Armenia Cudjo, Jr. v. Robert Ayers, Jr.
Filing
60
Submitted (ECF) Answering brief for review. Submitted by Appellee Robert L. Ayers. Date of service: 01/06/2012. [8022723] (JWB)
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.
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
SUPPLEMENTAL APPELLEE’S BRIEF
KAMALA D. HARRIS
Attorney General of California
LANCE E. WINTERS
Senior Assistant Attorney General
A. SCOTT HAYWARD
Deputy 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: (213) 897-2049
Fax: (213) 897-6496
Email: DocketingLAAWT@doj.ca.gov
Attorneys for Respondent
TABLE OF CONTENTS
Page
Preliminary Statement ..................................................................................1
I.
The effect of Pinholster ...........................................................1
II.
Standard of review ...................................................................4
Argument .....................................................................................................7
I.
Certification must be denied because the California
Supreme Court reasonably rejected Petitioner’s claim
that his constitutional rights were violated by the
exclusion of John Culver’s testimony about Gregory
Cudjo’s inculpatory statement (AOB Claim V)........................7
A.
The denial of relief in state court....................................8
1.
Direct appeal ........................................................ 8
2.
State habeas corpus ............................................ 13
B.
District Court denial of relief ....................................... 14
C.
The California Supreme Court reasonably denied
this claim ..................................................................... 16
1.
2.
D.
II.
The applicable law ............................................. 16
The California Supreme Court reasonably
applied Supreme Court authority in
determining that the constitution was not
implicated in the state trial court’s exclusion
of Culver’s testimony ......................................... 21
Petitioner was not prejudiced by the exclusion of
Culver’s testimony ....................................................... 23
Certification must be denied because the California
Supreme Court reasonably rejected Petitioner’s claim
that the prosecutor committed prejudicial misconduct by
referencing Petitioner’s race in closing argument as brief,
isolated and non-prejudicial (AOB Claim VII)....................... 27
A.
State court proceedings ................................................ 27
i
TABLE OF CONTENTS
(continued)
Page
III.
Certification must be denied because the California
Supreme Court reasonably rejected Petitioner’s claim
that trial counsel was ineffective in failing to investigate
and present evidence of Gregory Cudjo’s purported
second jailhouse admission of guilt (AOB Claim VIII) .......... 31
A.
Governing legal principles ........................................... 31
B.
The California Supreme Court reasonably rejected
this claim of error......................................................... 34
1.
The California Supreme Court reasonably
concluded that trial counsel was not
ineffective under Strickland ............................... 35
a.
b.
The California Supreme Court
reasonably rejected Petitioner’s claim
that counsel performed ineffectively ........ 39
c.
IV.
Requirements for establishing a prima
facie case for relief on habeas under
California law .......................................... 36
Petitioner failed to allege sufficient
facts to establish prejudice, thus
resulting in a reasonable denial of
relief by the California Supreme
Court ........................................................ 42
Certification must be denied because the California
Supreme Court reasonably rejected Petitioner’s claim
that trial counsel rendered ineffective assistance of
counsel by his failure to present family background and
residual doubt mitigating evidence at the penalty phase
(AOB Claim IX) ....................................................................49
A.
The denial of relief in state court.................................. 50
B.
District Court denial of relief ....................................... 53
ii
TABLE OF CONTENTS
(continued)
Page
C.
The California Supreme Court reasonably denied
these claims ................................................................. 54
1.
V.
The applicable law ............................................. 54
Certification must be denied because the California
Supreme Court reasonably rejected Petitioner’s claim of
cumulative error (AOB Claim X) ........................................... 79
Conclusion ................................................................................................. 82
Statement of Related Cases ........................................................................ 83
iii
TABLE OF AUTHORITIES
Page
CASES
Alcala v. Woodford,
334 F.3d 862 (9th Cir. 2003) ............................................................ 16
Beard v. Kindler,
130 S. Ct. 612 (2009) ................................................................. 69, 71
Bennett v. Mueller,
322 F.3d 573 (9th Cir. 2003) ............................................................ 71
Bobby v. Dixon,
132 S.Ct. 26 (2011) .......................................................................... 30
Bonin v. Calderon,
59 F.3d 815 (9th Cir. 1995) .............................................................. 69
Brecht v. Abrahamson,
507 U.S. 619 (1993) ......................................................................... 23
Burger v. Kemp,
483 U.S. 776 (1987) .................................................................. passim
Carey v. Musladin,
549 U.S. 70 (2006).............................................................................6
Chambers v. Mississippi,
410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973) ........... 18, 19, 20
Chia v. Cambra,
360 F.3d 997 (9th Cir. 2004) ............................................................ 14
Clark v. Brown,
450 F.3d 898 (9th Cir. 2006) ...................................................... 23, 24
Coleman v. Thompson,
501 U.S. 722 (1991) ................................................................... 69, 70
iv
TABLE OF AUTHORITIES
(continued)
Page
Crane v. Kentucky,
476 U.S. 683, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986) ......... 18, 19, 20
Cullen v. Pinholster,
131 S.Ct. 1388 (2011) ............................................................... passim
Denham v. Deeds,
954 F.2d 1501 (9th Cir. 1992) .......................................................... 33
Early v. Packer,
537 U.S. 3 (2002)...............................................................................6
Ex parte Swain,
209 P.2d 793 (Cal. 1949) ................................................................. 39
Ex parte Walpole,
24 P. 308 (Cal. 1890) ....................................................................... 38
Fry v. Pliler,
551 U.S. 112 (2007) ................................................................... 23, 26
Hamilton v. Vasquez,
17 F.3d 1149 (9th Cir. 1994) ...................................................... 33, 41
Harrington v. Richter,
131 S. Ct. 770 (2011) ................................................................ passim
Harris v. Reed,
489 U.S. 255 (1989) ......................................................................... 70
Holmes v. South Carolina,
547 U.S. 319 (2006) ............................................................. 18, 19, 20
In re Clark,
855 P.2d 729 (Cal. 1993) ..................................................... 39, 69, 70
v
TABLE OF AUTHORITIES
(continued)
Page
In re Cudjo,
977 P.2d 66 (Cal. 1999) ................................................................... 40
In re Robbins,
959 P.2d 311 (Cal. 1998) ........................................................... 69, 70
Knowles v. Mirzayance,
129 S. Ct. 1411 (2009) .......................................................................6
La Crosse v. Kernan,
244 F.3d 702 (9th Cir. 2001) ............................................................ 71
Larson v. Palmateer,
515 F.3d 1057 (9th Cir. 2008) .......................................................... 23
Lockyer v. Andrade,
538 U.S. 63 (2003)................................................................... 6, 8, 35
Martinez-Villareal v. Lewis,
80 F.3d 1301 (9th Cir. 1996) ............................................................ 71
Miller v. Stagner,
757 F.2d 988 (9th Cir. 1985) ...................................................... 14, 19
Montana v. Egelhoff,
518 U.S. 37 (1996)..................................................................... 17, 20
Murray v. Carrier,
477 U.S. 478 (1986) ......................................................................... 71
Padilla v. Kentucky,
130 S. Ct. 1473 (2010) ..................................................................... 34
Payton v. Cullen,
658 F.3d 890 (9th Cir. 2011) ............................................................ 80
vi
TABLE OF AUTHORITIES
(continued)
Page
People v. Cudjo,
863 P.2d 635 (Cal. 1993) .......................................................... passim
People v. Duvall,
886 P.2d 1252 (Cal. 1995) ......................................................... 36, 37
People v. Gonzalez,
800 P.2d 1159 (Cal. 1990) ............................................................... 36
People v. Karis,
758 P.2d 1189 (Cal. 1988) ............................................................... 37
People v. Madaris,
175 Cal. Rptr. 869 (Cal. App. 1981) ................................................ 38
People v. McCarthy,
222 Cal. Rptr. 291 (Cal. App. 1986) .......................................... 37, 38
People v. Romero,
883 P.2d 388 (Cal. 1994) ........................................................... 36, 37
Perry v. Rushen,
713 F.2d 1447 (9th Cir. 1983) .......................................................... 17
Poland v. Stewart,
169 F.3d 573 (9th Cir. 1998) ............................................................ 69
Premo v. Moore,
131 S. Ct. 733 (2011) .........................................................................2
Renico v. Lett,
130 S. Ct. 1855 (2010) ................................................................... 2, 6
Rhoades v. Henry,
638 F.3d 1027 (9th Cir. 2011) .................................................... 19, 20
vii
TABLE OF AUTHORITIES
(continued)
Page
Strickland v. Washington,
466 U.S. 668 (1984) .................................................................. passim
Taylor v. Illinois,
383 U.S. 400 (1988) ......................................................................... 17
Tennard v. Dretke,
542 U.S. 274 (2004) ...........................................................................5
United States v. Berry,
814 F.2d 1406 (9th Cir. 1987) .......................................................... 33
United States v. Scheffer,
523 U.S. 303, 118 S.Ct. 1261, 140 L.Ed.2d 413 (1998) ................... 20
United States v. Valenzuela-Bernal,
458 U.S. 858 (1982) ......................................................................... 16
Wade v. Calderon,
29 F.3d 1312 (9th Cir. 1994) ...................................................... 33, 41
Walker v. Martin,
131 S. Ct. 1120 (2011) ............................................................... 70, 71
Washington v. Texas
(1967) 388 U.S. 14, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 ........ 16, 18, 20
Wiggins v. Smith,
539 U.S. at 535 ................................................................................ 64
Williams v. Taylor,
529 U.S. 362 (2000) ................................................................. 5, 6, 64
Wong v. Belmontes,
130 S. Ct. 383 (2010) ........................................................... 64, 65, 73
viii
TABLE OF AUTHORITIES
(continued)
Page
Wright v. Van Patten,
552 U.S. 120 (2008) ...........................................................................6
STATUTES
28 U.S.C., § 2253(c) ...............................................................................4
28 U.S.C., § 2254.................................................................................. 23
28 U.S.C. § 2254(d) ....................................................................... passim
28 U.S.C. § 2254(d)(1) .................................................................. passim
Cal. Evid. Code
§ 352 .................................................................................. 8, 9, 21, 22
§ 1230 .................................................................................... 8, 21, 22
Cal. Pen. Code
§ 1473 .............................................................................................. 37
§ 1474 .............................................................................................. 36
CONSTITUTIONAL PROVISIONS
Cal. Const., Art. I .................................................................................. 36
COURT RULES
Fed. R. App. Proc. 43(c)(2) .....................................................................1
ix
PRELIMINARY STATEMENT
Following denial of the federal petition for writ of habeas corpus, the
District Court granted a certificate of appealability on one claim—the
constitutionality of lethal injection (AOB Claim II). The opening brief filed
by Petitioner-Appellant Armenia Levi Cudjo Jr. (Petitioner) addressed the
lethal injection issue, and also included six additional uncertified claims. In
an order dated December 5, 2011, this Court directed Respondent-Appellee
Warden Kevin Chapelle1 (Respondent) to brief five of the six uncertified
claims, and to address how the Supreme Court’s decision in Cullen v.
Pinholster, 131 S.Ct. 1388 (2011) impacts the analysis. For the reasons that
follow, the request for a certificate of appealability on the additional claims
should be denied because reasonable courts would agree that each claim was
reasonably rejected in state court, and in the District Court as well.
I.
THE EFFECT OF PINHOLSTER
Under 28 U.S.C. § 2254(d)(1)2, as amended by the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA), a claim for federal habeas
1
Warden Chapelle has succeeded Warden Ayers as Petitioner’s
custodian at San Quentin State Prison, and should be substituted as the
properly named Appellee in this case. Fed. R. App. P. 43(c)(2)
2
All further statutory references are to Title 28 of the United States
Code, unless otherwise specified.
1
corpus relief must be denied unless the state-court adjudication of the merits
of the claim “resulted in a decision that was contrary to, or involved the
unreasonable application of, clearly established federal law, as determined
by the Supreme Court of the United States.” This is a “threshold” restriction
on federal habeas corpus relief. Renico v. Lett, 130 S. Ct. 1855, 1862 n.1
(2010). If the state court decision was reasonable, that “ends federal
review.” Premo v. Moore, 131 S. Ct. 733, 745 (2011).
In Pinholster, the Supreme Court resolved the question of what
evidence should be examined when a federal court is deciding whether the
state court’s resolution of the merits of the claim was reasonable. Under
Pinholster, federal review of the § 2254(d)(1) question “is limited to the
record that was before the state court that adjudicated the claim on the
merits.” Id. at 1398.
In coming to this conclusion, the Supreme Court observed that, “[i]t
would be contrary to [AEDPA’s] purpose to allow a petitioner to overcome
an adverse state-court decision with new evidence introduced in the federal
habeas court . . . .” Pinholster, 131 S. Ct. at 1399. “It would be strange to
ask federal courts to analyze whether a state court’s adjudication resulted in
a decision that unreasonably applied federal law to facts not before the state
court.” Id. Accordingly, no evidence developed in the federal court can
2
have any effect on the § 2254(d)(1) analysis. As the Court noted, “evidence
adduced in federal court has no bearing on § 2254(d)(1) review[;]” rather, “a
federal habeas petitioner must overcome the limitation of § 2254(d)(1) on
the record that was before [the] state court.” Id. at 1400.
