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

Filing 66

Submitted (ECF) Reply brief for review. Submitted by Appellant Armenia Levi Cudjo, Jr.. Date of service: 01/26/2012. [8047081] (JLL)

IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

ARMENIA LEVI CUDJO, JR.,
Petitioner-Appellant,
v.
ROBERT AYERS, JR., Warden,
Respondent-Appellee.

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) CA No. 08-99028
)
)
) D.C. No. CV-99-08089-JFW
)
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)
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APPELLANT’S SUPPLEMENTAL REPLY BRIEF

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

TABLE OF CONTENTS
Page
I.

The Effect of Pinholster and Richter on This Appeal. . . . . . . . . . . . . . . . . . 1

II.

This Court Should Certify and Grant Relief on Claim V. . . . . . . . . . . . . . . . 4
A.

The Trial Court's Exclusion of John Culver's Testimony On
The Sole Ground That It Was Not “Credible” Violated the Fifth
and Sixth Amendment; the California Supreme Court's Decision Was
Contrary to Clearly Established Federal Law. . . . . . . . . . . . . . . . . . . 4
1.

2.

The Unjustified Exclusion Of Critical Defense Evidence
Violates The Sixth Amendment Regardless of Whether
It Is Guided By A Generally Applicable State Rule. . . . . . . . . 7

3.

The Sixth Amendment Guarantees the Right To Have
the Credibility of Competent Witnesses Be Assessed
By a Jury. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

4.

B.

The Supreme Court Has Explicitly Rejected The Premise
That A Trial Court May Exclude Percipient Witness
Testimony Solely Because The Judge Does Not Believe It. . . 5

The Notion that Credibility Determinations Are Exclusively
Reserved To Juries Is Clearly Established Federal Law. . . . . 10

The Exclusion Of Gregory’s Confession, The Sole Direct
Evidence Of His Guilt, Was Prejudicial.. . . . . . . . . . . . . . . . . . . . . . 14

III.

This Court Should Certify and Grant Relief on Claim VII. . . . . . . . . . . . . 19

IV.

This Court Should Certify and Grant Relief on Claim VIII. . . . . . . . . . . . . 21
A.

Armenia Alleged Facts That Entitled Him To Relief.. . . . . . . . . . . . 21

B.

The California Supreme Court’s Summary Denial of the Claim Was
Contrary to Supreme Court Precedent. . . . . . . . . . . . . . . . . . . . . . . . 23
i

V.

This Court Should Certify and Grant Relief on Claim IX. . . . . . . . . . . . . . 27
A.

Clearly Established Supreme Court Precedent Made It Clear
That Trial Counsel Had An Obligation To Conduct a Thorough
Investigation of the Defendant’s Background .. . . . . . . . . . . . . . . . . 27

B.

The California Supreme Court Could Not Have Reasonably
Determined That Armenia Was Not Prejudiced By Trial
Counsel’s Failure To Present Any Evidence About Armenia’s
Impoverished Childhood, His Father’s Traumatic Death,
The Domestic Violence He Endured, and His Substance Abuse.. . . 35

C.

Armenia Presented All Of The Essential Facts Underlying His
Ineffective Assistance Claim To the California Supreme Court. . . . 37
1.

2.
VI.

The California Supreme Court’s Decision Denying The First
State Petition Was Contrary to Clearly Established
Federal Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Respondent’s Procedural Default Argument Is Meritless. . . . 41

This Court Should Certify and Grant Relief on Claim X. . . . . . . . . . . . . . . 45

CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

ii

TABLE OF AUTHORITIES
FEDERAL CASES
Page(s)
Arizona v. Fulminante,
499 U.S. 279 (1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 16, 26
Bennett v. Mueller,
322 F.3d 573 (9th Cir. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
Brecht v. Abrahamson,
507 U.S. 619 (1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Burger v. Kemp,
483 U.S. 776 (1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Calderon v. District Court (Bean),
96 F.3d 1126 (9th Cir. 1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42, 43
Calderon v. District Court (Hayes),
103 F.3d 72 (9th Cir. 1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42, 43
Chambers v. Mississippi,
410 U.S. 284 (1973). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 13, 15
Coker v. Georgia,
433 U.S. 584 (1977). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Coleman v. Thompson,
501 U.S. 722 (1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Cone v. Bell,
129 S. Ct. 1769 (2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 23
Correll v. Ryan,
539 F.3d 938 (9th Cir. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
iii

Crane v. Kentucky,
476 U.S. 683 (1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Cullen v. Pinholster,
131 S. Ct. 1388 (2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
Duvall. Gaston v. Palmer,
417 F.3d 1030 (9th Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Fields v. Calderon,
125 F.3d 757 (9th Cir. 1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41, 42, 43
Frantz v. Hazey,
533 F.3d 724 (9th Cir. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2, 3
Furman v. Georgia,
408 U.S. 238 (1972). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Gonzalez v. Wong,
__ F.3d __, 2011 WL 6061514 (9th Cir. Dec. 7, 2011). . . . . . . . . . . . . . . . 40
Goodwin v. Johnson, ,
632 F.3d 301 (6th Cir. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Gray v. Netherland,
518 U.S. 152 (1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Green v. Georgia,
442 U.S. 95 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Hamilton v. Ayers,
583 F.3d 1100 (9th Cir.2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Harrington v. Richter,
131 S. Ct. 770 (2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
Hearn v. Ryan,
2011 WL 1526912 (D. Ariz. Apr. 21 2011). . . . . . . . . . . . . . . . . . . . . . . . . . 3
iv

Holmes v. South Carolina,
547 U.S. 319 (2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
House v. Bell,
547 U.S. 518 (2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Hovey v. Ayers,
458 F.3d 892 (9th Cir.2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Howard v. Clark,
608 F.3d 563 (9th Cir. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 43
Hurles v. Ryan,
650 F.3d 1301 (9th Cir. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Jackson v. Denno,
378 U.S. 368 (1964). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
James v. Schriro,
659 F.3d 855 (9th Cir. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Jenkins v. Anderson,
447 U.S. 231 (1980). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Kim v. Villalobos,
799 F.2d 1317 (9th Cir. 1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 22
La Crosse v. Kernan,
244 F.3d 702 (9th Cir. 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Lockyer v. Andrade,
538 U.S. 63 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Lunbery v. Hornbeak, ,
605 F.3d 754 (9th Cir. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 15, 16
Miller v. North Carolina,
583 F.2d 701 (4th Cir. 1978). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
v

Moore v. Morton,
255 F.3d 95 (3rd Cir. 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 20
Morales v. Calderon,
85 F.3d 1387 (9th Cir. 1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42, 43
Panetti v. Quarterman,
551 U.S. 930 (2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 12
Parle v. Runnels,
505 F.3d at 930-32 (9th Cir. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46, 47
Porter v. McCollum,
__ U.S. __, 130 S. Ct. 447 (2009).. . . . . . . . . . . . . . . . . . . . . . . 27, 29, 35, 36
Rhines v. Weber,
544 U.S. 269 (2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Rhoades v. Henry,
638 F.3d 1027 (9th Cir. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13, 14
Rock v. Arkansas,
483 U.S. 44 (1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10
Rompilla v. Beard,
545 U.S. 374 (2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27, 36
Schriro v. Landrigan,
550 U.S. 465 (2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Sears v. Upton,
130 S. Ct. 3259 (2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Silva v. Woodford,
279 F.3d 825 (9th Cir. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Skipwith v. McNeil,
2011 WL 1598829 (S.D. Fla. Apr. 28, 2011). . . . . . . . . . . . . . . . . . . . . . . . . 3
vi

Strickland v. Washington,
466 U.S. 668 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
Summerlin v. Schriro,
427 F.3d 623 (9th Cir.2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 29
Taylor v. Illinois,
484 U.S. 400 (1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5
Taylor v. Withrow,
288 F.3d 846 (6th Cir. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Tennard v. Dretke,
542 U.S. 274 (2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
(Terry) Williams v. Taylor,
529 U.S. 362 (2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27, 28
United States v. Scheffer,
523 U.S. 303 (1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 10, 11
Walker v. Martin,
1315 S. Ct. 1120 (2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37, 44
Washington v. Texas,
388 U.S. 14 (1967). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Wellons v. Hall,
130 S. Ct. 727 (2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Wiggins v. Smith,
539 U.S. 510 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 27, 32, 34
Wiley v. Epps,
625 F.3d 199 (5th Cir. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38, 39
Ylst v. Nunnemaker,
501 U.S. 797 (1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
vii

STATE CASES
In re Swain,
209 P.2d 793 (1949). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
People v. Duvall,
886 P.2d 1252 (1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
FEDERAL STATUTES
28 U.S.C. § 2254(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

viii

I.

