County. (ER 225). William Clark represented Cudjo at the preliminary
hearing and trial. (ER 2278, 1755-57).
An amended information filed on May 2, 1986 alleged three counts against
Cudjo: (1) first degree murder while engaged in a robbery and a burglary, and
while using a dangerous weapon (a hammer); (2) robbery; and (3) burglary. (ER
2288-90). Cudjo pled not guilty to all charges. (ER 1758-59).
The defense theory was that Cudjo was innocent and that his brother
Gregory killed Prokuda.1 Cudjo testified for the defense. (ER 1922-2120).
Gregory refused to testify, invoking his privilege against self-incrimination. (ER
1865). Gregory’s preliminary hearing testimony and statements to the police
inculpating Armenia were read into evidence. (ER 1882). The court excluded the
testimony of defense witness John Culver that Gregory had admitted to him
several hours after the crime that he had killed Prokuda. (ER 2155).
On April 22, 1986, the jury convicted Cudjo on all counts; found true the
special circumstances that the murder occurred in the commission of a robbery and
burglary; and found true the allegations that Cudjo used deadly weapons in
committing the murder (a hammer) and the robbery (a knife). (ER 2291, 2295).
1

To distinguish Gregory Cudjo from Appellant, his brother, this brief at
times refers to Gregory Cudjo as “Gregory” and to Appellant as “Armenia.” See
United States v. Cabaccang, 481 F.3d 1176, 1179 n.1 (9th Cir. 2007)
5

The penalty trial began and ended the next court day, Monday, April 25,
1988. (ER 2296). Both sides waived opening statement. (Id.). The prosecution
presented no aggravating evidence. (ER 2296, 2257). The defense penalty
presentation consisted of one substantive question and answer: “Q: Did you kill
Amelia Prokuda? A [by Armenia Cudjo]: No, I didn’t.” (ER 2258). There was
no cross examination. (Id.). The jury received the case on April 25 and returned a
death verdict the next day. (ER 2296-98). On May 31, 1988, the court denied
Cudjo’s motion for a new trial, sentenced Cudjo to death, and entered judgment.
(ER 2299.)
On December 13, 1993, a divided California Supreme Court affirmed the
judgment on appeal by a vote of five to two. (ER 217). The majority held that the
trial court wrongly sustained the prosecutor’s objection to Culver’s testimony of
Gregory’s confession. (ER 229-30). The court noted that Gregory “was the other
prime suspect in the case” and “had no alibi” but ruled that the error did not
prejudice Cudjo. (ER 231). Justice Kennard, joined by Justice Mosk, dissented,
concluding that the exclusion of Culver’s testimony “violated defendant’s rights
under the federal and state Constitutions to present a defense.” (ER 253).
While his appeal was pending, Cudjo filed a state habeas corpus petition.
(ER 198). The California Supreme Court issued an order to show cause on the
6

claim that Cudjo’s attorney “provided ineffective assistance by not adequately
investigating the possibility that Amelia Prokuda’s killer was her husband, Ubaldo
Prokuda, rather than petitioner.” Id. A referee concluded after an evidentiary
hearing that counsel’s performance was not deficient. (ER 202). The California
Supreme Court agreed, denied the claim in a written opinion issued on June 7,
1999, and summarily denied the remaining claims without an opinion or a hearing.
(ER 202). Justice Mosk dissented, stating that Cudjo “is probably guilty of the
offense charged. But only probably. That, I conclude, is not sufficient to justify
the ultimate sanction.” (ER 216).
Cudjo filed a federal habeas corpus petition in 2000. (ER 4). Cudjo also
filed several habeas petitions in state court to exhaust additional claims. (ER 4-5).
The last of these petitions was denied on March 14, 2007. (ER 5). On April 10,
2007, Cudjo moved for an evidentiary hearing in district court. (Id.). The
Honorable John F. Walter granted a hearing on two claims: Claim 15(A)(6),
alleging that trial counsel was ineffective for failing to investigate and present
evidence of a jailhouse admission by Gregory Cudjo that he killed Prokuda2; and
Claim 20(B), alleging that counsel unreasonably failed to investigate and present

2

ER 2303; (Docket no. 10). This admission was separate from the
admission to Culver. (Id.).
7

mitigating evidence of Cudjo’s background, physical condition and family and
social history at the penalty phase. (ER 2303; docket 10; ER 2312). The hearing
was held on June 3 and 4, 2008. (ER 262, 534). After receiving briefs on the
hearing claims, Judge Walter denied relief on all claims and sua sponte granted a
COA limited to the lethal injection claim, for which Cudjo had sought but was
denied a hearing. (ER 3, 194). Cudjo timely filed a notice of appeal on November
18, 2008. (ER 260).
STATEMENT OF FACTS
I.

THE PRELIMINARY HEARING
A preliminary hearing was held on April 16, 1988. Prokuda’s five-year old

son, Kevin, testified that he saw a Black man hold a knife to his mother’s throat
and heard him say that he wanted money. (ER 2279-80, 2281-82). The man told
him to go to his room, and he did. (ER 2283).
Gregory Cudjo testified that he was Armenia’s brother and that the two of
them lived together with their mother in a camper on March 21, 1986, the day
Prokuda was killed. (ER 1568-69). Gregory gave an account of his and
Armenia’s whereabouts that day but he denied making some statements to the
police inculpating Armenia and said he did not recall making others. Gregory
testified that he agreed with some statements made by the police officers “because
8

they threatened [him] with 25 years” (ER 1584) and that the police “was putting
these words in [his] mouth” (ER 1585, see also ER 1586).
Gregory agreed that listening to the tape of one of his interviews with the
police would refresh his memory, and the prosecutor played part of an interview
tape, which, transcribed, lasted about four and a half pages. (ER 1591-96).
According to the transcript, Gregory said that on March 21 he saw Armenia take
off and wash his tennis shoes (ER 1594), and that when he saw him leave the
camper that morning at 9:30 to 10:00 a.m., Armenia wore cut-off Levi’s about
knee high, a blue sweatshirt and white tennis shoes. (ER 1595-96).
Defense counsel’s cross-examination of Gregory lasted less than one page
and did not inquire into Gregory’s possible involvement in the homicide (ER
1599-1600) although counsel acknowledged at the federal evidentiary hearing that
by then the prosecutor had informed him of one of Gregory’s confessions. (See
ER 348, 351).
The prosecution also presented the testimony of Cudjo’s mother, Maxine,
and his sister, Julia Watson.3
The defense presented no evidence. (ER 2284).
3

As shown at the federal evidentiary hearing, these witnesses were
available to testify to mitigating evidence of Cudjo’s life history at his penalty trial
but were not asked to do so. (See ER 1624-32, 1733-36).
9

The magistrate found reasonable cause for the charges. (ER 2284-85).
II.

PRETRIAL
Cudjo pled not guilty to all the charges in the amended information. (ER

1756).
On January 20, 1988, the court proposed, and counsel agreed, to waive
sequestered death penalty voir dire. (ER 1758-59).
At a status conference on February 9, 1988, the prosecutor stated that “in
compliance with the discovery statute inherent in [Penal Code section] 190,” he
was informing the defense that the only aggravating evidence he intended to offer
at the penalty phase was “defendant’s prior conviction for grand theft person,” an
offense for which both Armenia and Gregory had pled guilty. (ER 1776; see also
ER 1777-78).
During voir dire the prosecutor told a juror that the law did not require a
jury to find that Cudjo had the intent to kill in order to find a special circumstance
to be true, a misstatement of law in which the court concurred and to which
defense counsel did not object. (ER 1792-96).4
4

Although the trial transcript attributes this statement as coming from
defense counsel Clark, when read in context, it appears that prosecutor, Steven
Ogden, made the statement. As the California Supreme Court recognized,
contrary to the law in effect at the time of the offense and trial, the jury was not
instructed that it had to find that Cudjo had the specific intent to kill in order to
10

On March 2, 1988, outside the presence of the jury, Clark said that “Mr.
Cudjo apparently requires Dilantin at 50 milligrams and disatril at 4,000 c.c.’s, I
believe that’s twice a day,” and asked for an order so that Cudjo could receive the
medication. (ER 1790). Clark added: “Sounds like a lot, doesn’t it.” (Id.).5
The panel and alternates were accepted and sworn on March 9, 1988 and
opening statements were given on March 14. (ER 1797-98, 1800).
III.

THE GUILT TRIAL
A.

Opening Statements

The prosecutor’s opening statement emphasized the statements that Gregory
Cudjo made to the police inculpating Armenia. (ER 1801-02).
In the defense opening, Clark stated that the jury would have more than a
substantial doubt “that Armenia is necessarily the person responsible for the death
of Amelia Prokuda” (ER 1803) and that the defense “hope[d] to establish that the
one person who spoke the loudest in this case from the very beginning is indeed
the person most likely to have killed.” (ER 1804). Clark said that “[y]ou will

find any of the special circumstance allegations true. (ER 247-48).
5

At the federal habeas hearing, Cudjo presented evidence that he had a
seizure disorder and a mild to moderate degree of brain damage at the time of the
offense and trial, see infra at ER 1716-32 (direct testimony declaration of Dr. Dale
Watson), but none of this evidence was presented to his jury.
11

have, I hope, the opportunity to see Mr. Gregory Cudjo, who is slightly over a year
younger than his brother, and approximately the same height, weight, and physical
description, and appearance as his brother.” (ER 1805-06). Clark acknowledged
that he had never visited the crime scene. (ER 1804).
B.

The Prosecution Case

Los Angeles County Deputy Sheriff Robert Flores testified that he found the
victim dead and bound and followed footprints from the Prokudas’ house to the
Cudjos’ camper. (ER 1807-09). Deputy Sheriff Robert Neilson testified that one
set of footprints led into and out of the victim’s house and that he also followed
footprints from the house to the Cudjos’ camper. (ER 1810-14).
A pathologist testified that blows to the head killed Prokuda and that a
hammer was likely used to inflict the blows. (ER 1815-16). There were no signs
of traumatic sexual assault or of drugs or alcohol in Prokuda’s system. (ER 181619, 6). Prokuda became unconscious soon after the blows began. (ER 1820).
Several witnesses testified that no identifiable fingerprints were found at the
crime scene. (ER 1821-24).
The victim’s husband, Ubalda Prokuda, testified that when he returned to
his house after his wife had been killed he discovered two rifles and a duffle bag

12

missing. (ER 1825).6 He said that he had sex with the victim on the day of the
crime. (ER 1826).
Kevin Prokuda testified that he saw a Black man with a knife in his house.
(ER 1827-28). The man put a knife to his mother’s neck and demanded and
received money. (ER 1829). The man took two guns and tried to start the car.
(ER 1831-32). He had never seen the intruder before. (ER 1830). The intruder
faced Kevin; he was Black with curly hair, had no facial hair or tattoos on his
arms, and wore a shirt with no sleeves. (ER 1834-36). Kevin never identified
Armenia or anyone else as the perpetrator. (ER 63).
As the district court later noted, “Kevin was unable to testify that the knife
recovered from the trailer in which Armenia and Gregory were staying at the time
of the murder, was in fact the knife he saw the intruder use to threaten his mother,
and both Armenia and Gregory had access to the knife in the trailer.” (ER 62). As
the district court also noted, at trial Kevin testified the intruder’s top was blue and
that he wore shoes, but at the preliminary hearing he could not remember what
color shirt the man wore and he said he did not see what the man wore on his feet.
(ER 63).

6

As the district court noted, the police did not find any of the purportedly
missing items. (ER 68).
13

Maxine Cudjo testified that her two sons wore identical tennis shoes. (ER
1841-42, 1847). She added that it had been “a long time” since she had seen
defense counsel Clark, a couple of years. (ER 1843). Armenia used to have a
tattoo on his arm but Gregory has no tattoos. (ER 1844). She saw Gregory altered
on drugs. (ER 1846).
Julia Watson testified that she lived in the Cudjo camper and that on the day
of the crime she saw Gregory wearing tennis shoes and Armenia wearing boots.
(ER 1857-58).
Criminalist Douglas Ridolfi testified that the footprints leading to the Cudjo
camper could have been made by the tennis shoes worn by Armenia or Gregory.
(ER 1859). According to Ridolfi, tests of swabs of semen and sperm left on the
victim eliminated Gregory and the victim’s husband as possible donors, but
identified Armenia as being in the one percent of the population that could have
been the donor. (ER 1860-64).
When the prosecution called Gregory Cudjo as a witness he invoked his
privilege against self-incrimination and refused to testify regarding the crime or
anything else. (ER 1865-67). The prosecution did not offer Gregory immunity if
he testified. (ER 1867). The court ruled that Gregory was unavailable as a
witness. (ER 1867-69).
14

The prosecutor asked to read portions of Gregory’s preliminary hearing
testimony into the record. (ER 1867, 1869). Defense counsel objected, arguing
that his “motivation in terms of cross-examining at [the] time of the preliminary
hearing . . . was substantially different than it would have been at trial.” (ER
1870). The court held that the defense had an opportunity for meaningful crossexamination at the preliminary hearing and that Gregory’s testimony from that
proceeding was admissible. (ER 1871-72). Defense counsel added that he
believed Gregory was under the influence of drugs when he testified at the
preliminary hearing, and that it “was very apparent that he was operating in an
aberrated condition [sic].” (ER 1873). The court replied that “that should have
been brought to the attention of the magistrate judge,” who then could have
granted a continuance. (Id.). Counsel again objected that the ruling would violate
Cudjo’s right to confront the witnesses against him and moved for a mistrial,
which was denied. (ER 1874, 1876). The court ruled that the defense could
present evidence of a prior felony conviction to impeach Gregory’s testimony, and
the jury was informed of the conviction. (ER 1875).
Deputy District Attorney Myron Jenkins read portions of Gregory’s
preliminary hearing testimony. (ER 1882, see ER 1568-1600). Jenkins read
portions where Gregory denied telling the police (a) that he saw Armenia leave the
15

camper at 10:00 a.m. on the day of crime and that Armenia was wearing a longsleeved sweat shirt with a hood and cut-off Levi’s (ER 1897); (b) that Armenia
told him “that is the house that I burglarized, dammit she didn’t have any money
either” (ER 1902); (c) that Armenia told him that he had taken two guns from the
house (ER 1905); and (d) that Armenia told him that he had hogtied the lady in the
house using neckties from the closet. (ER 1909.)
C.

The Defense Case

Armenia testified that on the morning of March 21, 1986 he sold crack to
Amelia Prokuda and had consensual sex with her in exchange for the crack (she
was short of money). (ER 1945-48). He did not kill Prokuda. (ER 1923). After
he left her house, he returned to the camper, told Gregory, who was “doing dope,”
what had happened, and went running. (ER 1950-54, 1933-36).
Armenia testified that he smoked crack before having sex with Prokuda (ER
1982) but that she never smoked crack in his presence. (ER 1955, 2052). He
described the many tattoos he had on his arms the day Prokuda was killed. (ER
1956-57, 1961-62). He admitted being convicted of grand theft person in 1985
(ER 1967, 1972) and explained he served less than one year in jail as a result. (ER
2062-63).
Detective William Patterson testified that he found an empty baggie at the
16

crime scene. (ER 2120.1, 2120.2).
Defense counsel played tapes of Gregory’s March 22, and March 26, 1986
statements to the police. (ER 2120.3-2120.17, 827-36). In his statements,
Gregory said that he and Armenia had identical tennis shoes. (ER 2120.8, 829).
Gregory denied ever being in Prokuda’s house. (ER 827). During the second
statement, prosecutor Berg informed Gregory that he had been cleared of the
murder charge. (ER 827).
David Murphy, a specialist in chemical dependency, testified that it is
common for people not to know that their spouse is using cocaine. (ER 2120.212120.23).
Outside the presence of the jury, the court held a Penal Code 402 hearing to
consider the prosecutor’s request to exclude the testimony of proposed defense
witness John Culver. (ER 2121). Culver testified that he had known Armenia for
15 to 20 years and had known his relatives. (ER 2123-24). He testified that when
he and Gregory shared a jail cell in March 1986 Gregory told him that “‘they got
me in here for a murder’” and he “‘went over to rob, burglarize this lady’s house
and she seen [him] and that’s when all the stuff went down and that’s what
happened.’ He had done it.” (ER 2126-27.) Gregory told him the victim started
screaming and “he just went off on the lady” and knocked her out. (ER 2135).
17

The prosecutor argued that Culver’s testimony was incredible and should be
excluded under California Penal Code section 352. (ER 2152). The defense
argued that Gregory’s inculpatory statements were admissible as a declaration
against interest. (ER 2153). The court ruled that Culver’s testimony was
inadmissible because it lacked sufficient indicia of reliability. (ER 2155; see also
ER 2156).
D.

Instructions

When discussing proposed jury instructions, the court stated that the
evidence “shows one person committed the murder, the evidence indicating it’s
either Mr. Armenia Cudjo or Mr. Gregory Cudjo.” (ER 2156.1). The prosecutor
stated: “I really think this case is going to resolve itself as this is either a flat out,
cold felony murder committed by Armenia or it is a premeditated murder
committed by Gregory.” (ER 2156.6). Defense counsel said “it’s simply an all or
nothing type of case as well as a defense” and he did not request instructions on
second degree murder or manslaughter or on an intoxication defense. (ER 2156.22156.5).
E.

The Prosecutor’s Closing Argument

The prosecutor argued that Cudjo was guilty of felony murder because the
killing occurred in the course of a robbery, burglary and rape. (ER 2160-61). He
18

argued that because Prokuda did not have much money, “perhaps this man . . . to
make the best of the situation he goes back there to rape her. [¶] It seems to me
that the issue as to whether he entered to commit rape is kind of -- is not well
established. I don’t know.” (ER 2165).
As to the identity of the perpetrator, “[w]e have narrowed it down to two
people.” (ER 2174). He emphasized Gregory’s statements to the police
implicating Armenia. (ER 2175-77). He argued:
Even without Gregory Cudjo’s testimony that you heard
in this courtroom, both in terms of his preliminary
hearing and in terms of the tape, there is enough to prove
Armenia Cudjo guilty beyond a reasonable doubt. But,
with that testimony, if you believe it, and you’re jurors,
you’re the ones who decide who you’re going to believe
. . . . [W]ith it, we have iced the cake.
(ER 2179-80).
F.

Defense Counsel’s Closing Argument

Clark began by noting that although the trial was initially estimated to last
about two months, “we’ve worked only half days” and “tried this case in what is
the equivalent of possibly about eleven days, including jury selection, which I find
remarkable.” (ER 2187).
He argued that “what the defense contends in this case . . . is that there’s an
utter failure of evidence to convict.” (ER 2194). He discussed Gregory’s
19

statements and said that “he gives us absolutely exquisite detail of things in the
victim’s house,” suggesting that Gregory had been in the house. (ER 2201, 2205).
G.