When, as here, the California Supreme Court adjudicated Petitioner’s
claims on their merits, the initial inquiry in federal court should have been
restricted to examining whether the state court’s rejection of the merits of
Petitioner’s claims was unreasonable under § 2254(d)(1). In conducting that
examination, the federal court was “precluded from considering” evidence
developed in federal court. Pinholster, 131 S. Ct. at 1402 n.11. Evidence
developed in federal court can only be considered after Petitioner meets his
burden of demonstrating that the state court rejection of his claim was
unreasonable in light of the state court record. Id. at 1412 (Breyer, J.,
concurring in part and dissenting in part); id. at 1418 (Sotomayor, J.,
dissenting). This is a “‘difficult’” burden to meet, id., at 1398 (quoting
Harrington v. Richter, 131 S. Ct. 770, 786 (2011)), and there was no finding
that Petitioner had met it before the District Court held an evidentiary
hearing on some of the claims in issue. Because no evidence developed in
federal court can be considered until after Petitioner meets his burden of
satisfying the § 2254(d)(1) threshold, and because the District Court never
3
found that Petitioner had met his burden in that regard, the District Court
erred in holding an evidentiary hearing in this case.
In any event, even under what was essentially a de novo standard of
review, the District Court denied relief because—even with the benefit of
discovery and an evidentiary hearing—Petitioner was unable to prove a
violation of his constitutional rights. As is demonstrated below, because the
California Supreme Court reasonably denied relief as to every claim raised
in this appeal, Petitioner cannot satisfy § 2253(c); accordingly, a certificate
of appealability must be denied as to the additional claims. That the District
Court found some of the claims without merit even after the improperly held
evidentiary hearing bolsters the conclusion that, as to the uncertified claims,
Petitioner has not made—and cannot make—a substantial showing of the
denial of a constitutional right, particularly under the deferential standard
mandated by § 2254(d)(1). Because Petitioner fails to satisfy that standard,
the request to certify additional claims for appeal must be denied.
II.
STANDARD OF REVIEW
Under § 2253(c), a certificate of appealability may not issue as to any
claim unless Petitioner first makes a substantial showing of the denial of a
constitutional right as to that claim. Under this standard, if reasonable jurists
would agree that the District Court decision was correct, then no certificate
4
of appealability should issue. Tennard v. Dretke, 542 U.S. 274, 282 (2004).
Petitioner has not met this standard, because he cannot demonstrate that a
reasonable court could conclude that he meets the high hurdle imposed by
the AEDPA deferential standard of review.
As amended by AEDPA, § 2254(d) “bars relitigation of any claim
‘adjudicated on the merits’ in state court” unless the claim meets one of the
statute’s two exceptions. Richter, 131 S. Ct. at 784. Under those
exceptions, relief may be available if the state court decision was (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 at the State Court proceeding.’” Id. at 783-84 (§
2254(d)).
A state court decision is “contrary to” federal law only if it “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). A state court engages in an “unreasonable
application” of federal law if it identifies the correct governing legal
5
principle from the Supreme Court’s decisions but unreasonably applies it to
the facts of the prisoner’s case. Id. at 413.
When there is no “clearly established” Supreme Court law requiring the
state court to grant relief on the claim, relief is barred by § 2254(d).
Knowles v. Mirzayance, 129 S. Ct. 1411, 1419 (2009) (“[I]t is not an
unreasonable application of clearly established Federal law for a state court
to decline to apply a specific legal rule that has not been squarely established
by [the Supreme] Court.”); Wright v. Van Patten, 552 U.S. 120, 126 (2008);
Carey v. Musladin, 549 U.S. 70, 74 (2006). Also, 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 precedents
“so long as neither the reasoning nor the result of the state-court decision
contradicts them.” Early v. Packer, 537 U.S. 3, 8 (2002).
Section 2254(d) imposes a “highly deferential standard for evaluating
state-court rulings . . . .” Renico, 130 S. Ct. at 1862 (internal quotation
marks omitted). The federal court cannot grant a writ of habeas corpus
unless “there is no possibility fairminded jurists could disagree that the state
court’s decision conflicts with [Supreme Court] precedents.” Richter, 131 S.
Ct. at 786. This is “‘the only question that matters under § 2254(d)(1).’” Id.
(quoting Lockyer v. Andrade, 538 U.S. 63, 71 (2003)).
6
A state court’s summary denial of a claim constitutes a denial on the
merits for purposes of § 2254(d). See Richter, 131 S. Ct. at 784 (“Where a
state court’s decision is unaccompanied by an explanation, the habeas
petitioner’s burden still must be met by showing there was no reasonable
basis for the state court to deny relief”). As the Supreme Court recently
explained, when a state court has summarily denied a claim, “a habeas court
must determine what arguments or theories supported or . . . could have
supported, the state court’s decision; and then it must ask whether it is
possible fairminded jurists could disagree that those arguments or theories
are inconsistent with the holding in a prior decision of [the Supreme] Court.”
Richter, 131 S. Ct. at 786.
ARGUMENT
I.
CERTIFICATION MUST BE DENIED BECAUSE THE CALIFORNIA
SUPREME COURT REASONABLY REJECTED PETITIONER’S CLAIM
THAT HIS CONSTITUTIONAL RIGHTS WERE VIOLATED BY THE
EXCLUSION OF JOHN CULVER’S TESTIMONY ABOUT GREGORY
CUDJO’S INCULPATORY STATEMENT (AOB CLAIM V)
In Claim V of the opening brief (Claim VIII of the Petition), Petitioner
alleges that the trial court erroneously excluded the testimony of John Culver
that Petitioner’s brother, Gregory Cudjo, had confessed to Culver that he,
and not Petitioner, had murdered Amelia P. AOB at 44-64. Petitioner first
raised this claim on direct appeal, and the California Supreme Court rejected
7
it. People v. Cudjo, 863 P.2d 635, 646-53 (Cal. 1993). Petitioner reasserted
the claim in his first state habeas corpus petition, 1SER at 57-58, and that is
where it was most recently denied “on the merits.” 5SER at 1056. As the
claim was summarily denied by the California Supreme Court on the merits,
Petitioner’s burden to overcome the § 2254(d)(1) bar is substantial. Only
when there is “no possibility fairminded jurists could disagree” about the
correctness of the state court’s decision is habeas relief available to the
petitioner. Richter, 131 S. Ct. at 786 (emphasis added). This is “‘the only
question that matters under § 2254(d)(1).’” Id. (quoting Andrade, 538 U.S.
at 71).
A.
The Denial of Relief in State Court
1.
Direct appeal
Petitioner’s claim that the trial court erroneously excluded Culver’s
testimony about the inculpatory statement made by Gregory was the first
claim in the opening brief on direct appeal. In addition to the various state
law grounds relied upon, Petitioner specifically argued that the exclusion of
evidence violated his federal constitutional rights to due process and to
present a defense. AOB at 45-49.
The trial court had ruled the evidence inadmissible under California
Evidence Code §§ 1230 (statement against penal interest) and 352 (more
8
prejudicial than probative). In essence, the trial court determined Culver’s
proposed testimony to be “unreliable and untrustworthy,” thus rendering it
excludable under state law. People v. Cudjo, 863 P.2d at 648.
On appeal, the California Supreme Court held that the trial court had
improperly excluded the evidence, but in doing so had only violated state
law, and not the federal Constitution. Specifically, the California Supreme
Court concluded that the statement satisfied the against-penal-interest
exception to state hearsay law, and that Culver’s inherent untrustworthiness
was not a valid consideration in determining admissibility pursuant to
California Evidence Code § 352. Id. at 648-51.
The California Supreme Court explained why the federal Constitution
was not implicated. Initially, it was established law that the normal—even if
erroneous—application of ordinary rules of evidentiary admissibility did not
impermissibly infringe on a defendant’s right to present a defense. The state
court explained
for the most part, that the mere erroneous exercise of
discretion under such “normal” rules does not implicate
the federal Constitution. Even in capital cases, we have
consistently assumed that when a trial court misapplies
Evidence Code section 352 to exclude defense
evidence, including third-party-culpability evidence, the
applicable standard of prejudice is that for state law
error, as set forth in People v. Watson (1956) 46 Cal. 2d
9
818, 836, 299 P.2d 243 (error harmless if it does not
appear reasonably probable verdict was affected).
Id. at 651 (end citations omitted).
The California Supreme Court went further, and discussed how the
United States Supreme Court had never held that a state trial court’s
exclusion of a defense witness on unreliability grounds commits an error of
constitutional magnitude. As the state court explained:
The 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. However, the high court has never
suggested that a trial court commits constitutional error
whenever it individually assesses and rejects a material
defense witness as incredible. (See, e.g., Michigan v.
Lucas (1991) 500 U.S. 145, 111 S. Ct. 1743, 114 L. Ed.
2d 205 [preclusive effect of statutory notice-of-evidence
requirement in rape case]; Taylor v. Illinois (1988) 484
U.S. 400, 108 S. Ct. 646, 98 L. Ed. 2d 798 [sanction of
preclusion for defense violation of discovery rules];
Rock v. Arkansas (1987) 483 U.S. 44, 107 S. Ct. 2704,
97 L. Ed. 2d 37 [exclusion of accused’s own testimony
under state rule disallowing all hypnotically refreshed
evidence]; 612 Green v. Georgia (1979) 442 U.S. 95,
99 S. Ct. 2150, 60 L. Ed. 2d 738 [absolute state failure
to recognize hearsay exception for declarations against
penal interest]; Davis v. Alaska (1974) 415 U.S. 308, 94
S. Ct. 1105, 39 L. Ed. 2d 347 [denial of crossexamination for bias based on state rule making
evidence of juvenile proceedings inadmissible in adult
court]; Chambers v. Mississippi, [(1973)] 410 U.S. 284,
10
93 S. Ct. 1038 [state rule precluding cross-examination
of party’s own witness]; Washington v. Texas (1967)
388 U.S. 14, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 [state
rule precluding accomplice from testifying for defense];
but cf. Delaware v. Van Arsdall (1986) 475 U.S. 673,
106 S. Ct. 1431, 89 L. Ed. 2d 674 [preclusion of crossexamination for bias, based upon individual assessment
of probative value against prejudice, violated
confrontation clause].)
Id. at 651-52.
Concluding that only state law error had occurred, the California
Supreme Court applied the state law rule for harmless error and held that “it
is not reasonably probable that admission of the testimony would have
affected the outcome.” Id. at 652. The California Supreme Court’s analysis
was compelling, and bears repeating in full:
Trapped by a semen sample that included
defendant but excluded all other known potential
donors, including Gregory, defendant was forced to
admit that he was present at the crime scene on the
morning of the murder, and that he had sex with the
victim. The physical evidence, in particular the shoe
prints leading to and from the victim’s home, strongly
suggested there had been only one visitor during that
morning. Just as important, Kevin described only one
entry, by the man who robbed his mother.
By contrast, defendant’s uncorroborated effort to
provide an innocent explanation for his presence in the
victim’s house was not convincing. Defendant testified
he had encountered the victim purchasing cocaine on
two prior occasions, and that she traded cocaine for sex
on the day of the murder. However, these claims
11
contravened all other evidence about the victim’s
lifestyle and values.
The victim’s husband testified that she never
exhibited signs of drug use during a 13–year marriage,
and there was no cocaine in her blood at the time of her
death. Moreover, the victim’s family was on a tight
budget and managed its money carefully; the victim’s
husband noticed no unusual withdrawals from the
family account.
It also seems unlikely that the victim, a housewife
and mother, would have engaged in casual sex and drug
activity in her living room with a near stranger while
her five-year-old son was at home. Defendant’s version
of events failed to mention or explain Kevin’s presence
during the alleged sex-for-drugs encounter. The
implausibility of defendant’s account enhanced the
inference that he was involved in the homicide.
Finally, as the trial court surmised, both Culver’s
testimony and the hearsay confession it recounted had
obvious indicia of unreliability. Though he knew the
entire Cudjo family, Culver was a particular friend of
defendant and thus had a motive to lie. Moreover,
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.
According to Culver, Gregory said that as he was
entering the victim’s home to burglarize it, the victim
came upon him by surprise, whereupon he “tripped”
and immediately began beating her with a hammer. As
previously noted, however, the crime-scene evidence
made clear that the victim was carefully hog-tied in her
bedroom before she was beaten and killed. When asked
whether Gregory had mentioned anybody else in the
house, Culver admitted that Gregory had originally
failed to account for this crucial detail. However,
12
Culver claimed that in a courthouse conversation just
minutes before Culver took the stand, Gregory belatedly
mentioned that there “probably was a little boy or
somebody....” This claim is suspect. It strains common
sense that Gregory willingly provided additional details
to Culver at a moment when he must have known
Culver was about to give incriminating testimony
against him.
In all his other known statements and sworn
testimony, Gregory insisted he had no involvement in
the homicide. Moreover, after observing Culver’s
demeanor and hearing his testimony, the trial court
concluded that Culver was a patently incredible witness.
Under all these circumstances, the chance that a
competent jury would have given Culver’s testimony
substantial weight seems remote. Accordingly, it is not
reasonably probable that admission of his testimony
would have affected the outcome. No basis for reversal
appears.
Id. at 652-54.
2.
State habeas corpus
Following direct appeal, Petitioner reasserted this specific claim of
error in his first state habeas corpus petition (case number S029707). Claim
2A of that petition asserts a deprivation of federal constitutional rights due to
the exclusion of “John Culver’s testimony that Petitioner’s brother, Gregory
Cudjo, had confessed to the murder.” 1SER at 65-66. In a summary denial,
in addition to imposing various state procedural bars to relief, all claims –
including this one – were denied “on the merits.” 5SER at 1056.
13
B.
District Court Denial of Relief
The District Court began its discussion by citing to Ninth Circuit and
United States Supreme Court authority it believed governed the
determination of whether the exclusion of evidence during trial implicates
the Constitution. 1ER at 32-33. The lower court employed the balancing
test this Court crafted in Miller v. Stagner, 757 F.2d 988 (9th Cir. 1985) to
resolve the claim, explaining the applicable balance factors as follows:
(1) the probative value of the excluded evidence on the
central issue; (2) its reliability; (3) whether it is capable
of evaluation by the trier of fact; (4) whether it is the
sole evidence on the issue or merely cumulative; and (5)
whether it constitutes a major part of the attempted
defense.