The Effect of Pinholster and Richter on This Appeal
To obtain habeas relief, a petitioner must show that his constitutional rights

were violated under 28 U.S.C. § 2254(a) and that § 2254(d) does not bar relief on
any claim adjudicated on the merits in state court. Frantz v. Hazey, 533 F.3d 724,
735-36 (9th Cir. 2008) (en banc). Cullen v. Pinholster, 131 S. Ct. 1388, 1398
(2011), held that “review under § 2254(d)(1) is limited to the record that was
before the state court that adjudicated the claim on the merits.” Harrington v.
Richter, 131 S. Ct. 770 (2011), held that a summary denial is an adjudication on
the merits, and that in assessing such denials under 2254(d), “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.” Id. at 786.
Three of the claims in this appeal -- the claims of ineffective assistance at
guilt and penalty and cumulative error -- were rejected in summary habeas denials.
Appellant’s Opening Brief (“AOB”) at 75, 92, 113-14. Richter applies to these
claims. “Under California law, the California Supreme Court’s summary denial of
a habeas petition on the merits reflects that court’s determination that ‘the claims
made in the petition do not state a prima facie case entitling the petitioner to
1

relief,’” “assum[ing] the allegations in the petition to be true.” Pinholster, 131 S.
Ct. at 1403 n.12. As shown below, the state court denial of these claims violates
2254(d) on the basis of the state court record. Id. at 1398.
Three other claims -- Claims 8 (trial court error excluding third-party
culpability evidence), 9 (confrontation clause violation), and 12 (prosecutorial
misconduct at closing) -- were denied in the direct appeal. AOB at 44, 65, 69-70.
Although they were reasserted in state habeas, they were summarily denied there,
and the Court “looks through” those denials to the last reasoned decision. Ylst v.
Nunnemaker, 501 U.S. 797, 803 (1991); Hurles v. Ryan, 650 F.3d 1301, 1311 (9th
Cir. 2011). Richter does not apply to those claims, and the 2254(d) analysis is
“confine[d] . . . to the state court’s actual decisions and analysis.” Frantz, 533
F.3d at 737 (original emphasis). Neither Pinholster nor Richter apply to the lethal
injection claim because California is revising its lethal injection protocol, and until
it is finalized no court can review it. Respondent asserts that “the District Court
erred in holding an evidentiary hearing in this case” because it did so without first
finding a violation of 2254(d) based solely on the state record. Suppl. Ans. at 3-4
(original emphasis). But Pinholster does not require that a petitioner prove a
violation of 2254(d) as a precondition to presenting new facts in federal habeas.
131 S. Ct. at 1411 n.20 (“[W]e need not decide whether § 2254(e)(2) prohibited
2

the District Court from holding the evidentiary hearing or whether a district court
may ever choose to hold an evidentiary hearing before it determines that § 2254(d)
has been satisfied.”). See also Wellons v. Hall, 130 S. Ct. 727, 730 n.3 (2010) (per
curiam) (error to require finding of 2254(d) violation before allowing federal fact
development); Schriro v. Landrigan, 550 U.S. 465, 474 (2007).
Evidence presented for the first time in federal habeas is relevant to
assessing whether Cudjo is ultimately entitled to relief under 2254(a), although it
cannot be used in 2254(d)(1) analysis. Once this Court concludes that 2254(d)
does not bar relief on a claim, it reviews the claim de novo, Panetti v. Quarterman,
551 U.S. 930, 953 (2007), Frantz, 533 F.3d at 735, 737, and it can and should
consider evidence developed in federal habeas for the purpose of determining
whether to grant relief. Skipwith v. McNeil, 2011 WL 1598829 (S.D. Fla. Apr. 28,
2011); Hearn v. Ryan, 2011 WL 1526912 (D. Ariz. Apr. 21 2011); see also
Howard v. Clark, 608 F.3d 563 (9th Cir. 2010) (remanding to district court for
evidentiary hearing after finding 2254(d) violation based on state court record).
Although the district court did not have the benefit of Pinholster’s ruling at the
time it rendered its decision, it acted well within its discretion in holding an
evidentiary hearing, and the results of that hearing remain relevant to this Court’s
decision as to whether relief should be granted under 2254(a).
3

II.

This Court Should Certify and Grant Relief on Claim V
Because this claim was presented to the California Supreme Court on direct

appeal and resulted in a reasoned decision, this Court must first determine what
arguments actually supported that decision, and then determine whether the
decision satisfies 2254(d).
A.

The Trial Court’s Exclusion of John Culver’s Testimony On The
Sole Ground That It Was Not “Credible” Violated the Fifth and
Sixth Amendment; the California Supreme Court’s Decision Was
Contrary to Clearly Established Federal Law

The right to present a defense arises from the Sixth Amendment’s
compulsory process clause and the Fifth Amendment’s due process clause.
Washington v. Texas, 388 U.S. 14 (1967). The clauses yield a fundamental right
to compel witnesses to appear, and to present their testimony to the jury:
The right to offer the testimony of witnesses, and to compel their
attendance, if necessary, is in plain terms the right to present a
defense, the right to present the defendant’s version of the facts as
well as the prosecution’s to the jury so it may decide where the truth
lies . . . . This right is a fundamental element of due process of law.
Id. at 19. “The right to compel a witness’ presence in the courtroom could not
protect the integrity of the adversary process if it did not embrace the right to have
the witness’ testimony heard by the trier of fact.” Taylor v. Illinois, 484 U.S. 400,
409 (1988). Although the Supreme Court has acknowledged that trial courts may,
consistent with the Fifth and Sixth Amendment guarantees, exclude evidence that
4

is “unreliable,” it has explicitly rejected the principle that Respondent urges this
Court to accept – that a judge has discretion to exclude the testimony of a witness
solely because the judge found the witness’ testimony not “credible.”
1.

The Supreme Court Has Explicitly Rejected The Premise
That A Trial Court May Exclude Percipient Witness
Testimony Solely Because The Judge Does Not Believe It

At common law there were “notorious” examples of defense witnesses
prohibited on the ground that, if called, they might be tempted to commit perjury.
Defendants and co-defendants were generally disqualified from testifying on the
“ground of interest.” Id. at 20 (citing 2 Wigmore §§ 575-576 (3rd ed. 1940). A
party to a civil or criminal case was “not allowed to testify on his own behalf for
fear that he might be tempted to lie.” Co-defendants in a criminal case were not
allowed to testify on behalf of one another out of a concern that “each would try to
swear the other out of the charge.” Id. at 21. These rules “rested on the unstated
premise that the right to present witnesses was subordinate to the court’s interest
in preventing perjury, and that erroneous decisions were best avoided by
preventing the jury from hearing any testimony that might be [perjured], even if it
were the only testimony available on a crucial issue.” Id. (emphasis added).
The Supreme Court rejected that premise in Washington, agreeing that “‘the
truth is more likely to be arrived at by hearing the testimony of all persons of
5

competent understanding who may seem to have knowledge of the facts involved
in a case, leaving the credit and weight of such testimony to be determined by the
jury or by the court.1” Id. at 22. Granting the writ, Washington held that “the
petitioner . . . was denied his right to have compulsory process for obtaining
witnesses in his favor because the State arbitrarily denied him the right to put on
the stand a witness who was physically and mentally capable of testifying to
events that he had personally observed, and whose testimony would have been
relevant and material to the defense.” Id. at 23.
The trial court here excluded the testimony of John Culver, who was
“physically and mentally capable of testifying to events that he had personally
observed,” and whose testimony was “relevant and material to the defense.” See
ER 255. The only justification offered for the exclusion of Culver’s testimony
was that he was not “credible.” Id. Because Washington rejected the proposition
that a trial court could exclude a critical defense witness on that ground, that
decision was contrary to clearly established federal law.

1

In context, the phrase “by the court” cannot be reasonably interpreted as
permitting a trial court to determine witness credibility in the context of a jury
trial, but rather only in situations in which the judge is the factfinder.
6

2.

The Unjustified Exclusion Of Critical Defense Evidence
Violates The Sixth Amendment Regardless of Whether It Is
Guided By A Generally Applicable State Rule

Respondent, like the California Supreme Court, tries to distinguish
Washington and other Supreme Court holdings on the ground that they involved
the application of general rules of evidence, whereas this case involved a judge’s
exclusion of a witness based on an individualized credibility determination. ER
23-35; Suppl. Ans. at 21. This is not a reasonable basis to distinguish Washington
and its progeny. First, as the California Supreme Court noted in its opinion, the
trial court did rely on a generally applicable rule of evidence – Cal. Evid. Codes §
1230 and 352. ER 231-34. Second, the distinction makes no sense. The Sixth
Amendment applies independently of generally applicable state rules of evidence,
and the exclusion of critical defense evidence can violate the constitution even
when it is dictated by a state rule. Chambers v. Mississippi, 410 U.S. 284, 302
(1973). It is illogical to argue that a trial court’s exclusion of a critical defense
witness pursuant to a state rule of evidence could offend the Sixth Amendment,
but exclusion of the exact same witness, but without any legal authority at all,
would not. The fact that the judge’s decision was not dictated by a general state
rule does not insulate it from constitutional scrutiny. It makes no difference at all.

7

3.