Prosecution’s Rebuttal

In rebuttal, the prosecutor argued:
[W]hat Mr. Cudjo wants you to believe, and what I
believe to be perhaps the most telling thing in this whole
case, is that this woman who, from all appearances is a
happily married mother of three trying to make ends
meet . . . that this woman is going to have intercourse
with a strange man, frankly any man -- a Black man, on
her living room couch with her five year old in the
house.
I’m telling you -- not telling you -- I would
suggest to you that no single woman of the slightest
degree of respectability is going to do that . . . .
(ER 2249-50).
H.

Deliberations and Verdicts

After deliberating for about ten hours, the jury found Cudjo guilty of first
degree murder and the special circumstances of burglary and robbery to be true.
(ER 2256.1-2256.2).
IV.

THE PENALTY TRIAL
As the district court noted, “[t]his case is somewhat unique.” (ER 137).

“The entire penalty phase took slightly more than one hour, and that included the

20

time that was spent discussing the jury instructions . . . outside the presence of the
jury, and the time spent instructing the jury.” (Id.).
A.

Opening Statements

Neither side gave an opening statement. (ER 137).
B.

The Prosecution Case

The prosecution presented no evidence. (ER 9).
C.

The Defense Case

The defense case consisted solely of three words of testimony: Asked
whether he killed Prokuda, Cudjo replied, “No, I didn’t.” (ER 9, 138). There was
no cross examination. (ER 138).
D.

The Prosecutor’s Closing Argument

The prosecutor argued that the circumstances of the crime warranted death
when weighed against the evidence presented by the defense. (ER 2266). He said
that “Mr. Cudjo comes to us as a kind of unknown quantity”; “we don’t know
what he did with the first 26 years of his life”; and “his background is unknown to
us until January 6th, 1985,” when he was arrested for grand theft person. (ER
2260, 2263-64).
He recited the portion of the penalty instruction allowing evidence of “any
other circumstance which extenuates the gravity of the crime, even though not
21

legal excuse for the crime, and any sympathetic or other aspect of the defendant’s
character or record that the defendant offers as a basis for a sentence less than
death, whether or not related to the offense . . . .” (ER 2266). He added: “I didn’t
see anything like that offered in this case, ladies and gentlemen, other than his
recitation that he wasn’t guilty.” (Id.).
E.

Defense Counsel’s Closing Argument

Defense counsel’s closing consumes a little over eight transcript pages. (ER
2266-75). Counsel argued that a verdict of life without parole “leaves open the
possibility” of Cudjo later receiving a pardon or obtaining judicial relief through
new evidence of his innocence. (ER 2267, 2273-74). He said: “I think my
impression of your verdict is that you are sure.” (Id.). Like the prosecutor,
defense counsel argued that many of the penalty factors in the jury instruction did
not apply. (ER 2270-72; see also RT 2677-83) (penalty instructions). He said that
“the standard of proof now is less than it was before, so if you simply want to
balance the ledger you could flip a coin. It would be inappropriate, but you could
determine it that way . . . .” (ER 2273).
F.

The Verdict and Sentencing

The jury deliberated for about five hours and forty minutes before returning
a death verdict. (ER 2296, 2298; ER 139). The court sentenced Cudjo to death on
22

May 27, 1988. (ER 2299).
VI.

THE STATE APPEAL
On December 13, 1993, a divided California Supreme Court affirmed the

judgment on appeal by a vote of five to two. (ER 217-57). Relevant portions of
the opinion are summarized below in the discussion of legal claims.
VII. THE STATE HABEAS ACTIONS
The California Supreme Court issued an order to show cause on the claim in
Cudjo’s initial state habeas petition that defense counsel did not adequately
investigating the possibility that the victim was killed by her husband. (ER 198216). After an evidentiary hearing, the California Supreme Court denied the claim
in a written opinion and summarily denied the remaining claims without an
opinion or a hearing. (Id.). Cudjo filed three additional state habeas petitions to
exhaust claims, and each was summarily denied. (ER 3-5, 195-97).
VIII. THE PROCEEDING BELOW
Cudjo filed a federal habeas corpus petition in 2000. (ER 4). After the state
supreme court denied his final exhaustion petition, Cudjo moved for an
evidentiary hearing. (Id.). The court granted a hearing on Claim 15(A)(6),
alleging ineffective assistance for failing to investigate and present evidence of
the confession by Gregory reflected in a report by Deputy Sheriff Charles Merritt
23

(a separate confession from the one to Culver), and on Claim 20(B), alleging
ineffective assistance for failing to investigate and present mitigating evidence.
At the hearing, defense counsel Clark testified that his “best defense” at trial
“was to alibi Armenia based on . . . information [he] had in terms of Armenia’s
ability to account for his time” and to suggest that Gregory Cudjo was the real
killer. (ER 298; see also 345-46). It was “central” to his strategy “to try to
convince the jury that petitioner was not the perpetrator.” (ER 304).
Merritt’s March 26, 1986 report was admitted into evidence. (ER 825).
The report contains a statement that Merritt overheard by a “suspect Cudjo” in the
Antelope Valley jail to another inmate that “I’m in here for murder, and I did it.”
(Id.). The report notes that Bruce Frederickson, George Mitchell and Douglas
Lewis were also present when the statement was made. (Id.) At the time, both
Armenia and Gregory Cudjo were incarcerated at the jail (but in separate cells)
and both were suspects in the Prokuda homicide. (ER 825; 333-34).
The Merritt report states that deputy district attorney Hans Berg was
informed of the statement. (ER 826). Berg testified that he interviewed Gregory
on March 26, 1986, that he never interviewed Armenia, and that it was his
standard procedure to disclose reports such as Merritt’s to the defense before trial.
(ER 368, 361).
24

Cudjo’s federal habeas investigator Ellen Turlington testified that in 2008
she discussed the Merritt report with Gregory and that he admitted to her that he
was the Cudjo who said “I’m in here for murder, and I did it.” (ER 556.)
Frederickson, Lewis and Mitchell testified that they would have spoken to the
defense before trial about what they heard. (ER 1648-51). Sheriff’s Department
Sergeant Brian Jones testified that in 2000, Gregory told him that he was at fault in
a homicide that his brother was convicted of committing. (ER 400-01; 1646).
Shontae Franklin testified that in 1994 or 1995, Gregory confessed to him that
“my big brother is in jail now for the white girl that I (Gregory) killed,” and that he
confessed to him again at least one other time. (ER 1640). Steven Davidson
testified that 1991 or 1992, Gregory told him that he was the one who did the
crime that his brother, Armenia, was in prison for. Davison deck, para. 4.
Clark testified that before the preliminary hearing, he was aware that
Gregory had confessed to the murder and that Berg had interviewed Gregory about
it. (ER 292-93, 335-37, 348, 351). Clark testified that before trial Merritt told
him about the statement and that he also received a copy of Merritt’s report. (ER
292, 320-22, 1611).
Clark admitted that he never tried to contact Gregory to interview him, or
had his investigator interview him. (ER 307, 348; see also 1642 (trial investigator
25

confirms he never interviewed Gregory)). Clark only spoke to Gregory when he
examined him at the preliminary hearing. (ER 307, 348).
In response to the court’s question, Clark had no explanation for why he did
not “investigate or ask Gregory Cudjo as to whether he had made that statement.”
(ER 351). He said it never occurred to him to call Berg (who was no longer the
prosecutor on the case by the time of trial) to testify to Gregory’s confession. (ER
356).
Clark testified that his theory at penalty was “lingering doubt,” i.e., to
continue to maintain that Cudjo was innocent. (ER 305). He admitted that he
“didn’t do any investigation into mitigation evidence in [Cudjo’s] case and [he]
didn’t instruct [trial investigator] Hill or anyone else to conduct such an
investigation.” (ER 1612). Hill confirmed that he “didn’t conduct any
investigation in preparation for the penalty phase.” (ER 1643). Hill explained: “I
never talked to Armenia Cudjo or anybody from his family. Mr. Clark never asked
me to do that and I wasn’t interested in doing it either.” (Id.) Clark did not recall
receiving negative information about Cudjo (e.g., that “he was a bad guy”) before
trial, and he indicated that Cudjo was a cooperative client. (ER 290, 306).
Clark testified that “presenting a laundry list of feigned mitigating evidence
would detract from one good theory which was consistent with the evidence
26

presented at trial, and might prompt the jury to re-evaluate their determination of
guilt at trial.” (ER 1612). He testified: “If I am dealing with an alibi or a straight
denial type of a case, I don’t think mitigation is appropriate.” (ER 340).7
Referring to presenting mitigating evidence after contending that a defendant is
not guilty, Clark testified: “[P]ersonally, it’s not my mode. I can’t do it.” (ER
311). By “mitigation,” Clark affirmed that he meant evidence that attempts to give
some context to the defendant’s life and portray the defendant sympathetically.
(ER 340).
Clark testified that he did not seek to introduce at the penalty phase Culver’s
testimony of Gregory’s confession because he thought the judge would probably
“be most consistent” in ruling on the testimony, which he had precluded at guilt.
(ER 339). Although he was aware of Cudjo’s prior Arizona robbery conviction,
he did not investigate the facts of the conviction by obtaining court documents or
police reports. (ER 343). He believed that the prosecutor may not have been
aware of the conviction. (ER 342). He said that the existence of the prior
conviction was not the primary reason he did not present mitigation. (ER 341).
Given that he had already decided not to present mitigation but instead just argue
7

At the hearing, Clark repeatedly called his theory of defense as an “alibi
theory,” (ER 296, 298) , but at trial he presented no other witnesses to corroborate
Cudjo’s testimony of his whereabouts on the day Prokuda was killed.
27

lingering doubt, the existence of the prior conviction was not a reason for
foregoing a mitigation presentation. (Id.)
At the hearing, Cudjo presented evidence of the mitigation case that could
have been presented at trial but wasn’t. Numerous lay witnesses, including five of
Cudjo’s relatives, and social historian and psychologist Kumea Shorter-Gooden
testified to Cujdo’s difficulties and traumatic experiences as a child, adolescent
and young adult. (ER 1614-37; 1633-36; 1194-1205). They testified to Cudjo’s
inadequate and indifferent caregivers when he was child; the impoverished
circumstances of his family life and the community in which Cudjo was raised; the
trauma he experienced in the wake of his father’s death when Cudjo was 11 and
essentially became “the man of the family”; the domestic violence he was exposed
to as a child and teenager, particularly when his mother began a relationship with a
violent alcoholic; and his substance abuse from an early age, including sniffing
gasoline as a teenager after his father died. (Id.). All of the lay witnesses were
willing and able to testify at trial; indeed, two were called as prosecution witnesses
at the preliminary hearing and trial. (See ER 1841-58).
Neuropsychologist Dale Watson testified that before the Prokuda homicide,
Cudjo had suffered two serious head injuries, including a skull fracture, and that at
the time of the crime he had a seizure disorder and suffered from a mild to
28

moderate degree of brain dysfunction indicating a high likelihood of brain
impairment. (ER 506, 1720-25, 875-77, 1329-1407). Cudjo’s head injuries and
family history of seizure disorder were noted in records available before trial (ER
875-77, 1055-1138, 1141-73, 1329-1407), and Cudjo’s seizure disorder was noted
during the trial8 and was also reflected in trial counsel’s notes. (ER 863 (trial file
notes contain the word “Dilantin,” a medication for seizures)).
Respondent’s expert John Dunn disagreed that Cudjo had appreciable brain
damage at the time of the crime or trial, but he acknowledged that San Quentin
State Prison has treated Cudjo for seizure disorder since his arrival there after his
conviction, (ER 515), and Watson explained that a seizure disorder is prima facie
evidence of a problem with the brain. (ER 507).
Gregory Cudjo invoked his privilege against self-incrimination and refused
to testify at the hearing. (ER 279).
After receiving briefing on the hearing claims the district court denied the
entire petition. The order concluded:
Given the Court’s familiarity with the issues and the
straightforward nature of the requirements of 28 U.S.C.
§ 2253(c)(2) for the issuance of a certificate of
appealability, the Court finds no additional briefing is
8

As noted above, during trial defense counsel asked that Cudjo receive
medication for his disorder. (ER 1790).
29

necessary. The Court hereby finds that the only issue
that meets the standard set forth in 28 U.S.C. §
2253(c)(2) is claim 38, in which Cudjo alleges that the
use of lethal injection is cruel and unusual.
(Id. at 192). Relevant portions of the appeal opinion are summarized below in the
discussion of legal claims.
SUMMARY OF ARGUMENT
This appeal implicates major concerns the courts have had with the death
penalty: the execution of someone who may be innocent; the principle that
punishment should be directly related to the personal culpability of the criminal
defendant, and therefore a capital sentencing jury must be able to consider
evidence of the defendant’s background and character before deciding whether to
give the ultimate sanction; and that racial bias and inadequate defense lawyering
may lead to unreliable and unfair death verdicts.
Armenia Cudjo is an African-American man who was convicted of killing a
white woman in Palmdale, California. The prosecution proceeded on a felony
murder theory that the killing occurred during a robbery, burglary and rape,
although rape was not charged as a separate offense or special circumstance and
prosecution witnesses testified there was no evidence of traumatic sexual assault.
Cudjo’s trial was unusual and irregular. Defense counsel noted in his

30

closing that the entire case was tried in the equivalent of just eleven full days,
including jury selection.
The prime alternate suspect, Cudjo’s brother Gregory, inculpated Cudjo in
statements to the police, testified at the preliminary hearing that the police had put
words in his mouth and threatened him, and then under further questioning
generally affirmed the inculpatory statements. Although defense counsel was
aware at the time of the preliminary hearing that Gregory had admitted that he had
killed the victim, and counsel’s theory was that Cudjo was innocent and Gregory
was the real killer, he did not question Gregory at the preliminary hearing about
his possible involvement in the homicide. At trial, Gregory invoked his privilege
against self-incrimination and refused to testify, and his preliminary hearing
testimony inculpating Cudjo was read to the jury.
The entire penalty trial took slightly more than one hour, including the time
spent discussing jury instructions outside the presence of the jury and time spent
instructing the jury. The prosecution presented no aggravating evidence. The
defense case consisted of Cudjo taking the stand and giving a three-word synopsis
of his guilt phase testimony (“Q: Did you kill Amelia Prokuda? A: “No, I
didn’t.”) Defense counsel presented no evidence of Cudjo’s life history; as the
prosecutor noted in his penalty closing, “Mr. Cudjo comes to us as a kind of
31

unknown quantity.”
The California Supreme Court and the district court found numerous errors
at the guilt trial: defense counsel failed to investigate and present evidence of
Gregory’s jailhouse confession that was witnessed by a deputy sheriff and
investigated (and disclosed) by the prosecutor; the judge wrongly excluded
testimony of a separate jailhouse confession by Gregory to defense witness
Culver; the prosecutor committed misconduct by arguing to the jurors that to
accept the defense they would have to believe the victim would have consensual
sex with a Black man, and defense counsel failed to object to the misconduct; the
court failed to instruct that intent to kill was an element of the felony murder
special circumstances, and defense counsel failed to object and seek a proper
instruction.
Because of the errors, on the one hand Cudjo could not confront the prime
alternate suspect whose statements were, in the words of the dissenting California
Supreme Court justices, “perhaps the strongest evidence of defendant’s guilt
presented by the prosecution.” On the other hand, Cudjo was prevented from
presenting, through the court’s and his counsel’s errors, evidence of two
confessions by the alternate suspect, in a case where the only eyewitness never
identified the assailant and gave a description that more closely resembled
32

Gregory than Armenia, and where much of the other evidence was as consistent
with Gregory’s guilt as with Armenia’s. Remarkably, however, both the state
supreme court, albeit in a split decision, and the district court found that Cudjo
was not prejudiced by the errors.
With regard to the penalty trial, the district court found that counsel was
ineffective in failing to investigate and present evidence of Cudjo’s life history
and in failing to seek to admit Culver’s testimony of Gregory’s confession under
the more relaxed evidentiary standards that exist at penalty. Again, the court
concluded that Cudjo was not prejudiced by the errors. The court failed to even
grant a COA on any of Cudjo’s claims aside from lethal injection.
The district court’s decision is outside the mainstream of this Court’s and
the Supreme Court’s jurisprudence and must be reversed. The gulf between the
guilt phase case the jury heard -- unconfronted statements by the alternate suspect
implicating Cudjo – and the case it should have heard -- evidence of two
confessions by that suspect that would have corroborated Cudjo’s trial testimony
and defense theory -- is too wide for the Court to have confidence in the outcome.
And in a penalty case where the prosecution presented no aggravating evidence
and the defense merely called Cudjo to tersely reaffirm his innocence, it is
reasonably probable that at least one juror would have voted against death if
33

counsel had presented mitigating evidence of Cudjo’s traumatic childhood,
exposure to domestic violence, head injuries, seizure disorder, substance abuse
and brain damage, and evidence of the confession of alternative suspect Gregory
Cudjo. A combination of an effective lingering doubt and third party culpability
presentation and life history mitigation evidence would have outweighed the
aggravating evidence of the circumstances of the offense.
ARGUMENT
Certified Issues
I.

STANDARDS OF REVIEW
A.

Review of the District Court’s Rulings

This Court reviews the district court’s denial of Cudjo’s habeas petition de
novo. Powell v. Galaza, 328 F.3d 558, 562 (9th Cir. 2003). The Court reviews de
novo questions of law and mixed questions of fact and law (including claims of
ineffective assistance of counsel). Mayfield v. Woodford, 270 F.3d 915, 922 (9th
Cir. 2001) (en banc).
“To the extent it is necessary to review findings of fact made in the district
court, the clearly erroneous standard applies.” Silva v. Woodford, 279 F. 3d 825,
835 (9th Cir. 2002).

34

B.

