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

Filing 31

Submitted (ECF) Answering brief for review. Submitted by Appellee Robert L. Ayers, Jr.. Date of service: 06/24/2010. [7383620] (JWB)

08-99028
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

ARMENIA LEVI CUDJO, JR.,
Petitioner-Appellant,

CAPITAL CASE

v.
ROBERT AYERS, JR.,
Respondent-Appellee.
On Appeal from the United States District Court
for the Central District of California
No. CV 99-08089-JFW
The Honorable John F. Walter, Judge
APPELLEE’S BRIEF
EDMUND G. BROWN JR.
Attorney General of California
DANE R. GILLETTE
Chief Assistant Attorney General
PAMELA C. HAMANAKA
Senior Assistant Attorney General
KEITH H. BORJON
Supervising Deputy Attorney General
JAMES WILLIAM BILDERBACK II
Supervising Deputy Attorney General
State Bar No. 161306
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Attorneys for Respondent-Appellee

TABLE OF CONTENTS
Page
Statement of the Case .................................................................................... 1
Statement of Facts .......................................................................................... 4
Summary of Argument ................................................................................ 16
Argument ..................................................................................................... 17
I.

Standard of review .................................................................. 17

II.

The California Supreme Court reasonably rejected
Petitioner’s claim that lethal injection violates the Eighth
Amendment ............................................................................. 20

III.

This Court should decline to indulge Petitioner’s wish to
greatly expand the certificate of appealability ........................ 24

Conclusion ................................................................................................... 26
Statement of Related Cases.......................................................................... 27

i

TABLE OF AUTHORITIES
Page
CASES
Baze v. Rees
553 U.S. 35 (2008)............................................................................. 21
Bell v. Cone
535 U.S. 685 (2002)..................................................................... 18, 19
Brown v. Ornoski
503 F.3d 1006 (9th Cir. 2007) ..................................................... 21, 23
Carey v. Musladin
549 U.S. 70 (2006)............................................................................. 19
Clark v. Murphy
331 F.3d 1062 (9th Cir. 2003) ............................................... 18, 19, 20
Cudjo v. California
513 U.S. 850 (1994)............................................................................. 1
Early v. Packer
537 U.S. 3 (2002)............................................................................... 19
Hernandez v. Small
282 F.3d 1132 (9th Cir. 2002) ..................................................... 19, 20
Hill v. McDonough
547 U.S. 573 (2006)........................................................................... 23
In re Cudjo
977 P.2d 66 (Cal. 1999) ........................................................... 2, 13, 16
Lockyer v. Andrade
538 U.S. 63 (2003)................................................................. 18, 19, 20

ii

TABLE OF AUTHORITIES
(continued)
Page
Miller-el v. Cockrell
537 U.S. 322 (2003)........................................................................... 17
Morales v. Tilton
465 F. Supp. 2d 972 ........................................................................... 21
People v. Cudjo
863 P.2d 635 (Cal. 1993) ............................................................... 1, 11
Price v. Vincent
538 U.S. 634 (2003)........................................................................... 17
Williams v. Taylor
529 U.S. 362 (2000)............................................................... 18, 19, 20
Wright v. Van Patten
552 U.S. 120 (2008)........................................................................... 19
STATUTES
28 U.S.C. § 2241 et seq. ......................................................................... 23
28 U.S.C. § 2254 ..................................................................................... 22
28 U.S.C. § 2254(d) ................................................................................ 17
28 U.S.C. § 2254(d)(1) ............................................................... 18, 22, 23
28 U.S.C. § 2254(e)(1)............................................................................ 16
42 U.S.C. § 1983 ..................................................................................... 23
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)passim
CONSTITUTIONAL PROVISIONS
U.S. Const., Amend. VIII ........................................................... 16, 17, 20

iii

TABLE OF AUTHORITIES
(continued)
Page
COURT RULES
9th Cir. R. 22-1 ....................................................................................... 24
9th Cir. R. 22-1(e) ............................................................................. 24, 25
9th Cir. R. 22-1(f) ................................................................................... 24
9th Cir. R. 32-4 ....................................................................................... 24

iv

STATEMENT OF THE CASE
Petitioner-Appellant Armenia Levi Cudjo (Petitioner) was found
guilty by a Los Angeles County jury of the special-circumstance murder of
Amelia Prokuda, and was sentenced to death. On December 13, 1993, the
California Supreme Court affirmed Petitioner’s conviction and sentence.
People v. Cudjo, 863 P.2d 635 (Cal. 1993). (ER 217-257.) The United
States Supreme Court denied certiorari on October 3, 1994. Cudjo v.
California, 513 U.S. 850 (1994).
Petitioner filed a petition for writ of habeas corpus in the California
Supreme Court on November 10, 1992 in case number S029707. (SER 1235.) An Order to Show Cause was issued by the California Supreme Court
on October 27, 1993. (SER 236.) In a reference order issued on August 17,
1994 the California Supreme Court presented the following questions to Los
Angeles County Superior Court Judge Paul G. Flynn:
1. What actions did petitioner’s trial attorney William
Clark take to investigate the potential culpability of Ubaldo
Prokuda for the murder of Amelia Prokuda? What were the
results of that investigation? Was that investigation conducted
in a manner to be expected of a reasonably competent attorney
acting as a diligent advocate? If not, in what respects was it
inadequate?
2. If trial counsel’s investigation was inadequate, what
additional information would an adequate investigation have
disclosed?
1