1ER at 33, quoting Miller, 757 F.2d at 994; accord Chia v. Cambra, 360
F.3d 997, 1004 (9th Cir. 2004).
The District Court then indicated that, if reliable, Culver’s testimony
concerning Gregory Cudjo’s inculpatory statements would have been central
to Petitioner’s defense. However, just like the state trial court and the
California Supreme Court majority, the District Court determined that
Culver’s testimony was not reliable, and that the Constitution was not
violated. 1ER at 34-37. Specifically, the District Court observed that
Culver and Petitioner were long-time friends; Culver and his family had
14
notorious criminal records; Culver did not tell anyone of Gregory’s
confession for a long time; and defense counsel was reluctant to use Culver
because he was subject to substantial impeachment. 1ER at 35.
The District Court also explained and adopted the reasons relied upon
by the state trial court for finding the evidence unreliable. Specifically,
Culver’s proposed testimony about Gregory’s confession was inconsistent
with the physical evidence presented at trial. Culver testified that Gregory
had confessed to intending to burglarize the home, and that he beat the
victim to death as soon as she saw him and started screaming. 1ER at 36.
However, as the District Court explained:
The physical evidence demonstrated that the murder
was not a sudden killing that occurred immediately
when Amelia started yelling. Instead Amelia was found
hog-tied in the bedroom. RT 2705. Kevin testified that
his mother was hog-tied before she was killed. He
testified that he saw the assailant put a knife to his
mothers’ neck and then he demanded money. The
assailant then walked his mother and Kevin into the
bedroom and tied his mother up. RT 2705. Thus,
Culver’s testimony about Gregory’s statement is
completely inconsistent with the evidence in the case.
1ER at 36.
Crediting the California Supreme Court with applying “clearly
established federal law,” The District Court ruled that the state court
15
reasonably concluded that Culver’s testimony was so weak that its exclusion
did not violate the Constitution. 1ER at 37.
C.
The California Supreme Court Reasonably Denied This
Claim
The California Supreme Court reasonably rejected this claim in state
court. Accordingly, it may not be relitigated now, and must be denied
pursuant to § 2254(d).
1.
The applicable law
It is well settled that a criminal defendant has a Sixth Amendment right
to present a defense. Washington v. Texas, 388 U.S. at 19. However, “the
Sixth Amendment does not by its terms grant to a criminal defendant the
right to secure the attendance and testimony of any and all witnesses: it
guarantees him ‘compulsory process for obtaining witnesses in his favor.’”
United States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982) (emphasis in
original). Accordingly, a defendant “must at least make a plausible showing
of how [the] testimony would have been both material and favorable to his
defense.” Id.
Further, the right to present a defense is not absolute. Alcala v.
Woodford, 334 F.3d 862, 988 (9th Cir. 2003). A defendant “‘does not have
an unfettered right to offer [evidence] that is incompetent, privileged, or
16
otherwise inadmissible.’” Montana v. Egelhoff, 518 U.S. 37, 42 (1996)
(quoting Taylor v. Illinois, 383 U.S. 400, 410 (1988)). Indeed, “[e]ven
relevant and reliable evidence can be excluded when the state interest is
strong.” Perry v. Rushen, 713 F.2d 1447, 1450 (9th Cir. 1983).
The constitutional right to present a defense does not mean that states
cannot craft rules to control the admissibility of evidence at state criminal
trials. As the Supreme Court has explained:
“[S]tate and federal rulemakers have broad latitude
under the Constitution to establish rules excluding
evidence from criminal trials.” United States v.
Scheffer, 523 U.S. 303, 308, 118 S.Ct. 1261, 140
L.Ed.2d 413 (1998); see also Crane v. Kentucky, 476
U.S. 683, 689–690, 106 S.Ct. 2142, 90 L.Ed.2d 636
(1986); Marshall v. Lonberger, 459 U.S. 422, 438, n. 6,
103 S.Ct. 843, 74 L.Ed.2d 646 (1983); Chambers v.
Mississippi, 410 U.S. 284, 302–303, 93 S.Ct. 1038, 35
L.Ed.2d 297 (1973); Spencer v. Texas, 385 U.S. 554,
564, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967). This
latitude, however, has limits. “Whether rooted directly
in the Due Process Clause of the Fourteenth
Amendment or in the Compulsory Process or
Confrontation Clauses of the Sixth Amendment, the
Constitution guarantees criminal defendants ‘a
meaningful opportunity to present a complete defense.’
“ Crane, supra, at 690, 106 S. Ct. 2142 (quoting
California v. Trombetta, 467 U.S. 479, 485, 104 S. Ct.
2528, 81 L. Ed. 2d 413 (1984); citations omitted). This
right is abridged by evidence rules that “infring[e] upon
a weighty interest of the accused” and are “ ‘arbitrary’
or ‘disproportionate to the purposes they are designed to
serve.’ “ Scheffer, supra, at 308, 118 S.Ct. 1261
17
(quoting Rock v. Arkansas, 483 U.S. 44, 58, 56, 107 S.
Ct. 2704, 97 L. Ed.2 d 37 (1987)).
Holmes v. South Carolina, 547 U.S. 319, 324-25 (2006).
A review of the “right to present a defense” jurisprudence at the core of
Petitioner’s claim indicates that it is only the exclusion of credible and
reliable evidence based on the application of an arbitrary or irrational state
evidentiary rule that may trigger a constitutional inquiry. See, e.g. Holmes,
547 U.S. at 329 (state rule excluding third-party culpability evidence
arbitrary because it applied “even if that evidence, if viewed independently,
would have great probative value and even if it would not pose an undue risk
of harassment, prejudice, or confusion of the issues”); Washington v. Texas,
388 U.S. at 22 (state law that barred a charged participant in a crime from
testifying as a witness in defense of an alleged co-participant unless the
witness had been acquitted unconstitutional because it presumed the witness
“unworthy of belief”); Chambers v. Mississippi, 410 U.S. at 294-97 (state’s
voucher rule prohibited impeaching one’s own witness and no statementagainst-penal-interest hearsay exception); Crane v. Kentucky, 476 U.S. at
691 (defendant precluded from presenting evidence on the reliability of a
confession based on the circumstances in which it was given; the state court
only considered such evidence on the issue of voluntariness); Rock v.
18
Arkansas, 484 U.S. at 56 (state rule mandating wholesale prohibition of
hypnotically refreshed testimony unconstitutional as an arbitrary restriction
because it applied regardless of the reliability of the testimony).
This Court recently rejected a claim that is substantially similar to the
claim Petitioner presents. In Rhoades v. Henry, 638 F.3d 1027 (9th Cir.
2011), a pre-AEDPA case, this Court considered a claim that a state court
erroneously precluded testimony from a third party, Officer Christian, that
another person, Buchholz, had confessed to the murder of which Rhoades
was convicted. Id. at 1034. Although it was clear that Buchholz had in fact
made the confession, this Court found that exclusion of Officer Christian’s
testimony about the confession did not violate constitutional principles
because Buchholz was intoxicated at the time of the time of the confession,
and later recanted it. Further, Buchholz had an alibi, and there was no other
evidence linking Buchholz to the crime. Id. at 1035.
Like Petitioner here, Rhoades argued that the exclusion of the evidence
was unconstitutional, citing Chambers, Crane, and Holmes, and arguing that
the he should prevail under the test in Miller v. Stagner. AOB at 61;
compare Rhoades, 638 F.3d at 1035-36. This Court in Rhoades held that
because the evidence was unreliable, its exclusion did not offend the
Constitution. Id. at 1036. Petitioner’s contrary argument accordingly fails,
19
insofar as there is no basis in reason for this Court to find that the California
Supreme Court’s rejection of the claim was unreasonable under facts that are
essentially similar to those that this Court found failed to state a claim upon
which relief could be granted in Rhoades.
In light of this Court’s holding in Rhoades, Petitioner’s assertion that
there is “clearly established law” that the California Supreme Court
contravened fails. Chambers specifically limited its holding to “these
circumstances” Chambers, 410 U.S. at 302; see Egelhoff, 518 U.S. at 52
(“Chambers was an exercise in highly specific error correction.”). And, as
this Court explained in Rhoades, the other cases upon which Petitioner
relies—Crane, Holmes and Washington v. Texas—found error in the
exclusion of credible, reliable evidence. Rhoades, 638 F.3d at 1038-36.
Petitioner presents no case, let alone “clearly established federal law as
determined by the Supreme Court,” that has held that the exclusion of
unreliable evidence offends—or even implicates—the Constitution. Rather,
the Supreme Court has stated that the opposite is true: “State and Federal
Governments unquestionably have a legitimate interest in ensuring that
reliable evidence is presented to the trier of fact in a criminal trial. Indeed,
the exclusion of unreliable evidence is a principal objective of many
evidentiary rules.” United States v. Scheffer, 523 U.S. 303, 309 (1998).
20
2.
The California Supreme Court reasonably applied
Supreme Court Authority in determining that the
constitution was not implicated in the state trial
court’s exclusion of Culver’s testimony
In light of the state of federal law, the California Supreme Court’s
determination—that the federal Constitution was not implicated in the trial
court’s evidentiary ruling that resulted in the exclusion of Culver’s
testimony—was a reasonable application of United States Supreme Court
authority. As the California Supreme Court expressly and correctly
explained on direct review, the United States Supreme Court “has never
suggested that a trial court commits constitutional error whenever it
individually assesses and rejects a material defense witness as incredible.”
People v. Cudjo, 863 P.2d at 651. As noted, this Court agrees that the
Constitution is only offended when credible and reliable evidence is
arbitrarily and mechanistically excluded.
Culver’s testimony was not arbitrarily or mechanistically excluded
pursuant to any state rule. The California Supreme Court held that trial
court incorrectly applied California Evidence Code §§ 1230 (statements
against penal interest) and 352 (discretion to exclude evidence that would
involve undue consumption of time, be more prejudicial than probative, or
confuse the issues or jury), and that the evidence should have been admitted
21
as a matter of state law. People v. Cudjo, 863 P.2d at 648-51. But neither
of those evidentiary rules permits for the wholesale, arbitrary exclusion of
reliable evidence. Section 1230 governs an exception to the hearsay rule,
and § 352 involves a balancing approach to admission of certain types of
relevant, but excludable, evidence. Thus, the trial court’s erroneous
application of the foregoing rules did not violate Petitioner’s right to present
a defense, within the meaning of the authorities discussed above.
The trial court’s basis for excluding Culver’s testimony was that it was
inherently incredible and unreliable. That finding was not the result of some
conclusory, unsupportable assessment. A full hearing was conducted where
Culver actually testified—outside the presence of the jury—prior to the trial
court’s determination that he was an unreliable witness. See People v.
Cudjo, 863 P.2d at 646-48. The California Supreme Court adopted this
finding. Id. at 652-53. So did the federal District Court judge below. 1ER
at 36.
The only “clearly established” rule that can be extracted from the cases
upon which Petitioner relies is that the Sixth Amendment right to present
witnesses does not extend to unreliable witnesses. Similarly, the Supreme
Court and this Court have clearly held that the right to present a defense, in a
due process context, does not include the right to present unreliable
22
evidence. Accordingly, the California Supreme Court’s conclusion that the
federal Constitution was not violated by the exclusion of Culver’s testimony
was not contrary to or an unreasonable application of clearly established
United States Supreme Court precedent. Federal relief is accordingly
unavailable. § 2254(d)(1).
D.
Petitioner Was Not Prejudiced by the Exclusion of
Culver’s Testimony
In any event, the exclusion of Culver’s testimony did not have a
substantial and injurious effect or influence in determining the jury’s verdict.
See Fry v. Pliler, 551 U.S. 112, 121-22 (2007) (even if state court does not
have occasion to apply the test for assessing prejudice applicable under
federal law, the Brecht standard applies uniformly in all federal habeas
corpus cases under § 2254); Brecht v. Abrahamson, 507 U.S. 619, 637-38
(1993); see also Larson v. Palmateer, 515 F.3d 1057, 1064 (9th Cir. 2008)
(review for harmless error under Brecht is “more forgiving” to state court
errors than the harmless error standard the Supreme Court applies on its
direct review of state court convictions); Clark v. Brown, 450 F.3d 898, 916
(9th Cir. 2006) (reviewing under Brecht whether there was “a reasonable
probability” that the jury would have reached a different result but for the
alleged error).
23
The incredible nature of Culver’s proposed testimony was
comprehensively addressed by both the California Supreme Court and the
District Court. Culver personally had massive credibility problems. As the
District Court explained, via reliance on the state court record, Culver and
Petitioner were long-time friends. Culver had a prior felony conviction and
had been sentenced to prison. Most of Culver’s male relatives
(approximately forty) had criminal records. 1ER at 35. Petitioner’s trial
counsel was reluctant to even consider using Culver given his family’s
reputation in the community and his criminal record. Id.
In addition to his inherent personal credibility problems, Culver’s
proposed testimony also lacked credibility. Although Culver knew
Gregory’s purported admission was important, he ostensibly waited a very
long time to tell anyone—including Petitioner—about it. Further, Gregory’s
alleged confession, as reported by Culver, was irreconcilable with the
physical and eyewitness evidence. Culver testified that Gregory said he
went to burglarize the victim’s house, and that, as soon as the victim saw
him, she confronted him and began screaming, so he immediately beat her
into unconsciousness and apparently to death. But the undisputed physical
evidence proved beyond any doubt based in reason that the killing did not
happen that way. The victim was found hog-tied in her bedroom, and the
24
victim’s young child testified that she was hog-tied before she was
murdered. 1ER at 36.