Review of the State Court’s Decision under AEDPA

Cudjo filed his federal habeas corpus petition after the effective date of the
Antiterrorism and Effective Death Penalty Act (“AEDPA”), and therefore his
petition is governed by AEDPA. Woodford v. Garceau, 538 U.S. 202, 204 (2003).
Under AEDPA, a habeas petition challenging a state court judgment:
shall not be granted with respect to any claim that was
adjudicated on the merits in State court proceedings
unless the adjudication of the claim – (1) resulted in a
decision that was contrary to, or involved an
unreasonable application of clearly established Federal
law, as determined by the Supreme Court of the United
States; or (2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.
28 U.S.C. § 2254(d). 28 U.S.C. § 2254(e)(1) states that “a determination of a
factual issue made by a State court shall be presumed to be correct” and that the
habeas petitioner “shall have the burden of rebutting the presumption of
correctness by clear and convincing evidence.”
“‘Clearly established Federal law’ under § 2254(d)(1) is the governing legal
principle or principles set forth by the Supreme Court at the time the state court
renders its decision.” Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). “That the
[applicable federal] standard is stated in general terms does not mean the
application was reasonable. AEDPA does not ‘require state and federal courts to
35

wait for some nearly identical factual pattern before a legal rule must be applied.’”
Panetti v. Quarterman, 127 S. Ct. 2842, 2858 (2007). “[C]ircuit law may be
‘persuasive authority’ for purposes of determining whether a state court decision is
an unreasonable application of Supreme Court law. . . .” Clark v. Murphy, 331
F.3d 1062, 1069 (9th Cir. 2003).
Federal habeas courts typically “look through” a summary denial of a claim
to examine the “last reasoned decision” on the claim in the state court system.
Shackleford v. Hubbard, 234 F.3d 1072, 1079 n.2 (9th Cir. 2000). However, when
there is no reasoned state decision on the claim at all, but only a summary denial,
this Court “must conduct an independent review of the record” to determine if the
state court decision was objectively unreasonable. Reynoso v. Giurbino, 462 F.3d
1099, 1119 (9th Cir. 2006).
Because the state courts made no findings of fact and did not hold a hearing
on the summarily-denied claims discussed below, there are no factual
determinations for this Court to defer to, or for § 2254(e)(1)’s presumption of
correctness to apply to, on these claims. Taylor v. Maddox, 366 F.3d 992, 1014
(9th Cir. 2004).
When a federal habeas court concludes that the state court decision is
contrary to or an unreasonable application of federal law, or is based on an
36

unreasonable determination of the facts (28 U.S.C. § 2254(d)), it reviews the claim
de novo in assessing whether the petitioner’s constitutional rights were violated.
Panetti v. Quarterman, 127 S. Ct. 2842; Wiggins v. Smith, 539 U.S. 510, 528-29
(2003); Frantz v. Hazey, 533 F.3d 724, 733-39 (9th Cir. 2008) (en banc).
II.

THE COURT SHOULD GRANT RELIEF ON THE UNCERTIFIED
CLAIMS; ALTERNATIVELY, IT SHOULD REMAND SO THAT
THE DISTRICT COURT CAN CONSIDER THE MERITS OF THE
LETHAL INJECTION CLAIM ONCE CALIFORNIA HAS A NEW
LETHAL INJECTION PROTOCOL IN PLACE
The district court both denied and sua sponte issued a COA on Cudjo’s

claim that the use of lethal injection -- the method by which the State of California
plans to execute him -- violates the Eighth Amendment’s prohibition against cruel
and unusual punishment. (ER 191, 194). Because California currently has no
lethal injection protocol in place, this claim is not yet ripe, and the district court
prematurely denied relief. Cudjo has briefed several uncertified issues that have
merit; accordingly, this Court can and should grant relief on Cudjo’s uncertified
issues and need not resolve Cudjo’s lethal-injection claim. Alternatively, this
Court should remand the matter to the district court for further proceedings once
California adopts and implements a protocol for performing lethal injections.
A.

The Lethal Injection Claim Should Be Considered Once It Is Ripe

Although Cudjo’s lethal-injection claim is prematurely before this Court,
37

neither Ninth Circuit nor Supreme Court precedent forecloses relief on Cudjo’s
claim. In Baze v. Rees, 128 S. Ct. 1520 (2008), the United States Supreme Court
addressed a challenge to the constitutionality of Kentucky’s lethal-injection
protocol, holding that, in order to prevail in an Eighth Amendment challenge, a
prisoner “must show that the risk [of severe pain] is substantial when compared to
the known and available alternatives.” Id. at 1537. The Court went on to find that
a state “with a lethal injection protocol substantially similar to [Kentucky’s]
protocol would not create a risk that meets this standard.”
Baze did not address the constitutionality of California’s method of lethal
injection, and, in fact, three of the justices in the plurality expressed a belief that
further litigation would necessarily follow the Supreme Court’s ruling. Id. at
1546, 1562.
Historically, the lethal injection protocol in California has lacked both
reliability and transparency, creating an undue and unnecessary risk that an
individual executed under California’s protocol would suffer excessive pain
during execution, in violation of the Eighth Amendment. In the past, California’s
protocol has created a demonstrated risk of severe pain. The risk is substantial
when compared to known and available alternatives. In Morales v. Tilton, the
Honorable Jeremy Fogel, District Judge of the Northern District of California,
38

held that California’s then-current protocol in place raised substantial questions as
to whether an individual executed in California would suffer excessive pain during
the execution. 465 F. Supp. 2d 972, 981 (N.D. Cal. 2006); Morales v. Hickman,
415 F. Supp. 2d 1037 (N.D. Cal. 2006).
In response to the district court’s decision in Morales, the California
Department of Corrections and Rehabilitation (“CDCR”) revamped Operational
Procedure No. 0-770 (“OP 0-770”), which governed California’s lethal-injection
protocol. The California Court of Appeal then issued a decision holding that the
CDCR had violated California’s Administrative Procedures Act (Govt. Code
§ 11340, et seq.) when it adopted OP 0-770 without opening it up to public
commentary. Morales v. CDCR, 168 Cal. App. 4th 729 (Cal. Ct. App. 2008). The
State chose not to appeal that ruling to the California Supreme Court.
Consequently, California does not currently have a valid lethal-injection protocol
in place.
This Court has expressed concerns about California’s protocol prior to
Morales (see Beardslee v. Woodford, 395 F.3d 1064, 1074-75 (9th Cir. 2005));
moreover, Cudjo’s claim is unlike previous lethal-injection challenges this Court
has rejected. In Poland v. Stewart, 117 F.3d 1094 (9th Cir. 1997), this Court held
that Poland had failed to demonstrate that lethal injection violated his
39

constitutional rights because none of the “botched” executions he cited had taken
place in Arizona, the state where he was to be executed, and because none of the
botched executions were tied to the protocol used in Arizona. Id. at 1105. The
lethal injection challenge in LaGrand v. Stewart, 133 F.3d 1253, 1265 (9th Cir.
1998), similar to the challenge in Poland, “[was] not to the execution protocol, did
not involve the California procedure at issue here, and [was] mostly founded on
evidentiary deficiencies.” Beardslee, 395 F.3d at 1072 n.7.
This Court addressed another Eighth Amendment challenge to lethal
injection in Cooper v. Rimmer, 379 F.3d 1029 (9th Cir. 2004). Cooper alleged a
number of deficiencies in California’s protocol. Cooper, 379 F.3d at 1032. The
Cooper court deferred to factual findings by the district court in that case to deny
Cooper’s lethal injection challenge; in Cudjo’s case, there have been no district
court fact findings to which to defer. Instead, the district court denied Cudjo’s
lethal injection claim with only a brief reference to the unfinished proceedings in
Morales. Further, while Judge Fogel has not yet concluded his inquiry into
lethal-injection in California, it is already evident from his findings to date that the
possibility of unnecessary pain and suffering is not purely speculative, as this
Court had determined it to be in Cooper, 379 F.3d at 1033.
What is clear is that the Supreme Court’s decision in Baze v. Rees by no
40

means decided the issue of the constitutionality of California’s lethal injection
protocol. More than a year before the Supreme Court resolved this issue for states
substantially similar to Kentucky, the district court in Morales noted that, “[w]hile
there have been numerous legal challenges to lethal-injection protocols across the
country, it is by no means clear that every jurisdiction has problems similar in
either nature or extent to California’s.” Morales, 465 F. Supp. 2d at 982 n.12.
Indeed, the Morales court found that “implementation of California’s
lethal-injection protocol lacks both reliability and transparency. In light of the
substantial questions raised by the records of previous executions, Defendant’s
actions and failures to act have resulted in an undue and unnecessary risk of an
Eighth Amendment violation.” Morales, 465 F. Supp. 2d at 981.
For these reasons, and in the absence of a current and valid lethal injection
protocol in California, this Court should either address the merits of Cudjo’s
uncertified claims, briefed herein, and grant relief accordingly, or remand the
lethal-injection claim for further proceedings in the district court, once a final
decision is reached in Morales.
Uncertified Issues
III.

STANDARDS OF REVIEW
The rules discussed in section I above govern the claims for which Cudjo
41

seeks a COA.
IV.

COA STANDARDS
A federal habeas petitioner has no absolute right to appeal a district court’s

denial of his petition but instead must seek and obtain a COA in order to be able to
pursue an appeal. Miller-El v. Cockrell, 537 U.S. 322, 327, 335-36 (2003). To
obtain a COA, a petitioner must make “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2); Miller-El, 537 U.S. at 327. “A
petitioner satisfies this standard by demonstrating that jurists of reason could
disagree with the district court’s resolution of his constitutional claims or that
jurists could conclude the issues presented are adequate to deserve encouragement
to proceed further.” Id. at 327.
A “COA ruling is not the occasion for a ruling on the merit of petitioner’s
claim.” Miller-El, 537 U.S. at 331. Rather, “[t]he COA determination . . . requires
an overview of the claims in the habeas petition and a general assessment of their
merits.” Id. at 336. “The COA inquiry asks only if the District Court’s decision
was debatable.” Id. at 348. “This threshold inquiry does not require full
consideration of the factual or legal bases adduced in support of the claims. In
fact, the statute forbids it.” Id. at 336. “When a court of appeals side steps this
process by first deciding the merits of an appeal, and then justifying its denial of a
42

COA based on its adjudication of the actual merits, it is in essence deciding an
appeal without jurisdiction.” Id. at 336-37; see also Lambright v. Stewart, 220
F.3d 1022, 1025 (9th Cir. 2000) (“At this preliminary stage, we must be careful to
avoid conflating the standard for gaining permission to appeal with the standard
for obtaining a writ of habeas corpus.”).
The COA standard is “modest”; “‘the petitioner need not show that he
should prevail on the merits. He has already failed in that endeavor.’” Lambright,
220 F.3d at 1024-25 (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)).
“A prisoner seeking a COA must prove ‘something more than the absence of
frivolity’ or the existence of mere ‘good faith’ on his or her part.” Miller-El, 537
U.S. at 338 (quoting Barefoot, 436 U.S. at 893).
The nature of the penalty is a proper consideration in determining whether
to issue a COA, and the courts “resolve any doubt regarding whether to issue a
COA in favor of” the capital habeas petitioner. Mayfield, 270 F.3d at 922;
Lambright, 220 F.3d at 1025; Valerio v. Crawford, 306 F.3d 742, 767 (9th Cir.
2002) (en banc) (“Because this is a capital case, we resolve in Valerio’s favor any
doubt about whether he has met the standard for a COA.”).

43

V.

THE COURT SHOULD GRANT A COA AND RELIEF ON CUDJO’S
CLAIM THAT HIS CONSTITUTIONAL RIGHTS WERE
VIOLATED BY THE EXCLUSION OF CULVER’S TESTIMONY OF
GREGORY CUDJO’S CONFESSION
A.

Summary of Claim

Claim 8 alleges that Cudjo’s constitutional rights were violated by the trial
court’s ruling excluding the testimony of John Culver that Gregory Cudjo
confessed to him just hours after the homicide that he had killed Prokuda. Cudjo
raised this claim in his direct state appeal; it was not the subject of the federal
evidentiary hearing.
B.

Standards of Review and AEDPA Standards

The relevant state court decision for purposes of federal habeas review is
the California Supreme Court’s appellate opinion. (ER 229-38). This Court may
grant habeas relief if it concludes that the state court decision is objectively
unreasonable. This Court reviews the district court’s ruling on the claim de novo.
Findings of fact are reviewed for clear error. See supra at Section I B.
C.

The California Supreme Court Opinion

At the prosecutor’s urging, the trial court held a hearing outside the
presence of the jury to determine whether to permit Culver’s testimony of
Gregory’s confession to the murder of Amelia Prokuda. After hearing Culver’s

44

testimony describing the confession, the trial court precluded trial counsel from
calling Culver as a witness on the ground that Culver’s testimony was
“unreliable.” (ER 231). The California Supreme Court held that the trial court’s
ruling was erroneous. (ER 233-34). The court stated that it had previously
“warned trial courts to avoid hasty conclusions that third-party culpability
evidence is ‘incredible’; this determination . . . ‘is properly the province of the
jury.’” (ER 232). The court then found Culver’s testimony to have substantial
probative value. The court explained:
By Culver’s account, Gregory made his statement
spontaneously, while alone with an acquaintance, within
hours after a murder for which Gregory, who had no
alibi, was in custody as a prime suspect. Gregory tended
to fit Kevin P.’s description of the assailant, and much of
the other evidence, in particular the incriminating shoe
prints, was as consistent with Gregory’s guilt as with
defendant’s.
(ER 232).
The court added:
Here, Culver would testify that Gregory, the other prime
suspect in the case, had confessed to the murder within
hours after the crime was committed and under
circumstances providing substantial assurances that the
confession was trustworthy. The issue of Gregory’s guilt
was highly material: given Kevin P.’s testimony
describing a single intruder, and given also the single set
of shoe prints leading away from the victim’s residence,
45

proof of Gregory’s guilt would exonerate defendant.
Thus, Culver’s testimony raised the requisite reasonable
doubt of defendant’s guilt.
(ER 233-34).
The court also found that “the evidence was highly necessary:
[A]lthough there was other evidence tending to cast
suspicion on Gregory, there was no comparable direct
evidence of Gregory’s guilt. Gregory’s invocation of his
Fifth Amendment privilege prevented the defense from
calling him as a witness.
(ER 234).
The court noted that “nothing in the record indicates that Culver’s testimony
was motivated by threats or bribery or expectation of personal advantage.” (ER
234).
The court nevertheless concluded that the exclusion of Culver’s testimony
was not prejudicial because “the inference that defendant, not Gregory, was the
murderer was extremely strong.” (ER 235). The court noted that the physical
evidence suggested that “there had been only one visitor [to the Prokuda
residence] during that morning,” and that Appellant admitted that “he was present
at the crime scene on the morning of the murder, and that he had sex with the
victim.” (ER 235). According to the court, “defendant’s uncorroborated effort to
provide an innocent explanation for his presence in the victim’s house was not
46

convincing.” (ER 236). According to the court, “Gregory’s purported jailhouse
confession contravened both the physical evidence and all other accounts Gregory
had given, including his testimony under oath at the preliminary hearing,” and that
“[i]n all his other known statements and sworn testimony, Gregory insisted he had
no involvement in the crime.” (Id.). The court also noted that “after observing
Culver’s demeanor and hearing his testimony, the trial court concluded that Culver
was a patently incredible witness.” (ER 236).
In concluding that there was no prejudice, the court stated that it:
recognize[d] that Gregory was the other prime suspect in
the murder, and he disclosed accurate crime-scene
details, which he told the police defendant had revealed
to him. Moreover, Kevin P., the only eyewitness, never
identified the assailant and gave a description which
more closely resembled Gregory than defendant. Some
other evidence was consistent with Gregory’s guilt as
well as defendant’s.
(ER 235).
Justice Kennard, joined by Justice Mosk, dissented. Justice Kennard
concluded that “the trial court violated defendant’s rights under the federal and
state Constitutions to present a defense” and that federal law “compel[led] reversal
of the judgment as to both guilt and penalty.” (ER 253). “By erroneously
excluding evidence that Gregory had confessed to the killing, the trial court’s

47

ruling eviscerated [Cudjo’s] defense.” (ER 256).
Justice Kennard explained that:
[t]he prosecution’s case was far from compelling. The
murder victim’s young son, Kevin, could not identify
defendant, nor did he recognize the survival knife or the
cut-off jeans found in the Cudjo camper. Defendant’s
fingerprints were not found at the victim’s home, and no
bloodstains were detected on any of defendant’s
clothing, on any articles seized from the Cudjo camper,
or on the shoes seized from defendant’s mother’s
automobile. No articles taken from the victim’s
residence were found in defendant’s possession, nor did
any witness testify to such possession.
(ER 256).
Justice Kennard emphasized that “Gregory’s previous statements to sheriff’s
investigators . . . were perhaps the strongest evidence of defendant’s guilt
presented by the prosecution, yet this evidence too was equally if not more
consistent with Gregory’s guilt.” (ER 256-57). Yet, “[b]ecause Gregory did not
testify at trial, the jury was never given an opportunity to judge his credibility by
observing his demeanor under oath.” (Id.).
Justice Kennard further explained that:
[b]ecause the trial court excluded Culver’s testimony,
defendant’s testimony was essentially uncorroborated.
Evidence that Gregory had confessed to the murder
would have filled a major gap in the defense case, and
would have greatly increased the likelihood of the jury’s
48

entertaining a reasonable doubt of defendant’s guilt.
(ER 257).
D.

The District Court Opinion

The district court ruled on this claim without requesting or allowing briefing
from the parties. Thus, the parties only addressed the claim in their pleadings.
At the hearing on Cudjo’s motion for an evidentiary hearing, the district
court said that it agreed with the California Supreme Court that the exclusion of
Culver’s testimony was error. The district court also agreed with the dissenting
state justices that the error was prejudicial. (ER 1740). However, in its final order
denying the claim, the district court reversed course without acknowledging its
prior contrary position and ruled that there was no error at all. The ruling
concludes:
This Court adopts the trial court’s reasoning, particularly
the fact that Culver’s testimony about Gregory’s
confession was inconsistent with the physical evidence
in the case. Accordingly, this Court concludes that
Culver’s testimony would not have substantially
bolstered Armenia’s defense theory that Gregory committed the murder.
(ER 36).
Rejecting the state supreme court’s admonition that it was properly the role
of the jury to assess the credibility of Culver’s testimony, the district court stated

49

that “[w]hile Culver’s testimony, it could be believed, would have assisted the
defense, there were ample grounds for the trial court to exclude the testimony in
its entirety.” (ER 34). The court noted that Culver was a long-time friend of
Cudjo; that “Culver had about fifty adult male relatives in the Littlerock area, and
about forty of them had criminal records and had been in jail in the last five
years”; and that “irrespective of his friendship with Armenia, he did not even tell
Armenia that Gregory admitted to committing the murder” but instead “waited a
long time to come forward.” (ER 35).
The order acknowledged that “[i]t is clearly established federal law, as
determined by the Supreme Court, that when a hearsay statement bears persuasive
assurances of trustworthiness and is critical to the defense, the exclusion of that
testimony may rise to the level of a due process violation.” (ER 32 (citations
omitted)). The order also noted that “[t]he Supreme Court has made clear that the
erroneous exclusion of critical, corroborative defense evidence may violate both
the Fifth Amendment due process right to a fair and the Sixth Amendment right to
present a defense.” (Id.). However, the court denied the claim under a five-part
test articulated by this Court in Miller v. Stagner, 757 F.2d 988, 994 (9th Cir.
1985). The order did not mention Holmes v. South Carolina, 547 U.S. 319 (2006),
a leading Supreme Court case addressing the exclusion of evidence of third-party
50

culpability that had been decided two years previously, in its order.
E.