The Sixth Amendment Guarantees the Right To Have the
Credibility of Competent Witnesses Be Assessed By a Jury

Respondent contends that the “right to present a defense” jurisprudence
applies only to “credible and reliable” evidence. Supp. Br. at 18. But this
argument conflates the concept of “reliability,” which applies to all types of
evidence, with the concept of “credibility,” which applies only to testimony.
A trial court has discretion to exclude evidence on the ground that the
evidence is unreliable in the sense that it is incompetent, irrelevant, or unduly
prejudicial. Holmes v. South Carolina, 547 U.S. 319, 326 (2006). For example, in
United States v. Scheffer, 523 U.S. 303, 309-12 (1998), the Supreme Court held
that a ban on polygraph evidence in military trials did not violate the defendant’s
constitutional right to present his defense because the scientific underpinnings of
such evidence were so questionable. The Court noted that the rule was justified by
legitimate state interests, including “[p]reserving the court members’ core function
of making credibility determinations in criminal trials.” Id. at 312-13.
However, the Supreme Court has never equated the concept of “reliability”
with the concept of “credibility,” as Respondent urges this Court to do. To the
contrary, it has held that even potentially untrustworthy witness testimony must be
permitted when the credibility of that testimony is capable of being evaluated by a
jury. For example, in Rock v. Arkansas, the trial court precluded the defendant
8

from testifying because her testimony had been refreshed by hypnosis. 483 U.S.
44, 47-48 (1987). The Supreme Court reversed. The Court acknowledged that
hypnosis was a controversial and unproven technique that made witnesses
“suggestible” to the point that they might “confabulate.” Id. at 60. But it held that
hypnotically refreshed testimony were not “so untrustworthy and so immune to the
traditional means of evaluating credibility that it should disable a defendant from
presenting her version of the events for which she is on trial.” Id. at 61.
The crucial distinction between the exclusion of “evidence” and the
exclusion of “testimony” is that the former only implicates the Fifth Amendment
right to due process, whereas the latter also implicates the Sixth Amendment right
to compel witness testimony and to have that testimony heard and evaluated by a
jury. Although a trial court, applying state rules of evidence, is justifiably
concerned with “reliability” when determining whether to admit evidence, it has
no legitimate role to play in evaluating the “credibility” of witness testimony. As
Justice Kennard stated in her dissent in this case, “the Sixth Amendment requires
that defense witnesses be permitted to testify to the jury, regardless of the trial
court’s apparent distrust of the proposed testimony, if the credibility question is
one that the jury is reasonably well equipped to deal with.” ER 255.
In this case, Culver’s testimony was not excluded because it fell within a
9

class of “evidence” that the trial court could rationally conclude was “unreliable.”
See Scheffer, 523 U.S. at 313. As the California Supreme Court acknowledged,
Culver’s testimony about Gregory’s confession had “substantial probative value,”
and it was “highly necessary” to the defense because “there was no comparable
direct evidence of Gregory’s guilt.” See ER 234. More importantly, it was live,
in-court testimony, like the testimony that was arbitrarily excluded in Washington
and Rock. As in Rock, the testimony was susceptible to evaluation by a jury using
“the traditional means” of cross examination. See Rock, 483 U.S. at 61. Indeed,
the complaints expressed by the District Court and Respondent about Culver’s
testimony were (1) that he “was a long-time friend” of Armenia’s, (2) that he “had
a felony conviction,” id., (3) that Culver waited for a “long time” to tell anyone
about the confession because he “didn’t want to get involved,” and that (4) the
confession was “not consistent with the defense evidence.” ER 35. These are
weaknesses that juries are well suited to evaluate. And when Culver offered his
testimony outside the presence of the jury, the district attorney capably addressed
each of these issues on cross-examination. ER 2145-47.
4.

The Notion that Credibility Determinations Are Exclusively
Reserved To Juries Is Clearly Established Federal Law

Respondent contends that there is no clear Supreme Court case holding that
a trial court may not exclude a witness’ testimony on the basis of an individualized
10

determination that witness’ testimony was not credible. Supp. Ans. at 22. But the
notion that credibility determinations are exclusively reserved for the jury is well
established. See, e.g., Jackson v. Denno, 378 U.S. 368, 386 n. 13 (1964) (“Just as
questions of admissibility of evidence are traditionally for the court, questions of
credibility, whether of a witness or a confession, are for the jury. This is so
because trial courts do not direct a verdict against the defendant on issues
involving credibility.”); Crane v. Kentucky, 476 U.S. 683, 688 (1986); Scheffer,
523 U.S. at 313 (“A fundamental premise of our criminal trial system is that ‘the
jury is the lie detector. . . . Determining the weight and credibility of witness
testimony, therefore, has long been held to be the ‘part of every case [that] belongs
to the jury . . . .”).
If there is no Supreme Court case addressing the precise factual scenario in
which a trial judge excludes a crucial defense witness solely because the trial
judge did not find his testimony credible, it is because the constitutional problem
is so obvious. See Taylor v. Withrow, 288 F.3d 846, 853 (6th Cir. 2002) (“This is
an example of a rara avis: a fundamental constitutional rule dictated by precedent
but ‘so unexceptional that it [has] never been drawn into question in a reported
case,’ at least a Supreme Court case.”). It was not reasonable for the California
Supreme Court to ignore the clear holdings of the Supreme Court simply because
11

they did not address identical facts. See Panetti, 551 U.S. at 953 (“AEDPA does
not require state and federal courts to wait for some nearly identical factual pattern
before a legal rule must be applied.”). Section 2254(d)(1) is satisfied if the
constitutional principle that the trial court violated was clearly established by
Supreme Court precedent. See Lockyer v. Andrade, 538 U.S. 63, 76 (2003).
Respondent cites to this Court’s recent decision in Rhoades v. Henry, 638
F.3d 1027, 1035 (9th Cir. 2011), as evidence that there is no clearly established
federal law prohibiting a trial court to exclude a witness based on an
individualized credibility determination. Suppl. Ans. 19-20. But Henry does not
support that proposition. In Henry, a man who was extremely drunk confessed to
a police officer that he committed the murder for which the defendant was on trial.
When he sobered up he recanted. There was no evidence linking him to the crime,
and he had an alibi. He refused to testify and the trial court refused to let the
defendant call a police officer to recount the confession. This Court affirmed,
holding that it did not violate the defendant’s due process rights.
As this Court repeatedly pointed out, the ruling in Henry depended on the
fact that the confession was hearsay. Id. at 1036. Because it was hearsay, “the
jury would have had no opportunity to evaluate [the declarant’s] credibility and
demeanor; [the officer’s] testimony would have been the only testimony on the
12

issue.” Thus, in ruling on the admissibility of the statement, the trial judge had to
apply the state’s “declaration against interest” exception to the hearsay rule, which
required it to determine whether the out-of-court statement bore “persuasive
assurances of trustworthiness.” Id. at 1035. Applying that test, the trial court was
justified in excluding the hearsay statement because the declarant was “intoxicated
when he confessed and recanted when he was sober, his alibi checked out, and
there was no other evidence linking him to the crime.” Id. at 1035.
By contrast, in evaluating the “declaration against interest” exception to the
hearsay rule in this case, the California Supreme Court held that the out-of-court
statement was both reliable and admissible. ER 231-32. As the Court pointed out,
unlike the confessor in Henry, who had a confirmed alibi, “Gregory, who had no
alibi, was in custody as a prime suspect.” Id. And unlike the confessor in Henry,
who could not be linked to any of the evidence found at the crime scene, “Gregory
tended to fit [the eyewitness] description of the assailant, and much of the other
evidence, in particular the incriminating shoe prints was as consistent with
Gregory’s guilt as with [Armenia’s].” Id.
Rhoades does not support the notion that a trial court could exclude an incourt witness on the sole ground that the judge did not believe his testimony. In
its ruling, this Court analogized case to Chambers, which also concerned the
13

application of a hearsay rule, and it distinguished Washington on the ground that it
“involved direct (rather than hearsay) testimony . . . .” Id. at 1036. Because this
case involved the exclusion of a live, in-court witness based solely on a the
judge’s determination that he was not credible, Washington controls.
B.

The Exclusion Of Gregory’s Confession, The Sole Direct
Evidence Of His Guilt, Was Prejudicial

A confession is like no other evidence. Indeed, “the defendant’s own
confession is probably the most probative and damaging evidence
that can be admitted against him . . . . Certainly, confessions have
profound impact on the jury, so much so that we may justifiably
doubt its ability to put them out of mind even if told to do so.”
Arizona v. Fulminante, 499 U.S. 279, 296 (1991) (quoting Bruton v. United States,
391 U.S. 123, 139–140 (WHITE, J., dissenting). Because of the uniquely
powerful and incriminating nature of a confession, a reviewing court must
“exercise extreme caution before determining that the admission of the confession
at trial was harmless.” Id. Although Fulminante concerned the erroneous
admission of a defendant’s confession against him, its reasoning applies with
equal force to the exclusion of an alternate suspect’s confession. Just as a
defendant’s “own confession is probably the most probative and damning
evidence against him,” the confession of an alternate suspect is the most probative
and exonerating evidence for a wrongfully accused defendant.
This Court recently reached a similar conclusion in Lunbery v. Hornbeak,
14