3. After conducting an adequate investigation of Ubaldo
Prokuda’s potential culpability, would a reasonably competent
attorney acting as a diligent advocate have introduced evidence
of his culpability in petitioner’s defense at the guilt phase of the
trial? If so, what rebuttal evidence would have been reasonably
available to the prosecution?
(SER 237-38.) The referee’s report was filed on May 7, 1997. (SER 23976.) On June 7, 1999, the California Supreme Court denied the petition for
writ of habeas corpus. In re Cudjo, 977 P.2d 66 (Cal. 1999). (ER 198-216.)
Petitioner filed a second petition for writ of habeas corpus in the
California Supreme Court on July 25, 2000 in case number S090162. (SER
277-983.)
On July 28, 2000, during the pendency of his second state petition,
Petitioner filed the underlying Petition for Writ of Habeas Corpus in this
Court. The claims in the Petition are enumerated 1-39. Pet. at 29-437.
On November 25, 2003 Petitioner’s second state petition was denied
on the merits. (ER 197.)
On October 13, 2004, during the pendency of his federal petition,
Petitioner filed a third state petition for writ of habeas corpus, in case
number S128474. (SER 984-98.)

2

On June 25, 2005, during the pendency of underlying federal petition
and his third state petition, Petitioner filed a fourth state petition for writ of
habeas corpus, in case number S134653. (SER 999-1025.)
The third state petition (case number S128474) was denied on the
merits on May 17, 2006. (ER 196.) The fourth state petition (case number
S134653) was denied on the merits on March 14, 2007. (ER 195.)
On March 17, 2008, the district court ordered an evidentiary hearing
as to claims 15(A)(6) and 20(B) of the Petition. (SER 1026-55.) Following
the evidentiary hearing, the district court denied Petitioner relief in a
judgment and an order dated October 23, 2008. (ER 1-194.) In its order
denying relief, the district court granted Petitioner a certificate of
appealability as to claim 38 (ER 191), but denied a certificate of
appealability as to the remaining claims (ER 194).
Petitioner filed a notice of appeal on November 18, 2008 (ER 26061), then another on November 19, 2008 (ER 258-59). Petitioner filed his
Appellant’s Opening Brief (AOB) on November 20, 2009. In it, he
addresses the certified issue claim 38 (AOB at 34-41), as well as several
uncertified issues (AOB at 41-122).

3

STATEMENT OF FACTS
Based upon the evidence adduced at the trial, the California Supreme
Court found the following facts:
A. Guilt Phase
1. Prosecution evidence
On March 21, 1986, Los Angeles County sheriff’s deputies
found the body of Amelia P. in the master bedroom of her home
in the desert community of Littlerock, in the County of Los
Angeles. The body was face down on the floor, with the hands
tied together behind the victim’s back, the ankles tied together,
and the hands tied to the ankles. These bindings were made
with neckties belonging to the victim’s husband, Ubaldo P. A
piece of cloth was found in the victim’s mouth, secured by a
necktie tied around the victim’s head and upper neck.
The body was clothed only in a robe. On the floor near the
body were the victim’s underwear, socks, and running shoes, as
well as a bloodstained hammer and the broken tip of a fireplace
poker. The cause of death was multiple blows to the back and
sides of the head, fracturing the skull and lacerating the brain.
Semen was present on the victim’s right inner thigh and genital
area, but there were no indications of traumatic sexual assault.
Based on the temperature of the liver when the body was found,
death was estimated to have occurred between 8:10 a.m. and
12:30 p.m. that day. The victim’s blood tested negative for
alcohol and an array of illegal drugs, including cocaine.
Kevin P., the youngest of the victim’s sons, was five years old
on the day of his mother’s death, and seven years old when he
testified at trial. According to that testimony, a Black man
Kevin had never seen before entered the house with a knife in
his hand. The man had no facial hair and no tattoos on his
arms. It was before lunch, and Kevin was under a table in the
living room watching television. The man, who was wearing a
sleeveless blue top and dark blue cut-off pants, put the knife to
4

the victim’s neck and demanded money. As Kevin described it,
the knife was black with a “little round silver ball around it, and
it was a survival knife.” At the man’s direction, Kevin
retrieved the keys to the family van from the kitchen and gave
them to the man. The man tried to start the van but was unable
to do so. The man then took the victim to the master bedroom,
where the man tied up the victim. From the closet in the master
bedroom, the man removed two guns belonging to Kevin’s
father. Kevin went into his own bedroom and stayed there for a
long time. Some days later, Kevin attended a lineup but did not
identify anyone.
Ubaldo P. testified that he had left the house that morning
between midnight and 1 a.m. to go to work 77 miles away in
the City of Commerce. When he returned at 5 p.m., the
sheriff’s deputies were already there. Missing from the house
were an M-1 carbine, a 30.06 rifle, and an army duffel bag.
The victim’s jewelry case, usually kept in the bedroom, was in
the family van. The hammer found on the bedroom floor was
normally kept in a toolbox in the garage. The fireplace poker
was in its usual place, but there were bloodstains on the shaft
and the tip had been broken off. The victim was very neat and
normally did not leave her clothing on the floor. He had no
reason to suspect that she was abusing drugs or alcohol.
Investigating officers found the keys to the van outside the
victim’s house, about 30 feet from the rear garage door.
Nearby, the officers found a single set of shoe prints leading
away from the house. It had rained the previous day, making a
crusty surface. The officers followed the tracks for about a
third of a mile, at intervals observing marks consistent with an
object such as a rifle dragging on the ground. The tracks led to
a camper, from which the victim’s house was easily visible.1
1

[Footnote 1 in original] The tracks mentioned in the text were not
the only ones found in the area. A thorough examination by investigating
officers disclosed tracks made by the same or virtually identical shoes on
roads to the east and west of the victim’s house and Cudjo camper. (The
(continued…)
5