The Trial Court’s Exclusion of the Testimony of John Culver
Regarding Gregory Cudjo’s Confession to the Murder Was
Unreasonable and Contrary to Clearly Established Federal Law

The trial court violated Cudjo’s Due Process right to present evidence in
support of a defense, his Sixth Amendment right to the use of Compulsory Process
to compel the testimony of witnesses in his favor, and his Sixth Amendment right
to a jury trial when it excluded the testimony of John Culver. The California
Supreme Court’s decision that the exclusion of this critical defense witness was
not an error of constitutional magnitude was objectively wrong. As two dissenting
justices noted, the California Supreme Court unreasonably failed to apply clearly
established Federal Law when it analyzed the claim.
1.

The Right To Present Critical Evidence of Third-Party
Culpability Was Clearly Established At the Time of Trial

The United States Constitution guarantees every criminal defendant the
fundamental right to “a meaningful opportunity to present a complete defense.”
California v. Trombetta, 467 U.S. 479, 485 (1984); Crane v. Kentucky, 476 U.S.
683, 687 (1986); DePetris v. Kuykendall, 239 F.3d 1057, 1062-1063 (9th Cir.
2001). The right to present a defense is a “fundamental element of due process”
guaranteed by the Fourteenth Amendment. Washington v. Texas, 388 U.S. 14, 19

51

(1967). The right of the accused to present witness testimony in support of his
defense is also guaranteed by the Sixth Amendment’s Compulsory Process Clause.
Taylor v. Illinois, 484 U.S. 400, 409 (1988) (noting that the Sixth Amendment
guarantees the “right to have the witness’ testimony heard by the trier of fact.”).
“Few rights are more fundamental than that of an accused to present witnesses in
his own defense.” Chambers v. Mississippi, 410 U.S. 284, 302 (1973).
Although states may promulgate evidentiary rules that ensure the efficient
presentation of evidence and exclude evidence that is misleading, irrelevant,
cumulative, or unduly prejudicial, see Moses v. Payne, 555 F.3d 742, 757 (9th Cir.
2009), see also United States v. Scheffer, 523 U.S. 303, 308 (1998), the Supreme
Court has held that the application of state evidentiary or procedural rules that
preclude the presentation of evidence of third-party guilt without a rational
justification is unconstitutional. Holmes v. South Carolina, 547 U.S. 319, 326
(2006). The Court has consistently rejected state evidentiary rules that exclude a
defense witness’ testimony on the ground that a particular class of witness or type
of witness testimony is not believed to be credible. See, e.g., Rock v. Arkansas,
483 U.S. 44, 56 (1987) (exclusion of all hypnotically-refreshed testimony violated
defendant’s Due Process and Sixth Amendment rights to testify on his own
behalf); Washington, 388 U.S. at 22 (ban against testimony of a witness who
52

stands accused of the same crime charged against the defendant violated
defendant’s Sixth Amendment right to call witnesses in his favor); Crane, 476
U.S. at 690-91 (holding that misapplication of state procedural rule resulting in
exclusion of critical defense evidence necessary to explain defendant’s false
confession lacked rational justification, and therefore violated defendant’s right to
a “meaningful opportunity to present a complete defense.”) (citation omitted).
In Holmes, the prosecution had forensic evidence that strongly suggested
the defendant was guilty of rape and murder, including a palm print and DNA
evidence which matched the defendant. The defendant sought to present four
witnesses at trial who would testify that they had heard another man confess to
having committed the rape and murder. 547 U.S. at 323. The trial court excluded
the evidence pursuant to a state rule which precluded the introduction of thirdparty guilt by the defendant in cases where the forensic evidence persuasively
proved the defendant’s guilt. The Supreme Court reversed the conviction, holding
that the state rule violated the defendant’s right “to a “meaningful opportunity to
present a complete defense.” 547 U.S. at 324 (citations omitted). The Court
found that the state’s rule regarding the admission of evidence of third-party
culpability was so fundamentally flawed as to be irrational because the strength of
the government’s case could not be meaningfully evaluated or tested unless it were
53

viewed in light of the potentially exculpatory evidence. Id. at 331. The Court
acknowledged that trial courts can apply rules to “exclude evidence that is
‘repetitive . . ., only marginally relevant’ or poses an undue risk of ‘harassment,
prejudice, confusion of the issues.” Id. at 327. But the Constitution “prohibits the
exclusion of defense evidence under rules that serve no legitimate purpose or that
are disproportionate to the ends that they are asserted to promote.” Id. at 327.
This Court has traditionally employed a five-part balancing test to determine
whether the exclusion of evidence pursuant to an otherwise valid procedural or
evidentiary rule violated a defendant’s constitutional rights, see Miller, 757 F.2d at
994. Pursuant to Miller, when evaluating the constitutional effect of the exclusion
of defense evidence, this Court has weighed the probative value of the defense
evidence on the central issue at trial, the reliability of the defense evidence,
whether it is capable of evaluation by the trier of fact, whether it is the sole
evidence on the issue or merely cumulative, and whether it constitutes a major part
of the attempted defense. Id.; see also Chia v. Cambra, 360 F.3d 997, 1003 (9th
Cir. 2004) (holding that exclusion of four hearsay statements offered by the
defense to support his third party culpability theory violated his right to due
process under Chambers).
The district court relied on the Miller test in its order denying relief. But
54

this Court has since repudiated the balancing test announced in Miller. In Moses,
555 F.3d at 759, this Court considered a petitioner’s claim that the exclusion of an
expert witness on the ground that his testimony would not assist the trier of fact
pursuant to the state-law analogue of Fed. R. Evid. 702 violated his constitutional
right to present “a complete defense.” Id. at 757. The Court held that the that the
Miller test was not the appropriate means by which to evaluate the claim under
AEDPA because it was not the product of a “Supreme Court holding.” Id. at 759.
After evaluating the Supreme Court’s decisions in Washington, Crane, Chambers,
Rock, and Holmes, this Court concluded that those decisions and others by the
Supreme Court, rather than Miller and the Ninth Circuit cases which interpreted
them, provided the only guidance for this Court in evaluating a habeas petitioner’s
claim that the trial courts’ exclusion of critical defense evidence violated his
constitutional rights. Id. at 760.
2.

The State Had No Legitimate Interest in Excluding Culver’s
Testimony; the Judge’s Exclusion of Culver’s Testimony On the
Sole Ground That the Judge Believed that Culver Was Not
Credible Violated Clearly Established Federal Law

The California Supreme Court unreasonably applied clearly established
Supreme Court precedent, including Crane, Rock, Washington, and Chambers, in
evaluating the impact of the trial court’s exclusion Culver’s testimony. In

55

particular, the California Supreme Court acted unreasonably in failing to apply
Chambers, a case whose facts are remarkably similar to the facts of this case.
In Chambers, there was circumstantial evidence that the defendant had shot
a police officer. But the defendant maintained his innocence and contended that
another man, Gable McDonald, was the shooter. One witness testified that he saw
McDonald do the shooting. The other testified that he saw McDonald shortly after
the shooting with a pistol in his hand. Id. at 291. McDonald ultimately admitted
that he shot the officer in a sworn, written statement, but he subsequently
repudiated his statement. Id. The defendant called McDonald as a witness at trial
for the purpose of introducing his sworn statement into evidence. Id. at 291. On
cross-examination, however, McDonald recanted the statement. The defense
attempted to cross- examine him, but the court refused to allow it because he had
been called by the defense. Id. The defense also sought to call three witnesses to
testify that McDonald confessed to the murder. Id. at 292. The trial court
excluded the witnesses on the ground that the confessions were hearsay. Id.
The Supreme Court held that the trial court’s refusal to allow the admission
of McDonald’s confessions and to allow the defense to cross examine McDonald
violated due process. The Court noted that the statements of the three witnesses
relating McDonald’s confessions bore “persuasive assurances of trustworthiness”
56

and were thus “well within the basic rationale of the exception for declarations
against interest.” Id. at at 302. The Court relied on the fact that there were
multiple confessions, and that the confessions were made spontaneously to
multiple witnesses. Id. at 300. The Court noted that the confessions were clearly
incriminating, in that McDonald “stood to benefit nothing by disclosing his role in
the shooting.” Id. at 301. Finally, the Court relied on the fact that the confessions
were consistent with the other evidence presented by the defense. Id. at 300. The
Court held that “the exclusion of this critical evidence, coupled with the State’s
refusal to permit Chambers to cross-examine McDonald, denied him a trial in
accord with traditional and fundamental standards of due process.” Id.
As in Chambers, the trial court excluded all of the spontaneous confessions
of the sole alternate suspect, Gregory. And as in Chambers, the circumstances
under which the Gregory’s confessions were made were trustworthy. (ER 23334). They were made soon after the murder, and they were so contrary to
Gregory’s penal interest that they should have been admitted as declarations
against penal interest. (ER 229-30). And as was the case in Chambers, Gregory
made multiple confessions, and to different people: his first confession was made
to his cellmate, John Culver, and his second confession was made to Deputy
Merritt, his jailer. (ER 89, 229-30). Finally, just as Chambers was deprived of the
57

opportunity to cross-examine McDonald, even though McDonald’s testimony was
admitted against him, Armenia was deprived of the opportunity to cross-examine
Gregory at trial, but Gregory’s preliminary hearing testimony was nonetheless
used against Armenia. (ER 227-28).
The California Supreme Court noted that “[t]he United States Supreme
Court has held that the constitutional right to present and confront material
witnesses may be infringed by general rules of evidence or procedure which
preclude material testimony or pertinent cross-examination for arbitrary reasons,
such as unwarranted and overbroad assumptions of untrustworthiness.” (ER 235
(citing, inter alia, Rock, 483 U.S. 44, Green v. Georgia, 442 U.S. 95 (1979),
Chambers, 410 U.S. 284, and Washington, 388 U.S. 14)). But it failed to identify
any legitimate interest that justified the exclusion the testimony of John Culver.
As the Court acknowledged, neither California’s hearsay rules nor its rules
precluding unduly prejudicial or cumulative evidence gave the trial court the
authority to exclude the testimony of a defense witness simply because the court
did not believe him. (ER 231-32). Culver’s testimony was admissible under the
“declaration against interest” exception to California’s hearsay rules and it should
have been presented to the jury. (ER 234). The court’s ruling on the admissibility
of Culver’s testimony was not challenged in the district court. It is binding on this
58

Court and should have been binding below. See Bradshaw v. Richey, 546 U.S. 74,
76 (2005) (per curiam).
Thus, this is not a case in which the trial court’s valid exercise of discretion
under an otherwise state rule of evidence or procedure burdened the defendant’s
right to present a defense. See Moses, 555 F.3d at 758-59. Because the state has
offered no valid justification for the exclusion of Culver’s testimony in this case,
this case is more analogous to Crane, Rock, Chambers, and Holmes, in which the
lack of a valid justification for the exclusion of critical defense evidence, standing
on its own, rendered the exclusion of the evidence unconstitutional. See Crane,
476 U.S. at 691-92 (holding that without “valid state justification,” the exclusion
of exculpatory evidence at trial “deprives a defendant of the basic right to have the
prosecutor’s case encounter and survive the crucible of meaningful adversarial
testing”) (internal punctuation omitted); Wood v. Alaska, 957 F.2d 1544, 1549-50
(9th Cir. 1992). Crane analyzed precisely the issue presented in this case. It was
clearly established at the time the California Supreme Court decided this appeal.
The California Supreme Court’s failure to apply the reasoning in Crane to the
analogous factual and legal scenario in this case was unreasonable.
Insofar as the California Supreme Court assumed that the state had a
legitimate interest in preventing Culver from testifying based solely on the trial
59

judge’s belief that Culver was not credible, (ER 235 (“Absent clearer guidance
from above, we will not lightly assume that a trial court invites federal
constitutional scrutiny each and every time it decides, on the basis of the particular
circumstances, to exclude a defense witness as unworthy of credit.”)), that
assumption was clearly wrong. The United States Supreme Court has repeatedly
affirmed the principle that a defendant has a constitutional right to have the
credibility of his witnesses determined by a jury, not a judge. United States v.
Bailey, 444 U.S. 394, 414-15 (1980) (“The Anglo-Saxon tradition of criminal
justice, embodied in the United States Constitution and in federal statutes, makes
jurors the judges of the credibility of testimony offered by witnesses.”); see also
Sandstrom v. Montana, 442 U.S. 510, 523 (1979).
The right to offer the testimony of witnesses, and to
compel their attendance, if necessary, is in plain terms
the right to present a defense, the right to present the
defendant’s version of the facts as well as the
prosecution’s to the jury so it may decide where the truth
lies . . . . [A]n accused has the right to . . . present his
own witnesses to establish a defense. This right is a
fundamental element of due process of law.
Washington, 388 U.S. at 19; see also Padilla v. Terhune, 309 F.3d 614, 620 (9th
Cir. 2002) (holding that in evaluating the trustworthiness of an out-of-court
statement for the purpose of determining its admissibility as a declaration against

60

interest, “[t]he credibility of the [in-court] witness remains an issue for the trier of
fact . . . .”); Alcala v. Woodford, 334 F.3d 862, 884 (9th Cir. 2003) (trial court’s
exclusion of defense witness based in part on the judge’s assessment that the
witness lacked credibility because he had been forcefully impeached in a prior trial
violated the defendant’s due process right to a fair trial); id. at 885 (noting that the
credibility of the witness and the weight to afford their testimony were “issues to
be weighed by the jury, not the judge.”) (citing Scheffer, 523 U.S. at 312-13).
The district court’s summary decision denying relief is flawed, both legally
and factually. First, like the California Supreme Court, the district court ignored
or misapplied clearly established Supreme Court decisions on the precise issue
presented, including Chambers, Crane, and Holmes,9 and relied instead on the
since-repudiated five-part balancing test set forth by this Court in Miller. (See ER
33-34 0(citing Chia, 360 F.3d at 1003; Miller, 757 F.2d at 994)).
Second, the district court erred in the same way that the California Supreme
Court did, by assuming that the state had a legitimate interest in excluding the
testimony of the in-court witness, Culver, solely because the trial judge did not
believe him, notwithstanding clear federal law assigning credibility determinations

9

Although Holmes was decided more than two years before the district
court’s decision, the district court failed to acknowledge Holmes in its analysis.
61

to the jury. (See ER 35 (declining to evaluate the credibility of the out-of-court
declarant, Gregory, and instead “look[ing] at the testimony that was excluded,
which is Culver’s testimony about his discussion with Gregory.”)).
Third, the district court failed to give appropriate deference to the California
Supreme Court’s findings of fact about the reliability and importance of Culver’s
testimony in its analysis. The California Supreme Court found that “[t]he
evidence [of Gregory’s confession] had substantial probative value” and that there
were “substantial assurances that the confession was trustworthy.” (ER 233). The
California Supreme Court’s findings of fact must be accepted as true by the district
court unless rebutted by clear and convincing evidence. See Summer v. Mata, 449
U.S. 539, 545 (1981); 28 U.S. C. § 2254 (e) (2); Moses, 555 F.3d at 746.
Nonetheless, the district court repeatedly stated that the factual findings to which
it deferred were those of the trial court. In particular, the district court relied on
the trial court’s finding that John Culver’s testimony was “untrustworthy and
unreliable” because it “did not correlate closely with the defense evidence in the
case.” (See ER 35 (citing RT 2704); see also ER 36 (“[t]his Court adopts the trial
court’s reasoning, particularly the fact that Culver’s testimony about Gregory’s
confession was inconsistent with the physical evidence in the case.”) (emphasis
added)). The district court’s deference to the trial court’s factual findings, in light
62

of contrary findings by the California Supreme Court, constitutes clear error. See
Lambert v. Blodgett, 393 F.3d 943, 973 (9th Cir. 2004). The District Court’s
analysis fails for that reason alone. See id.
3.

The Exclusion of John Culver’s Testimony Had a Substantial and
Injurious Effect On the Verdict And Requires Habeas Relief

The California Supreme Court’s holding that the error in excluding the
evidence was “harmless” was objectively unreasonable. First, the California
Supreme Court arrived at its conclusion after applying People v. Watson, 46 Cal.
2d 818, 836, 299 P. 2d 243 (1956), “the applicable standard of prejudice . . . for
state law error . . . .” (ER 234). Under Watson, Cudjo would have had to establish
that it was “reasonably probable that the admission of the testimony would have
affected the outcome.” (Id. (citing Watson, 46 Cal. 2d at 836)). The constitutional
error in precluding Culver’s testimony is subject to a different standard. Cudjo is
entitled to relief if the constitutional error in this case had a “substantial and
injurious effect or influence in determining the jury’s verdict.” Brecht v.
Abrahamson, 507 U.S. 619, 638 (1993). Under Brecht, Cudjo did not have the
burden to show that it was “reasonably probable” that the error affected the
outcome. Having proven that a constitutional error occurred, Cudjo was only
required to establish that the error had a “substantial and injurious effect” in

63

determining the jury’s verdict, or that it had a substantial and injurious “influence”
in determining the jury’s verdict.” Id. at 638 (emphasis added).
The California Supreme Court’s factual findings with respect to the
probative value of Culver’s testimony and the impact that it would have had at
trial compel the conclusion that the erroneous exclusion of the testimony had, at
minimum, a substantial and injurious influence in determining the jury’s verdict.
As the California Supreme Court acknowledged, Culver’s testimony was (1)
trustworthy, (2) “highly material,” in that it “raised the requisite reasonable doubt
of [Armenia’s] guilt,” and (3) “highly necessary,” in that there was no
“comparable evidence” that established Gregory as an alternate suspect:
(ER 233-34). On the other hand, as Justice Kennard emphasized in her dissent,
the wrongful exclusion of Culver’s testimony left Armenia’s defense essentially
uncorroborated and eviscerated the defense. (ER 257 (finding that evidence of
Gregory’s confession “would have greatly increased the likelihood of the jury’s
entertaining a reasonable doubt of defendant’s guilt.”)).
“The exclusion of this critical evidence, coupled with the State’s refusal to
permit [Armenia] to cross-examine [Gregory] denied him a trial in accord with
traditional and fundamental standards of due process.” Chambers, 410 U.S. at
302. At a minimum, Cudjo is entitled to a COA on this claim.
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VI.