605 F.3d 754 (9th Cir. 2010). In that case, a woman was convicted of murdering
her husband, based on her own confession. At trial, she was not permitted to
introduce evidence that another man had killed her husband as part of a drug deal
that had gone bad. Id. at 757. A witness told the police that Henry Garza, who
was involved in the drug deal approached him at a pizza restaurant and said
“That’s a bummer. My partners blew away the wrong dude.” Id.
After the California Supreme Court denied relief in a summary order, this
Court granted relief, finding that the ruling resulted in an unreasonable application
of the Supreme Court’s clearly established cases guaranteeing the right to present
evidence of third party culpability, including Chambers and Crane. Id. at 760.
The Court concluded that the exclusion of Garza’s statement was prejudicial to the
defendant because it “stripped her of evidence that someone other than she had
probably committed the murder . . . .” Id. at 762. Although the defendant was
able to present a theory of third party culpability to the jury, that was “no
substitute for Garza’s admission that his partners committed the murder.” Id.
In this case, as in Lunbery, Armenia was able to present some evidence in
support of the theory that Gregory was responsible for the murder. But that was
“no substitute” for the ability to present a direct confession by Gregory. See
Lunbery, 605 F.3d at 762. The prejudice is even more apparent in this case. The
15

alternate suspect in Lunbery was not the killer, but merely an associate of the
killer, and his statement that his “partners blew away the wrong dude” was vague,
and not made until three weeks after the murder. By contrast, Gregory was the
clear alternate suspect, his confession was based on his own involvement in the
murder, and it occurred “within hours after the crime was committed and under
circumstances providing substantial assurances that the confession was
trustworthy.” ER 233. As the California Supreme Court held, “[T]here was no
comparable direct evidence of Gregory’s guilt.” ER 234.
Respondent contends that the exclusion of Culver’s testimony was not
prejudicial because Culver had a criminal record. But prosecutors routinely call
informants with criminal records to testify as to a defendant’s confession, and rely
on that testimony to prove guilt. See, e.g., Fulminante, 499 U.S. at 287.
Respondent also notes that Culver was a long-time friend of Armenia. But Culver
was also a long-time friend of Gregory, see ER 2147, and his testimony would
have been just as devastating to Gregory as it would have been helpful to
Armenia. Culver’s close relationship with both brothers also explains Culver’s
reluctance to report the confession earlier on. His explanation for the delay -- that
he “didn’t want to get involved” – makes sense. See ER 2131.
The fact that Armenia’s semen was found at the crime scene was consistent
16

with the testimony he offered in his defense, which was that was in the victim’s
house, had sex with her in exchange for drugs, and left prior to the murder.
Respondent discounts this testimony as “unrealistic” and “unbelievable” because
there was no other evidence that the victim was a drug user. Suppl. Ans. at 25-26.
But Armenia testified that he had seen the victim purchase or use drugs on several
occasions. See ER 228. James Mitchell, whose testimony was not presented to
the jury, also witnessed the victim purchase drugs. See ER 47. And a detective
testified that he found a small plastic baggie in the garage that was consistent with
the type used to store drugs. ER 228. Respondent relies on the fact that the
victim’s husband denied that his wife was a drug user. Suppl. Ans. at 25. But a
physician who specialized in drug addiction testified that it is not uncommon for
the spouse of a drug addict to be ignorant of their partner’s drug use. ER 229.2
Respondent argues that the fact that only one set of footprints led from the
camper to the victim’s house and back contradicts Armenia’s defense theory that
both he and his brother had visited the house that day. Suppl. Ans. at 25, ER 235.
But Armenia testified that he drove to the victim’s house on a paved street, which

2

The California Supreme Court also discredited Armenia’s testimony that
the victim was a drug user because the autopsy showed no drugs in her system.
ER 236. But Armenia testified that the victim did not use cocaine in his presence,
explaining the lack of any cocaine in the her body tissue. See ER 2052.
17

would not have resulted in an additional set of footprints. See ER 228; 244.
Moreover, a neighbor of the victim’s told a state investigator that she saw a car in
the victim’s driveway on the morning of the murder. SER 1072. Although the car
was initially thought to belong to the victim’s husband, Ubaldo Prokuda, the
witness admitted that “it may have been a car other than Mr. Prokuda’s.” SER
1072. Thus, the existence of only one set of footprints corroborated the defense.
Even if Culver’s testimony regarding Gregory’s testimony did not precisely
track all of the other evidence presented about the murder, it does not follow that
the testimony would have be completely discounted by a jury. As the California
Supreme Court pointed out, “such discrepancies might be attributable to Gregory’s
agitation or Culver’s misunderstanding of what he was told. They did not negate
all possibility that if Gregory claimed to be the murderer, he was telling the truth.”
ER 232.
At minimum, evidence that the a “prime” suspect who more closely
resembled the eyewitness’ description of the killer than Armenia, had confessed,
would have profoundly shifted the balance of the evidence in Armenia’s favor.3
Its exclusion could only have had a “substantial and injurious” influence on the

3

At least one juror indicated that “[i]t would have been important evidence
. . . that John Culver, who was in County Jail with both brothers, heard Armenia’s
brother confess to the crime.” ER 2804 (Declaration of Laverne Brett at ¶ 2.)
18

jury’s deliberation. See Brecht v. Abrahamson, 507 U.S. 619, 627 (1993).
III.

This Court Should Certify and Grant Relief on Claim VII
Respondent argues that Cudjo’s prosecutorial misconduct claim “fails under

§ 2254(d)(1) because the remark was brief, isolated and non-prejudicial.” Suppl.
Ans. at 27. But caselaw makes clear that even isolated racial remarks can
prejudice a criminal defendant, especially where the defendant is a black man
accused of raping and killing a white woman, and where the race of the defendant
is used as a reason to credit the prosecution’s theory over the defendant’s.
In Moore v. Morton, 255 F.3d 95 (3rd Cir. 2001), the Third Circuit granted
relief in similar circumstances, concluding that the state court unreasonably
applied federal law in denying a claim of prosecutorial misconduct. In his closing
at a rape trial where the victim was white, the defendant black, and “[t]he sole
issue at trial was the identity of the rapist,” 255 F.3d at 109, a prosecutor argued
that the fact that the defendant’s wife was white showed that he “made a choice to
be with a Caucasian woman . . . .” Id. at 99. The state court found no prejudice in
the remark, and emphasized that “the complained of comments represented a small
portion of an extremely lengthy summation” and were “promptly and appropriately
dealt with by a forceful curative instruction.” Id. at 108. The Third Circuit
granted habeas relief, holding that “[r]acially or ethnically based prosecutorial
19

arguments have no place in our system of justice.” Id. at 113, 116. It held that the
argument was prejudicial because it made race relevant to the issue of guilt and
“could play to bias against interracial couples.” Id. at 116.
Here, the prosecutor’s argument – that a white woman would not have had
consensual sex with a black man – likewise made race relevant to the issue of guilt
where the identity of the defendant was the main issue and a key part of the
defense was that the victim had consensual sex with Armenia. But unlike in
Moore, no curative instruction was given. In both cases, “[t]he argument gave the
jury an illegitimate ‘hook’ on which to base their decision.” Id. (footnote
omitted); see also Miller v. North Carolina, 583 F.2d 701, 704, 707-08 (4th Cir.
1978) (granting habeas relief in rape case where black defendants were charged
with raping a white woman and the prosecutor “argued that a defense based on
consent was inherently untenable because no white woman would ever consent to
having sexual relations with a black”). In light of the allegations in this case, and
this nation’s pervasive history of racial discrimination in the imposition of the
death penalty, particularly in cases involving black men accused of raping and
killing white women, see Furman v. Georgia, 408 U.S. 238 (1972), Coker v.
Georgia, 433 U.S. 584 (1977), the California Supreme Court’s failure to recognize
the prejudice of the prosecutor’s use of Armenia’s race in order to discredit his
20

testimony that he had consensual sex with the victim was unreasonable.
IV.

This Court Should Certify and Grant Relief on Claim VIII
Even if a jury might have discounted John Culver’s testimony about

Gregory’s first confession, it would have been impossible to discount Culver’s
testimony if the jury had also heard that Gregory had confessed to the same
murder again, but this time to a jailer and a prosecutor. Rather than hear evidence
of both confessions, as it should have, the jury heard about neither.
A.

Armenia Alleged Facts That Entitled Him To Relief

Respondent claims that Cudjo’s “allegations of attorney [guilt-phase]
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.” Supp. Ans. at 35. The argument
appears to be that this claim could have been denied on the ground that it
allegations were conclusory and failed to state facts with sufficient particularity.
Id. at 36-37 (citing People v. Duvall, 886 P.2d 1252 (1995)). This argument fails.
When California state courts conclude that a petition fails to allege claims
with sufficient particularity, they say so by citing In re Swain, 209 P.2d 793
(1949) and/or Duvall. Gaston v. Palmer, 417 F.3d 1030, 1039 (9th Cir. 2005);
Kim v. Villalobos, 799 F.2d 1317, 1319 (9th Cir. 1986). The California Supreme
21

Court never cited those cases when denying Cudjo’s guilt-phase ineffectiveness
claim, or in any way indicated the claim wasn’t alleged with sufficient
particularity. ER 197. A federal court cannot apply a state procedural bar when
the state court failed to do so. Cone v. Bell, 129 S. Ct. 1769, 1782 (2009).4
In any event, Armenia did state his claim with particularity, and he did
identify the witnesses by name. SER 32-37. The allegations state:
(1) that trial counsel knew about, but failed to investigate, the fact that a
“Suspect Cudjo,” who had to be either Armenia or Gregory, had confessed to the
murder, saying “I’m in here for murder, and I did it,” SER 33;
(2) the witnesses that trial counsel failed to interview regarding the
statement, including (a) Charles Merritt, the jailer, who heard the statement, see
id., (b) Hans Berg, the prosecutor, who interviewed the person who made the
statement, (c) and Bruce Frederickson, Douglas Lewis, and George Mitchell,
prisoners who overheard the statement, SER 36-37;
(3) the evidence that an adequate investigation would have revealed,
including the fact that the prosecutor interviewed Gregory Cudjo immediately

4

If the state court had denied Cudjo’s claim on this procedural ground, he
would be in a better position. His claim would be exhausted, appropriate for
federal review, and not subject to 2254(d) because it was not adjudicated on the
merits. Kim, 799 F.2d at 1319-20; Cone, 129 S. Ct. at 1784.
22

after the statement was made and could have identified him, SER 33; and
(4) the means by which the confession could have been presented to the
jury, including (a) by introducing a copy of Merritt’s report itself, SER 36, and (b)
by calling Merritt, Lewis, and Frederickson to testify. Id.
B.