The officers ordered the occupants to leave the camper.
Defendant and his brother Gregory emerged from the camper
and were taken into custody.
Inside the camper, the officers found a pair of MacGregor
athletic shoes that could have made the shoe prints. The
officers found an identical pair of athletic shoes behind the front
seat of an automobile belonging to defendant’s mother, Maxine
Cudjo. Unlike the shoes found in the camper, the shoes found
in the automobile were “very wet.”
In addition to the shoes, the officers found a black survival
knife and a pair of cut-off blue jeans in the Cudjo camper.
When shown these articles at trial, Kevin testified that the knife
was different from the knife wielded by the man who had
assaulted his mother, and that the cut-off pants the assailant had
worn were similar to, but shorter than, the ones found in the
Cudjo camper. No firearms were found in the camper or in
Maxine Cudjo’s automobile.
Maxine Cudjo testified that on the day of the murder she was
living in the camper. Defendant and Gregory had slept in the
camper the previous night, as they occasionally did. She spent
most of that morning in the house next door, doing housework
for the man who owned the land under the camper. Returning
to the camper at 11 a.m., she found defendant and Gregory,
both wearing their MacGregor athletic shoes. The three of them
went in Maxine’s car to the post office and then to the residence
of Julia Watson, one of Maxine Cudjo’s daughters. Maxine
returned to the camper; a little while later, at about 1:30 p.m.,
(…continued)
camper was north of the victim’s house, separated by an expanse of roadless
desert.) On the road to the west, there were two sets of tracks, both heading
south. On the road to the east, there were two sets of tracks, one heading
north and the other south. In addition, two sets of tracks led away from the
Cudjo camper, heading east, and a single set of tracks led to the victim’s
house from the house immediately to the west.
6

she departed again in her car to visit friends, leaving defendant
and Gregory in the camper. On her next return to the camper,
at approximately 4 p.m., sheriff’s deputies had taken her sons
into custody.
Julia Watson testified that her mother had visited her house that
day with defendant and Gregory at approximately 1 or 2 p.m.
Defendant was wearing cut-off jeans and work boots; Gregory
wore shorts and tennis shoes.
Gregory Cudjo did not testify at trial, but the prosecution
introduced evidence of the testimony he had given at
defendant’s preliminary hearing and statements he had made to
investigating officers during a tape-recorded interview the
morning of the day after the murder of Amelia P. In these prior
statements, Gregory maintained that he had remained in the
camper throughout the morning of the murder until his mother
returned at approximately 11 a.m. During this time, he
alternately slept and listened to a professional baseball game on
the radio. He said defendant was gone from the camper for
about two hours, leaving at about the time the baseball game
started and returning at the same time as Maxine. During the
taped interview, Gregory said that later that afternoon defendant
had washed off his MacGregor athletic shoes when they were at
Julia Watson’s house.
Analysis of semen found on the victim’s external genital area
and right inner thigh revealed that it could have come from
defendant but could not have come from Gregory Cudjo or
from Ubaldo P.2

2

[Footnote 2 in original] The information did not charge rape or the
rape-murder special circumstance, but the jury was instructed on first degree
felony murder in the course of rape. According to the prosecutor, the
evidence at the preliminary hearing was insufficient to support a charge of
rape, and therefore the information did not charge rape expressly. Only after
the preliminary hearing did the prosecution complete the laboratory work
(continued…)
7

2. Defense evidence
Defendant testified in his own behalf. He admitted that he
knew Amelia P., that he had been in her house on the morning
of her death, and that he had had sexual relations with her, but
he denied that he had killed her. He said he had seen Amelia P.
on three occasions before the day of her death.
Defendant explained that he and a woman named Iris Thomas
had worked together selling cocaine, and that he had derived
most of his income from this illicit trade. On two occasions, he
had seen Amelia P. purchase cocaine. One of these transactions
had occurred in the parking lot of an apartment complex in
Quartz Hill. The other transaction had occurred on March 4 or
5, 1986, at a house belonging to Thomas’s mother. According
to defendant, Amelia P. had announced at the door that she had
come “to see Miss Thomas about some coke.” Defendant had
invited Amelia inside. Amelia had asked Thomas’s mother to
“front her an eight track of cocaine.” (Defendant testified that
an “eight track” is one-eighth of an ounce.) After some
discussion of arrangements for payment, Thomas’s mother had
given cocaine to Amelia. On a later date, defendant had seen
Amelia P. at a market and they had waved to each other but had
not conversed.
On the morning of March 21, defendant was driving his
mother’s car to a friend’s house when he noticed Amelia P.
standing in the front yard of her residence. She was wearing a
housecoat or robe. It was about 9 a.m. When he blew the horn,
she came to the car and asked how he had been and if he knew
anybody who had any cocaine. Defendant said he had some.
She asked if she could have it on credit as a favor. He said that
it would depend on whether she would do him a favor. They
agreed to talk about it further.
(…continued)
excluding Gregory and the victim’s husband, but not defendant, as the
source of the semen found on the victim.
8