THE COURT SHOULD GRANT A COA AND RELIEF ON CUDJO’S
CLAIM THAT HIS CONSTITUTIONAL RIGHTS WERE
VIOLATED WHEN THE COURT ADMITTED ALTERNATE
SUSPECT CUDJO’S PRELIMINARY HEARING TESTIMONY
INCULPATING CUDJO
A.

Summary of Claim

Claim 9 alleges that Cudjo’s rights to confront witnesses and to present a
defense were violated when the trial court ruled that his brother Gregory, the
prime alternate suspect, was unavailable as a witness and allowed the prosecution
to read into evidence Gregory’s preliminary hearing testimony inculpating Cudjo.
(Docket no. 10).
B.

Standards of Review and AEDPA Standards

The relevant state court decision for purposes of federal habeas review is
the California Supreme Court’s appeal opinion. (ER 229-39). This Court may
grant habeas relief if it concludes that the state court decision is objectively
unreasonable. This Court reviews the district court’s ruling on the claim de novo.
“[W]hen deciding whether the admission of a declarant’s out-of-court statements
violates the Confrontation Clause, courts should independently review whether the
government’s proffered guarantees of trustworthiness satisfy the demands of the
Clause.” Lilly v. Virginia, 527 U.S. 116, 123-24 (1999); Padilla v. Terhune, 309
F.3d at 618 (“Trustworthiness is a mixed question of fact and law which we
65

review de novo.”). The district court did not take evidence on this claim at the
evidentiary hearing, and it made no findings of fact that are subject to clear error
review.
C.

The California Supreme Court Decisions

The California Supreme Court ruled that Cudjo’s confrontation right was
not violated because “the record before [the court] did not support defendant’s
contention” that “he did not have a fair opportunity to cross-examine because
Gregory’s ability to think and respond coherently had been impaired by the
ingestion of some drug or drugs.” (ER 239). The court stated that “Gregory’s
testimony . . . was lucid and responsive,” albeit “internally inconsistent.” (ER
240).
D.

The District Court’s Decision

The district court denied the claim on essentially the same grounds as the
state supreme court. (ER 42-43).
E.

The Admission of Gregory’s Preliminary Hearing Testimony
Prejudicially Violated Cudjo’s Rights to Confront Witnesses and
Present a Defense

The Confrontation Clause states that “[i]n all criminal prosecutions, the
accused shall enjoy the right . . . to be confronted with the witnesses against him.”
U.S. Const. amend. VI. “‘The central concern of the Confrontation Clause is to
66

ensure the reliability of the evidence against a criminal defendant by subjecting it
to rigorous testing in the context of an adversary proceeding before the trier of
fact.’” Lilly, 527 U.S. at 123-24.
Supreme Court “cases construing the confrontation clause hold that a
primary interest secured by it is the right of cross-examination.” Davis v. Alaska,
415 U.S. 308, 315 (1974). Cross-examination is “the principal means by which
the believability of a witness and the truth of his testimony are tested.” Id. at 316.
Cross-examination can “reveal[] possible biases, prejudices, or ulterior motives.”
Id.
Crawford v. Washington, 541 U.S. 36 (2004), was decided after Cudjo’s
judgment became final and therefore the analytical framework set forth in Ohio v.
Roberts, 448 U.S. 56 (1980), applies here. Whorton v. Bockting, 549 U.S. 406,
409 (2007); Padilla, 309 F.3d at 618. Under that framework, “[w]hen the
government seeks to offer a declarant’s out-of-court statements against the
accused, and . . . the declarant is unavailable, courts must decide whether the
Clause permits the government to deny the accused his usual right to force the
declarant ‘to submit to cross-examination, the “greatest legal engine ever invented
for the discovery of truth.”’” Lilly, 527 U.S. at 124. “[T]he veracity of hearsay
statements is sufficiently dependable to allow the untested admission of such
67

statements against an accused when (1) ‘the evidence falls within a firmly rooted
hearsay exception’ or (2) it contains ‘particularized guarantees of trustworthiness’
such that adversarial testing would be expected to add little, if anything, to the
statements’ reliability.” Id. at 124-25.
Gregory’s preliminary hearing testimony lacked the requisite guarantees of
trustworthiness because when he testified and made his statements to the police he
was the prime alternate suspect with an incentive to falsely accuse Armenia and
because, as defense counsel noted at trial, he appeared to be impaired by drugs at
the preliminary hearing. Defense counsel also did not have the same interest in
examining Gregory at the preliminary hearing as he did later at trial.
As the Supreme Court explained in Barber v. Page, 390 U.S. 719, 725
(1968), “[t]he right to confrontation is basically a trial right. It includes both the
opportunity to cross-examine and the occasion for the jury to weigh the demeanor
of the witness.” By contrast, “[a] preliminary hearing is ordinarily a much less
searching exploration into the merits of a case than a trial, simply because its
function is the more limited one of determining whether probable cause exists to
hold the accused for trial.” Id. Barber granted a habeas petitioner’s Confrontation
Clause claim where a witness did not appear at trial, his preliminary hearing
testimony incriminating petitioner was admitted into evidence at trial, and
68

petitioner’s counsel did not cross-examine the witness at the preliminary hearing
despite having the chance to do so (the witness was crossed by a co-defendant’s
attorney). Id. at 720. The Court stated that it would have “reach[ed] the same
conclusion on the facts of th[e] case had petitioner’s counsel actually crossexamined [the witness] at the preliminary hearing.” Id. at 725.
The district court noted the prejudice to Armenia from the admission of
Gregory’s preliminary hearing testimony when it said:
Gregory’s testimony about his actions and those of his
brother on the morning of the murder were key to
Armenia’s defense because his testimony contained the
most damaging evidence against Armenia, and he was
perhaps the only other person, who consistent with
Armenia’s testimony and the physical evidence, could
have committed the murder.
(ER 44). Further, the prosecutor emphasized Gregory’s testimony in his guilt
phase closing. (ER 2179-80; Stallings v. Bobby, 464 F.3d 576, 582 (6th Cir. 2006)
(granting relief on Confrontation Clause claim; explaining that in assessing
prejudice, “courts must consider such factors as ‘the importance of the witness’s
testimony in the prosecution’s case, whether the testimony was cumulative, the
presence or absence of evidence corroborating or contradicting the testimony of
the witness on material points, . . . and, of course, the overall strength of the
prosecution’s case.’”); Whelchel v. Washington, 232 F.3d 1197, 1208 (9th Cir.
69

2000) (granting habeas relief on Confrontation Clause claim where prosecutor’s
closing argument emphasized out of court statements of co-defendants implicating
petitioner in murder; prejudice found even where physical evidence (the victim’s
purse linked petitioner to the murder and seven prosecution witnesses testified to
petitioner’s admissions that he committed the murder or had planned to do so)).
The state court decision that the erroneous admission of Gregory’s preliminary
hearing testimony did not violate Cudjo’s constitutional rights was objectively
unreasonable. Cudjo is entitled to relief on this claim. At the very least, Cudjo
has met the standard for obtaining a COA on this claim.
VII. THE COURT SHOULD GRANT A COA AND RELIEF ON CUDJO’S
CLAIM THAT THE PROSECUTOR COMMITTED PREJUDICIAL
MISCONDUCT BY HIGHLIGHTING CUDJO’S RACE IN HIS
GUILT PHASE CLOSING ARGUMENT
A.

Summary of Claim

Claim Twelve alleges that the prosecutor committed misconduct when he
said in his closing argument at guilt that “what [defendant] wants you to believe,
and what I believe to be perhaps the most telling thing in this whole case, is that
. . . this woman is going to have intercourse with a strange man -- frankly any man
-- a black man, on her living room couch with her five year old in the house.”
(Docket no. 10).

70

B.

Standards of Review and AEDPA Standards

The relevant state court decision for purposes of federal habeas review is
the California Supreme Court’s appeal opinion. (ER 229-39). This Court may
grant habeas relief if it concludes that the state court decision is objectively
unreasonable. This Court reviews the district court’s ruling on the claim de novo.
The district court did not take evidence on this claim at the hearing and it made no
findings of fact that are subject to clear error review.
C.

The California Supreme Court Decision

The state supreme court held that the prosecutor’s statement was
misconduct but that it did not prejudice Cudjo. (ER 245). The court explained
that “[p]rosecutorial argument that includes racial references appealing to or likely
to incite racial prejudice violates the due process and equal protection guarantees
of the Fourteenth Amendment to the federal Constitution.” (ER 244). “[E]ven
neutral, nonderogatory references to race are improper absent compelling
justification.” (ER 245).
Although the court found no compelling justification for the racial
reference, it concluded that Cudjo was not prejudiced by the remark. (ER 245).
The court stated that “[t]he racial reference added little to the force of the
[prosecutor’s] argument on the alleged implausibility of Cudjo’s account; that the
71

“racial reference was a brief and isolated remark”; and that there was “no
continued effort by the prosecutor to call attention to defendant’s race or to
prejudice the jury against him on account of race.” (Id.).
D.

The District Court Decision

The district court’s rationale for denying Claim 12 largely mirrors those of
that of the state supreme court. (ER 69-71). Like the state court, the district court
held that the prosecutor’s statement was misconduct but not prejudicial. (ER 71).
The court stated that:
“[i]t was not solely because of Armenia’s race that the
prosecutor found his story incredible, but because of all
of the other circumstances, i.e., she was happily married,
kept a clean house and was in the house with her son.
Thus, when the argument is put its proper context, its
prejudicial effect is minimized.”
(ER 70-71).
E.

The Prosecutor’s Racial Remark Prejudiced Cudjo and Requires
Relief

The state supreme court and district court recognized the correct legal
principle that “[t]he Constitution prohibits racially biased prosecutorial
arguments.” McCleskey v. Kemp, 481 U.S. 279, 310 n.30 (1987). This principle is
clearly established federal law” under AEDPA. Bains v. Cambra, 204 F.3d 964,
974 (9th Cir. 2000); see also United States v. Cabrera, 222 F.3d 590, 594 (9th Cir.
72

2000) (“Appeals to racial, ethnic, or religious prejudice during the course of a trial
violate a defendant’s . . . right to a fair trial.”).
The state supreme court unreasonably applied the law because it failed to
adequately take into account the consequences of the remark in the particular
circumstances of this case. The situation presented here -- an African-American
man accused of raping and killing a white woman –10 strikes at the heart of the
Supreme Court’s concerns about the improper injection of race into capital trials.
The Court’s “modern capital punishment case law” has been “suffused with
concern about race bias in the administration of the death penalty,” most
particularly in cases where Black men are accused of raping white women.
Graham v. Collins, 506 U.S. 461, 479 (1993) (Thomas, J., concurring); id. at 482.
In United States v. Grey, 422 F.2d 1043, 1044-45 (6th Cir. 1970), the Sixth
Circuit vacated a bank robbery conviction where the prosecutor asked a defense
character witness “whether he knew that Grey, a Negro, and a married man, was
‘running around with a white go-go dancer.’” In language applicable here, the
court reasoned that “[a]t best, the entire question was a magnificent irrelevance in
a prosecution for bank robbery.” Id. at 1045. “At worst, the gratuitous reference
10

Although Cudjo was not charged with a separate count of rape or with a
rape special circumstance, rape was one of the theories of felony murder presented
and argued to the jury. See supra at Section III E.
73

to the race of the go-go dancer may be read as a deliberate attempt to employ
racial prejudice to strengthen the hand of the” prosecution. Id.
The prejudice here is stronger, given that the prosecutor argued that Cudjo
raped and killed a white woman. See Bates v. Bell, 402 F.3d 635, 641-42 (6th Cir.
2005) (stating that it is “‘the cardinal rule that a prosecutor cannot make
statements “calculated to incite the passions and prejudices of the jurors”’” and
granting penalty phase relief under AEDPA because of the prosecutor’s improper
argument).
That the remark was “isolated” and there was “no continued effort by the
prosecutor to . . . prejudice the jury against him on the account of race” misses the
point where the prosecutor explicitly cited Cudjo’s race to discount his defense.
The district court’s statement that “[i]t was not solely because of Armenia’s race
that the prosecutor found his story incredible” (ER 70) requires a greater quantum
of proof to establish prejudice than the law requires. See Bates, 402 F.3d at 649
(granting relief under AEDPA because “the improper argument clearly operated
towards prejudicing” petitioner and noting that “[i]f a habeas court is in ‘grave
doubt’ as to the harmlessness of an error, the habeas petitioner must prevail”)
(citing O’Neal v. McAninch, 513 U.S. 432, 436 (1995). At the very least, Cudjo
has met the standard for obtaining a COA on his claim.
74

VIII. THE COURT SHOULD GRANT A COA AND RELIEF ON CUDJO’S
CLAIM THAT HIS TRIAL COUNSEL WAS PREJUDICIALLY
INEFFECTIVE BY FAILING TO INVESTIGATE AND PRESENT
EVIDENCE OF GREGORY CUDJO’S SECOND JAILHOUSE
ADMISSION OF GUILT
A.

Summary of Claim

Claim 15A.6. alleges that defense counsel was prejudicially ineffective by
failing to investigate and present evidence of Gregory Cudjo’s admissions that he
had killed Amelia Prokuda. (Docket no. 10).
B.

Standards of Review and AEDPA Standards

Cudjo raised this claim in his exhaustion petition, which the California
Supreme Court summarily denied without an opinion or a hearing. This Court
may grant habeas relief if it concludes that the state court decision is objectively
unreasonable. Supra at Section I B. Where, as here, the state court summarily
denied the claim, the Court conducts an independent review of the record to assess
objective reasonableness.
The district court denied the claim after an evidentiary hearing. This Court
reviews the district court’s ruling on the claim de novo, and its findings of fact for
clear error. Supra at Section I B.
C.

The California Supreme Court Decision

The court summarily denied the claim without an opinion or citation to
75

authority. (ER 197).
D.

The District Court Decision

The district court found that trial counsel performed deficiently (1) when he
failed to investigate and present evidence of Gregory Cudjo’s jailhouse admission
reported by Deputy Merritt that, “I’m in here for murder, and I did it” and (2)
when he failed to interview Gregory regarding the admission. (ER 91, 102).
Resolving a factual dispute between the parties, the court found that Gregory, not
Armenia, was the “suspect Cudjo” referred to in Deputy Merritt’s report who said
on March 26, 1986 that “I’m in here for murder, and I did it.” (ER 899)..
“Due to the extent to which the defense was relying upon the theory that
Gregory was guilty of the murder,” the court ruled, “trial counsel should have
closely investigated the possibility that Gregory made an admission while in jail,
particularly since trial counsel believed that Gregory had confessed to John
Culver.” (ER 90). The district court also found that had trial counsel properly
investigated the confession, he could have presented evidence of it to the jury:
First, trial counsel could have put Deputy Merritt on the stand to show that a
statement was made. Second, he could have shown that Gregory was moved on
the day the incriminating statement was made, and that the two brothers were
never moved or housed together. Third, he could have called Hans Berg, the
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prosecutor, to testify that he questioned only one “suspect Cudjo” about the
statement and the person he interviewed was Gregory, so by implication, Gregory
was the “suspect Cudjo” who made the statement.11 (ER 90-91).
Trial counsel testified at the federal hearing that although he had received a
copy of the Merritt report before trial, and although Hans Berg also told him about
the statement in Deputy Merritt’s report prior to trial, it never occurred to him to
put Berg on the stand to have him testify about Gregory’s confession. (ER 91; see
also ER 130-31, 292, 356, 371 (testimony of Hans Berg that it was his custom to
disclose such exculpatory evidence to the defense)).
The court found that evidence of Gregory’s second confession would have
“bolstered the testimony that the defense offered through witness John Culver” of
Gregory’s similar, but distinct, previous confession while in jail. (ER 91).
The court concluded, however, that counsel’s deficient performance in
investigating the statement in the Merritt report did not prejudice Cudjo because
“there was extremely strong evidence that the murder was committed by
Armenia.” (ER 91). That evidence, according to the court, was that Armenia
admitted being in the victim’s house on the morning of the homicide and that he

11

Calling Berg as a witness at trial would not have been problematic or
impractical because Berg did not prosecute the case at trial. (ER 364).
77

had sex with the victim then; there was only one intruder at the victim’s house the
day of the crime; a prosecution toxicology report showed no drugs in the victim’s
body but Armenia testified that she took one hit of crack the morning she was
killed; someone in training like Cudjo would not have taken 47 minutes to run
three miles, as he had testified; “any testimony about Gregory’s alleged confession
would have been viewed skeptically by the jury, in light of how thoroughly
Gregory had been impeached with all of his prior statements; and “it was clear that
Gregory was Armenia’s brother and thus had a motive to lie.” (ER 91-102).
The court also ruled that there was no prejudice “from trial counsel’s failure
to interview Gregory, because there is no reason to believe that Gregory would
have cooperated with trial counsel” given the fact that Gregory invoked his
privilege against self-incrimination both at trial and at the federal hearing. Id.
E.