The California Supreme Court identified these dramatic reliability
deficiencies in Culver’s testimony, and other compelling ones as well. For
example, Petitioner’s semen—not Gregory’s—was found on the victim.
Petitioner’s explanation—that he had traded drugs for consensual sex with
the victim—was refuted by all other evidence. Although Petitioner testified
that he had seen the victim purchase cocaine on prior occasions, as her
husband testified, this was untrue. The victim never showed any signs of
drug use, and there was no money missing from their accounts. Further,
there was no cocaine in the victim’s body at the time of her death. People v.
Cudjo, 863 P.2d at 652-53.
The state court also noted that the physical and eyewitness evidence
supported the presence of only one person in the victim’s home that day.
Only one set of shoe prints were found leading to and from the victim’s
home, and the victim’s son described only one person entering the home.
People v. Cudjo, 863 P.2d at 643. In short, there was no evidence that
supported the presence of a second person in the home, other than
Petitioner’s fantastic story of consensual sex for drugs with a woman found
hog-tied and beaten to death without any drugs in her system.
25
The California Supreme Court also noted how unrealistic it would be to
conclude that the victim would have engaged “in casual sex and drug
activity in her living room with a near stranger while her five-year-old son
was at home.” People v. Cudjo, 863 P.2d at 652. Petitioner’s unbelievable
story failed to account for the presence of the child known to be in the house
with the victim. Id.
No rational jury would have disregarded this uncontroverted evidence
proving Petitioner was the murderer, and instead concluded that Gregory
was the actual killer, if only Culver had been permitted to testify. As every
court to consider this issue has found, Culver was personally an unreliable
source, and the story he claimed Gregory told him was incredible in light of
the uncontroverted physical and eyewitness evidence. Any error in
excluding Culver’s concocted story did not have a substantial and injurious
effect or influence in determining the jury’s verdict. See Fry v. Pliler, 551
U.S. at 121-22. The claim that the exclusion of Culver’s testimony violated
the Constitution is without merit, and no certificate of appealability should
issue.
26
II.
CERTIFICATION MUST BE DENIED BECAUSE THE CALIFORNIA
SUPREME COURT REASONABLY REJECTED PETITIONER’S CLAIM
THAT THE PROSECUTOR COMMITTED PREJUDICIAL
MISCONDUCT BY REFERENCING PETITIONER’S RACE IN
CLOSING ARGUMENT AS BRIEF, ISOLATED AND NONPREJUDICIAL (AOB CLAIM VII)
In claim VII of the opening brief (portions of claim XII of the Petition),
Petitioner argues that the prosecutor committed prejudicial misconduct by
describing Petitioner as “a black man” during the closing argument. AOB at
70-74. This claim fails under § 2254(d)(1) because the California Supreme
Court reasonably determined that the remark was brief, isolated and nonprejudicial.
A.
State Court Proceedings
One of the key pieces of the prosecution’s evidence against Petitioner
in this case was that Petitioner’s semen was found on and in Amelia P.’s
bound and gagged dead body. This finding was never challenged by the
defense, and Petitioner took the stand in his own defense to explain that on
the morning of the murder of Amelia P., he had consensual sexual
intercourse with her on her living room couch in exchange for cocaine.
In response to this testimony, the prosecutor argued to the jury:
I’m going to ask you to reach back into your own
experience. It’s been a few weeks, and I’ve sort of
forgotten, but I believe that almost all of you are
married, and I think almost all of you have children.
27
When you’re newly, if the – I’m trying to think of
just the right word to put it delicately, but when you’re
newlyweds, if the desire overtakes you and you find
yourself in some room other than the bedroom, and it’s
you and your wife in the house, there may be no
particular reason to go to the bedroom. And then when
the children arrive, I think for most people that freedom
has been lost, and people – people become very wary of
expressing their affections in front of their children.
I think it’s fair to say that married couples do not
have sexual intercourse in front of their children. It
may even be fair that married couples, when they have
children, don’t even go into embraces that are
particularly passionate, and, you know, what might have
been a hug and some pats and a long kiss when you’re
alone becomes a peck on the cheek when you have
children in the house.
And what 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 living out there where they can have
a house they can afford, taking in sewing to help meet
the family budget, keeping that kind of house, 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, a single
woman in front of her child, let alone a woman who is
married and has three kids. You are not going to do it.
First of all, you’d be personally embarrassed to
be caught.
28
Second of all, I think most of us don’t want our
children to be exposed to that.
And third of all, you don’t want him telling
Daddy that a strange man was in the house and they
were doing funny things on the couch.
At least under the worst of circumstances I would
have expected them to go to the bedroom and lock the
door, but he says, ‘No, we did it right there on the
couch, and after it was over she even offered me a
drink,’ apparently to keep him around. No way. It does
not happen that way in the real world. Maybe in Mr.
Cudjo’s fantasies.
I don’t know what his thoughts are about how
other people behave, but it just doesn’t work that way,
ladies and gentlemen.
9ER at 2249-50.
On direct appeal in the California Supreme Court, Petitioner asserted
that the prosecutor’s closing argument reference to race constituted
misconduct in violation of the Constitution. The California Supreme Court
disagreed, finding beyond a reasonable doubt that the racial reference did
not affect the verdict:
Although we do not find compelling justification
for the prosecutor’s racial reference in this case, neither
do we find prejudice to defendant. The reference to race
occurred in the course of an argument listing factors
that undermined the credibility of defendant’s testimony
that the victim had consented to sexual intercourse. The
racial reference added little to the force of the argument,
which relied primarily on the implausibility of the
victim engaging in intercourse with a virtual stranger in
29
the presence of her five-year-old child. The racial
reference was a brief and isolated remark; 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.
People v. Cudjo, 863 P.2d at 661.
In light of this state court record, Petitioner fails to demonstrate that
this decision is beyond disagreement among fair-minded jurists. Bobby v.
Dixon, 132 S.Ct. 26, 27 (2011) (per curiam). The California Supreme
Court’s conclusion—that the prosecutor’s reference to Petitioner’s race was
brief and isolated and made in the context of larger attack on the
implausibility of Petitioner’s story that he had consensual sexual intercourse
with Amelia P. on her living room couch with her five-year old son present
in the house—is well-supported by the record. Petitioner’s race is
mentioned only once, and only as a parenthetical comment. The California
Supreme Court’s finding of a lack of prejudice was therefore a reasonable
adjudication of this claim under § 2254(d)(1). Indeed, the reasonableness of
the court’s adjudication is confirmed by the fact that the District Court,
exercising de novo review, came to exactly the same conclusion. 1ER 7071. Accordingly, Petitioner is entitled to neither a certificate of appealability
nor relief on claim VII.
30
III. CERTIFICATION MUST BE DENIED BECAUSE THE CALIFORNIA
SUPREME COURT REASONABLY REJECTED PETITIONER’S CLAIM
THAT TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO
INVESTIGATE AND PRESENT EVIDENCE OF GREGORY CUDJO’S
PURPORTED SECOND JAILHOUSE ADMISSION OF GUILT (AOB
CLAIM VIII)
In Claim VIII in the opening brief (Claim XV(a)(6) in the Petition),
Petitioner argues that trial counsel performed in an unconstitutionally
ineffective manner by failing to properly investigate and present evidence of
Gregory Cudjo’s jailhouse admission of guilt. AOB at 75-91. In essence,
Petitioner claims that Gregory made a second admission to killing the victim
that was overheard by a sheriff’s deputy and a few inmates. Pet. at 213-18.
This claim was denied “on the merits” by the California Supreme Court in
connection with Petitioner’s first state habeas corpus petition. 5SER at
1056.3 Because the denial of relief was reasonable in light of the state court
record, federal relief is barred by 28 U.S.C. § 2254(d)(1).
A.
Governing Legal Principles
In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court
noted that it had not previously addressed a claim of “‘actual
3
The claim was reasserted as claim VIII of Petitioner’s second state
habeas petition, filed in case number S090162, 2SER at 482-506, where it
was again denied on the merits, as well as on the grounds that it was
untimely and repetitive. 1ER at 197.
31
ineffectiveness’” and had not formulated the “proper standard” under the
Sixth Amendment. Id. at 683-84. In what is now the familiar test, the Court
held that a defendant must show that counsel’s performance was
constitutionally deficient and that such performance caused actual prejudice.
Id. at 687, 692. To show deficient performance, Petitioner must show that
“counsel’s representation fell below an objective standard of
reasonableness.” Id. at 668. The performance inquiry “must be whether
counsel’s assistance was reasonable considering all the circumstances” and
counsel’s conduct must be evaluated from “counsel’s perspective at the
time.” Id. at 688 (emphasis added).
As for a duty to investigate, the Supreme Court held that counsel has
such a duty or must make reasonable decisions that limit investigation or
make it unnecessary. “[C]hoices made after less than complete investigation
are reasonable precisely to the extent that reasonable professional judgments
support the limitations on investigation.” Strickland, 466 U..S. at 691. “[A]
particular decision not to investigate must be directly assessed for
reasonableness in all the circumstances, applying a heavy measure of
deference to counsel’s judgments.” Id. (emphasis added).
Counsel may make reasonable and informed decisions about how far to
pursue particular lines of investigation. Strategic choices based upon
32
reasonable investigation are not incompetent simply because the
investigation was less than exhaustive. Burger v. Kemp, 483 U.S. 776, 78894 (1987). Further, claims of failure to investigate must show what
information would have been obtained with investigation, and whether, if
admissible, it would have produced a better result. See Hamilton v. Vasquez,
17 F.3d 1149, 21157 (9th Cir. 1994); Wade v. Calderon, 29 F.3d 1312,
1316-17 (9th Cir. 1994). Claims of failure to interview or call witnesses are
deficient where there is no showing what the interview would have obtained
and how it might have changed the outcome. United States v. Berry, 814
F.2d 1406, 1409 (9th Cir. 1987). If counsel has stated a reason for not
calling a witness, the reason will likely show effectiveness. Denham v.
Deeds, 954 F.2d 1501, 1505-05 (9th Cir. 1992).
In order to demonstrate actual prejudice, a petitioner 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.” Strickland, 466 U.S. at 694. Actual prejudice is weighed against
the totality of evidence before the trier of fact. Id. at 695.
On federal habeas review, “[a] state court must be granted a deference
and latitude that are not in operation when the case involves review under
33
the Strickland standard itself.” Richter, 131 S. Ct. at 785. Judicial review of
a Strickland claim is “highly deferential,” and “doubly deferential when it is
conducted through the lens of federal habeas.” Yarborough v. Gentry, 540
U.S. at 6. “‘Surmounting Strickland’s high bar is never an easy task[,]’” and
“[e]stablishing that a state court’s application of Strickland was
unreasonable under § 2254(d) is all the more difficult.” Richter, 131 S. Ct.
at 788 (quoting Padilla v. Kentucky, 130 S. Ct. 1473, 1485 (2010)).
As the Supreme Court recently cautioned: “Federal habeas courts must
guard against the danger of equating unreasonableness under Strickland with
unreasonableness under § 2254(d). When § 2254(d) applies, the question is
not whether counsel’s actions were reasonable. The question is whether
there is any reasonable argument that counsel satisfied Strickland’s
deferential standard.” Richter, 131 S. Ct. at 788.
B.
The California Supreme Court Reasonably Rejected This
Claim of Error
The California Supreme Court’s summary denial of this claim for
relief—twice—was neither contrary to nor an unreasonable application of
clearly established United States Supreme Court authority. As explained
earlier, the Supreme Court has held that when a state court has summarily
denied a claim, “a habeas court must determine what arguments or theories
34
supported or . . . could have supported, the state court’s decision; and then it
must ask whether it is possible fairminded jurists could disagree that those
arguments or theories are inconsistent with the holding in a prior decision of
[the Supreme] Court.” Richter, 131 S. Ct. at 786. Only when there is “no
possibility fairminded jurists could disagree” about the correctness of the
state court’s decision is habeas relief available to the petitioner. Id. at 786
(emphasis added). This is “‘the only question that matters under §
2254(d)(1).’” Id. (quoting Andrade, 538 U.S. at 71). For the reasons that
follow, relitigation of the merits of this claim in federal court is barred by
application of 28 U.S.C. § 2254(d).
1.
The California Supreme Court reasonably
concluded that trial counsel was not ineffective
under Strickland
Petitioner’s allegations of attorney ineffectiveness were deficient in
state court so that Petitioner was not entitled to the general presumption of
truth afforded to specific factual allegations that comply with required state
habeas procedures. Petitioner’s failure in this respect warranted summary
denial of this claim based on the failure to establish attorney ineffectiveness.
35
a.
Requirements for establishing a prima facie
case for relief on habeas under California law
A California inmate has a state constitutional right to petition for a writ
of habeas corpus. Cal. Const., art. I, § 11; People v. Duvall, 886 P.2d 1252,
1258 (Cal. 1995); see Cal. Penal Code § 1474. The petition must establish a
prima facie claim for relief in order to trigger an order to show cause.
Duvall, 886 P.2d at 1258; People v. Romero, 883 P.2d 388, 391 (Cal. 1994).
“‘For purposes of a collateral attack, all presumptions favor the truth,
accuracy, and fairness of the conviction and sentence; defendant thus must
undertake the burden of overturning them.’” Duvall, 886 P.2d at 1258
(quoting People v. Gonzalez, 800 P.2d 1159, 1205-06 (Cal. 1990) (first and
second emphases added)).