Defendant drove to the camper, retrieved some cocaine, and
returned to the victim’s residence. Amelia P. invited him into
the house. He sold her some cocaine on credit for $50.
(Sheriff’s officers did not find rock cocaine at the victim’s
residence, but they did find an empty “baggie” in the garage.
Just two and one-half inches square, the baggie was smaller
than the ones normally sold in supermarkets; it was a
convenient size for $50 worth of rock cocaine. The officers did
not take possession of the baggie.)
Defendant smoked some cocaine, then asked Amelia P. when
she could pay him. After further conversation, Amelia agreed
to have sex with defendant in lieu of cash payment. They
engaged in sexual intercourse on the living room couch;
defendant left five minutes later. Defendant did not see anyone
else in the house. He went back to the camper and told Gregory
he had had sex with Amelia P. in exchange for cocaine.
Defendant then went jogging. He did not wear the MacGregor
shoes, which had cleats, but athletic shoes with smooth soles.
When he returned to the camper, Gregory was there and their
mother arrived about five minutes later.
Defendant changed to work boots. Gregory and defendant went
with their mother to the post office, and then to Julia Watson’s
house. Defendant sat in the front passenger seat of his mother’s
automobile during this excursion.
At that time, defendant had tattoos on both biceps, on his right
shoulder, and on his lower left arm. Defendant denied owning
the cut-offs found in the camper and denied knowing to whom
they belonged to, although he admitted he had seen them in the
camper. Defendant admitted owning the survival knife found
in the camper. Gregory is two years younger than defendant
and had no facial hair on the day of the murder. (Apparently, a
photograph in evidence, taken on the day of the murder after
defendant’s arrest, showed that defendant had a goatee and/or a
mustache.)
To establish Gregory’s knowledge of the details of the murder,
the defense introduced the complete tape recordings of
9

Gregory’s two interviews with investigating officers. During
these interviews, Gregory said that when defendant saw the
officers following the tracks to the camper, he admitted to
Gregory that it appeared the officers were following his (i.e.,
defendant’s tracks.)
According to Gregory, defendant gave this description of what
he had done: Defendant had hidden and the woman had walked
up with a basket of clothes. The woman was wearing a
housecoat, which came open. Defendant rushed up, grabbed
her, put a knife to her throat, and said he wanted only money.
The woman had no money and no jewelry, but defendant took a
couple of shotguns, one of which looked like a rifle. The
woman started to make a lot of noise, so defendant put a sock in
her mouth. There was a little boy, and there was a boa
constrictor in an aquarium. (Kevin kept a pet snake in his
bedroom.) The little boy had shown defendant where to find
the keys to a van. Defendant had started the van but was unable
to drive it out of the garage because the garage door was
padlocked on the outside. Defendant had “hogtied” the woman
with some neckties that were in the closet “next to a . . . jacket
with all kinds of medals on it-something like a Ranger jacket or
something.” (Ubaldo P. testified he had been an Airborne
Ranger in the United States Army, and his green full-dress
uniform had been hanging in the closet.) Defendant became
“real nervous” because the woman had said her husband would
come home at noon and it was then 11:25 a.m. He had tied her
up to give himself enough time to get away. He did not rape
the woman. According to Gregory, defendant said nothing
about hitting the woman.
By stipulation, the defense established, first, that Kevin had told
investigating officers on the day of the murder that he had been
watching a certain television program when the intruder entered
his house; second, that this program had been broadcast that
day from 10:30 to 11:00 a.m.; and, third, that the professional
baseball game that was broadcast that morning began at 10:30
a.m.
10

An expert in drug dependency testified that it is frequently
impossible to determine from an individual’s appearance and
behavior whether that individual has been using cocaine. He
also testified that it is not uncommon for the spouse of a
cocaine addict to profess ignorance of the addict’s use of
cocaine. This may indicate genuine ignorance or the
psychological state of denial.
A defense investigator testified that he had driven the route that
defendant said in his testimony that he had jogged on the
morning of the murder and that the distance was three miles.
3. Rebuttal
On rebuttal, Deputy Sheriff Robert Flores testified that on
March 21, 1986, the time from the landing of the sheriff’s
helicopter at the victim’s residence to the officers’ arrival at the
Cudjo camper was at least one hour and thirty minutes.
B. Penalty Phase
The prosecution presented no evidence at the penalty phase.
The only defense evidence was the testimony of defendant.
Asked but a single question, defendant again denied killing
Amelia P. There was no cross-examination.
People v. Cudjo, 863 P.2d at 598-603.
Based upon the evidence adduced at the state-court reference hearing,
the California Supreme Court further found the following facts:
After being appointed to represent petitioner at trial, William
Clark received a packet of discovery materials from the
prosecution. This packet contained reports of two witness
statements suggesting the possibility that Ubaldo Prokuda had
murdered Amelia Prokuda.
At 8:00 p.m. on the day of the murder, a sheriff’s investigator
had interviewed Alander Wilson, a self-employed construction
contractor, who said he had been working on the residence
11

across the street from the one in which Amelia Prokuda was
murdered. He had returned from lunch around 1:30 p.m.;
thereafter, a boy he knew as Kevin approached him and “told
him that his daddy had just killed his mom” and that “his mom
had bought his daddy two new guns and that his daddy had put
them in the garage.”
Investigators also interviewed Lora Johnson, who lived near
Amelia Prokuda and described herself as a “close friend” of
Amelia Prokuda. According to the investigators’ report,
Johnson said that when she left her own residence “around
noon” she had “noticed that the victim’s husband’s car was in
the driveway of the location.” At that time, “the drapes in the
living room [of Amelia Prokuda’s house] were open, as were
the drapes in the back, allowing her to see through the house to
the rear yard,” but “she did not see any people moving about
the property.” Johnson told investigators that when she
returned home around 1:05 p.m., “she noticed that the car that
was previously in the driveway of the location was gone and the
drapes were closed.” Johnson said this was “unusual because
the victim never closed her drapes during the day.” She also
said, however, that there were “no obvious marital problems
involving the victim’s family.”
The packet of discovery materials also contained considerable
evidence casting doubt on the hypothesis that Ubaldo Prokuda
was the killer.
When interviewed by investigators at 2:25 a.m. on the day after
the murder, petitioner’s brother, Gregory, gave the statements
that the defense introduced in evidence at petitioner’s trial, in
which he recounted petitioner’s admissions that he had entered
Amelia Prokuda’s house, tied her with her husband’s neckties,
and taken two guns that he buried in the desert.
When interviewed by investigators, Kevin apparently said
nothing about his father having killed his mother. Instead, his
statement was generally consistent with the testimony he gave
at trial. He said his mother had been seized by a knife-wielding
intruder when she opened a door leading from the house to the
12