The Failure To Present Evidence of Gregory Cudjo’s Confession,
Individually and in Combination with the Trial Court’s Exclusion
of Gregory’s Separate Confession to Culver, Prejudiced Cudjo
And Resulted In Unfair Trial And An Unreliable Verdict

As the district court correctly found, given the extent to which the defense
was relying upon the theory that Gregory was guilty, trial counsel had a duty to
investigate the circumstances of Gregory’s confession to the murder and present
witnesses to the confession at trial. Had trial counsel investigated the confession,

78

he would have discovered multiple means by which to present evidence of the
confession to the jury.12 Trial counsel compounded the trial court’s error in
excluding the testimony of John Culver about Gregory’s first confession when he
failed to present evidence, through the testimony of Deputy Merritt and Hans
Berg, of Gregory’s second confession. There was no informed or strategic reason
for counsel’s failure to present evidence of Gregory’s confession. (ER 337-39).
The district court erred by focusing solely on the outcome of the trial, rather
than the effect of the deficient performance on the fairness of the proceedings, in
determining that trial counsel’s failure to present evidence of Gregory’s second
confession was not prejudicial. (ER 91). “The result of a proceeding can be
rendered unreliable, and hence the proceeding itself unfair, even if the errors of
counsel cannot be shown by a preponderance of the evidence to have determined
12

In addition to the means identified by the district court, there were also
other means by which trial counsel could have presented evidence that Gregory
had confessed to the murder. Trial counsel could have interviewed Gregory
himself or sent an investigator to interview him. Had an investigator interviewed
Gregory, it is reasonably likely that he would have obtained a statement from
Cudjo which he could have then recounted at Petitioner’s trial, as habeas
investigator Turlington did at the evidentiary hearing below. See Luna v. Cambra,
306 F.3d 954 (9th Cir. 2002). Likewise, an investigator could have obtained a
written or taped statement by Gregory corroborating the confession, which would
have provided powerful evidence of Armenia’s innocence and could have been
introduced as a declaration against interest at trial, even though Gregory decided
to invoke the Fifth Amendment and refused to testify. See Cal. Evid. Code § 1230
(West 1988).
79

the outcome.” Strickland v. Washington, 466 U.S. 668, 694 (1984). Thus, a
petitioner need not establish that his trial counsel’s ineffectiveness changed the
outcome. See Brown v. Myers, 137 F.3d 1154, 1157 (9th Cir. 1998). A habeas
petitioner need only show that, as a result of the ineffective representation, the
process by which the outcome was determined at trial was fundamentally unfair.
Strickland, 466 U.S. at 696 (“the ultimate focus of inquiry must be on the
fundamental fairness of the proceeding whose result is being challenged); id. at
698 (“noting that an “ineffectiveness claim . . . is an attack on the fundamental
fairness of the proceeding whose result is challenged.”). Although would be
sufficient to establish a reasonable probability that at least one juror would have
had a reasonable doubt respecting Armenia’s guilt, see id. at 695, the fundamental
unfairness of the process is what undermines confidence in the outcome.
As several courts in this Circuit and others have noted under similar
circumstances, evidence of a third party culpability would have dramatically
altered the weight that the jury gave to the prosecution evidence. For example, in
Brown, the habeas petitioner was convicted of attempted murder. 137 F.3d at
1157. The prosecutor presented eyewitness testimony that the petitioner got in a
fight with the victim and threatened to come back and kill the victim, saying
“you’re dead.” Id. at 1155. Twenty minutes later, someone who matched a
80

description of the petitioner and was wearing the same clothing that petitioner had
worn during the fight, shot the victim. The petitioner was seen by at least two
witnesses running away from the site of the shooting holding a firearm. At trial,
petitioner testified that he fought the victim but did not shoot him. He testified
that he was with several friends, watching television, at the time the shooting took
place. Trial counsel did not interview any of the petitioner’s friends or call any of
them to testify at trial. Respondent conceded, and this Court held, that trial
counsel’s failure to interview any of the witnesses who would have supported the
petitioner’s alibi “failed to meet the professional standard required for effective
assistance of counsel under the Sixth Amendment.” Id. at 1156-57.
This Court held that counsel’s ineffective assistance prejudiced the
petitioner. Although the prosecution case consisted of some direct eyewitness
testimony that supported its case, the impact of that testimony would have been
lessened had the jury considered the alibi witnesses testimony because “the jury
would have had to balance more evenly divided evidence to reach its verdict.” Id.
at 1157. Thus, the “missing testimony of the alibi witnesses would have altered
significantly the evidentiary posture of the case.” Moreover, had trial counsel
presented available evidence to support the defendant’s account of the events, this
Court held, the prosecution could not have argued, as he did at trial, that the
81

petitioner’s testimony was fanciful or uncorroborated. This Court emphasized that
a jury may not have believed petitioner’s witnesses, many of whom were his
relatives, and the outcome may not have been different had the petitioner’s
witnesses testified. But “focusing . . . ‘on the fundamental fairness of the
proceeding . . .,” the Court held that the witnesses would have made enough of a
difference that trial counsel’s failure to call them “undermine[d] confidence in the
outcome of the trial.” Id. at 1158 (quoting Strickland, 466 U.S. at 696).
Similarly, in this case, the defense theory was that Armenia was in the
victim’s house on the day of the murder, but he was not the person who killed her.
Although there was circumstantial evidence of Armenia’s guilt, the California
Supreme Court noted that much of the evidence presented at trial “was as
consistent with Gregory’s guilt as with [Armenia’s].” (ER 232). But because trial
counsel failed to present any evidence of Gregory’s confession to the jury, the
prosecution was able to argue that Armenia’s theory that Gregory was the one that
committed the murder was farfetched and improbable. (See ER 2233-35). Even if
the jury might have harbored some suspicion about John Culver’s testimony
regarding Gregory’s first confession, given Culver’s relationship with Armenia, no
such suspicion would have arisen from the testimony of Merritt and Berg. Had the
jury heard that Gregory had actually confessed to the murder, twice, the
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prosecution would not have been able to so cavalierly discount the defense theory,
and the jury would have “had to balance more evenly divided evidence to reach its
verdict.” Brown, 137 F.3d 1157.
A similar scenario was presented in Luna v. Cambra, 306 F.3d 954 (9th Cir.
2002). In that case, the petitioner was convicted of attempted murder after the
victim identified him in a photo lineup as the man who stabbed him. The
petitioner testified at trial that he was at home sleeping when the crime occurred,
and two family members would have corroborated his alibi. But his lawyer
presented no evidence or witness testimony to corroborate his testimony.
Moreover, Richard Lopez, the man who actually stabbed the victim, confessed to
the crime to a defense investigator prior to the federal evidentiary hearing and
submitted a declaration indicating that he would have been available to testify at
trial. Trial counsel never interviewed either the two alibi witnesses or Lopez. Id.
at 957. The district court held that trial counsel’s performance was deficient but
that it did not prejudice the petitioner because the jury may not have believed the
alibi witnesses. It refused to consider the declaration submitted by Lopez.
This Court held that the trial lawyer’s failure to interview the witnesses
prejudiced the petitioner. Although the Court acknowledged that a jury could
have reservations about the testimony of the petitioner’s family members, it
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nonetheless found that the testimony would have had a significant impact
“particularly given that [petitioner’s] only defense was that he was home asleep at
the time of the crime, and his bare testimony the only proof.” Id. at 962. Trial
counsel’s failure to present the alibi witness’ testimony undermined this Court’s
confidence in the outcome of the petitioner’s trial because the witness’ testimony
“would have created more equilibrium in the evidence presented to the jury.” Id.
This Court also found that the district court erred in refusing to consider Lopez’
declaration because evidence of Lopez’ confession could have been presented to
the jury under California’s Declaration Against Interest exception to the hearsay
rule. Id. at 962-63 (citing Cal. Evid. Code 1230, People v. Cudjo, 6 Cal.4th 585
(1994)). Had“Lopez’ declaration had been considered below,” the Court held, “it
would have provided substantial evidence that trial counsel’s failure to interview
Lopez was prejudicial.” Id. at 964; see also Riley v. Payne, 352 F.3d 1313, 1320
(9th Cir. 2003) (failure to call defense witness was prejudicial because
corroborating witness would have made defendant’s account that he drew his gun
in self-defense after victim drew his gun more credible); Lord v. Wood, 184 F.3d
1083, 1096 (9th Cir. 1999) (failure to interview three witnesses who had material
evidence as to the petitioner’s innocence was prejudicial).
In this case, the district court did consider the confession of the alternate
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suspect – Gregory – at the federal evidentiary hearing.13 And as in Luna, the
district court held, correctly, that the failure to present evidence of that confession
to the jury violated Armenia’s right to effective assistance of counsel. But like the
district court in Luna, the district court erred in failing to give Gregory’s
confession appropriate weight in the prejudice analysis. Just as this Court held
that the declaration of Lopez provided “substantial evidence” that the failure to
call him as a witness was prejudicial in Luna, the district court’s well-supported
finding that Gregory confessed to the murder prior to trial, and that confession
could have been presented to the jury but was not, compels the conclusion that the
error was prejudicial. As in Luna, where the failure to present available defense
witnesses left the petitioner with a wholly uncorroborated defense, trial counsel’s
failure to present evidence of Gregory’s confession to the murder left him in a
position of having to argue that Gregory was responsible for the murder without
the benefit of the most persuasive evidence that would have supported it.

13

The district court also received evidence of Gregory’s multiple
confessions to the murder subsequent to trial (See ER 1638-39 (stating that
Gregory Cudjo told him “I’m the one that did the crime that Armenia is in prison
for”); ER 1640(stating that Gregory Cudjo said “my big brother is in jail now for
the white girl that I (Gregory) killed.”); ER 1646 (stating that Gregory Cudjo had
confessed to him that “someone else was in jail for a homicide that the person
didn’t commit” and that “he (Malik Cudjo) was involved in the homicide.”); ER
861).
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The facts of this case are even more compelling than Luna because the
alternate suspect in Luna approached only the defense, and then only after the
petitioner’s trial had ended, whereas Gregory confessed to the murder well before
Armenia’s trial and in front of a Sheriff’s Deputy and a Prosecutor. See Luna, 306
F.3d at 964; see also Sanders v. Ratelle, 21 F.3d 1446, 1457 (9th Cir. 1994)
(finding trial counsel’s failure to obtain statement from the defendant’s brother,
who had confessed to the crime, was prejudicial because the brother “might very
well have” obtained a statement consistent with his later-produced declaration).
Whereas this Court’s decisions in Luna and Sanders rested on its speculation that
the evidence of an alternate suspect’s confessions might have been available to the
defense the time of trial, see Luna, at 962-63 (noting that Lopez’ willingness to
confess to a defense investigator prior to the federal evidentiary hearing “provided
substantial evidence that trial counsel would have obtained inculpatory statements
from Lopez . . . .”); Sanders, 21 F.3d at 1457, the district court in this case found
that clear evidence of Gregory’s confession existed prior to Armenia’s trial and
that it could definitely have been presented to the jury. (ER 90-91).
The district court’s ruling that there was no prejudice depended heavily on
the Court’s assessment that the evidence against Armenia was “strong.” But the
California Supreme Court, whose factual findings are entitled to deference under
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28 U.S.C. § 2254(e) recognized that the prosecution’s case against Armenia Cudjo
was relatively weak. (See ER 256). Unlike Luna, Avila, and Brown, there was no
eyewitness identification. The only visual description of the assailant came from
Kevin P., a seven-year-old boy. In that identification he described the assailant in
terms that matched Gregory Cudjo, not Armenia. Kevin P. testified that the
assailant was wearing cut-off shorts, and a sleeveless blue top, the same clothes
that Gregory was wearing on the day of the murder. When asked to identify the
assailant in a lineup, Kevin P. could not. (ER 226). Nor could he identify Mr.
Cudjo in court. (ER 256). The absence of a reliable eyewitness identification was
a significant hole in the government’s case. See Strickland, 466 U.S. at 696 (“a
verdict or conclusion only weakly supported by the record is more likely to have
been affected by errors than one with overwhelming record support”); Luna, 306
F.3d at 966 (noting that victim’s “questionable identification standing alone made
for a relatively weak case.”). The fact that the description of the assailant given by
Kevin P. on the date of the murder matched the alternate suspect, Gregory, more
closely than it matched Armenia, was a particularly helpful fact to the defense.
The physical evidence was likewise equivocal and pointed just as strongly
to Gregory as it did to Armenia. As the California Supreme Court observed in
addressing the trial court’s refusal to allow Culver to testify to a separate
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admission by Gregory, Gregory’s statement was made spontaneously, soon “after a
murder for which Gregory, who had no alibi, was in custody as a prime suspect.
Gregory tended to fit Kevin P.’s description of the assailant, and much of the other
evidence, in particular the incriminating shoe prints, was as consistent with
Gregory’s guilt as with defendant’s.” (ER 232, 235 (Gregory “disclosed accurate
crime-scene details” and “Kevin P., the only eyewitness, never identified the
assailant and gave a description which more closely resembled Gregory than
defendant”)). Although there was blood type evidence tending to show that
Armenia had had sex with the victim on the day of the murder, a fact that Armenia
admitted in his trial testimony, there was no physical evidence that Armenia
committed the murder. There were no fingerprints or other witnesses. Gregory
had no alibi. Armenia’s mere admission that he was in the victim’s house on the
morning that the murder occurred and that he had had sex with her was far from
compelling taking into account the utter lack of physical evidence that he killed
her. See Brown, 137 F. 3d at 1157.
Perhaps the strongest evidence against Armenia Cudjo was the self-serving
accusation of his brother, Gregory. Although Gregory did not testify, his
preliminary hearing testimony, as well as previously recorded hearsay statements

88

played to Gregory at the preliminary hearing, were presented to the jury.14
According to Gregory, Armenia returned to the camper where they slept, described
a robbery of the victim, but denied raping or killing her. But the vivid detail with
which Gregory described the scene of the crime, raised the distinct possibility that
Gregory had been in the house himself. (See ER 257, Kennard, J., dissenting
(“this evidence too was equally if not more consistent with Gregory’s guilt). Had
the jury considered this possibility, along with Gregory’s multiple confessions to
the murder, both to his cellmate and in the presence of a Sheriff’s Deputy, it would
likely have accorded Armenia’s defense theory that Gregory was responsible for
the murder more weight.
The district court reasoned that Gregory’s confession might have been
disbelieved given the extent to which his testimony had been impeached at the
evidentiary hearing. (ER 99). But the fact that Gregory’s testimony could have
been impeached does not mean the absolute preclusion of his testimony was not
prejudicial. See Luna, 306 F. 3d. at 962. And the jury would have been no more
likely to disregard Gregory’s confession to the crime than it would his denial of

14

The admission of Gregory’s preliminary hearing testimony, and the
hearsay statements played to impeach Gregory at the preliminary hearing, which
were also presented to the trial jury, violated Mr. Cudjo’s Sixth Amendment Right
to confront the witnesses against him. See infra at Section VI.
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the crime, as part of his preliminary hearing testimony. Finally, Gregory’s uncross-examined testimony, which was presented to the jury, was crucial to the
prosecution’s case. If the jury did not believe that Gregory’s confession to the
murder was sincere, then it would also have been more likely to disbelieve his
preliminary hearing testimony regarding Armenia’s alleged confession of the
crime to Gregory. If the jury had discounted all of Gregory’s testimony, it would
have been left with little evidence to prove Armenia’s guilt.
The district court’s prejudice analysis relies heavily on “unexplained
discrepancies” in Armenia’s own testimony regarding his contact with the victim
on the morning of the crime. (See ER 92). But Armenia’s testimony was not
internally inconsistent. At worst, it was inconsistent with some of the physical
evidence, and some of the prosecution’s assumptions about what the physical
evidence showed. In any case, any perceived discrepancies in Armenia’s
testimony were no more significant than the discrepancies that permeated
Gregory’s testimony, and none of them would have been significant enough to
eliminate all reasonable doubt as to whether Armenia committed the crime.
Moreover, but for (1) the Court’s constitutional error in excluding John Culver’s
testimony regarding Gregory’s confession, and (2) counsel’s ineffective assistance
in failing to present evidence of Gregory’s second confession to the jury, Armenia
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might not have been forced to testify in his own defense in the first place.
The testimony of Deputy Merritt and Deputy District Attorney Hans Berg
regarding Gregory’s second confession to the murder, on the other hand, would
have raised at least a reasonable doubt as to Petitioner’s guilt, taking into account
the equivocal witness identification in the case and other evidence that pointed
equally to Gregory as it did to Armenia. See Strickland, 466 U.S. at 692. But
Armenia is not required to prove that much. See Brown, 137 F. 3d 1154 (9th Cir.
1998). He was required only to show that the failure to present evidence that
Gregory had confessed to the murder for which he was then on trial undermines
this Court’s confidence in the process that led to his conviction. See Strickland,
466 U.S. at 694. Ironically, the prosecution convicted Armenia based almost
entirely on Gregory’s un-cross-examined statements that Armenia had confessed
to the crime. And yet, the jury never learned that Gregory himself had confessed,
twice, to the same murder. Failure to present evidence of the confession distorted
the fact finding process and deprived Armenia of a fair trial. Had evidence of
Gregory’s confessions been presented, it is reasonably probable that at least one
juror would have had a reasonable doubt about Armenia’s guilt. See id. at 695. At
the very least, Cudjo is entitled to a COA on this claim.

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IX.

THE COURT SHOULD GRANT A COA AND RELIEF ON CUDJO’S
CLAIM OF INEFFECTIVE ASSISTANCE AT THE PENALTY
PHASE
A.

Summary of Claim

Claim 20(B) alleges that Cudjo’s trial counsel was ineffective by failing to
investigate and present mitigating evidence of Cudjo’s background, physical
condition, and family and social history. (Docket no. 10). Claim 20(E) alleges
that counsel was ineffective for not seeking at the penalty phase to admit Culver’s
testimony of Gregory’s confession, given the more lenient evidentiary standards
that apply at that stage. (Docket no. 10).
B.

Standards of Review and AEDPA Standards

Cudjo raised these claims in his exhaustion petition, which the California
Supreme Court summarily denied without an opinion or a hearing. (ER 197).
This Court may grant habeas relief if it concludes that the state court decision is
objectively unreasonable. Where, as here, the state court summarily denied the
claim, the Court conducts an independent review of the record to assess whether
the state decision was reasonable. Supra at Section I B..
The district court denied the claims after an evidentiary hearing. In a
federal habeas action, a claim of ineffective assistance of counsel presents a mixed
question of fact and law. This Court reviews the district court’s ruling on the
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claims de novo and its relevant findings of fact for clear error. Supra at Section I
B.
C.

The California Supreme Court Decision

The court summarily denied Claim 20(B) in the habeas case without an
opinion or citation to authority. (ER 197).15
D.

The District Court Decision

On Claim 20(B), the district court found that “trial counsel made a strategic
decision to present a lingering doubt theory at the penalty phase, and decided that
the presentation of mitigation evidence would be inconsistent and detract from that
theory.” (ER 156-57). “However, while the decision was strategic, the court
[found] that it was not reasonable because trial counsel did not conduct an
adequate investigation before making his decision.” (ER 157).
The court rejected the Respondent’s claim that counsel reasonably decided
not to present mitigating evidence out of a concern that such a presentation would
result in the prosecution discovering and presenting evidence of Cudjo’s prior
Arizona robbery conviction. The court explained that “the primary reason that

15

Cudjo also asserted in his direct appeal that counsel failed to effectively
present a lingering doubt defense and failed to present other mitigating evidence,
but the state court ruled that “[a]ny assertion that counsel was inadequate in this
regard must be raised on habeas corpus.” (ER 251).
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trial counsel did not present mitigating evidence was that it would be inconsistent
with the theory of lingering doubt, not to try to keep the Arizona robbery
conviction from being discovered by the prosecution.” (ER 146). “[W]hile the
existence of the Arizona prior conviction was a consideration, it was not the main
reason that trial counsel strategically decided not to present a separate case in
mitigation . . . .” (Id.).
The court concluded regarding counsel’s performance that:
Trial counsel’s decision to conduct a cursory
investigation due to his strategy focusing on lingering
doubt demonstrates that trial counsel failed to adequately
recognize how evidence of an individual’s background
could be utilized to ask for [a] life sentence without the
possibility of parole. Moreover, trial counsel did not
present any evidence to support the theory of lingering
doubt, aside from Armenia’s own denial of guilt, which
he made in three words, without any cross-examination.
(ER 157).
However, the court concluded that counsel’s deficient performance did not
prejudice Cudjo. The discussion of prejudice at the penalty phase takes up less
than three of the 192 pages in the order denying habeas relief. (ER 157-59). The
court phrased the issue as follows:
The question before this Court is whether knowledge
that Armenia had experienced a traumatic childhood,
been exposed to domestic violence, lost his father at age
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twelve, suffered from depression, self-medicated himself
by abusing drugs and alcohol, suffered two head injuries,
had a history of seizures and might have had minimal
brain damage, would have been enough that even one
juror would have weighed it more heavily than the
evidence that Armenia bound up Amelia and beat her to
death with her young son present in the house.
(ER 158). The court answered its question in the negative.
E.