A petitioner’s allegations are necessarily viewed against the backdrop
of these presumptions. As the California Supreme Court has explained,
“because a petition for a writ of habeas corpus seeks to collaterally attack a
presumptively final criminal judgment, the petitioner bears a heavy burden
initially to plead sufficient grounds for relief, and then later to prove them.”
Duvall, 886 P.2d at 1258 (emphasis added). In order to satisfy the initial
burden of pleading a prima facie case for relief, a petitioner must “state fully
and with particularity the facts on which relief is sought” and “include
36
copies of reasonably available documentary evidence supporting the claim,
including pertinent portions of trial transcripts and affidavits or
declarations.” Id. (emphasis added); People v. Karis, 758 P.2d 1189, 1216
(Cal. 1988).
“Conclusory allegations made without any explanation of the basis for
the allegations do not warrant relief.” Duvall, 886 P.2d at 1258 (emphasis
added). This means that a petitioner may not simply allege a conclusion of
fact or an ultimate fact; rather, he must allege the specific underlying facts
that show or establish the ultimate fact itself. Likewise, a declarant must
establish a foundation for his or her statements. A petitioner’s failure to
comply with these requirements justifies summary denial of the petition. Id.
(a petitioner must allege facts “fully and with particularity” and must reveal
the basis for the allegations).
In addition, the petition must be verified. Romero, 883 P.2d at 391;
Cal. Penal Code §1473. A verification based on information and belief is
insufficient to sustain the allegations for purposes of the prima facie case
analysis. See People v. McCarthy, 222 Cal. Rptr. 291, 292 (Cal. App. 1986)
(finding no prima facie case for relief where verification was based on
information and belief because a petition “based on information and belief is
‘hearsay and must be disregarded’”). As the California Court of Appeal has
37
explained: “Verification, under the statute, manifestly requires that all
factual matters relied upon be stated by their declarant, whomever he may
be, under oath.” People v. Madaris, 175 Cal. Rptr. 869, 872-73 (Cal. App.
1981) (“Without such verification the petition, at least ordinarily, will be
summarily denied.”).
The same principle applies to the factual allegations made in the
petition. Indeed, pursuant to California law established as early as 1890,
factual allegations must be made in such a form so that, if false, perjury
attaches: “‘It has long been the rule of California that factual allegations on
which a petition for habeas corpus are based must be “in such form that
perjury may be assigned upon the allegations if they are false.”‘“ McCarthy,
222 Cal. Rptr. at 292-93, quoting Madaris, 175 Cal. Rptr. at 873, quoting Ex
parte Walpole, 24 P. 308 (Cal. 1890). It necessarily follows—as the
California courts have repeatedly held—that hearsay allegations do not
support a prima facie claim for relief and are “disregarded;” rather, a
petitioner must provide a declaration from each proposed witness or
declarant to establish a prima facie case.
Applying these principles to ineffective assistance of counsel claims
concerning an alleged failure to investigate or call a witness, a petitioner
must, at a minimum: support his own statements with a proper verification
38
or declaration, identify any proposed witnesses by name, proffer a
declaration from any such witness based on such witness’s personal
knowledge and which sets forth the testimony the witness would have
offered, explain that the witness would have been available and would have
testified at the trial, and allege facts which overcome the presumption that
counsel’s performance was reasonable or based on trial tactics.
In sum, any fact that would need to be proven in order to demonstrate a
federal constitutional violation must be alleged in the petition in the manner
and form set forth above.4 If any link in the chain of necessary elements to
establish a claim is missing, a prima facie case for relief has not been stated,
and the petition will be summarily denied.
b.
The California Supreme Court reasonably
rejected Petitioner’s claim that counsel
performed ineffectively
In the Petition, Petitioner attacked trial counsel for failing “to
investigate a jailhouse admission by Gregory Cudjo and witnessed by
4
If a factual allegation is verifiable by reference to the trial record,
such as an allegation that counsel did not call a particular witness to testify,
there would be no need to substantiate it with additional evidence. See
Pinholster, 131 S. Ct. at 1402 n12, quoting In re Clark, 855 P.2d 729, 74142 (Cal. 1993). However, a petitioner is required to point to specific
portions of the record to support his claims. Ex parte Swain, 209 P.2d 793,
794 (Cal. 1949).
39
Deputy Sheriff Charles E. Merritt and others.” Pet. at 213. Petitioner’s
allegations in the Petition are essentially indistinguishable from the
allegations in both of the state habeas petitions where this claim was
previously raised. 1SER at 32-37; 3SER at 683-90. As the allegations failed
to comply with state law requirements, the summary merits denials were
reasonable, and relitigation of the claim is barred.
Petitioner’s specific allegation of error is that “Mr. Clark’s failure to
investigate this report is without question one of the more heinous of his
many mistakes in this case.” Pet. at 26-27 (italics added). The problem with
this allegation is that the record affirmatively establishes that Mr. Clark did
investigate Deputy Merritt’s report. As summarized by the California
Supreme Court:
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.
In re Cudjo, 977 P.2d 66, 73 (Cal. 1999) (italics added).
40
It is, therefore, undeniable that trial counsel “investigated” the
statement made at the jail. He questioned the sheriff’s deputy who heard it,
but did not obtain any useable information, since Deputy Merritt was unable
to determine whether it was Petitioner or Gregory who made the statement.
Petitioner’s allegation that trial counsel “failed to investigate” is contradicted
by the record.5
Petitioner also alleged—in both his state and federal petitions—that
“had [trial counsel] properly investigated Deputy Merritt’s report, Mr. Clark
would have been able to (1) corroborate the reliability of Mr. Culver’s
evidence and (2) even if Mr. Culver’s testimony had still been excluded,
avoid much of the prejudice of the trial court’s clearly erroneous ruling, by
calling Deputy Merritt, Mr. Lewis and Mr. Frederickson to testify about
Gregory’s other jailhouse confession.” 1SER at 36. This allegation likewise
failed to state a prima facie case under California law. Petitioner failed to
explain how counsel should have “properly investigated” the report.
Counsel asked the deputy what happened, and the deputy could not identify
5
If Petitioner meant that trial counsel needed to investigate further,
then Petitioner was required to say that, to explain what the further
investigation should have consisted of, and to allege what useful evidence
the further investigation would have produced. See Hamilton v. Vasquez, 17
F.3d at 1157; Wade v. Calderon, 29 F.3d at 1316-17.
41
the maker of the statement. Petitioner merely concluded that “calling
Deputy Merritt” and the others to testify would have solved all his problems,
but there is no allegation as to whether these other witnesses were available
to testify, or what they would have said that would have made a difference.
Petitioner’s pleading deficiencies under California law were monumental,
and resulted in the California Supreme Court resolving that Petitioner had
failed to state a prima facie case for relief on the ineffectiveness prong of
Strickland. That reasonable decision ends review.6
c.
Petitioner failed to allege sufficient facts to
establish prejudice, thus resulting in a
reasonable denial of relief by the California
Supreme Court
Petitioner has likewise failed to demonstrate that a reasonable court
would agree that he was prejudiced by counsel’s purported deficiencies.
Initially, Petitioner’s insufficient allegations in state court, along with the
6
The District Court found that trial counsel was ineffective for failing
to conduct a more thorough investigation with respect to the statement
overheard by Deputy Merritt and others in the jail. 1ER at 89-91. However,
this finding followed an evidentiary hearing where the District Court
considered evidence never presented to the state court, and prior to a
determination that Petitioner had met his burden of establishing
unreasonableness, under § 2254(d). Because this claim was denied on the
merits in state court, the District Court should have resolved the
reasonableness issues based solely on the state court record; the evidence
adduced in federal court plays no part in the §2254(d)(1) analysis.
Pinholster, 131 S. Ct. at 1398.
42
absence of documentary evidence, failed to establish that any witness would
have testified that it was Gregory, and not Petitioner, who made the
statement referred to in Deputy Merritt’s report. But even if that evidence
existed and could have been presented in admissible form, it would have
made no difference with respect to the jury’s verdict.
As explained earlier, even if evidence of Gregory’s admissions had
been admitted, no rational jury would have believed them, because the
remaining evidence demonstrates that Gregory’s purported admissions were
false. Petitioner’s semen—not Gregory’s—was found on the victim.
Eyewitness and physical evidence established that only one intruder had
been in the house, which is irreconcilable with the two separate intruders
featured in Gregory’s story. Petitioner’s tale of consensual sex in exchange
for drugs was refuted by the absence of drugs in the victim’s body, the
absence of evidence that she had ever purchased drugs, and the unlikelihood
that she would have engaged in casual sex with Petitioner when her young
child was in the home. People v. Cudjo, 863 P.2d at 652-53.
The District Court, based almost exclusively on the state court record,
provided additional reasons why the admission of a Gregory confession to
the killing would have made no difference in the verdict. For example,
Petitioner testified on direct examination that when he drove up to the victim
43
on the morning of her death, she was holding a hose. Petitioner’s testimony
was contradicted by the evidence that it had rained recently, which negated
any need for the victim to be watering plants. 1ER at 94 (citing the state
court record).
The District Court also discussed Petitioner’s internally inconsistent
testimony concerning what he wore at different times on the day of the
murder. Petitioner testified that when he woke up he put on jeans and tennis
shoes, but then changed into jeans and tennis shoes to go for a run after
coming back from the victim’s home. This was inconsistent with another
portion of Petitioner’s testimony, in which he asserted that he changed from
boots to tennis shoes upon returning from the victim’s home. 1ER at 94
(citing the state court record).
The District Court also explained how Petitioner’s contention that he
jogged in long pants, despite having shorts, made little sense. According to
Petitioner, he preferred to run in long jeans—the pants he was arrested in—
unless it was very hot. But Petitioner conceded it had been a nice day and
that he needed to pull his pants up because he was so sweaty after running.
Petitioner had to contend that he went jogging in long pants because other
evidence established that the perpetrator had worn shorts. Petitioner’s sister
testified that he had been wearing shorts on the day of the murder. No
44
reasonable jury would have believed Petitioner’s story about his preference
for jogging in long pants. 1ER at 94-95 (citing the state court record).
The District Court also noted an evidentiary discrepancy concerning
Petitioner’s contention that Gregory had washed his tennis shoes, rather than
Petitioner having done so. If Gregory had washed his shoes and left them in
his mother’s car, where the wet pair was found, Gregory would have been
forced to walk from the car into the camper without any shoes. Only
Petitioner had an extra pair of shoes, so that he could have washed tennis
shoes and still had other shoes to wear. 1ER at 94-95 (citing the state court
record).
Also, Petitioner testified that when he returned home from visiting his
sister, he changed into a pair of tennis shoes. But when he was arrested, he
was wearing work boots. He proffered no explanation as to when or why he
changed his shoes in this regard. But the District Court aptly deduced that
the jury could have inferred that Petitioner changed into his work boots
when he saw officers following footsteps that led from the victim’s home to
Petitioner’s. Petitioner’s contention that he had not worn tennis shoes was
unbelievable, since the single pair of shoe tracks that led to his home from
the victim’s were of tennis shoes, and Petitioner was the only person known
45
to have been in the victim’s home that day. 1ER at 96-97 (citing the state
court record).
The District Court also observed that there were problems with
Petitioner’s testimony that he took forty-seven minutes to run three miles.
Not only did that seem like a lengthy time for someone with Petitioner’s
level of conditioning to run that distance, but it would not have been
possible for Gregory to do everything attributed to the killer in that time
period. As the District Court summarized the prosecutor’s argument:
First, Gregory had to wait until Armenia was no longer
in view, and then he had to change into the blue cut-off
shorts, pick up his brother’s survival knife, walk to
Amelia’s house as well as to Edward Plummer’s
residence to leave all the footprints that were later
traced back to the camper. Gregory then had to ask
Amelia for money, tie her up, attempt to start the van,
get the rifles, throw the keys into the backyard, kill
Amelia, get rid of the rifles, and then walk back to the
camper and appear as if nothing had occurred. RT
2545-46. Moreover, there is no evidence that Gregory
even knew Armenia’s friend, Edward Plummer, so there
is no explanation as to why Gregory would have walked
over to Edward Plummer’s residence. RT 2546.
1ER at 97-98 (citing the state court record).
The District Court also observed the discrepancy between Petitioner’s
sex-for-drugs story, and the suggestion that Gregory went to the victim’s
home to rob her of money. According to Petitioner, the victim needed to
46
trade sex for drugs because she had no money. Since Gregory had
supposedly been so informed, an effort by him to rob the victim of money
would have made no sense at all, because he would have known that the
victim had no money. 1ER at 98 (citing the state court record).
The District Court next explained how Gregory’s own prior statements
and testimony would have rendered the jury very skeptical about a
confession, given the inconsistency of the earlier statements and testimony.
Specifically, in an interview following his arrest, Gregory told police that
Petitioner washed his shoes and had admitted to robbing the victim.
Gregory tried to backtrack during the preliminary hearing until he was
confronted with his original statements to police. The prosecutor’s direct
examination was so compelling, it prompted the trial court to comment that,
“Gregory Cudjo’s statements on direct examination were vague, cryptic,
inconsistent and sounded like they are the product of intense and incisive
cross-examination.” 5SER at 1081; see also 1ER at 99 (citing the state court
record). Gregory initially denied making statements that inculpated his
brother, and claimed the police had threatened him and put words in his
mouth. However, upon the tape-recording of the interview being played,
Gregory confirmed he made the statements and that they were truthful. 1ER
at 100-01.