garage. The intruder demanded money. Kevin mentioned guns
to the investigators, saying that “they were normally kept in the
closet in the victim’s bedroom” and that “he had seen the guns
on the floor of the victim’s bedroom next to the victim.” Kevin
said he saw the intruder tie up his mother. The intruder then
sent Kevin to his room. “Later, when he came out of his room,
[Kevin] saw that his mother was still tied up and that she had
red stuff all over her head.”
Kevin told the investigators that he had been watching I Dream
of Jeannie on television when the intruder appeared. This
television show aired between 10:30 a.m. and 11:00 a.m. Based
on the victim’s liver temperature, the coroner’s investigator
estimated that she had died between 10:00 a.m. and 11:00 a.m.,
approximately. (See fn. 1, ante.)[3]
The packet of discovery materials also contained reports
describing how the sheriff’s investigators had found the shoe
tracks leading from Amelia Prokuda’s residence to the camper
where petitioner and Gregory were found and detained.

3

Clarifying the trial testimony that liver temperature evidence set the
time of death as between 8:10 a.m. and 12:30 p.m., footnote 1 the state
habeas opinion stated:
This estimate of the time of death differs
somewhat from the estimate given during the
initial investigation and contained in police reports
furnished to petitioner’s trial attorney, William
Clark. The initial estimate put the time of death
between 10:00 a.m. and 11:00 a.m. The two
estimates concur in fixing 10:30 a.m. as the most
likely time of death. The initial estimate, using a
one-hour time period, appears to identify the
probable time of death. The more cautious trial
estimate, using a period exceeding four hours,
appears to identify the possible time of death.
(977 P.2d at 70 n.1.)
13

Regarding Ubaldo Prokuda’s potential culpability for his wife’s
murder, the packet included a number of significant reports.
When interviewed by investigators at 10:45 p.m., Ubaldo
Prokuda said he had left his house for work around 1:40 a.m.
He left work around 11:00 a.m. On the way home, he stopped
at a bank in the City of Commerce or Bell Gardens, bought
gasoline and oil at a service station near the bank, and bought
stamps at a post office in Bell Gardens. Around noon he visited
a bar in Bell Gardens called Mary’s Place, where he had two
drinks and spoke with a barmaid known to him as “Buttons.”
He then stopped at a nursery to discuss trees and plants for his
yard. His final stop was at the Sandpiper Bar where he had one
more drink and spoke with a barmaid named Bobbie. He
arrived home around 3:30 p.m. to find the police already there.
He denied killing his wife and affirmed that he owned two rifles
that were normally kept in the master bedroom closet but were
then missing.
Other reports documented sheriff’s investigators’ efforts to
verify Ubaldo Prokuda’s statements. Ubaldo Prokuda’s
supervisor told an investigator that Ubaldo had “clocked out at
1048 hours.” Nancy Austen, who worked with Ubaldo
Prokuda, said she had spoken to him at the office around 11
a.m. She also said that the employee parking lot was 10
minutes from the office. At a bar called Marie’s in Bell
Gardens, Neva Marvich said Ubaldo Prokuda had been there
between 11:00 a.m. and 1:00 p.m. and had consumed two
drinks and “played some pool.”
The discovery materials also included a report of a jail incident
on March 26, 1986, five days after the murder. While a jailer,
Deputy Merritt, was in the process of sending prisoners to a
holding cell to go to court, a prisoner named Lewis complained
about being in jail for a crime he had not committed. In
response, “suspect Cudjo” said “I’m in here for murder, and I
did it.” To determine the identity of “suspect Cudjo,”
petitioner’s trial counsel, William Clark, questioned Deputy
Merritt about this incident, but Merritt was unsure whether
petitioner or Gregory had made the statement.
14

To determine whether Ubaldo Prokuda could have killed
Amelia Prokuda, a licensed private investigator and former
deputy sheriff, acting at Clark’s direction, “made timed car trips
between [Ubaldo Prokuda’s place of employment and the
residence where Amelia Prokuda was murdered] and he
concluded that [Ubaldo Prokuda] could not have been present at
his residence until nearly three or more hours after the time the
Coroner’s Office indicated the murder had occurred.”
In a declaration, Clark explained that when he first interviewed
petitioner, petitioner “denied any contact with murder victim
[Amelia Prokuda] and denied ever having been at her residence
for any reason.” Petitioner told Clark that Gregory “must have
committed the murder.” Petitioner did not alter these
statements until “the eve of trial,” after test results had revealed
that semen found on Amelia Prokuda could have come from
petitioner but not from either Gregory or Ubaldo Prokuda.
Petitioner then admitted having intercourse with Amelia
Prokuda, giving Clark an account consistent with petitioner’s
trial testimony.
Clark decided not to attempt at trial to establish that Ubaldo
Prokuda had murdered Amelia Prokuda because, in Clark’s
words, “there was no credible evidence that [Ubaldo Prokuda]
could have been present at the time of the murder,” and because
“a theory that [Ubaldo Prokuda] had killed his wife would have
detracted from the defense which was presented at the trial.”
Clark declared that he had wanted to interview Alander Wilson
but had been unable to locate him, despite searching in DMV
(Department of Motor Vehicles) and CII (Bureau of Criminal
Investigation and Identification) records and by informal
inquiries.
Edward Rucker, an attorney in private practice and a former
deputy public defender, testified as an expert witness for the
defense. He had represented 25 to 30 defendants who had faced
capital charges at some stage of the proceedings, and had
represented 7 or 8 defendants at jury trials in which the
prosecution was seeking the death penalty. He had reviewed
15