The California Supreme Court’s Summary Denial of the
Claim Was Contrary to Supreme Court Precedent

Respondent contends that trial counsel’s investigation into Gregory’s
second confession was reasonable because Merritt was “unsure whether petitioner
or Gregory had made the statement.” Supp. Ans at 41-42. But the fact that his
investigation revealed that the statement was made, and could only have been
made by either Gregory or Armenia, triggered a duty to investigate the
circumstances more, not less. See Wiggins v. Smith, 539 U.S. 510, 527 (2003)
(“[A] court must consider not only the quantum of evidence already known to
counsel, but also whether the known evidence would lead a reasonable attorney to
investigate further.”). Although it can be reasonable for an attorney to decline one
avenue of investigation in favor of another, it was not reasonable to do so here.
Given that the sole defense in this case was that Gregory had committed the
murder, and given that trial counsel knew that he had confessed to the crime on
another occasion, there was no justification for trial counsel’s failure to investigate
Gregory’s second confession. The district court’s analysis of Strickland’s
23

deficient performance prong with respect to this claim is compelling and needs no
elaboration here, particularly because Respondent does not challenge it.5
The bulk of Respondent’s arguments relate to prejudice. Because the
prejudice arising from the exclusion of Gregory’s second confession is similar to
the prejudice that arose from the exclusion of the first one, the analysis set forth
with respect to Claim V applies equally here, see infra at IIB.
The only additional arguments concern what Respondent claims to be
inconsistencies in Armenia’s testimony. Suppl. Ans. at 44-47. Respondent
contends, for example, that Armenia’s testimony was internally inconsistent about
what shoes he was wearing at various parts of the day. But a review of the
transcript reveals that there is no such inconsistency. ER 1923-2120, 2257-58.
Respondent also contends that “no reasonable jury would have believed
[Armenia’s] story about his preference for jogging in long pants,” Suppl. Ans. at

5

As Respondent acknowledges, the district court, after holding a hearing,
held that trial counsel was ineffective for failing to investigate the circumstances
of Gregory’s second confession and present it to the jury. Respondent contends
that as a result of Pinholster, 131 S. Ct. 1388, this Court cannot take into
consideration any of the evidence presented at that hearing. Suppl. Ans. 4. But
the evidence presented at the federal hearing only confirmed factual allegations
and evidence that had already been presented to the state court in the first petition.
Therefore, although the district court did rely on evidence presented at the hearing,
its analysis would have been no different had it simply evaluated, and accepted as
true, the allegations that were before the state court. See id. at 1402 n.11.
24

45, but does not explain why this is so. Respondent claims that it is implausible
that Gregory could have been the one who washed his shoes because if that were
true, “Gregory would have had to walk from the car into the camper without any
shoes.” Id. But Respondent identifies no reason why Gregory could not have
done just that. Finally, Respondent discredits Armenia’s testimony that it took
him 47 minutes to jog three miles because of an assumption that a man in
Armenia’s physical condition would have taken less time. Id. at 46. But Armenia
testified that he engaged in various calisthenic exercises that slowed him down.
ER 2087 (“sometimes I would sprint for about a telephone pole and then I would
turn around and run backwards, or maybe even a telephone pole, I would hop like
a frog on two – you know, two legs for about maybe a telephone pole. Sometimes
I would walk to get to the next telephone pole.”). Because these alleged
inconsistencies concern details that are wholly unrelated to the facts of the murder,
they would have little probative value even if they proved to be true. None would
cause a jury to completely disregard the fact that Gregory had confessed.
Respondent argues that a jury would have been skeptical of Gregory’s
confession to the crime because Gregory’s other statements and testimony were
inconsistent. Suppl. Ans. at 47. But Gregory’s only sworn testimony was wholly
consistent with Armenia’s defense. Gregory testified that he wore MacGregor
25

“astro turf” cleats on the day of the crime, ER 1887, whereas Armenia was
wearing boots and long pants. ER 1892. Gregory denied that he had seen
Armenia wash a pair of shoes, ER 1894, and he testified that Armenia did not say
anything to him about “being in somebody else’s house where he had done
something wrong.” ER 1895. Although Gregory was impeached with his
unsworn statements to police, in which he claimed that Armenia had confessed, he
explained that the detectives were “putting words in his mouth” and that he agreed
to their story only because they were “threatening [him] with 25 years.” ER 1903.
If the jury had heard that, in addition to these conflicting statements,
Gregory had also confessed to the crime, certainly it would have entertained at
least a suspicion that he committed it. At a minimum, it would have raised a
reasonable doubt about whether Armenia did. The prejudice of the exclusion was
magnified in light of the fact that Gregory’s other confession, which was even
more detailed, and told to a friend, was also excluded from the jury. As the
Supreme Court stated in Fulminante, “the two confessions reinforced and
corroborated each other.” 499 U.S. at 299. Excluding even one of them was
prejudicial to Armenia. Excluding both of them was doubly so.

26

V.

This Court Should Certify and Grant Relief on Claim IX
A.

Clearly Established Supreme Court Precedent Made It Clear
That Trial Counsel Had An Obligation To Conduct a Thorough
Investigation of the Defendant’s Background

The notion that Respondent posits -- that a capital trial lawyer practicing at
the time of Armenia’s trial had no duty to investigate mitigating evidence other
than to obtain a “rudimentary knowledge” from “narrow sources,” see Suppl. Ans.
at 61 -- contradicts clearly established Supreme Court precedent. See Wiggins,
539 U.S. at 524–25 (holding that trial counsel were deficient because they
“abandoned their investigation of [the defendant’s] background after having
acquired only a rudimentary knowledge of his history from a narrow set of
sources”) (emphasis added); Rompilla v. Beard, 545 U.S. 374, 387 (2005). As this
Court recently held in James v. Schriro, 659 F.3d 855 (9th Cir. 2011), “[i]t is
‘unquestioned’ that counsel in a capital case has an obligation to conduct a
thorough investigation of the defendant’s background.” Id. at 880 (quoting Porter
v. McCollum, __ U.S. __, 130 S. Ct. 447, 452 (2009) (per curiam).6

6

Respondent does not address Williams, Wiggins, Rompilla, or any of the
other Supreme Court case decided after 1999, presumably on the ground that they
were not decided at the time the California Supreme Court ruled on Armenia’s
first state petition on June 7, 1999. Suppl. Ans. at 54-60. But as Respondent
acknowledges, Armenia’s second state petition also presented a claim of
ineffective assistance of counsel at penalty, and the California Supreme Court
denied it on the merits on November 25, 2003. ER 197. Respondent argues that
27

It is equally clear that a lawyer’s obligation to investigate a defendant’s
background existed at the time of Armenia’s trial in 1988. Id. (citing Hamilton v.
Ayers, 583 F.3d 1100, 1130 (9th Cir.2009) (in 1982, in California, it was
“undisputed that counsel was required to obtain the type of available information
that a social history report would contain, such as family and social background
and mental health”); Summerlin v. Schriro, 427 F.3d 623, 629 (9th Cir.2005) (en
banc) (professional standards in effect in 1982 required trial lawyer “to conduct a
prompt investigation of the circumstances of the case and to explore all avenues
leading to facts relevant to the merits of the case and the penalty in the event of
conviction’”) (quoting ABA Standards for Criminal Justice 4–4.1 (2d ed.1980));
id. at 630 (“[T]he investigation should include inquiries into social background
and evidence of family abuse.”)); (Terry) Williams v. Taylor, 529 U.S. 362, 396
(2000) (failure to investigate evidence of early childhood abuse, mental
retardation, and head injuries fell below the standard of care in 1986 trial).
Trial counsel explicitly acknowledged, at trial, the then-existing “tradition”

this petition was procedurally defaulted, but that argument has no merit. See infra.
Williams, which was decided on April 18, 2000, and Wiggins, which was decided
on June 26, 2003, were clearly established at the time of the California Supreme
Court’s decision in that case. In any case, Strickland is the clearly established
federal law for Armenia’s ineffective assistance claims, and it was decided in
1984, well before the events in this case. Williams, Wiggins, and Rompilla merely
apply Strickland and create no new law. See Wiggins, 510 U.S. at 522.
28

of investigating a defendant’s background and mental in his “closing argument:”
Tradition would have me bringing in psychiatrists, psychologists,
perhaps even sociologists to talk to you about the death penalty,
people who do not know Mr. Cudjo even perhaps as well as you do.
. . . I’m not going to go through that . . . .
ER 2268.
Citing Strickland v. Washington, 466 U.S. 668 (1984), and Burger v. Kemp,
483 U.S. 776 (1986), Respondent contends that the duty to investigate mitigating
evidence did not extend beyond an interview with the “client himself.” Suppl.
Ans. at 55-57, 60. But both the Supreme Court and this Court have rejected that
argument. See Porter, 130 S. Ct. at 453 (finding deficient performance where trial
counsel “had only one short meeting with [the defendant] regarding the penalty
phase” and “did not . . . interview any members of [the defendant’s] family” or
obtain school records); Summerlin, 427 F.3d at 631 (finding deficient performance
where counsel “conducted no investigation of [the defendant’s] family and social
history” and “did not speak with [the defendant’s] family or friends”). In Burger,
the main case upon which Respondent’s argument relies, trial counsel “did
interview all witnesses who had been called to his attention,” including the
defendant’s mother on several occasions, a family friend, and a psychologist. 483
29