Counsel’s Deficient Performance Prejudiced Cudjo
1.

Ineffective Assistance Standards

To prove his claim, Cudjo must show that his counsel’s performance was
deficient and that he was prejudiced as a result. To establish deficient
performance, Cudjo must show that trial counsel’s “representation fell below an
objective standard of reasonableness.” Strickland, 466 U.S. at 688. To establish
prejudice, Cudjo “‘must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome.’” Wiggins, 539 U.S. at 534 (quoting Strickland, 466
U.S. at 694). “[A] defendant need not show that counsel’s deficient conduct more
likely than not altered the outcome in the case . . . . The result of a proceeding can
be rendered unreliable, and hence the proceeding itself unfair, even if the errors of
counsel cannot be shown by a preponderance of the evidence to have determined
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the outcome.” Strickland, 466 U.S. at 693-94.
2.

Clark’s Deficient Performance at the Penalty Phase

The district court correctly found that Clark’s decision not to present any
mitigating evidence was unreasonable and that his performance was deficient.
(ER 157). Clark admitted at the federal evidentiary hearing that he “didn’t do any
investigation into mitigation evidence in [Cudjo’s] case and [he] didn’t instruct
Mr. Hill or anyone else to conduct such an investigation.” His trial investigator
testified similarly. (See ER 1643 (“I didn’t conduct any investigation in
preparation for the penalty phase of Mr. Cudjo’s trial. I never talked to Armenia
Cudjo or anybody from his family. Mr. Clark never asked me to do that and I was
not interested in doing it either.”)).
Clark testified that he did no mitigation investigation because he pursued a
theory of defense that Cudjo was innocent of the murder. On more than one
occasion, Clark called his theory of defense an “alibi” theory. (See, e.g., ER 1612
(“As the case began to take on dimension and substance, and it became apparent
that the essential defense would be ‘alibi’ in nature, the background information
on the defendant, his childhood, education, and various other factors commonly
used in mitigation became of minimal consequence. Therefore, I didn’t do any
investigation into mitigating evidence in Armenia’s case[.]”); ER 296)). However,
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Clark introduced no evidence of an alibi at trial, except for Cudjo’s testimony that
he went jogging alone on the morning of the crime, after he returned from a
consensual sexual encounter with the victim. (ER 1951-53).
Clark’s stated rationale for not investigating or presenting mitigation was
that “presenting a ‘laundry list’ of feigned mitigating evidence would detract from
one good theory which was consistent with the evidence presented at trial, and
might prompt the jury to re-evaluate their determination of guilt at trial.” (ER
1612). Clark added, “If I am dealing with an alibi or a straight denial type of a
case, I don’t think mitigation is appropriate.” (ER 340). Clark also testified -referring to mitigation -- that “[p]ersonally, it’s not my mode. I can’t do it.” (ER
311).
In light of this evidence, the district court was correct to find that Clark’s
decision not to investigate and present mitigating evidence was not a reasonable
decision. Clark’s decision was unreasonable because it was misinformed, contrary
to his constitutional duties, and based on an inadequate investigation. Clark’s
belief that a defense lawyer does not have a duty to investigate mitigating
evidence when the defense theory at the guilt phase is to challenge the defendant’s
culpability for the crime is contrary to United States Supreme Court law. Rompilla
v. Beard, 545 U.S. 374, 387 (2005); Wiggins, 539 U.S. at 524-26; Terry Williams
97

v. Taylor, 529 U.S. 362, 396 (2000) (holding that defense counsel in a capital case
has an “obligation to conduct a thorough investigation of the defendant’s
background”).
Clark also failed to present at the penalty phase any of the evidence of
Gregory Cudjo’s culpability that he had unsuccessfully sought to introduce at the
guilt phase -- most notably, the testimony of John Culver. At the federal hearing,
Clark testified that he did not seek to introduce Culver’s testimony at the penalty
phase -- where the evidentiary standards are more relaxed -- because he thought
the judge would “be most consistent” in ruling on the testimony, which he had
precluded at guilt. (ER 339). But in fact, had Clark sought to introduce Culver’s
testimony at the penalty phase, the judge would have had to consider the relaxed
standards governing the admissibility of evidence at the penalty phase of a capital
trial (see Green v. Georgia, 442 U.S. 95, 97 (1979) (holding that exclusion of
relevant evidence at sentencing hearing constitutes denial of due process), where
“mechanical application” of the hearsay rule is disfavored. Chambers, 410 U.S. at
302 (holding that where a statement substantially implicates the declarant’s penal
interest, “the hearsay rule may not be applied mechanistically to defeat the ends of
justice”). And, separate from any federal constitutional mandate, as a practical
matter, the evidence was admissible under California’s statutory scheme. See Cal.
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Pen. Code § 190.3 (a) and (k). Clark’s failure to pursue mitigation in favor of a
“lingering doubt” theory he felt was more consistent with his guilt-phase defense
must be viewed in light of his failure (due largely to his inadequate investigation,
exacerbated by the trial court’s rulings) to introduce powerful evidence of Gregory
Cudjo’s culpability at either phase.
Further, as the district court correctly found, Clark’s decision not to present
mitigating evidence based on Cudjo’s life history was also unreasonable because it
was not based on adequate investigation. (ER 157). “A decision by counsel not to
present mitigating evidence cannot be excused as a strategic decision unless it is
supported by reasonable investigations.” Correll v. Ryan, 539 F.3d 938, 948 (9th
Cir. 2008) (as amended); see also id. at 949 (“An uninformed strategy is not a
reasoned strategy. It is, in fact, no strategy at all.”).
The record in Cudjo’s case is clear: no investigation informed Clark’s
decision to rely solely on the theory of “lingering doubt” at the penalty phase.
Clark excused himself from this responsibility because he had contested his
client’s guilt at trial, based on a theory of reasonable doubt that was poorly
developed due to Clark’s failure to investigate and present evidence of Gregory
Cudjo’s confession. In Strickland, the Supreme Court referenced the American
Bar Association’s Standards for Criminal Justice as “guides to determining what is
99

reasonable.” 466 U.S. at 688-89. In Wiggins, the Court reiterated that it had “long
referred” to the Guidelines in assessing reasonableness under Strickland. (Terry)
Williams and Wiggins both emphasize a particular standard -- Standard 4-4.1: the
Duty to Investigate. Williams, 529 U.S. at 396 (citing Standard 4-4.1 for the
proposition that counsel had “obligation to conduct a thorough investigation of the
defendant’s background”); Wiggins, 510 U.S. at 522. The American Bar
Association stressed, in its 1980 commentary to Standard 4-4.1, that “[t]he defense
lawyer also has a substantial and important role to perform in raising mitigating
factors both to the prosecutor initially and to the court at sentencing . . . .
Investigating is essential to the fulfillment of these functions.”“ 1 ABA Standards
for Criminal Justice 4-.41, commentary, pp. 4-5 (2d ed. 1980).
Had Clark investigated Cudjo’s life and social history, his family history of
epilepsy and seizure disorder, his history of seizures, and his brain impairments, a
decision not to present any of the evidence would still have been unreasonable,
because social history evidence and the third-party culpability theory Clark
pursued at trial are not mutually exclusive. See Wiggins, 539 U.S. at 535; Correll,
539 F.3d at 943, 950 (stating that penalty phase investigations should include
“inquiries into social background, including investigation of any family abuse,
mental impairment, physical health history and substance abuse history” and
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recognizing this type of evidence as “powerful.”)
Clark’s strategy, like defense counsel’s in Correll, was not a strategy at all:
instead of presenting an affirmative defense of “lingering doubt” at penalty, Clark
did nothing more than reiterate Cudjo’s statement that he did not commit the crime
and then argue, weakly, to the jury for mercy. Clark called Cudjo as a penaltyphase witness to deny guilt (in testimony consisting of three-words: “No, I didn’t.”
(ER2258), but Cudjo had done that at length during the guilt phase and the jury
was unpersuaded by it. Clark’s closing argument did not reflect his stated strategy
to argue lingering doubt; instead, he told the jury -- for no apparent reason -- that
the decision they made regarding life or death could be overturned on appeal, or
that Cudjo could be granted a pardon or a commutation of his sentence by the
governor. (ER 2267).
3.

Prejudice

The district court wrongly concluded that Cudjo was not prejudiced by his
counsel’s failings. The United States Supreme Court has established that, in
reviewing ineffective assistance of counsel claims, courts must “evaluate the
totality of the available mitigation evidence -- both that adduced at trial, and the
evidence adduced in the habeas proceeding -- in reweighing it against the evidence
in aggravation.” Williams, 529 U.S. at 397-98. A review of the totality of the
101

evidence sufficiently undermines confidence in the outcome of Cudjo’s trial and
establishes prejudice.
The prejudice is apparent once the mitigating evidence Clark could have
uncovered is considered in contrast to the dearth of aggravation. This is especially
true because the case for aggravation was not particularly strong. At penalty, the
prosecution relied on the evidence introduced at the guilt phase and did not
introduce any additional evidence in aggravation. In his closing, the prosecutor
asked the jury to return a death sentence because of the circumstances of the crime
itself. Had Cudjo’s jury been able to place Cudjo’s troubled life history on the
mitigating side of the scale, there is a reasonable probability that at least one juror
would have struck a different balance between life and death.
Dr. Kumea Shorter-Gooden, a psychologist, described Cudjo’s troubled life
history at the federal evidentiary hearing. Dr. Shorter-Gooden, or another social
history expert with similar background and credentials, could have told Cudjo’s
jury the facts she testified to at the hearing. California Penal Code § 190.3 (k)
gives capital defendants broad leeway to introduce any relevant mitigating
evidence, and the sentencer in a capital case must be allowed to consider in
mitigation, “anything in the life of the defendant which might militate against the
appropriateness of the death penalty for the defendant.” Hitchcock v. Dugger, 481
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U.S. 393 (1987); Skipper v. South Carolina, 476 U.S. 1 (1986); (see ER 2277).
This principle of broad admissibility of mitigating evidence extends to hearsay
when it is highly relevant and there are substantial reasons to consider it reliable.
Green, 442 U.S. 95. The Supreme Court in Wiggins relied on a social history
report prepared by a social worker to find that Wiggins’ counsel had been
constitutionally ineffective for failing to investigate and present mitigating
evidence at the penalty phase of Wiggins’ capital trial and rejected arguments that
the social history report would have been inadmissible hearsay under Maryland
law, citing to Maryland’s “relaxed standard’ governing the admissibility of reliable
hearsay at the penalty phases of capital trials. Wiggins, 539 U.S. at 536.
An expert could also have placed the facts of Cudjo’s troubled history in
context, drawing conclusions about the impact of Cudjo’s difficulties and
traumatic experiences as a child, adolescent, and young adult on his development
and his life trajectory. An expert could have testified about the limitations of
Cudjo’s inadequate and indifferent caregivers (see, e.g., ER 452-53, 1654-73); the
impoverished circumstances of Cudjo’s family life and the community in which he
was raised (see, e.g., ER 1665-69, 464-65); the trauma Cudjo experienced in the
wake of his father’s death, when Cudjo was only 11 years old (see, e.g., ER 444,
1671-74); the domestic violence Cudjo was exposed to as a child and a teenager,
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particularly when his mother began a relationship with a violent alcoholic (see,
e.g., ER 452, 1674-77);and Cudjo’s substance abuse, most notably when, as a
teenager, he began sniffing gasoline (see, e.g., ER 1677-78, 1681).
Cudjo’s relatives, including his half-sister, Julia Watson-Bryant, his sisters,
Helen Cudjo-Woods and Brauni Cudjo, his brother, Martin Luther Cudjo, and his
mother, Maxine Cudjo -- also could have told the jury about many of the difficult
experiences that shaped Cudjo’s development. (See, e.g., ER 1614-19, 1622-37,
1733-36). These witnesses would have corroborated the experts’ explanations of
Cudjo’s childhood and adolescent development. While the testimony of Maxine
Cudjo and her children about these difficult circumstances would have been
powerful in its own right, the expert testimony would have placed the narrative
details of Cudjo’s life in a broader context that the jury could understand and
sympathize with.
Clark could have discovered extensive mitigating evidence by interviewing
Cudjo, by contacting and interviewing the relatives, neighbors, friends, extended
family and other witnesses who knew Cudjo throughout his life, and by gathering
the relevant school, medical, psychiatric, criminal, and other social history records
about Cudjo and his family. All of the relatives whose direct testimony was
admitted during these proceedings were willing to talk to Cudjo’s trial counsel or
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investigator in 1988 and to testify at Cudjo’s trial, and several were called as
prosecution witnesses at the preliminary hearing and trial. Other witnesses, who
were available at the time of trial but no longer available by the time the federal
evidentiary hearing took place, including Cudjo’s sister, Boni Cudjo (now
deceased, (see ER 1140), also could have testified on Cudjo’s behalf.
Clark also could have presented at the penalty phase expert testimony such
as that of Dale Watson, Ph.D., regarding Cudjo’s seizure disorder and brain
dysfunction. Clark was on notice, at the time of Cudjo’s trial, that Cudjo was
medicated for seizures. (ER 863 (note from Clark’s trial file containing the word
“Dilantin” -- a medication for seizures)). Clark observed that Cudjo “was
probably pretty slow, intellectually.” (ER 1609). Clark also could have
discovered, by obtaining medical records, that Cudjo had had two serious head
injuries, including a skull fracture. (See ER 875-77 (medical records from 1972
bicycle accident); ER 1329-1407 (medical records from 1983 skull fracture).)
With the help of mental health experts such as Dr. Watson, Clark could have
presented evidence that Cudjo had a family history of seizure disorder (ER 504,
1055-1138, 1141-73), evidence that Cudjo suffers from a seizure disorder (ER
503, 515, 885-1054, 1307-08), and evidence that Cudjo suffered from brain
dysfunction that impaired his judgment at the time of the crime. (ER 1720-25,
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875-77, 1329-1407).
The district court’s conclusion that Cudjo was not prejudiced by Clark’s
failures to investigate and present mitigating evidence at his trial is contrary to
Supreme Court and this Court’s precedent. The district court wrongly concluded
that the mitigating evidence presented at the federal evidentiary hearing -evidence that Armenia had “experienced a traumatic childhood, been exposed to
domestic violence, lost his father at the age of twelve, suffered from depression,
self-medicated himself by abusing drugs and alcohol, suffered two head injuries,
had a history of seizures and might have had minimal brain damage” (ER 158) -was insufficient to outweigh the circumstances of the crime (the only factor argued
in aggravation at his trial). The district court wrongly concluded that this
mitigating evidence was insufficient because it was not “exculpatory” and because
it did not “‘portray a person whose moral sense was warped by abuse, drugs, or
mental incapacity, or who acted out of passion, anger or other motive unlikely to
reoccur.” (ER 158, quoting Allen v. Woodford, 395 F.3d. 979, 1107 (9th Cir.
2005)).
The district court analogized Cudjo’s case to the United States Supreme
Court’s per curiam opinion in Woodford v. Visciotti, 537 U.S. 19 (2002), reversing
this Court’s grant of penalty-phase relief on an ineffective assistance of counsel
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claim, and to this Court’s opinion in Allen v. Woodford, 395 F.3d 979 (9th Cir.
2005). Allen and Visciotti are distinguishable because they both involve
aggravating circumstances that far exceed the nature and extent of the aggravation
in Cudjo’s case. They are also distinguishable because they are not cases where
trial counsel had a plausible theory of lingering doubt to argue to the jury at the
penalty phase, as Clark did here -- although he failed to capitalize on it.
In Allen, the petitioner had been convicted of triple murder and conspiracy
to murder seven people had a long history of orchestrating and committing violent
robberies and burglaries (including eight armed robberies) and had plotted
murders from prison. 395 F.3d at 984. This Court also observed that the United
States Supreme Court has “deem[ed] defendants who have committed murder
while serving a life term in prison to be “unique among capital defendants” and
concluded that “the aggravating circumstances of Allen’s triple-murder and
conspiracy are those for which the United States Supreme Court envisions the
harshest penalty.” 395 F.3d at 1009.
In Allen, this Court made a point of clarifying that “we do not hold that
humanizing, non-exculpatory evidence can never be enough to establish
prejudice,” but rather that “the quality and quantity of the particular evidence
offered by Allen, in light of the heinous nature of his crimes, does not establish
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prejudice.” 395 F.3d at 1010. As the Supreme Court observed in (Terry)
Williams, “[M]itigating evidence unrelated to dangerousness may alter the jury's
selection of penalty, even if it does not undermine or rebut the prosecution's
death-eligibility case.” 529 U.S. at 398. Given the qualitative and quantitative
differences between the aggravating circumstances in Cudjo’s case, as compared
to Allen’s, the district court’s reliance on Allen to support its conclusion that
Cudjo suffered no prejudice by his trial counsel’s ineffectiveness is misplaced.
The other cases the district court cited in support of its conclusion that
Cudjo was not prejudiced are also cases in which the aggravation was far more
extensive than the aggravation in Cudjo’s case. In Campbell, the habeas
petitioner had been convicted of three counts of aggravated murder and sentenced
to death, and trial counsel made a reasoned strategic choice not to use the
mitigating evidence he had uncovered through his investigation because he feared
“opening the door” to possible damaging rebuttal evidence by the State. The
possible rebuttal evidence included the forcible rape of an ex-wife, repeated rape
and intimidation of other inmates, drug- and alcohol-induced violence, and the
report of a psychologist that Campbell was “imminently harmful to all who
directly or indirectly capture his attention or interest,” “reportings of sexually
abhorrent conduct with animals, stranglings of animals, [and] alleged child abuse.”
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This Court found that Campbell suffered no prejudice even if his counsel had
performed deficiently, because he had failed to “suggest any potential mitigating
evidence that could have been uncovered through a more thorough investigation.”
829 F.2d 1453, 1463 (9th Cir. 1987). By contrast, Cudjo has presented extensive
mitigation that his trial counsel could have uncovered through adequate
investigation and presented at Cudjo’s trial.
The district court also cited Gerlaugh v. Stewart, which this Court
characterized as “an example of the most extreme factual situations with virtually
no mitigation.” 129 F.3d 1027, 1042 (9th Cir. 1997). The same cannot be said of
Cudjo.
The district court relies on a small number of exceptional cases (Allen,
Campbell, Gerlaugh) where the aggravating circumstances were especially
numerous and chilling, including prior convictions for rape, murder and violence
orchestrated from behind bars. The district court fails to reconcile the difference
between such cases and Cudjo’s case, where the State presented no additional
evidence in aggravation at the penalty phase and argued for the death penalty
based on the circumstances of the crime itself. Additionally, the district court
found that the one piece of damaging evidence the State pointed to as possible
rebuttal -- Cudjo’s prior Arizona conviction for burglary and robbery -- was not
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was not the primary reason that trial counsel decided not to present mitigating
evidence during the penalty phase of trial.
In its prejudice analysis, the district court did not cite the numerous cases
from this and other circuits finding prejudice where counsel had failed to
investigate and present mitigating evidence. See, e.g. :
-- Douglas v. Woodford, 316 F.3d 1079, 1099 (9th Cir. 2003) (failure to
present evidence of capital defendant's childhood abuse and neglect, mental
impairments, and prison gang-rape prejudicial; “[t]he available mitigating
evidence that could have been introduced in Douglas’s trial was precisely the type
of evidence that we have found critical for a jury to consider when deciding
whether to impose a death sentence”);
-- Ainsworth v. Woodford, 268 F.3d 868, 875 (9th Cir. 2001) (similar; also
finding prejudice because omitted evidence of defendant’s drug and alcohol use
“would have been extremely important to the jury in its effort to decide whether to
impose the death penalty”).
-- Mayfield v. Woodford, 270 F.3d 915 (9th Cir. 2001) (reversing death
judgment because counsel failed to present additional evidence of defendant's drug
and alcohol use and failed to present expert testimony on the subject; prejudice
found even though “[t]he mitigation evidence presented at trial through the
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testimony of [an expert psychologist] was substantial”);
-- Jackson v. Calderon, 211 F.3d 1148, 1163 (9th Cir. 2000) (failure to
present evidence of repeated childhood beatings, upbringing characterized by
neglect and instability, and mental impairments prejudicial).
Contrary to the district court’s conclusion, Cudjo’s is not a case where the
aggravating evidence was overwhelming and the presentation of mitigating
evidence would not have mattered. Cudjo is entitled to relief on Claim 20(B)
under clearly established Supreme Court precedent. See, e.g., Rompilla, 545 U.S.
374, Wiggins, 539 U.S. 510, and Williams, 529 U.S. 420. The district court’s
denial of Cudjo’s claim of prejudice erroneously focused instead on inapposite
cases from this Circuit where not prejudice was found due to overwhelming
circumstances in aggravation, in addition to the crime facts. The Supreme Court
has made clear that habeas petitioners can show prejudice, even where the
circumstances of the crime were aggravating -- indeed, even where aggravating
evidence was presented in addition to the circumstances of the crime. See, e.g.,
Williams, 529 U.S. at 368 (granting relief despite evidence at trial of the
petitioner’s prior convictions for armed robbery, burglary, and grand larceny; two
auto thefts; two separate violent assaults on elderly victims; an arson; a robbery;
another “brutal[] assault[]” on an elderly woman, resulting in the victim being in a
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vegetative state; and an arson in jail while awaiting trial).
This Court has also explained that aggravating crime facts do not render
counsel’s errors harmless. See Jones v. Ryan, 583 F.3d 626 (9th Cir. 2009)
(reversing the district court and granting relief under AEDPA due to penalty-phase
ineffectiveness, where petitioner killed three people); Lambright v. Stewart, 241
F.3d 1201, 1208 (9th Cir. 2001) (“Evidence of mental disabilities or a tragic
childhood can affect a sentencing determination even in the most savage case”);
Smith v. Stewart, 189 F.3d 1004, 1013 (9th Cir. 1999) (“The horrific nature of the
crimes involved here does not cause us to find an absence of prejudice. In
Hendricks v. Calderon, 70 F.3d 1032, 1044 (9th Cir. 1995), we rejected the
argument that heinous crimes make mitigating evidence irrelevant, noting that the
fact finder in California has broad latitude to weigh the worth of the defendant’s
life”); Silva v. Woodford, 279 F.3d 825, 828, 847-50 (9th Cir. 2002) (finding
prejudice where defendant kidnaped and robbed two college students; the male
student was chained to a tree while the female student was repeatedly sexually
assaulted; and defendant shot and killed the male and ordered his accomplice to
dismember him with an axe); Mak v. Blodgett, 970 F.2d 614 (9th Cir. 1992)
(finding prejudice where defendant was convicted of murdering 13 people).
Here, in light of the record as a whole, “the failure of [defense counsel] to
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present mitigating evidence rendered the sentencing hearing neither fair nor
reliable.” Hendricks, 70 F.3d at 1044; Douglas, 316 F.3d at 1090. This Court
cannot conclude with confidence that the jury unanimously would have sentenced
Cudjo to death if counsel had presented and explained all of the available
mitigating evidence. Mayfield, 270 F.3d at 929. Cudjo is entitled to relief on this
claim. At a minimum, he is entitled to a COA. Id. at 926-27.
X.