the trial file of petitioner’s trial attorney, William Clark, the
transcripts of petitioner’s trial, and the stipulations entered at
the reference hearing. Based on this review, he testified to
these opinions: Clark’s investigation of the potential
culpability of Ubaldo Prokuda was inadequate because a
reasonably competent attorney acting as a diligent advocate
would have interviewed Alander Wilson and Amelia Prokuda’s
neighbors, at least attempted to interview Kevin, and promptly
and thoroughly investigated Ubaldo Prokuda’s alibi; an
adequate investigation would have yielded evidence supportive
of the defense that Ubaldo Prokuda was the killer; and a
reasonably competent attorney would have presented that
evidence and argued that defense at petitioner’s trial.
In re Cudjo, 977 P.2d at 72-74. The facts found by the California Supreme
Court, both in the context of the appeal and in the context of the postconviction collateral review, are supported by substantial evidence, and are
therefore presumptively correct. 28 U.S.C. § 2254(e)(1).
SUMMARY OF ARGUMENT
Petitioner has been granted a Certificate of Appealability (COA) as to
Claim 38 from the Petition. That claim alleges that the use of lethal
injection as a method of execution constitutes cruel and unusual punishment
under the Eighth Amendment. (Pet. at 421-29.) This claim fails. This
Court has already considered and rejected this claim in another case; in any
event, no United States Supreme Court case has ever invalidated any state’s
method of execution under the Eighth Amendment. Further the United
States Supreme Court has recently approved a method that is substantially
16

similar to California’s. Accordingly, Petitioner has not met and cannot meet
his burden of demonstrating that the California Supreme Court decision
rejecting his Eighth Amendment claim was contrary to or involved the
unreasonable application of clearly established Federal law as determined by
the Supreme Court of the United States.
As to the claims not contained in the COA, Respondent
declines to address them until directed to do so by this Court. Further,
Respondent urges this Court to reject Petitioner’s excessive request to
greatly expand the scope of this appeal.
ARGUMENT
I.

STANDARD OF REVIEW
On habeas corpus, this Court must defer to the California Supreme

Court’s decisions denying Petitioner relief. The Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”) bars federal habeas corpus relief on
a claim adjudicated by the state court unless the adjudication was either (1)
“contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States,” or
(2) “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);
Price v. Vincent, 538 U.S. 634, 638-39 (2003); Miller-el v. Cockrell, 537
17

U.S. 322, 337 (2003) (“Statutes such as AEDPA have placed more, rather
than fewer, restrictions on the power of federal courts to grant writs of
habeas corpus to state prisoners.”).
A state court decision is “contrary to” federal law if it either “applies a
rule that contradicts the governing law” as set forth in Supreme Court
opinions, or reaches a different decision from a Supreme Court opinion
when confronted with materially indistinguishable facts. Williams v. Taylor,
529 U.S. 362, 405-06 (2000); accord Bell v. Cone, 535 U.S. 685, 694 (2002);
Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003). A state court makes
an “unreasonable application” of federal law if it identifies the correct
governing legal principle from the Supreme Court’s decisions but
unreasonably applies that principle to the facts of the prisoner’s case.
Williams v. Taylor, 529 U.S. at 413; Bell v. Cone, 535 U.S. at 694; accord
Lockyer v. Andrade, 538 U.S. 63, 71 (2003) (“AEDPA does not require a
federal habeas court to adopt any one methodology in deciding the only
question that matters under § 2254(d)(1) -- whether a state court decision is
contrary to, or involved an unreasonable application of, clearly established
Federal law”). Habeas corpus relief is not available simply because a federal
court independently concludes “that the relevant state-court decision applied
clearly established federal law erroneously or incorrectly. Rather, that
18

application must also be unreasonable.” Williams v. Taylor, 529 U.S. at 411;
accord Lockyer v. Andrade, 538 U.S. at 75-76; Early v. Packer, 537 U.S. 3,
11 (2002); Bell v. Cone, 535 U.S. at 694; Hernandez v. Small, 282 F.3d
1132, 1140 (9th Cir. 2002). Moreover, decisions of the Supreme Court are
the only ones that can form the basis justifying habeas relief; lower federal
courts cannot establish such a principle to satisfy the AEDPA bar. Clark v.
Murphy, 331 F.3d at 1069; Hernandez v. Small, 282 F.3d at 1140 (any
principle on which a petitioner seeks to rely must be found in the holdings,
as opposed to dicta, of the Supreme Court decisions).
Further, a state court’s failure to cite any federal law in its opinion
does not run afoul of AEDPA. In fact, a state court need not even be aware
of applicable Supreme Court precedent “so long as neither the reasoning nor
the result of the state-court decision contradicts them.” Early v. Packer, 537
U.S. at 8.
If there is no Supreme Court precedent that controls a legal issue
raised by a petitioner in state court, the state court’s decision cannot be
contrary to, or an unreasonable application of, clearly established federal
law. See Wright v. Van Patten, 552 U.S. 120, 126 (2008); Carey v.
Musladin, 549 U.S. 70, 77 (2006). Decisions of the Supreme Court are the
only ones that can form the basis justifying habeas relief; lower federal
19

courts cannot themselves establish such a principle to satisfy the AEDPA
bar. Clark v. Murphy, 331 F.3d at 1069; Hernandez v. Small, 282 F.3d
1132, 1140 (9th Cir. 2002) (any principle on which a petitioner seeks to rely
must be found in the holdings, as opposed to dicta, of the Supreme Court
decisions). Under AEDPA, “clearly established federal law” 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. at
71; see also Williams v. Taylor, 529 U.S. at 412.
II.