47
Finally, the District Court powerfully summarized the reasons why
evidence that Gregory had admitted to the killing would have had a nominal
impact, at best, on the jury’s verdict:
Thus, the transcripts of Gregory’s statements to the
police on March 22 and March 26, 1986, show that he
was completely and thoroughly impeached. Moreover,
it was clear that Gregory was Armenia’s brother and
thus had a motive to lie. In addition, Gregory’s
purported jailhouse confession that was overheard by
Deputy Merritt was completely devoid of any specifics
that could have corroborated it, and the confession that
was allegedly overheard by John Culver was
contradicted by both the physical evidence and all other
accounts Gregory had given, including his testimony
under oath at the preliminary hearing. [¶] Given these
circumstances, there is little likelihood that a competent
jury would have given Gregory’s alleged confession
substantial weight. Accordingly, it is not reasonably
probable that admission of his testimony would have
affected the outcome, so there is no basis for finding
that trial counsel’s error in not further investigating the
origin of the statement prejudicial. Nor is there any
prejudice from trial counsel’s failure to interview
Gregory, because there is no reason to believe that
Gregory would have cooperated with trial counsel.
Gregory asserted his Fifth Amendment privilege both at
the time of the trial and at the time of the 2008
evidentiary hearing, so there is no reason to believe he
would have cooperated with trial counsel’s
investigation, the goal of which was to incriminate him,
at the time of trial.
1ER at 102.
48
The District Court found no prejudice, within the meaning of
Strickland, under what appears to be a de novo standard of review. And
under AEDPA, the question is only whether the California Supreme Court’s
rejection of the claim was reasonable, within the meaning of 28 U.S.C. §
2254(d). When viewed through this “doubly deferential” lens, Yarborough
v. Gentry, 540 U.S. at 6, it cannot reasonably be concluded that the state
court’s rejection of this claim was unreasonable, particularly in light of the
fact that the District Court held that it was not merely reasonable, but
correct. Because reasonable courts would agree that relief must be denied
on this claim, Petitioner is not entitled to a certificate of appealability.
IV. CERTIFICATION MUST BE DENIED BECAUSE THE CALIFORNIA
SUPREME COURT REASONABLY REJECTED PETITIONER’S CLAIM
THAT TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF
COUNSEL BY HIS FAILURE TO PRESENT FAMILY BACKGROUND
AND RESIDUAL DOUBT MITIGATING EVIDENCE AT THE PENALTY
PHASE (AOB CLAIM IX)
Claim IX of the AOB (claim XX, subclaims B and E of the Petition),
generally alleges that trial counsel rendered ineffective assistance of counsel
by failing to present social and medical background mitigating evidence, as
well as residual doubt mitigating evidence based on the jailhouse testimony
of John Culver. AOB at 92-113. These claims fail under § 2254(d)(1)
49
because the California Supreme Court reasonably rejected these claims on
direct appeal and in a summary denial on habeas corpus.
A.
The Denial of Relief in State Court
The state court record in this case reveals that this penalty phase
mitigation claim was raised three times in the California Supreme Court. On
direct appeal, Petitioner alleged that trial counsel rendered ineffective
assistance of counsel in failing to renew his efforts to admit the jailhouse
testimony of John Culver at the penalty phase. The California Supreme
Court denied this claim on prejudice grounds, based on its earlier ruling on
the admissibility of Culver’s testimony. People v. Cudjo, 863 P.2d at 667.
Thereafter, Petitioner combined with this claim an ineffective assistance of
counsel claim based on the failure to present social and medical background
mitigation evidence as claims III(B) and III(F) in Petitioner’s first state
habeas corpus petition. 1SER at 81-85, 89-90. The California Supreme
Court summarily denied these claims “on the merits.” 5SER at 1056. The
second time these claims appear together is in Petitioner’s second state
habeas corpus petition as claims XXI(B) and XXI(E). 3SER at 810-35, 83944. The California Supreme Court denied the claims as untimely, and
alternatively, as repetitive, and “on the merits.” 1ER at 197.
50
As to the background mitigation claim, Petitioner conceded in state
court that the mitigation evidence he had put forth in his first state habeas
corpus petition was only “the most rudimentary” in content. 1SER at 81.
The entire recitation of social-medical background mitigation evidence that
Petitioner claimed his trial attorney should have presented consists of only
eight paragraphs in the Petition covering approximately two and one-half
pages of text. 1SER at 83-84.
In terms of actual factual content alleged with specificity, the Petition
averred that Petitioner was born in Phoenix Arizona in 1957, the first-born
of five children. An unidentified sister of Petitioner’s contracted spinal
meningitis as an infant, which resulted in her having a malformed spine.
This sister suffered from epilepsy, but it was undiagnosed until she became a
teenager. Petitioner maintained or “dropped” to “unsatisfactory” grades in
first and second grade, and in high school obtained 15 failing grades over an
unspecified period. Petitioner’s father died when Petitioner was twelve
years old, and Petitioner was “traumatized” in some unidentified manner by
the report that his father had been beaten to death by police who mistook
him for a vagrant. Thereafter, Petitioner became “the ‘Man’ of the house”
while his mother eventually married Ernest Freeney, “a violent and abusive
man.” Finally, the petition alleged that Petitioner had an unspecified
51
“history of blackouts” and in August 1983, he was struck with a pipe while
asleep and suffered a depressed skull fracture that caused him headaches,
nausea, vomiting, and left-upper-extremity weakness and numbness. The
petition further averred that Petitioner, while incarcerated in the Los Angeles
County Jail, was a trustee with no disciplinary violations. 1SER at 82-84.
In response to this claim, the State produced a nineteen-page
declaration from trial counsel that addressed, among other things, his
approach to mitigation evidence at Petitioner’s trial. This declaration was
later accepted via stipulation of the parties as counsel’s testimony at the
state-court reference hearing. 5SER at 1057-78. According to trial counsel,
both he and his investigator interviewed Petitioner several times to obtain
background information for possible pursuit of an appropriate mitigation
case for the penalty phase. As the case developed, however, the essential
defense became alibi, thereby causing background information about
Petitioner’s childhood, education and various other common mitigation
factors to become of minimal consequence. Counsel found Petitioner’s prior
record, of which the prosecutor was not fully aware, to be “particularly
aggravating” and detrimental to a lingering doubt defense at the penalty
phase, if disclosed.
52
Counsel did not want to delve into background information that risked
the prosecutor both learning of and presenting aggravating evidence of a
prior Arizona robbery for which Petitioner was paroled just months before
he murdered Amelia P. Counsel further explained that Petitioner’s claimed
history of epilepsy could not be verified or connected to the operative facts
of this case. It was also, in counsel’s opinion, inconsistent with Petitioner’s
claimed training he had been doing as part of his “boxing career.” Counsel
further believed that pursuit of mental state mitigation evidence that
conceded commission of the murder would have undermined his residual
doubt strategy. 5SER at 1074-77.
The California Supreme Court summarily denied this claim “on the
merits.” 5SER at 1056. The Culver ineffective assistance of counsel claim
raised in the first state habeas petition renewed the claim raised on appeal
(1SER at 88-89), and was also summarily denied “on the merits.” 5SER at
1056.
B.
District Court Denial of Relief
The claims as alleged in the second state habeas corpus petition were
refiled in the District Court in an amended petition as claims XX(B) and
XX(E). The District Court reviewed the claims de novo and received
evidence that was not before the California Supreme Court during both the
53
first state habeas proceeding, and to a lesser extent, during the second state
habeas proceeding. Employing a de novo standard of review, the District
Court denied Petitioner relief on these claims, finding that trial counsel’s
decision not to present mitigation evidence was objectively unreasonable,
but not prejudicial. 1ER at 158-61. The District Court similarly denied the
ineffective assistance of counsel claim centered on the failure to renew
efforts at the penalty phase to admit the testimony of John Culver on
prejudice grounds. 1ER at 162-63.
C.
The California Supreme Court Reasonably Denied These
Claims
The California Supreme Court’s denial of these claims in Petitioner’s
first state habeas corpus petition was a reasonable adjudication of the merits
under § 2254(d)(1).
1.
The applicable law
In 1999 when the California Supreme Court summarily denied
Petitioner’s ineffective assistance of counsel claim centering on counsel’s
alleged failure to present background mitigation evidence, the clearly
established Supreme Court authority begins with Strickland itself.
Strickland was a death penalty case in which counsel conducted a limited
investigation. Counsel spoke with the defendant about his background and
54
spoke to the defendant’s wife and mother on the phone, but did not follow
up on a single unsuccessful effort to meet with them. “He did not otherwise
weed out character witnesses for [the defendant].” Strickland, 466 U.S. at
672-73. “Nor did [counsel] request a psychiatric examination, since his
conversations with his client gave no indication that respondent had
psychological problems.” Id. at 673. “Counsel decided not to present and
hence not to look further for evidence concerning [the defendant’s] character
and emotional state.” Id. In mitigation, counsel argued that Strickland had
no history of any criminal activity, he committed the crimes under extreme
mental or emotional stress, and that his life should be spared because he
surrendered and confessed. Id. at 673-74. The aggravating evidence
included that “all three murders were especially heinous, atrocious, and
cruel, all involving repeated stabbings. All three murders were committed in
the course of at least one other dangerous and violent felony, and since all
involved robbery, the murders were for pecuniary gain.” Id.
In a state post-conviction proceeding, Strickland claimed that counsel
provided ineffective assistance by failing to move to continue the sentencing
hearing, failing to investigate and present character witnesses, failing to seek
a presentence investigation report, and failing to request a psychiatric report.
Strickland, 446 U.S. at 674. In support of his claim, Strickland produced the
55
declarations of fourteen friends, neighbors and family members who would
have testified on his behalf. In addition, he provided a psychiatric report and
a psychological report stating that Strickland was suffering from depression
at the time of his crimes. The state trial court rejected the claim without
holding a hearing. On federal habeas review, the district court concluded
that counsel erred in failing to further investigate mitigating evidence, but
the error was harmless. Id. at 675-79.
The Supreme Court reversed regarding counsel’s performance. The
Court explained that counsel’s conduct must be judged by a standard of
reasonableness and “[m]ore specific guidelines are not appropriate” because
“[n]o particular set of detailed rules for counsel’s conduct can satisfactorily
take account of the variety of circumstances faced by defense counsel or the
range of legitimate decisions regarding how best to represent a criminal
defendant[.]” Strickland, 466 U.S. at 688-69. Indeed, reviewing the claim
under a de novo standard, the high court found that its decision was “not
difficult” and that it was “clear” that counsel’s performance at and during
the capital sentencing hearing was reasonable. Id. at 698-99; id. at 699
(“The aggravating circumstances were utterly overwhelming. Trial counsel
could reasonably surmise from his conversations with [the defendant] that
character and psychological evidence would be of little help. . . . On these
56
facts, there can be little question, even without application of the
presumption of adequate performance, that trial counsel’s defense, though
unsuccessful, was the result of reasonable professional judgment”) (italics
added).
In Burger v. Kemp, a pre-AEDPA death penalty case, Burger was
convicted of murder and was sentenced to death. Burger and Stevens were
United States Army soldiers stationed at Fort Stewart, Georgia. They called
a cab after agreeing to pick up a third soldier from the airport and bring him
back to the base. Honeycutt, a soldier working part-time as a cab driver,
picked them up. On the way to the airport, Burger and Stevens robbed
Honeycutt at knifepoint. While Burger drove, Stevens forced Honeycutt to
undress, blindfolded him and tied his hands behind his back. Stevens
climbed into the backseat with Honeycutt, forced Honeycutt to commit oral
sodomy, and anally sodomized him. They stopped the car and placed
Honeycutt, nude and blindfolded, into the trunk and drove to a pond. Burger
opened the trunk and asked whether Honeycutt was okay. When he
responded affirmatively, Burger closed the trunk, started the cab, placed it
into gear and exited before it entered the water. Honeycutt drowned.
Burger, 483 U.S. at 778.
57
In a habeas proceeding, Burger claimed that his attorney failed to
adequately investigate the mitigating circumstances of his offense. Burger,
at 483 U.S. 777-78. The evidence showed that Stevens was “primarily
responsible for the plan to kidnap the cabdriver, the physical abuse of the
victim, and the decision to kill him.” Id. at 779. In addition, Burger was
only seventeen years old at the time of the offense and “functioned at the
level of a 12-year-old child.” Id. Stevens was twenty. Id. Counsel also
could have presented evidence that “petitioner had an exceptionally unhappy
and unstable childhood.” Id. at 789. Burger’s parents married at a very
young age, sixteen and fourteen. His mother remarried twice, and neither of
Burger’s stepfathers wanted him in the home. One of them beat her in his
presence when he was 11, and the other got him involved in drugs. Id. at
790. Later, Burger was placed in a juvenile detention center. Id. Burger’s
counsel did not present any of this evidence at either of two sentencing
hearings. Id. at 788-90. “Except for one incident of shoplifting, being
absent from school without permission, and being held in juvenile detention
– none of which was brought to the jury’s attention, petitioner apparently
had no criminal record before entering the Army.” Id.
The Supreme Court described the mitigating evidence as including a
“‘neglectful, sometimes even violent, family background’ and testimony that
58
his ‘mental and emotional development were at a level several years below
his chronological age[.]’” Burger, 483 U.S. at 790 n.7. Yet, counsel
decided not to present any of this evidence, even though counsel had some
family history evidence before the trial, in order to keep evidence that
Burger had committed a prior petty theft away from the jury. Id. at 790-92.
Counsel also decided not to present the testimony of a psychologist because,
given Burger’s lack of remorse and attitude about the crimes, “he would be
subjected to cross-examination that might be literally fatal.” Id. at 791. In
addition, while other family members could have testified on Burger’s
behalf, their declarations also referenced Burger’s prior contacts with law
enforcement and were “at odds with the defense’s strategy of portraying
petitioner’s actions on the night of the murder as the result of Stevens’s
strong influence upon his will.” Id. at 793.