U.S. at 790-91. Likewise, in Strickland, in preparation for the penalty phase, trial
counsel spoke with the defendant’s wife and mother and consulted a psychiatric
report. 466 U.S. at 672-73, 676. And in Pinholster, trial counsel consulted with
the defendant’s mother and brother and a psychiatrist, as well as researched
epilepsy, in preparation for the penalty phase. 131 S. Ct. at 1405.
In this case, by contrast, Armenia’s mother, Maxine, and sister, Julia
Watson-Bryant, who both had compelling facts to offer in mitigation, were never
interviewed by trial counsel, even though both were in court during Armenia’s
trial, and both were called as prosecution witnesses. See ER 1733-36,1624-32,
2815-28. And rather than consult with a psychiatrist or investigate Armenia’s
“epileptic history,” as counsel did in Pinholster, trial counsel dismissed the
diagnosis out of hand on the basis of his personal opinion that it was
“inconsistent” with Armenia’s “‘jogging’ activity.” See SER 1076.
As Armenia alleged in his state and federal habeas petitions, trial counsel
did no mitigation investigation at all. SER 77 (“Mr. Clark acknowledged that he
failed to even investigate the possibility of any mitigating evidence.”); SER 80;
230 (“Mr. Clark told me that he did not conduct any investigation regarding
appellant’s medical history, psychiatric background or condition, education or
employment history.”); ER 2691 (“Mr. Clark stated that he did not investigate any
30

mitigating evidence, interview any witnesses who might have offered mitigating
testimony or request a psychiatric examination of Petitioner because such steps
would have been inconsistent with the alibi defense he advanced at trial. Mr.
Clark stated that he never considered presenting testimony of Petitioner’s family
members or anyone else at the penalty phase of Petitioner’s trial.”); ER 1612
(declaration of trial counsel) (“I didn’t do any investigation into mitigation
evidence in Armenia’s case and I didn’t instruct Mr. Hill or anyone else to conduct
such an investigation.”); ER 1643 (declaration of investigator) (“I didn’t conduct
any investigation in preparation for the penalty phase of Mr. Cudjo’s trial. I never
talked to Armenia Cudjo or anybody from his family. Mr. Clark never asked me
to do that and I was not interested in doing it either.”); SER 1076 (“Tactically,
presentation of an ‘alibi’ defense at trial, in my judgment, precluded the
presentation of multiple mitigation evidence based upon a lack of education or
advantage, alleged contributory health problems or factors . . . .”); but see SER
1075 (“The defendant was interviewed on several occasions independently by
myself and the investigator to obtain background information from which to
possibly ‘garner’ appropriate potential ‘mitigation evidence’”).
Respondent argues that there was no need to investigate clues that Armenia
suffered from epilepsy and a history of blackouts because those facts “could not be
31

verified or connected to the operative facts of the case.” Supp. Ans. at 63. But
this argument is circular: the only way that trial counsel could have verified
Armenia’s conditions would have been to investigate them. Trial counsel’s
assumption that mitigation evidence was only relevant insofar as it “connected to
the operative facts of the case,” was plainly wrong. See Tennard v. Dretke, 542
U.S. 274, 283 (2004) (rejecting the argument that for mitigating evidence to be
“constitutionally relevant” at the penalty phase, it must show that the criminal act
was attributable to a severe and permanent disabling condition); Cal. Pen. Code §
190.3(k) (permitting jury to consider “anything in the life of the defendant which
might militate against the appropriateness of the death penalty for the defendant”).
Respondent contends that trial counsel acted reasonably in pursuing a
“lingering doubt” theory instead of presenting mitigation. Suppl. Ans. at 60. This
argument has several flaws. First, the Supreme Court has rejected the notion that
“lingering doubt” and “mitigation” are mutually exclusive concepts. Wiggins, 539
U.S. at 535. Second, while an attorney may theoretically make a reasonable
decision to rely solely on “lingering doubt” at the penalty phase, the Supreme
Court has reiterated that an attorney cannot reasonably make that choice without
the benefit of investigating mitigation first, and weighing the risks and benefits of
presenting it against the alternative of not doing so. See id.; Goodwin v. Johnson,
32

632 F.3d 301 (6th Cir. 2011) (finding that trial counsel’ performance was deficient
at penalty phase where he “chose to rely on residual doubt without conducting an
adequate investigation of [the Petitioner’s] background.”). A choice cannot be
“strategic,” and it therefore cannot be reasonable, unless it is informed by an
adequate investigation. See Correll v. Ryan, 539 F.3d 938, 948 (9th Cir. 2008).
Third, even if trial counsel could have been considered reasonable in
choosing this strategy, he was not reasonable in carrying it out. Trial counsel put
on no additional evidence at the penalty phase to support his supposed “lingering
doubt” theory, even though there was, available to him, compelling evidence that
the alternate suspect, Gregory, had confessed to the crime. See infra, at II, IV.
Trial counsel’s failure to, at minimum, re-offer John Culver’s testimony about
Gregory’s confession at the penalty phase, was unreasonable. And in his closing
argument, trial counsel made it clear that even he did not believe that the jury
would be willing to choose life over death on the basis of “lingering doubt.” See
ER 2267 (“[M]y impression of your verdict is that you are sure.”).7

7

The California Supreme Court dismissed the claim that trial counsel was
deficient for failing to re-offer Culver’s testimony at the penalty phase based on its
incorrect statement of law that “the same evidentiary rules govern admissibility of
evidence at the guilty and penalty phases.” ER 251. This holding was contrary to
clearly established federal law holding that even otherwise valid state evidentiary
rules cannot be invoked to exclude important penalty phase evidence. See Green
v. Georgia, 442 U.S. 95, 97 (1979); Sears v. Upton, 130 S. Ct. 3259, 3263 (2010).
33

Finally, Respondent contends that trial counsel could have reasonably
decided not to introduce mitigating evidence at the penalty phase out of a concern
that doing so would cause the prosecution to present aggravating evidence,
including Armenia’s prior robbery conviction from Arizona. But the state court
record shows that the prosecutor did not know about Armenia’s Arizona robbery
conviction. ER 2323. And although the prosecutor was aware that Armenia had
been convicted of “grand theft person,” the prosecutor indicated at trial that he did
not intend to introduce it at the penalty phase because he believed that “only
crimes of violence may be used,” and he did not believe that the crime involved
violence. ER 2324 (“I do not intend to offer rebuttal. Well – let’s say this. I am
94 percent sure at this point that I will not offer rebuttal, your honor.”).
Particularly in light of the fact that trial counsel had already decided that his
strategy of relying on “lingering doubt” precluded the use of mitigation, and that
as a result of that choice he had not even investigated mitigation, it is not
reasonable to now argue that his failure to present it was out of a concern that
doing so might trigger rebuttal aggravating evidence. “When viewed in this light,
the ‘strategic decision’” claimed by Respondent “resembles more a post hoc
rationalization of counsel’s conduct” than an accurate description of his
deliberations prior to sentencing. Wiggins, 539 U.S. at 526-27. Accordingly, the
34

district court found, correctly, that trial counsel’s decision not to present
mitigation had little to do with a concern about the robbery conviction. ER 146.
B.