THE CALIFORNIA SUPREME COURT REASONABLY
REJECTED PETITIONER’S CLAIM THAT LETHAL
INJECTION VIOLATES THE EIGHTH AMENDMENT
In claim 38 of the Petition, Petitioner alleged that lethal injection

generally, and California’s lethal injection procedures specifically, violate
the Eight Amendment ban on cruel and unusual punishment. (Pet. at 42129.) This claim fails.
Petitioner presented essentially the same Eighth Amendment claim to
the California Supreme Court. (SER 956-67.) The California Supreme
Court reasonably rejected the claim.

20

This Court has already considered and rejected a substantially
identical claim. In Brown v. Ornoski, 503 F.3d 1006, 1016-17 (9th Cir.
2007), this Court held,
There is no Supreme Court precedent holding lethal injection to
be unconstitutional, and there certainly was none in existence at
the time of the California Supreme Court’s denial of Brown’s
claim in 1999. Because on this record Brown cannot
demonstrate that the California Supreme Court’s denial was an
objectively unreasonable application of clearly established
Supreme Court precedent, we affirm the district court’s denial
of the writ on this claim.
Subsequently, the United States Supreme Court confirmed the central
point informing this Court’s decision in Brown, holding, albeit even more
broadly: “This Court has never invalidated a State’s chosen procedure for
carrying out a sentence of death as the infliction of cruel and unusual
punishment.” Baze v. Rees, 553 U.S. 35, 48-49 (2008), see id. at 62
(“Throughout our history, whenever a method of execution has been
challenged in this Court as cruel and unusual, the Court has rejected the
challenge.”) Further, the Kentucky protocol considered by the Supreme
Court in Baze uses the same three drugs that California uses. Id. at 45, 5261 (the Kentucky protocol begins with the administration of sodium
thiopental, followed by pancuronium bromide and potassium chloride); see
Morales v. Tilton, 465 F. Supp. 2d 972, 975 (the California protocol, “like
21

those used by the federal government and most other states,” begins with the
administration of sodium thiopental, followed by pancuronium bromide and
potassium chloride).
Petitioner provides no reasoned basis for the necessary conclusion
under 28 U.S.C. § 2254(d)(1) that the California Supreme Court’s rejection
of his claim was based upon the unreasonable application of, or was
somehow contrary to, some United States Supreme Court case. Indeed, as
demonstrated, the opposite is true: the California Supreme Court’s decision
is completely consistent with, and would be compelled by, now-extant
United States Supreme Court authority.
Petitioner argues that because “neither Ninth Circuit nor Supreme
Court precedent forecloses relief on [Petitioner’s] claim,” federal collateral
relief under 28 U.S.C. § 2254 should be available. (AOB 37-38.) This
position fundamentally misapprehends the nature of federal collateral review
in the wake of the AEDPA amendments to federal habeas corpus law. Under
28 U.S.C. § 2254(d)(1), federal collateral relief is available if, and only if,
Petitioner can point to a United States Supreme Court case that was both 1)
in existence at the time the California Supreme Court was asked to rule on
the claim and 2) compels relief. Thus, contrary to Petitioner’s position, the
rule is that unless it is the denial of relief that is foreclosed by United States
22

Supreme Court precedent, relief must be denied. In any event, as
demonstrated above, here denial of relief is not only “not foreclosed” by
relevant authority, it is compelled.
Finally, Petitioner suggests that this Court should remand the matter
for further consideration because the California death penalty protocol is
currently being revised. (AOB 41.) This request is apparently premised on
the same mistaken belief about the ambit of federal collateral review as his
underlying argument. The threshold inquiry under AEDPA is the
reasonableness of the state court decision. 28 U.S.C. § 2254(d)(1). This
Court’s authority compels the conclusion that the state court decision was
reasonable in light of the facts alleged to the California Supreme Court and
the law in place at the time the California Supreme Court ruled. Nothing
that happened since the California Supreme Court ruled, or that might
happen in the future, can alter the reasonableness of the state court decision.4

4

To the extent that Petitioner did not intend the instant claim to be a
collateral attack on his conviction and sentence, but rather intended it to be
an as-applied challenge to California’s death penalty protocol, such a
challenge should be brought in an action arising under 42 U.S.C. § 1983,
rather than in the instant habeas corpus action arising under 28 U.S.C. §
2241 et seq. See Brown v. Ornoski, 503 F.3d at 1017 n.5, citing Hill v.
McDonough, 547 U.S. 573 (2006).
23

Accordingly, the district court properly rejected Petitioner’s request for
federal collateral relief as to this claim.
III. THIS COURT SHOULD DECLINE TO INDULGE
PETITIONER’S WISH TO GREATLY EXPAND THE
CERTIFICATE OF APPEALABILITY
Petitioner asks this court to expand the COA to include several claims
that were not certified by the district court. (AOB 41-122.) Petitioner’s
request is excessive, and should be denied. In any event, pursuant to Circuit
Rule 22-1(f), Respondent declines to address any uncertified issue unless
and until this court first concludes that an appeal of that issue is appropriate.
Although Ninth Circuit Rule 22-1(e) sets forth a protocol for briefing
uncertified issues in capital federal habeas corpus appeals, the Circuit
Advisory Committee Note to Rule 22-1 begins, “The court strongly
encourages petitioner to brief only certified issues.” Further, Rule 22-1(e)
concludes by warning, “Except, in the extraordinary case, the court will not
extend the length of the brief to accommodate uncertified issues.”
Here, although Petitioner received permission from this Court to file a
brief that was in excess of the 21,000-word length limit set by Ninth Circuit
Rule 32-4, conspicuously absent from Petitioner’s request to exceed the
word limit was any presentation of the principal reason why Petitioner found
it necessary to exceed it: to present uncertified issues to this Court. As
24

filed, the Appellant’s Opening Brief in this case is 123 pages long. Of the
89 pages of argument in the brief, less than ten percent--under 8 pages-discusses material within the COA. The other ninety-plus percent of the
argument section is devoted to uncertified issues.
Respondent urges this Court to hew to the letter and the spirit of
Circuit Rule 22-1(e), and the sound advice of the Advisory Committee Note,
and decline to permit Petitioner to expand his appeal tenfold to include
multiple uncertified issues.