Despite counsel’s “failure” to present any evidence at the sentencing
hearing, the Supreme Court concluded that counsel’s performance satisfied
the constitutional standard: “The record at the habeas corpus hearing does
suggest that [counsel] could well have made a more thorough investigation
than he did. Nevertheless, in considering claims of ineffective assistance of
counsel, ‘[w]e address not what is prudent or appropriate, but only what is
constitutionally compelled.’” Burger, 483 U.S. at 794 (citation omitted). As
59
the high court explained, “counsel’s decision not to mount an all-out
investigation into petitioner’s background in search of mitigating
circumstances was supported by reasonable professional judgment. It
appears that he did interview all potential witnesses who had been called to
his attention and that there was a reasonable basis for his strategic decision
that an explanation of petitioner’s history would not have minimized the risk
of the death penalty.” Id. at 794-95.
Based on this Supreme Court legal landscape, the California Supreme
Court could reasonably conclude that trial counsel’s investigation into
various mitigation themes and decision to forego further investigation and
presentation in favor of a lingering doubt defense was objectively reasonable
and did not fall below prevailing professional norms. In neither Strickland
nor Burger did the Supreme Court mandate any sort of bright-line minimum
level of penalty phase investigation that must take place before a trial
attorney could reasonably conclude that further investigation was
unnecessary. In particular, neither case holds that a defense attorney’s
mitigation investigation into his client’s background must go beyond
interviews of the client himself. Indeed, as noted above, in Strickland the
Court had no difficulty finding adequate investigation based only on an
interview of the defendant about his background and phone conversations
60
with the defendant’s wife and mother without further follow-up. And in
Burger the Court specifically acknowledged that trial counsel could well
have conducted a more thorough investigation, but instructed that
constitutional minima did not dictate what was “prudent or appropriate.” Id.
at 794-95.
The District Court in the instant case found otherwise, 1ER at 153-57,
but in its analysis, the District Court erred in a number of fundamental
respects. First, the District Court conducted a de novo evaluation of
counsel’s performance based evidence that went beyond the record of the
first state habeas corpus proceeding. This analysis contravenes the Supreme
Court’s recent mandate in Pinholster. Pinholster, 131 S. Ct. at 1401.
Second, the District Court erred in going beyond the clearly established
Supreme Court law as it existed in 1999. Indeed, the District Court relied
upon Supreme Court cases, as well as Ninth Circuit authority, to set forth a
constitutional duty to investigate a defendant’s background for the penalty
phase that goes beyond rudimentary knowledge from narrow sources.
However, the Supreme Court has instructed that it is error to attribute such
“strict rules to this Court’s recent case law.” Id. at 1407.
Given trial counsel’s declaration, which was introduced at the state
reference hearing, the California Supreme Court could reasonably
61
summarily deny this claim on the merits. In light of the state-court record,
the California Supreme Court could reasonably conclude that Petitioner had
failed to overcome the strong presumption that counsel rendered adequate
assistance of counsel and made all significant decisions in the exercise of
reasonable professional judgment. Pinholster, 131 S. Ct. at 1403.
First, the California Supreme Court could reasonably have credited as
reasonable trial counsel’s concern that presentation of background evidence
risked bringing before the jury aggravating evidence of Petitioner’s Arizona
robbery conviction, imprisonment, and parole just prior to the murder of
Amelia P. At the guilt phase of trial, Petitioner testified without
contradiction that he lived in California for 12 1/2 to 13 years prior to April,
1988. 8ER at 1925. However, the proffered mitigation evidence that
Petitioner had earned a high school equivalency certificate in 1982 in
Arizona, as well as having suffered an alleged head injury in 1983, carried
with it the risk that the jury would have learned that both events happened
while Petitioner was incarcerated in Arizona from 1980 to 1985 for robbery.
This discovery would have confirmed the jury’s conclusion at the guilt phase
that Petitioner was an untrustworthy person. It also would have further
tarnished Petitioner as a career criminal, with a greater propensity for
violence, and a motive to kill to avoid going back to prison.
62
Similarly, the California Supreme Court could reasonably have credited
as reasonable trial counsel’s concern that Petitioner’s claimed epilepsy based
on a purported “history of blackouts” could not be verified or connected to
the operative facts of this case. Nowhere in connection with this claim was
it ever alleged that trial counsel was made aware that Petitioner had a
documented medical history of epilepsy, that epilepsy played any role in the
murder of Amelia P., or that epilepsy affected Petitioner’s conduct on the
day of the crime. The California Supreme Court could reasonably credit
counsel’s concern that pursuit of mental state mitigation evidence that
conceded commission of the murder would have undermined his residual
doubt strategy.
As for the remaining elements of the proposed mitigation strategy—
Petitioner’s poor school performance; a sister’s childhood meningitis,
deformed spine, and undiagnosed childhood epilepsy; the beating death of
Petitioner’s father; his mother’s subsequent marriage to a “violent and
abusive man;” and Petitioner’s good conduct in county jail—the California
Supreme Court could reasonably credit trial counsel’s judgment that such
mitigation themes were “miscellaneous alternative theories of responsibility
for the murder that were patently not operative” and “of minimal
consequence[.]” 5SER at 1075-76. Based on this record, the California
63
Supreme Court could reasonably credit counsel’s judgment that “presenting
a ‘laundry list’ of feigned mitigation evidence would detract from one good
theory which was consistent with evidence presented at trial[.]” 5SER at
1076. For all of these reasons, the California Supreme Court could have
reasonably concluded that Petitioner failed to overcome the strong
presumption that counsel rendered competent representation.
When the claim of ineffective assistance of counsel involves counsel’s
alleged failure to present mitigating evidence at the penalty phase of trial, a
petitioner generally must “establish ‘a reasonable probability that a
competent attorney, aware of [the available mitigating evidence], would
have introduced it at sentencing,’ and ‘that had the jury been confronted with
this . . . mitigating evidence, there is a reasonable probability that it would
have returned a different sentence.” Wong v. Belmontes, 130 S. Ct. 383, 386
(2010) (quoting Wiggins v. Smith, 539 U.S. at 535); accord Williams v.
Taylor, 529 U.S. at 397.
“In evaluating that question, it is necessary to consider all the relevant
evidence that the jury would have had before it if [counsel] had pursued the
different path – not just the mitigating evidence [counsel] could have
presented, but also the [aggravating evidence] that almost certainly would
have come in with it.” Belmontes, 130 S. Ct. at 386 (emphasis in original)
64
(citing Strickland, 466 U.S. at 386). Thus, a petitioner “must show a
reasonable probability that the jury would have rejected a capital sentence
after it weighed the entire body of mitigating evidence [] against the entire
body of aggravating evidence [].” Id.
It is readily apparent why the California Supreme Court rejected this
aspect of the ineffective assistance of counsel mitigation claim on prejudice
grounds. The new mitigation evidence offered in support of the claim in the
California Supreme Court was far from overwhelming and would have been
problematic for the defense. Evidence of Petitioner’s Arizona school
records, particularly his 1982 high school equivalency certificate, as well as
Petitioner’s head injury in 1983, opened the door for the prosecution to
present evidence of Petitioner’s conviction and incarceration for robbery
from 1980 to 1985. Indeed, such revelations would have opened the door to
a strong prosecution argument in aggravation that Petitioner murdered
Amelia P. in order to avoid going back to prison.
Freestanding claims of epilepsy without any connection to the operative
crime facts or Petitioner’s criminal history would have been of little value,
and if connected to the facts of the murder, the evidence would have greatly
diminished, if not extinguished, any residual doubt mitigation theory. Such
evidence also would have opened the door to rebuttal by the State through
65
expert testimony or other types of evidence. And evidence that Petitioner’s
family exposed him to “violent and abusive” people was “by no means
clearly mitigating” and risked having the jury conclude that Petitioner “was
simply beyond rehabilitation.” Pinholster, 131 S. Ct. at 1410.
The remaining material in the state habeas record is “sparse” and
reveals “just a few new details” about Petitioner’s childhood. Id.
Petitioner’s sister suffered spinal meningitis as an infant, resulting in a
malformed spine. She also suffered from epilepsy that was undiagnosed
until she was a teenager. Petitioner’s father was reportedly beaten to death
by police officers when he was mistaken for a vagrant. This “traumatized”
Petitioner and forced him to become the man of the house, while his mother
entered into a series of relationships with other men. Petitioner was also a
trustee in the Los Angeles County Jail with no disciplinary violations. The
new mitigating evidence in this record was “not so significant” that even
assuming trial counsel performed deficiently in putting together a mitigation
defense, “it was necessarily unreasonable” for the California Supreme Court
to conclude that Petitioner had failed to demonstrate a reasonable probability
of a different sentence had the new mitigation evidence been presented. Id.
Litigation of this claim in state court did not end with the California
Supreme Court’s summary denial of the claim on the merits. As previously
66
noted, the claim reappeared in Petitioner’s second state habeas as claim
XXI(B). 3SER at 810-35, 839-43.) The California Supreme Court denied
the claim as untimely, as repetitive, and “on the merits.” 1ER at 197. This
iteration of the claim was amplified by allegations and exhibits that did not
appear in the first state habeas corpus application. Primarily, the new
allegations came from the declarations of a social historian and a
psychologist.
The social historian provided details that were not provided in the first
state habeas corpus petition that Petitioner claimed his trial attorney should
have developed. These details traced Petitioner’s family back to the early
1800s, where the Black Seminoles lived in Florida. This history traced
Petitioner’s family through the Civil War, providing details of the lives of
Petitioner’s great-great grandfather, great grandfather, grandfather, and
father. The allegations further documented Petitioner’s father’s early adult
life and marriage to Petitioner’s mother. It described Petitioner’s father’s
employment as a minister and a day laborer supporting five children, his
drinking, and medical problems. The allegations described in greater detail
Petitioner’s poor performance in school through elementary and high school.
The bolstered claim again identified the death of Petitioner’s father as a
major event in his life, but noted that family members could not agree on
67
how he had died, with stories ranging from him getting into a fight with
another man, to being beaten by police, to just “collapsing.” The allegations
likewise amplified the assertion that Petitioner was “devastated” by his
father’s death, alleging that Petitioner “careened through his adolescence”
by acting out, challenging authority, skipping school, and withdrawing from
family and friends. The allegations gave more detail of Petitioner’s
mother’s ensuing relationships with men, particularly her relationship with
Ernest Freeney, who drank, fought with, and beat Petitioner’s mother. All
this was witnessed by the Cudjo family children. 3SER at 810-26.
For the first time, the second state habeas petition alleged that
Petitioner had engaged in substance abuse, and provided details of the onset
of Petitioner’s epilepsy. It also provided details of Petitioner’s head injuries
he suffered while in prison for burglary in 1983, conceding that the incident
happened in prison, and supported allegations of brain damage with a 1992
neuropsychological summary that “suggest[ed] a degree of brain dysfunction
and impairments generally within the mild to moderate range, with greater
left hemisphere dysfunction consistent with Petitioner’s 1983 skull fracture.”
The allegations repeated the assertions in the first petition that Petitioner was
a trustee in the Los Angeles County Jail with no disciplinary violations.
3SER at 826-31.
68
The California Supreme Court denied the claim as untimely, and
alternatively, as repetitive, and “on the merits.” 1ER at 197. In support of its
timeliness bar, the California Supreme Court cited In re Robbins, 959 P.2d
311, 317-18 (Cal. 1998) and In re Clark, 855 P.2d at 737-62. 1ER at 197.
Because of the imposition of this timeliness bar, none of the additional
allegations or exhibits supporting this claim can be considered on federal
habeas review. The bar constitutes an adequate and independent state
ground for the California Supreme Court resolution of this claim in the
second state habeas corpus proceeding.
A federal court may not review a claim if the decision of the state court
rests on a state law ground that is independent of the federal question and
adequate to support it. Beard v. Kindler, 130 S. Ct. 612, 614 (2009) (citing
Coleman v. Thompson, 501 U.S. 722, 729 (1991)). In other words, in all
cases in which a state prisoner has defaulted his federal claims in state court
pursuant to an independent and adequate state procedural rule, federal
habeas review of the claims is barred unless the prisoner can demonstrate
cause for the default and actual prejudice as a result of the alleged violation
of federal law, or demonstrate that failure to consider the claims will result
in a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. at
750; Poland v. Stewart, 169 F.3d 573, 577 (9th Cir. 1998); Bonin v.
69
Calderon, 59 F.3d 815, 842-43 (9th Cir. 1995). A habeas petitioner who has
failed to meet the state’s procedural requirements for presenting federal
claims has deprived the state courts of an opportunity to address those
claims in the first instance, just like a petitioner who has failed to exhaust
state remedies. Coleman v. Thompson, 501 U.S. at 732; see also Harris v.
Reed, 489 U.S. 255, 265-66 (1989) (state court must, however, clearly and
expressly invoke the default by providing a “plain statement” of default).
In In re Robbins, the California Supreme Court discussed its policies
concerning the timely presentation of habeas corpus petitions. Where a
petition is filed after a long delay, the court noted, the petitioner has the
burden of establishing absence of substantial delay, good cause for the delay,
or that the claim falls within an exception to the bar of untimeliness. In re
Robbins, 959 P.2d at 18. This is the same timeliness bar identified in In re
Clark, 855 P.2d at 737-62.