The California Supreme Court Could Not Have Reasonably
Determined That Armenia Was Not Prejudiced By Trial
Counsel’s Failure To Present Any Evidence About Armenia’s
Impoverished Childhood, His Father’s Traumatic Death, The
Domestic Violence He Endured, and His Substance Abuse

A measure of prejudice is “the magnitude of the discrepancy between what
counsel did investigate and present and what counsel could have investigated and
presented.” Hovey v. Ayers, 458 F.3d 892, 929 (9th Cir.2006). Where no evidence
at all was presented to the jury in the penalty phase, it is more likely that the
presentation of some evidence would have had an influence in the sentencing
decision. See Porter, 130 S. Ct. at 454 (finding prejudice because the “judge and
jury at Porter’s original sentencing heard almost nothing that would humanize
Porter or allow them to accurately gauge his moral culpability.”).
Respondent does not respond meaningfully to the vast and detailed
mitigating evidence that was available to trial counsel, but not presented to the
jury, see, e.g., AOB at 28, ER 1614-19, 1624-32, 1633-37, 1733-36.
Instead, Respondent argues that the California Supreme Court could have
determined that presenting that evidence would have been “problematic.” The
only example he provides is that presenting Armenia’s 1982 high school
35

equivalency certificate and evidence of his 1983 head injury would have “opened
the door” for the prosecution to present evidence of his 1985 robbery conviction.
Suppl. Ans. at 65. This argument is unpersuasive. First, it would have made no
difference whether the door was “opened” because the prosecutor did not know
about the conviction. See infra. Second, even if there was a risk of “opening the
door,” trial counsel could have easily omitted those two facts from his mitigation
presentation in order to avoid that risk. And third, even if presenting mitigation
evidence would have caused the prosecutor to counter with evidence of Armenia’s
prior conviction, that would not have so overpowered the mitigating evidence
about the rest of Armenia’s life as to render it meaningless to the jury. Compare
Pinholster, 131 S. Ct. at 1396 (finding no prejudice where “[t]he prosecution
produced eight witnesses, who testified about Pinholster’s history of threatening
and violent behavior, including resisting arrest and assaulting police officers,
involvement with juvenile gangs, and a substantial prison disciplinary record”).
As in Porter, “[t]his is not a case in which the new evidence “would barely
have altered the sentencing profile presented to the sentencing judge.” 130 S. Ct.
at 454. The mitigation in Armenia’s case, including childhood abuse and neglect
and the loss of a parent, is precisely the type of evidence that the Supreme Court
has found to support a finding of prejudice. See, e.g., id. at 449; Rompilla, 545
36

U.S. at 391–92. Had the jury learned about Armenia’s difficult and impoverished
childhood, his head injuries and the seizures that they caused, and particularly, the
violent and traumatic death of his father when he was only twelve years old, it is
reasonably probable that at least one juror would have been persuaded to spare his
life.8
C.

Armenia Presented All Of The Essential Facts Underlying His
Ineffective Assistance Claim To the California Supreme Court

Relying on Walker v. Martin, 1315 S. Ct. 1120 (2011), Respondent
contends that the facts in Armenia’s second state habeas petition should not be
considered on federal review because that petition was denied as untimely. This
argument overstates the impact of Walker. But even if it didn’t, the salient facts
underlying Armenia’s ineffective assistance claim were already presented to the

8

Several jurors have stated that learning about the circumstances of
Armenia’s life prior to the crime would have influenced their deliberation. See ER
2889 (Declaration of Thomas Gaskill) (“[H]ad I been provided evidence at the
time of trial that Armenia Cudjo lost his father as a young man and that the death
of his father had a profound effect on him, and had I known that Armenia had a
long history of drug abuse, that he had brain damage, suffered physical abuse
during childhood, and came from a poor family and an impoverished environment,
I would not have voted for death in this case.”); ER 2889 (Declaration of Laverne
Brett) (“In reaching a decision about which sentence was appropriate in this case,
it would have made a difference to me to known that [Armenia] suffered physical
abuse during his childhood. We did not learn anything about his life.”). See Silva
v. Woodford, 279 F.3d 825, 850 (9th Cir. 2002) (finding prejudice where juror
declarations revealed that “at least some of the jurors were initially leaning
towards a verdict of life without parole”).
37

California Supreme Court, and denied on the merits, in his first petition.
1.

The California Supreme Court’s Decision Denying The First
State Petition Was Contrary to Clearly Established Federal Law

The allegations in the first state petition and informal reply, and the exhibits
attached thereto, more than adequately presented this claim. As set forth above,
the first state habeas petition alleged with specificity that trial counsel did
absolutely no investigation into mitigation evidence, and it supported that
allegation with multiple sworn declarations. See infra. Although Respondent
countered with a declaration in which trial counsel claimed that he interviewed the
defendant “to obtain background information from which to possibly ‘garner’
appropriate potential ‘mitigation evidence,’” see SER 1075, that allegation, at
most, created a dispute of fact which the California Supreme Court would have
had to hold a hearing to resolve. Cf. Wiley v. Epps, 625 F.3d 199 (5th Cir. 2010)
(“when a petitioner makes a prima facie showing of mental retardation, a state
court’s failure to provide him with an opportunity to develop his claim deprives
the state court decision of the deference ordinarily due under the AEDPA.”).
Respondent argues that Armenia failed to set forth the facts demonstrating
prejudice in the first state petition, but this argument also fails. In his first petition
Armenia described his family history of epilepsy, the fact that in screening
placement tests Armenia tested in the 0.4 percentile in terms of reading readiness,
38

and as a result he did poorly in school, earning mostly “F” grades. SER 81-83.
The petition alleged that Armenia’s father was beaten to death by police officers
when he was only 12 years old, and that event traumatized him, SER 83. The
petition documented Armenia’s subsequent suffering at the hand of Ernest
Freeney, his step-father, who was violent and abusive to him. SER 83. The
petition also described Armenia’s history of blackouts, and an incident in which
his skull was crushed by a pipe, requiring neurosurgery and causing recurring
symptoms. SER at 84. Finally, it noted that notwithstanding these events,
Armenia was a model prisoner with no disciplinary violations. Id.
The allegations were further supplemented in the Informal Reply to the first
state petition, which Respondent ignores. The Informal Reply confirmed
Armenia’s history of epilepsy. It discussed in more detail the devastating impact
of Armenia’s father’s death. ER 2649. It included even more detailed information
about Armenia’s abusive step-father, Ernest Freeney. Id.; ER 2678-81. In sum,
the allegations in the first state habeas petition set forth the most important
mitigating facts that could have been, but were not, presented to the jury.
As Respondent concedes, the second state habeas petition “merely added
more details to the same claim already rejected in the first state habeas corpus
petition.” Suppl. Ans. at 72-73. The second state petition also augmented the
39

record with additional proof of those facts, including a detailed declaration of a
social historian synthesizing scores of interviews with family members. ER 810.
The second petition also described in more detail the extreme poverty, violence,
neglect, and substance abuse that characterized Armenia’s childhood. For
example, the petition notes that soon after the death of his father, Armenia began
to habitually sniff gasoline through a hose to the point of passing out, and that his
step-father responded to this behavior by tying Armenia to a chair with a gasoline
soaked rag tied across his face, and leaving him to suffocate. SER 827. And the
second petition includes a psychiatric evaluation, which revealed mild to moderate
brain damage. SER 830. The second state petition and its exhibits is substantially
similar to the petition filed in federal court and the exhibits presented at the federal
hearing. Thus, the federal court did not consider a significant amount of
information that had not already been considered by the state court.9

9

If this Court disagrees, and holds that any of the facts upon which habeas
relief depends in this case were not first presented to the state court, see
Pinholster, 131 S. Ct. at 1398, Armenia respectfully requests that this Court
remand the case to the district court with a stay pursuant to Rhines v. Weber, 544
U.S. 269, 278 (2005), so that he can present those facts to the state court. See
Gonzalez v. Wong, __ F.3d __, 2011 WL 6061514 (9th Cir. Dec. 7, 2011), at *8.
40

2.

Respondent’s Procedural Default Argument Is Meritless

Respondent contends that none of the allegations and exhibits in Armenia’s
second state habeas petition can be considered because the California Supreme
Court deemed the claim untimely and the state bar “constitutes an adequate and
independent state ground” barring federal merits review. Suppl. Ans. at 69 (citing
In re Robbins, 18 Cal. 4th 770, 780-81, and In re Clark, 5 Cal. 4th 750, 763-99
(1993)). But Respondent does not even acknowledge the district court’s ruling
denying his procedural bar defense, much less argue that it was error.
The district court ruled correctly. Respondent’s belated effort to revive his
claim fails because (1) as a matter of Circuit precedent, California’s timeliness bar
was neither adequate nor independent at the time of the alleged default; and (2)
even if Respondent was not foreclosed by that authority from establishing his
defense, he failed to meet his burden of proving the adequacy of the bar under the
burden-shifting procedure set forth in Bennett v. Mueller, 322 F.3d 573, 585 (9th
Cir. 2003). Walker, 131 S. Ct. at 1120, doesn’t change the result.
The procedural default doctrine “‘is a specific application of the general
adequate and independent state grounds doctrine.’” Fields v. Calderon, 125 F.3d
757, 76-62 (9th Cir. 1997). “Under the adequate and independent state grounds
doctrine, federal courts ‘will not review a question of federal law decided by a
41