THE COURT SHOULD GRANT A COA AND RELIEF ON CUDJO’S
CUMULATIVE ERROR CLAIMS
A.

Summary of Claims

Claim 19 alleges that the cumulative errors at the guilt phase require relief.
(Docket no. 10). Claim 31 alleges that the cumulative effect of the errors at guilt
caused an unconstitutional penalty trial and require penalty relief. (Id.). Claim 30
alleges that the cumulative effect of the errors at guilt and penalty require relief.
(Id.).
B.

Standards of Review and AEDPA Standards

Cudjo raised these claims in his exhaustion petition, which the California
Supreme Court summarily denied without an opinion or a hearing.16 This Court
16

Cudjo also raised claims of cumulative error at guilt phase and at guilt and
penalty in his direct appeal (ER 247-48, 252), but these claims were based solely
on the appellate record. The cumulative error claims reasserted in the exhaustion
petition were based on extra-record evidence that was also presented in the federal
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may grant habeas relief if it concludes that the state court decision is objectively
unreasonable based on its independent review.
Some evidence on these claims was taken at the federal evidentiary hearing
on Claims 15(A)(6) and 20(B). This Court reviews the district court’s ruling on
the claims de novo and relevant findings of fact for clear error.
C.

The California Supreme Court Decision

The court summarily denied the claims without an opinion.
D.

The District Court Decision

The court found numerous errors at the guilt phase:
--the prosecutor improperly referred to Cudjo’s “race as a reason for
discounting the defense” (Claim 12);
--trial counsel failed to investigate Gregory’s jailhouse admission witnessed
by Deputy Sheriff Merritt and others (Claim 15(A)(6));
--trial counsel failed to adequately investigate the testimony of prosecution
witness Douglas Ridolfi and the introduction of blood test results associating
Cudjo with the semen sample found on the victim and excluding Gregory and the
victim’s husband as donors (Claim 15(B)(5)):

habeas action, and the California Supreme Court’s summary denials of those
claims are the relevant state court decisions for purposes of federal habeas review.
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--trial counsel failed to object to the prosecutor’s racially inflammatory
remarks in closing argument (Claims 15(E) and (F));
--trial counsel failed to object to the references to rape (which was never
charged) in the jury instructions on felony murder (Claim 15(G));
--trial counsel failed to object to the trial court’s exclusion of Culver’s
testimony regarding Gregory’s confession (Claim 15(I));
--trial counsel’s ineffective closing argument trivialized the prosecution’s
burden of proof (Claim 17)17; and
--the trial court failed to instruct that intent to kill was an element of the
felony murder special circumstances and defense counsel failed to object and seek
a proper instruction (Claim 18). (ER 136).
The court concluded, however, that “[b]alancing any errors that were
committed at trial against the strength of the state’s case . . . any cumulative error
was harmless error at best . . . .” (ER 137).
In considering Claims 30 and 31, the court found the following errors at the
penalty phase:
--trial counsel failed to investigate and present evidence of Cudjo’s
17

This is actually a penalty phase claim. The court thus appears to have
mistakenly considered it as part of its guilt phase analysis and failed to consider it
when assessing errors affecting solely the penalty phase.
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background, physical condition, and family and social history (Claim 20(B));
--counsel failed to move to have Culver’s testimony, which was held
inadmissible at the guilt phase, admitted during the penalty phase (Claim 20(E));
and
--counsel failed to file briefs or otherwise argue in support of modifying the
death sentence (Claim 21). (ER 174).
However, the court concluded that these errors did not warrant penalty
relief, and that these errors, considered along with the guilt errors identified above,
did not warrant relief. (ER 194).
E.

The Cumulative Effect of Errors Rendered Cudjo’s Defense Far
Less Persuasive Than It Otherwise Would Have Been and
Requires Guilt and Penalty Relief

Habeas relief is required when the combined prejudice of multiple
constitutional errors “that might not be so prejudicial as to amount to a deprivation
of due process when considered alone . . . cumulatively produce a trial setting that
is fundamentally unfair.” Alcala, 334 F.3d at 883.
The errors forming the basis of relief can be solely trial court errors. See,
e.g., Parle v. Runnels, 505 F.3d 922 (9th Cir. 2007)), or a combination of trial
court errors and errors resulting from the ineffective assistance of counsel, see,
e.g., Mak, 970 F.2d at 622. “Strickland requires [courts] to assess the aggregate
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impact of counsel’s deficient actions when evaluating whether such failures are
prejudicial.” Richter v. Hickman, 578 F.3d 944, 967 (9th Cir. 2009) (en banc).
Chambers, 410 U.S. 284, is “the seminal cumulative error case” and
constitutes clearly established federal law under AEDPA for the cumulative error
doctrine. Parle, 505 F.3d at 927 & n.5, 934. “The Supreme Court has clearly
established that the combined effect of multiple trial court errors violates due
process where it renders the resulting criminal trial fundamentally unfair.” Parle,
505 F.3d at 927. “The cumulative effect of multiple errors can violate due process
even where no single error rises to the level of a constitutional violation or would
independently warrant reversal.” Id. “Furthermore, the cumulative nature of the
challenged evidence does not necessarily render its inclusion (or exclusion)
harmless.” Id. at 928.
Cumulative errors require relief “where the errors have ‘so infected the trial
with unfairness as to make the resulting conviction a denial of due process.’” Id.
at 927. “Such ‘infection’ occurs where the combined effect of the errors had a
‘substantial and injurious effect or influence on the jury’s verdict.’” Id. (quoting
Brecht, 507 U.S. at 637). “In simpler terms, where the combined effect of
individually harmless errors renders a criminal defense ‘far less persuasive than it
might otherwise have been,’ the resulting conviction violates due process.” Id.
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“[I]n determining whether the combined effect of multiple errors rendered a
criminal defense ‘far less persuasive’ and had a ‘substantial and injurious effect or
influence’ on the jury’s verdict, the overall strength of the prosecution’s case must
be considered because ‘a verdict or conclusion only weakly supported by the
record is more likely to have been affected by errors than one with overwhelming
record support.’” Id. at 928. Supreme Court and Ninth Circuit precedent require
relief on this claim.
1.

Cudjo Is Entitled to Guilt Relief

Here, as in Chambers, the evidence at trial pointed to there being a single
person responsible for a killing, and the main issue was the identity of the
perpetrator. 410 U.S. at 297. Here, as in Chambers, the defendant “endeavored to
develop two grounds of defense”: that he did not kill the victim but that an
identifiable other person did. Id. at 288-89. In both cases, the alternate suspect
had previously confessed to the crime; the defense was prevented from crossexamining the alternate suspect at trial; and the defendant was prevented from
presenting witnesses to testify to the alternate suspect’s confessions. Id. at 28994. The Court found a due process violation because “Chambers’ defense was far
less persuasive than it might have been had he been given an opportunity to
subject [the alternate suspect’s] statements to cross-examination or had the other
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confessions been admitted.” Id. at 294.
Cudjo was even more “frustrat[ed in] his efforts to develop an exculpatory
defense,” id. at 290 n.3., and more prejudiced as a result, than the defendant in
Chambers. In Chambers, the alternate suspect’s written confession was admitted
into evidence but the defense was presented from examining him about his
repudiation of the confession. Id. at 291. Cudjo was prevented from presenting
any evidence of Gregory’s confessions and from examining Gregory at trial at all.
The Court found prejudice in Chambers despite the presence of stronger
evidence of the defendant’s guilt than is present here: “One of the deputy sheriffs
testified at trial that he was standing several feet from [the police officer who was
shot] and that he saw Chambers shoot him.” Id. at 286. “Another deputy sheriff
stated that, although he could not see whether Chambers had a gun in his hand, he
did see Chambers ‘break his arm down’ shortly before the shots were fired.” Id.
Here, by contrast, there was no such clear evidence of Cudjo’s guilt, and the
eyewitness testimony points more toward Gregory than to Armenia.
The Court also found prejudice even though the defendant was able to
present a greater portion of his case than Cudjo was. In Chambers, the defense
was allowed to present one witness who testified to seeing the alternate suspect
shoot the victim and another who said he saw the suspect immediately after the
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shooting with a gun in his hand. Id. at 289.
Cudjo was additionally prejudiced by the prosecutor’s racial remark in
closing, and by the other errors found by the district court. If the defendant in
Chambers was prejudiced by the cumulative impact of errors, then a fortiorari,
Cudjo was, too.
This Court’s decision in Parle also supports Cudjo’s claim. Parle granted
relief on a cumulative error claim under AEDPA where the defendant was
convicted of the first-degree murder of his wife and at trial he “contest[ed] only
his state of mind at the time of the killing,” arguing that he was guilty at most of
second-degree murder or manslaughter. 505 F.3d at 925. This Court granted
relief because “the wrongful admission of Dr. Acenas’s testimony [of defendant’s
thoughts of hurting his wife] and the erroneous exclusion of Dr. Jackman’s
testimony [“about the effects of a manic episode on one’s general state of mind
and ability to premeditate”] left the jury with only half the picture.” Id. at 930-32.
“Like the evidence excluded in Chambers, this wrongfully admitted and excluded
evidence went to the heart of the central issue in the case” and “rendered [the]
defense ‘far less persuasive than might have been.’” Id. at 932-33.
The same is true here regarding the wrongful admission of Gregory’s
preliminary hearing testimony implicating Armenia and the wrongful exclusion -120

through trial court error and defense counsel’s ineffectiveness -- of evidence of
Gregory’s confessions. See also Alcala, 334 F.3d at 894 (granting guilt relief on
cumulative error claim in capital habeas case because “the combined testimony of
[wrongly excluded] witnesses would have challenged [the main prosecution
witness’s] version of events and presented a colorable third-party culpability
theory for the jury to assess”)18; Thomas v. Hubbard, 273 F.3d 1164, 1180 (9th
Cir. 2002) (granting cumulative error claim in case governed by AEDPA because
errors “adversely affected [defendant’s] ability to undermine the credibility of the
prosecution’s principal witness” and “offer his own defense,” where the strongest
evidence against him “was the uncorroborated testimony of a person who himself
had both a motive and an opportunity to commit the crime”), overruled in part by
Payton v. Woodford, 346 F. 3d 1204 (9th Cir. 2003).
2.

At a Minimum, Cudjo Is Entitled to Penalty Relief

The errors at guilt thwarting an effective third-party culpability
presentation prejudiced Cudjo’s chances at penalty of receiving life without parole
on a lingering doubt theory. The prejudice at penalty was exacerbated by
counsel’s failures to introduce Culver’s testimony of Gregory’s confession and to

18

In granting relief, the Court also considered the prejudice of defense
counsel’s failure to present an alibi witness. Id. at 888-89, 894.
121

present any life history mitigation evidence, and by his ineffective closing.
In Mak, 970 F.2d at 617, 622, this Court granted penalty relief on a
cumulative error claim because of “the refusal of the trial court to admit at the
penalty phase circumstantial evidence from which it might be inferred that [the
capital habeas petitioner’s] co-defendant . . . and a third party . . . rather than Mak,
may have planned the massacre” and because “[d]efense counsel failed to present
any mitigating evidence regarding Mak’s background.”19 The Court found the
errors prejudicial even though Mak had been convicted of killing 13 people. Id. at
616. The case against Cudjo was weaker at guilt and less aggravating at penalty
than the evidence against Mak.

19

The Court also considered the impact of a faulty jury instruction. Mak,
970 F.2d at 625.
122

CONCLUSION
For the foregoing reasons, and the reasons set forth in the petition,
Petitioner respectfully requests that this Court reverse this judgment of the district
court and grant his petition for a writ of habeas corpus.
Respectfully submitted,
SEAN K. KENNEDY
Federal Public Defender

DATED: November 20, 2009

By
/S/
JOHN L. LITTRELL
Deputy Federal Public Defender

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STATEMENT OF RELATED CASES
Counsel for appellant certifies that he is unaware of any pending case
presenting an issue related to those raised in this brief.

/S/ John L. Littrell
John L. Littrell

DATED: November 20, 2009

124

CERTIFICATE OF COMPLIANCE
Pursuant to Fed. R. App. 32(a)(7)(C) and Circuit Rule 32-1, I certify that
this brief is proportionally spaced, has a typeface of 14 points or more, and
contains 27, 259 words.

/S/ John L. Littrell
John L. Littrell

DATED: November 20, 2009

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CERTIFICATE OF SERVICE
I hereby certify that on November 20, 2009, I electronically filed the
foregoing with the Clerk of the Court for the United States Court of Appeals for
the Ninth Circuit by using the appellate CM/ECF system.
Participants in the case who are registered CM/ECF users will be served by
the appellate CM/ECF system.
I further certify that some of the participants in the case are not registered
CM/ECF users. I have mailed the foregoing document by First-Class Mail,
postage prepared, or have dispatched it to a third party commercial carrier for
delivery within 3 calendar days to the following non-CM/ECF participants:

Diana Elliott
Diana Elliott

126