In its recent decision in Walker v. Martin, 131 S. Ct. 1120 (2011), the
United States Supreme Court expressly held that California’s requirement
that habeas corpus petitions be filed in state court without substantial delay
is an “adequate” procedural ground, as it is “firmly established and regularly
followed.” Id. at 1127-31. Although the rule is discretionary under
California law, the Supreme Court noted, a state procedural rule can
70
adequately bar federal habeas review even if the state exercises its discretion
at times to disregard the rule and decide a habeas claim on its merits. Id. at
1128 (citing Beard v. Kindler, 130 S. Ct. at 618).
Thus, the ineffective assistance of counsel claim as set forth in Claim
XXI(B) of the second state habeas petition, 3SER at 810-35, and repeated
verbatim in the amended federal habeas corpus petition as Claim XX(B), is
procedurally barred. See Walker v. Martin, 131 S. Ct. at 1127-31; see also
La Crosse v. Kernan, 244 F.3d 702, 705 (9th Cir. 2001) (“[T]he California
Supreme Court was applying the untimeliness bar because [petitioner]
delayed nearly twelve years between his direct appeal and his state petition
for habeas corpus”)
As Petitioner has failed to show cause and prejudice with respect to his
delay in seeking relief, the amplified version of this claim is barred. See
generally Murray v. Carrier, 477 U.S. 478, 488 (1986); Martinez-Villareal
v. Lewis, 80 F.3d 1301, 1305 (9th Cir. 1996); see also McCleskey v. Zant,
499 U.S. at 497 (cause is external impediment such as government
interference or reasonable unavailability of claim’s factual basis); see
Bennett v. Mueller, 322 F.3d 573, 586 (9th Cir. 2003). In this regard, it is
significant that Petitioner offered as the principal explanation for the delayed
presentation of this amplified claim in the second state habeas petition that
71
the California Supreme Court had denied him “sufficient funds” for the
development of mitigation evidence on habeas corpus. 2SER at 401-05.
However, Petitioner provided no authority—and Respondent is aware of
none—that would excuse a Petitioner from fully developing his claim
because the state courts would not pay him to do so. Respondent disputes
Petitioner’s assertion that unless the State facilitates a Petitioner’s
investigation by fully funding it in the way Petitioner later claims it should
have been funded, the State is “interfering” with the investigation. In any
event, Petitioner was wrong on the facts. The California Supreme Court
granted Petitioner $8,000 specifically for the purposes of investigating
potential mitigating evidence that could have been presented at the penalty
phase, and the order specifically permitted Petitioner to renew the request
for additional funds in the future. 5SER at 1079. Petitioner therefore did not
establish any legally cognizable cause for his failure to develop this claim in
the first state habeas corpus petition, and the “cause” he alleged was based
upon demonstrably false allegations of fact.
Petitioner also cannot establish prejudice for his failure to develop this
version of the claim because the California Supreme Court also alternatively
rejected the claim on the merits, and Petitioner cannot overcome the high
hurdle imposed by § 2254(d)(1). The additional allegations merely added
72
more details to the same claim already rejected in the first state habeas
corpus petition, and the court could reasonably conclude that the newer
version of the claim did not significantly strengthen the claim so as to
warrant relief.
As previously discussed, trial counsel and his investigator interviewed
Petitioner about his background with the express purpose of evaluating
potential family background, medical, and mental state mitigation themes,
but concluded that those themes were by no means clearly mitigating and
endangered the more prudent mitigation strategy of residual doubt. By the
same token, the California Supreme Court could reasonably conclude that
the addition of two experts did not significantly bolster the claim on the
prejudice prong.
The mitigation expert, whose function was to synthesize family
background evidence so as “humanize” Petitioner, added little value to the
presentation. Penalty phase juries do not need expert testimony to
understand the value of “humanizing” evidence. All that is needed is
common sense or a sense of mercy. Belmontes, 130 S. Ct. at 388.
Furthermore, an expert who would have testified that Petitioner suffered
from mild brain damage, largely from an injury suffered just a number of
years earlier in prison would have been countered by a State expert and
73
added little, if anything, to a case in mitigation. Pinholster, 131 S. Ct. at
1410.
Indeed, proof of the reasonableness of the California Supreme Court’s
rejection of this amplified version of this claim is evidenced by the District
Court’s de novo rejection of yet another iteration of this the claim on
prejudice grounds. If the District Court could reasonably conclude that the
jury’s knowledge that Petitioner had experienced a traumatic childhood, was
exposed to domestic violence, lost his father at age twelve, was depressed,
abused alcohol and drugs, experienced two head injuries, seizures, and had
possible brain damage would not have overcome the “‘brutal and revolting
circumstances of this premeditated, deliberate, cold-blooded and totally
unjustified murder,’” 1ER at 158, then it cannot be said that “it was
necessarily unreasonable for the California Supreme Court to conclude that
[Petitioner] had failed to show a ‘substantial’ likelihood of a different
sentence.” Pinholster, 131 S. Ct. at 1410.
As to Petitioner’s ineffective assistance of counsel claim regarding trial
counsel’s failure to renew his efforts to admit Culver’s testimony, Petitioner
again cannot overcome the relitigation bar of § 2254(d)(1). As explained by
the California Supreme Court on direct appeal,
74
We have previously concluded that Culver’s
testimony was erroneously excluded at the guilt phase,
but that the error was not prejudicial. Because the same
evidentiary rules govern admissibility of evidence at the
guilt and penalty phases, we question whether defense
counsel demonstrates incompetence by failing to press
at the penalty phase for admission of evidence excluded
at the guilt phase. But we need not decide whether
reasonably competent counsel would have again sought
admission of Culver’s testimony. For the reasons
already stated, we are persuaded that Culver’s testimony
was lacking in credibility and could not have affected
the outcome at either the guilt or penalty phases of the
trial.
People v. Cudjo, 863 P.2d at 667.
The California Supreme Court’s conclusion that the admission of
Culver’s testimony at the penalty phase could not have affected the outcome
of the penalty phase is not outside the realm of a fair-minded jurists, and
hence must be deferred to under § 2254(d)(1). As previously noted with
respect to Claim V on appeal here, the incredible nature of Culver’s
proposed testimony was comprehensively addressed by both the California
Supreme Court and the District Court. Culver personally had massive
credibility problems. As the District Court explained, via reliance on the
state court record, Culver and Petitioner were long-time friends. Culver had
a prior felony conviction and had been sentenced to prison. The
overwhelming majority of Culver’s male relatives (approximately forty) had
75
criminal records. 1ER at 35. Petitioner’s trial counsel was reluctant to even
consider using Culver given his family’s reputation in the community and
his criminal record. Id.
In addition to his inherent personal credibility problems, Culver’s
proposed testimony also lacked credibility. Although Culver knew
Gregory’s purported admission was important, he ostensibly waited a very
long time to tell anyone—including Petitioner—about it. Further, Gregory’s
alleged confession, as reported by Culver, was irreconcilable with the
physical and eyewitness evidence. Culver testified that Gregory said he
went to burglarize the victim’s house, and that, as soon as the victim saw
him, she confronted him and began screaming, so he immediately beat her
into unconsciousness and apparently to death. But the undisputed physical
evidence proved beyond any doubt based in reason that the killing did not
happen that way. The victim was found hog-tied in her bedroom, and the
victim’s young child testified that she was hog-tied before she was
murdered. 1ER at 36.
The California Supreme Court identified these dramatic reliability
deficiencies in Culver’s testimony, and other compelling ones as well. For
example, Petitioner’s semen—not Gregory’s—was found on the victim.
Petitioner’s explanation—that he had traded drugs for consensual sex with
76
the victim—was refuted by all other evidence. Although Petitioner testified
that he had seen the victim purchase cocaine on prior occasions, as her
husband testified, this was untrue. The victim never showed any signs of
drug use, and there was no money missing from their accounts. Further,
there was no cocaine in the victim’s body at the time of her death. People v.
Cudjo, 863 P.2d at 652-53.
The state court also noted that the physical and eyewitness evidence
supported the presence of only one person in the victim’s home that day.
Only one set of shoe prints were found leading to and from the victim’s
home, and the victim’s son described only one person entering the home.
People v. Cudjo, 863 P.2d at 643. In short, there was no evidence that
supported the presence of a second person in the home, other than
Petitioner’s fantastic story of consensual sex for drugs with a woman found
hog-tied and beaten to death without any drugs in her system. Id.
The California Supreme Court also noted how unrealistic it would be to
conclude that the victim would have engaged “in casual sex and drug
activity in her living room with a near stranger while her five-year-old son
was at home.” People v. Cudjo, 863 P.2d at 652. Petitioner’s unbelievable
story failed to account for the presence of the child known to be in the house
with the victim. Id.
77
No rational jury would have disregarded this uncontroverted evidence
proving Petitioner was the murderer, and concluded that Gregory was the
actual killer, if only Culver had been permitted to testify. As every court to
consider this issue has found, Culver was personally an unreliable source,
and the story he claimed Gregory told him was incredible in light of the
uncontroverted physical and eyewitness evidence. Any error in excluding
Culver’s concocted story did not have a substantial and injurious effect or
influence in determining the jury’s verdict.
As noted above, this claim was denied a second time on the merits in
Petitioner’s first state habeas petition. Presented with an opportunity to
bolster this claim, Petitioner failed in this regard because trial counsel’s
declaration confirmed that he was well aware of the credibility problems
Culver presented, including Culver’s longtime friendship with Petitioner,
Culver’s family’s well-known contacts with law enforcement in the area,
and the lateness of Culver’s offer to testify (which detracted from his
credibility based on the publicity generated by the case), Culver’s own
longtime relationship with trial counsel, and his prior contacts with counsel
that did not produce the proffered admissions. In addition, trial counsel was
acutely aware of the trial court’s prior ruling and major inconsistencies in
Culver’s testimony and the physical and other evidence in the case. 5SER at
78
1067-68. Based on trial counsel’s declaration, the California Supreme Court
could reasonably concluded that Petitioner had failed to overcome the strong
presumption of competence of counsel and counsel could reasonably refrain
from renewing efforts to admit the Culver testimony based on credibility
concerns and doubts that the trial court would change its ruling. In similar
fashion, the court could find renewed confidence in its conclusion that
Culver’s testimony could not have affected the verdict in the case. For all of
the above-stated reasons, Petitioner is entitled to neither a certificate of
appealability nor relief on Claim IX.
V.
CERTIFICATION MUST BE DENIED BECAUSE THE CALIFORNIA
SUPREME COURT REASONABLY REJECTED PETITIONER’S CLAIM
OF CUMULATIVE ERROR (AOB CLAIM X)
In Claim X of the AOB (Claims XIX, XXX and XXXI of the Petition),
Petitioner argues that, even if none of the errors he identifies are sufficiently
prejudicial to warrant relief when considered individually, he is entitled to
relief based upon the cumulative effect of the errors at the guilt and penalty
phases. AOB at 113-22.
The California Supreme Court reasonably rejected these claims.
Although Petitioner presents a laundry list of purported errors, AOB at 11416, he does not discuss how those errors purportedly cumulatively
prejudiced him. AOB 119-21. As to most of the allegedly accumulating
79
errors, Petitioner states without elaboration that he was “additionally
prejudiced . . . by the other errors.” AOB at 120. How “the other errors”
“accumulated” to cause additional prejudice beyond that contemplated by
the analysis of their individual effect is not discussed. Because, as discussed
in the preceding sections, most of the allegations Petitioner identifies fail to
present a meritorious claim of error, the accumulation of these non-errors
did not render the trial fundamentally unfair. Payton v. Cullen, 658 F.3d
890, 896-97 (9th Cir. 2011).
The one area of “accumulation” that Petitioner discusses with
specificity is the alleged synergy between the allegedly erroneous admission
of Gregory’s preliminary hearing testimony and the erroneous exclusion of
Gregory’s inculpatory statements. However, the District Court held that the
admission of the preliminary hearing testimony was not error; accordingly,
there was no “prejudice” from this evidence to accumulate. 1ER at 37-46.
And this Court found that the preliminary hearing testimony claim was so
lacking in substance that it denied a certificate of appealability as to this
issue. See 12/5/2011 Order re Supplemental Briefing.
Thus, the relevant portion of Petitioner’s “cumulative” error claim is
simply a recapitulation of his complaints about the prejudice that
purportedly flowed from the wrongful exclusion of Gregory’s inculpatory
80
statements. This is not so much a claim of cumulative error as a restatement
of his claim of prejudice from this one alleged claim of error. Because the
prejudice component of that claim is adequately addressed in the context of
Respondent’s discussion of the claim itself, see pp. 23-26, supra, it does not
bear repeating here. And, insofar as the California Supreme Court—and the
District Court—reasonably concluded that the claim raised no
constitutionally cognizable error, and was in any event harmless, People v.
Cudjo, 863 P.2d at 648-54; accord 1ER 30-37, federal habeas corpus relief
is unavailable. § 2254(d)(1).
81
CONCLUSION
Accordingly, Respondent requests that the decision of the District
Court denying and dismissing the Petition with prejudice be affirmed.
Dated: January 6, 2012
Respectfully submitted,
KAMALA D. HARRIS
Attorney General of California
LANCE E. WINTERS
Senior Assistant Attorney General
A. SCOTT HAYWARD
Deputy 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
LA2008504207
51069417.doc
82
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: January 6, 2012
Respectfully Submitted,
KAMALA D. HARRIS
Attorney General of California
LANCE E. WINTERS
Senior Assistant Attorney General
A. SCOTT HAYWARD
Deputy 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
83
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 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 17,696 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).
1/6/12
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 January 6, 2012, I electronically filed the following documents with the
Clerk of the Court by using the CM/ECF system:
SUPPLEMENTAL 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 January 6, 2012, at Los Angeles,
California.
L. Luna
Declarant
JWB:ll
LA2008504207
51070576.doc
s/ L. Luna
Signature
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