25

CONCLUSION
Petitioner’s claim for relief under the Eighth Amendment fails.
Petitioner’s request to expand this appeal is excessive, and should be denied.
The judgment of the district court should be affirmed.
Dated: June 24, 2010

Respectfully submitted,
EDMUND G. BROWN JR.
Attorney General of California
DANE R. GILLETTE
Chief Assistant Attorney General
PAMELA C. HAMANAKA
Senior Assistant Attorney General
KEITH H. BORJON
Supervising Deputy Attorney General
S/ JAMES WILLIAM BILDERBACK II
JAMES WILLIAM BILDERBACK II

Supervising Deputy Attorney General
Attorneys for Respondent-Appellee
LA2008504207
50663747.doc

26

08-99028
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

ARMENIA LEVI CUDJO, JR.,
Petitioner-Appellant,
v.
ROBERT AYERS, JR.,
Respondent-Appellee.
STATEMENT OF RELATED CASES
To the best of our knowledge, there are no related cases.
Dated: June 24, 2010

Respectfully Submitted,
EDMUND G. BROWN JR.
Attorney General of California
DANE R. GILLETTE
Chief Assistant Attorney General
PAMELA C. HAMANAKA
Senior Assistant Attorney General
KEITH H. BORJON
Supervising Deputy Attorney General
S/ JAMES WILLIAM BILDERBACK II
JAMES WILLIAM BILDERBACK II

Supervising Deputy Attorney General
Attorneys for Respondent-Appellee

27

CERTIFICATE OF COMPLIANCE
PURSUANT TO FED.R.APP.P 32(a)(7)(C) AND CIRCUIT RULE 32-1
FOR 08-99028
I certify that: (check (x) appropriate option(s))
1. Pursuant to Fed.R.App.P. 32(a)(7)(C) and Ninth Circuit Rule 32-1, the attached
opening/answering/reply/cross-appeal brief is
Proportionately spaced, has a typeface of 14 points or more and contains ______________
words (opening, answering and the second and third briefs filed in cross-appeals must not
exceed 14,000 words; reply briefs must not exceed 7,000 words
or is
Monospaced, has 10.5 or fewer characters per inch and contains ____ words or ___ lines of
text (opening, answering, and the second and third briefs filed in cross-appeals must not exceed
14,000 words or 1,300 lines of text; reply briefs must not exceed 7,000 words or 650 lines of
text).
2. The attached brief is not subject to the type-volume limitations of Fed.R.App.P. 32(a(7)(B)
because
This brief complies with Fed.R.App.P 32(a)(1)-(7) and is a principal brief of no more than 30
pages or a reply brief of no more than 15 pages.
or
This brief complies with a page or size-volume limitation established by separate court order
dated ______________ and is
Proportionately spaced, has a typeface of 14 points or more and contains ______________
words,
or is
Monospaced, has 10.5 or fewer characters per inch and contains __ pages or __ words or __
lines of text.

X

3. Briefs in Capital Cases.
This Appellee’s Brief is being filed in a capital case pursuant to the type-volume limitations set forth
at Circuit Rule 32-4 and is

X

Proportionately spaced, has a typeface of 14 points or more and contains 6,761 words (opening,
answering and the second and third briefs filed in cross-appeals must not exceed 21,000 words;
reply briefs must not exceed 9,800 words).

or is
Monospaced, has 10.5 or fewer characters per inch and contains __ words or __ lines of text
(opening, answering, and the second and third briefs filed in cross-appeals must not exceed 75
pages or 1,950 lines of text; reply briefs must not exceed 35 pages or 910 lines of text).

4. Amicus Briefs.
Pursuant to Fed.R.App.P 29(d) and 9th Cir.R. 32-1, the attached amicus brief is proportionally
spaced, has a typeface of 14 points or more and contains 7,000 words or less,
or is
Monospaced, has 10.5 or few characters per inch and contains not more than either 7,000
words or 650 lines of text,
or is
Not subject to the type-volume limitations because it is an amicus brief of no more than 15
pages and complies with Fed.R.App.P. 32 (a)(1)(5).

June 24, 2010
Dated

s/ James William Bilderback II
James William Bilderback II
Supervising Deputy Attorney General

CERTIFICATE OF SERVICE
Case Name:

ARMENIA LEVI CUDJO, JR.
v. ROBERT AYERS, JR.

No.

08-99028

I hereby certify that on June 24, 2010, I electronically filed the following documents with the
Clerk of the Court by using the CM/ECF system:
APPELLEE’S BRIEF
I certify that all participants in the case are registered CM/ECF users and that service will be
accomplished by the CM/ECF system.
I declare under penalty of perjury under the laws of the State of California the foregoing is true
and correct and that this declaration was executed on June 24, 2010, at Los Angeles, California.

Bernard M. Santos
Declarant
60516085.doc

s/ Bernard M. Santos
Signature