state court if the decision of that court rests on a state law ground that is
independent of the federal question and adequate to support the judgment.’” Id. at
725. A procedural rule is independent only if its basis is separate and distinct
from the federal question. Bennet, 322 F.3d at 581. A rule is adequate only if it is
“clear, consistently applied, and well-established at the time of the petitioner’s
purported default.’” Fields, 125 F.3d at 762.
The adequacy of state procedural bars is examined at the time of the alleged
default, i.e., “the time the claim should have been raised.” Calderon v. District
Court (Hayes), 103 F.3d 72, 75 (9th Cir. 1996) (per curiam); id. (“the critical time
to judge Hayes’ default [was] 1987, when he filed his first state habeas petition
and failed to raise all of his claims,” not “1994, when he filed his second state
petition”); Calderon v. District Court (Bean), 96 F.3d 1126, 1129 (9th Cir. 1996)
(“The issue before us is whether California’s timeliness requirements were firmly
established and regularly followed at the time of Bean’s purported procedural
default.”); Morales v. Calderon, 85 F.3d 1387, 1393 (9th Cir. 1996) (examining
whether timeliness bar was adequate and independent “at any time after Morales’s
convictions were affirmed and before he filed his first state habeas petition”).
Here, the time of the alleged default is November 10, 1992, 90 days from the final
due date for Cudjo’s reply brief in his appeal, when a habeas petition would have
42

been considered presumptively-timely under then-existing Supreme Court rules.
California Supreme Court Policies Regarding Cases Arising from Judgments of
Death, eff. June 6, 1988, mod. eff. Dec. 21, 1992, Policy 3, Std. 1.1.
This Court held in Morales, 85 F.3d at 1391, that California’s timeliness
rule was not adequate to bar federal relief before the issuance of Clark on July 29,
1993. See also Hayes, 103 F.3d at 74-75; King, 464 F.3d at 966 (“In Morales, we
indicated that California’s timeliness rule was too uncertain, pre-Clark, to be a
procedural bar for capital cases.”); La Crosse v. Kernan, 244 F.3d 702, 705 (9th
Cir. 2001); Fields, 125 F.3d at 759; Bean, 96 F.3d at 1131. Indeed, “[i]n Clark,
the California Supreme Court acknowledged that ‘no clear guidelines regarding
departure from the habeas corpus rules have emerged in our past cases.’” Bean,
96 F.3d at 1129-30. Likewise, the California Supreme Court acknowledged in
Robbins, decided August 3, 1998, that up until then California courts reviewing
habeas petitions on timeliness grounds had considered the federal constitutional
merits of claims in determining whether the petitions qualified for an exception to
the time bar. Bennett, 322 F.3d at 581. Accordingly, the timeliness rule was not
independent of federal law before Robbins. Id.; La Cross, 244 F.3d at 706-07.
Thus, under controlling Circuit authority, at the time of the alleged default of the
penalty-phase ineffectiveness claim in November 1992, neither Clark nor Robbins
43

had issued, and California’s time bar was neither adequate nor independent.
Respondent tries to avoid this Court’s binding caselaw by citing Walker,
131 S. Ct. 1120. Walker does not help Respondent. In Walker, the noncapital
petitioner timely filed a habeas petition in 1998, but omitted claims that were later
found untimely when filed in a second petition in 2002. 131 S. Ct. at 1126. Thus,
the time of the default alleged in Walker was 1998. The petitioner did not “dispute
that the time limitation is an ‘independent’ state ground.” Id. at 1127. But as noted
herein, the California Supreme Court has acknowledged, and this Court has held,
that the timeliness bar was not independent of federal law up to the time Robbins
was issued in 1998. Walker does not overrule this Court’s precedent evaluating
claims of procedural defaults that occurred before 1998, like the one in this case.
Even if Circuit law did not explicitly foreclose Respondent’s contention,
Respondent would have the burden of proving the adequacy of California’s time
bar as of the alleged default in 1992. Procedural default is an affirmative defense.
Gray v. Netherland, 518 U.S. 152, 165 (1996). “[T]he state must plead, and it
follows, prove the default.” Bennett, 322 F.3d at 585. Respondent made no effort
to prove the adequacy and independence of the time bar in the district court, and
the district court properly ruled against him. SER 1039-40 (Order Granting in Part
and Denying in Part Petitioner’s Motion for Evidentiary Hearing at 14-15) (“[T]he
44

untimeliness rule is not an adequate rule such that federal habeas review is
precluded because the Warden failed to bear his burden under Bennett . . . .”).
Respondent makes no effort to meet his burden of proof on appeal either.10
VI.

This Court Should Certify and Grant Relief on Claim X
Respondent discounts the importance of the numerous errors in this case by

claiming that they weren’t “errors” at all, and even if they were, they did not really
“accumulate” to prejudice Armenia. Suppl. Ans. at 79-80. Respondent fails to
appreciate the way in which each of the serious constitutional errors in this case
built on one another to limit Armenia’s defense at each stage of the trial.
Errors during the prosecution’s case made it impossible for Armenia to
challenge the state’s most important evidence against him: the blood type evidence
linking him to the crime scene, which the district court correctly held was not
adequately investigated, see AOB at 88, and the un-confronted hearsay testimony

10

If this Court were inclined to reverse the district court’s ruling and hold
that the second state petition is procedurally defaulted, the Court should remand to
the district court to allow Armenia to show cause and prejudice for the default or
that the actual innocence exception applies. Coleman v. Thompson, 501 U.S. 722,
753-54 (1991) (ineffective assistance of counsel can constitute cause for a
default); Jenkins v. Anderson, 447 U.S. 231, 234-35 n.1 (1980) (“application of
the ‘cause’-and-‘prejudice’ standard may turn on factual findings that should be
made by a district court”); House v. Bell, 547 U.S. 518, 522 (2006) (“In certain
exceptional cases involving a compelling claim of actual innocence . . . the state
procedural default rule is not a bar to a federal habeas corpus petition.”).
45

of Gregory in which he claimed that Armenia confessed the crime to him.
Armenia’s only hope to rebut the prosecution’s case was to present his own
defense evidence that Gregory had himself confessed to the crime, twice. In fact,
trial counsel had evidence that one of Gregory’s confessions was made to both a
jailer and a prosecutor, witnesses that a jury would have been much more likely to
believe than Gregory himself. See AOB at 76. The trial court’s erroneous
decision to exclude Culver’s testimony about Gregory’s first confession hobbled
the defense by keeping from it the most powerful defense evidence available.
Trial counsel’s constitutionally deficient failure to investigate the circumstances of
Gregory’s second confession completely crippled it. See AOB at 79. The lack of
any evidence related to Gregory’s two confessions “left the jury with only half the
picture.” See Parle v. Runnels, 505 F.3d at 930-32 (9th Cir. 2007).
Stripped of the most powerful independent evidence he could have offered
in his defense, Armenia was left with one option: to testify. But the prosecutor
undercut his testimony by telling the jury it was not believable because of
Armenia’s race. Every court has agreed that the prosecutor’s exploitation of
Armenia’s race was misconduct that clearly violated Armenia’s constitutional
rights. ER 2249-50. Trial counsel made no objection to the racial remark, another
serious constitutional error about which there is no dispute. ER 2250.
46

Having been convicted based on a lopsided presentation of evidence, and
having had the credibility of his testimony attacked before the jury on account of
his race, Armenia appeared before the same jury, only days later, as an “unknown
quantity.” ER 2260. As the prosecutor said in closing, “all of the things that I will
relate to you at this time were things that were revealed in the evidence, because I
really know nothing about him beyond what was revealed in the evidence.” Id.
Due to trial counsel’s failure to present any evidence in support of his lingering
doubt theory, AOB 99, the jury learned nothing new about the circumstances of
the crime that might have caused it to reevaluate its guilt verdict. AOB 101. And
due to trial counsel’s complete refusal to investigate mitigation, it learned nothing
about Armenia’s horrific childhood, his head injuries and blackouts, or his
meaningful relationships with family members who loved him. AOB 93. In his
closing argument, trial counsel did nothing to humanize Armenia, but instead
ruled out, one by one, the mitigating factors that the jury might have considered,
leaving the jury with no reason to spare him the death penalty. ER 2266-75.

47

These errors were devastating at both the guilt and penalty phases. Several
of the errors were prejudicial, even considered in isolation. Combined with one
another, they were even more so. Given the grave and pervasive nature of the
errors in this case, this Court cannot have confidence in the verdict.

Respectfully submitted,
SEAN K. KENNEDY
Federal Public Defender

DATED: January 26, 2012

By /s/ John L. Littrell
JOHN L. LITTRELL
Deputy Federal Public Defender
Attorneys for Petitioner-Appellant
ARMENIA LEVI CUDJO JR.

48

CERTIFICATE OF COMPLIANCE
Pursuant to Fed. R. App. P. 32(a)(7)(B) and (C) and Circuit Rule 32-1, I
certify that Appellant’s Supplemental Reply Brief has been prepared in a
proportionately spaced typeface using WordPerfect X3, 14 point, Times New
Roman and contains 11,678 words.

/s/ John L. Littrell
JOHN L. LITTRELL
Deputy Federal Public Defender

Dated: January 26, 2012

Attorneys for Petitioner-Appellant
ARMENIA LEVI CUDJO JR.

49

CERTIFICATE OF SERVICE
I hereby certify that on January 26, 2012, I electronically filed the
foregoing with the Clerk of the Court for the United States Court of Appeals for
the Ninth Circuit by using the appellate CM/ECF system.
I certify that all participants in the case are registered CM/ECF users and
that service will be accomplished by the appellate CM/ECF system.

By /s/ John L. Littrell
JOHN L. LITTRELL
Deputy Federal Public Defender

50