Joseph William Hart v. Jill Brown

Filing 147

ORDER by Judge Dale S. Fischer DENYING Habeas Relief 8 . The Court finds that Claims 37 and 41 are not yet ripe for review. The Court dismisses those claims without prejudice so that Petitioner may raise them at the appropriate time. (Made JS-6. Case Terminated.) See Order for specifics. (jp)

JS-6

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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12 JOSEPH WILLIAM HART,

CASE NO. CV 05-03633 DSF

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DEATH PENALTY CASE

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Petitioner,
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v.
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RON BROOMFIELD,1/ Acting
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Warden of California State Prison at )
San Quentin,
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Respondent.
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____________________________________)

ORDER DENYING HABEAS RELIEF

19 I.

INTRODUCTION

20

Petitioner is a death row inmate at California’s San Quentin State Prison. A jury

21 convicted him of first degree murder and sex offenses. On federal habeas review,
22 Petitioner challenges his convictions and sentence. As the Court discusses below, aside
23 from two claims that are unripe for review, Petitioner fails to meet the stringent standard
24 for relief under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),
25 28 U.S.C. §2254.
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1/

Ron Broomfield is substituted for his predecessor as Acting Warden of San
28 Quentin State Prison. Fed. R. Civ. P. 25(d).

1
2 II.

PROCEDURAL HISTORY

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A.

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Petitioner was convicted in the Riverside County Superior Court of first degree

State Court Proceedings2/

5 murder (Cal. Penal Code §§ 187(a), 189), rape (Cal. Penal Code § 261(a)(2)), sodomy
6 (Cal. Penal Code § 286(c)), and forcible oral copulation (Cal Penal Code § 288a(c)).
7 The jury found true special circumstance allegations that Petitioner committed the
8 murder during the commission of, attempted commission of – or immediate flight after
9 committing or attempting to commit – rape and sodomy. (Cal. Penal Code §§
10 190.2(a)(17)(C) & (D).) (Reporter’s Transcript on Appeal, volume 27 (“27RT”) at
11 3586-89.)
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After a bifurcated trial before the same jury to determine the penalty, the jury

13 returned a sentence of death. (41RT at 5285.) The trial court formally imposed that
14 sentence on May 27, 1988. (42RT at 5312-14.)
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On automatic appeal, the California Supreme Court affirmed the judgment on

16 June 1, 1999. See People v. Hart, 20 Cal. 4th 546 (1999).3/ The United States Supreme
17 Court denied certiorari on January 10, 2000. See Hart v. California, 528 U.S. 1085
18 (2000).
19

On November 6, 1998, Petitioner filed a state habeas petition in the California

20 Supreme Court. The court denied that eleven-claim petition on March 1, 2006. The
21 court rejected the claims on the merits, as well as on multiple procedural grounds. (Dkt.
22 101-1–101-7, 101-13.)
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2/

The exhibits and lodgments in this action were filed out of order and are difficult
25 to locate. For ease of reference, the Court cites to all documents – except for transcripts
– using the CM-ECF “Page ID” numbers printed on the upper right corner of each page
26 on the electronic docket.
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3/
The court subsequently made four modifications to the opinion, with no effect on
28 the judgment. (Dkt. 97-54.)
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On June 22, 2005, Petitioner filed a second habeas petition in the California

2 Supreme Court. (Dkt. 98-1–98-5, 102-1–102-9, 103-1–103-3.) Petitioner included his
3 prior state habeas claims and added several others. On March 28, 2007, the California
4 Supreme Court denied the second petition, again both on the merits and various
5 procedural grounds. (Dkt. 98-12.)
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On May 22, 2007, after receiving a stay of this federal action (discussed below),

7 Petitioner filed a third state habeas petition. (Dkt. 98-13–98-16, 99-1–99-4.) This
8 “supplemental” exhaustion petition raised three claims. After receiving informal
9 briefing and multiple exhibits, the California Supreme Court denied the petition on
10 September 28, 2011. (Dkt. 99-21.)
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B.

Pending Proceedings

12

Petitioner initiated his federal habeas proceedings in a separate action. In case

13 No. CV 00-1021 MMM, the Court appointed counsel for the limited purpose of
14 determining whether the federal action was time-barred, or whether AEDPA’s
15 limitations period should be equitably tolled. The Court ultimately granted equitable
16 tolling and found the action timely. The Court then dismissed that limited action and
17 Petitioner commenced the current proceeding on May 16, 2005. (Dkt. 1.)
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The original petition was “mixed,” containing claims that had been raised in state

19 court, and others that had not. Petitioner sought and received a stay of the case to
20 complete state habeas review. (Dkt. 18, 26.) Petitioner subsequently returned to this
21 Court and filed an amended petition. (Dkt. 38.) Soon thereafter, due to defects in the
22 amended petition identified by Petitioner, he successfully sought leave to file the
23 pending Second Amended Petition (“SAP”). (Dkt. 45, 51-53.) The SAP raises forty24 one claims and multiple subclaims.
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At the Court’s direction, Respondent filed an Answer with a memorandum of

26 points and authorities fully briefing all of the claims and subclaims in the SAP, and
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1 discussing the applicability of 28 U.S.C. § 2254(d).4/ (Dkt. 87, 93.) Subsequently,
2 pursuant to this Court’s Order for Briefing, Petitioner filed a “Traverse and § 2254(d)
3 Brief” (“Traverse”) responding to Respondent’s arguments as to the applicability of 28
4 U.S.C. § 2254(d).

(Dkt. 106, 130.)

Thereafter, Petitioner filed a Notice of

5 Supplemental Supreme Court Authority that directed the Court to a newly-decided
6 Supreme Court case that ostensibly had a bearing on Claims 6 and 14 of the SAP. (Dkt.
7 133.)
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This Court’s Order for Briefing advised the parties that “there is no basis for

9 considering a request for discovery or any other form of evidentiary development until
10 Petitioner has established that he can satisfy the threshold showing” under AEDPA, a
11 standard that is discussed fully below. The Briefing Order further directed that “[o]nce
12 Petitioner’s Traverse has been filed, the Court will not consider any further briefing
13 until such time as it has made a determination of the merits of claims contained in the
14 SAP.” (Dkt. 106 at 3-4.) Based on the Court’s analysis below under AEDPA, no
15 further evidentiary development or briefing is warranted and the matter stands
16 submitted for decision.
17 III.

TRIAL FACTS5/

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The evidence at trial established that shortly before noon on March

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24, 1986, the murder victim, Diana (known as Diane) Lynn Harper, and

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her friend, Amy R., each 15 years of age, decided to leave the Riverside

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4/

Prior to the filing of the Answer, this action was transferred from the calender of
the Honorable Margaret M. Morrow, due to her retirement, to this Court’s calendar.
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(Dkt. 88.)
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5/
The California Supreme Court’s opinion on direct appeal contains a reasonable
25 summary of the facts in light of the evidence presented in the State court proceeding.
26 28 U.S.C § 2254(d). Therefore, solely for purposes of summarizing the trial evidence,
the Court quotes the state court’s statement of facts here. The Court discusses trial
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evidence in detail below where facts are in dispute or necessary to resolve specific
28 claims.
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County high school in which they were enrolled as students, to meet

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Diane’s boyfriend at a local 7-Eleven store. In the parking lot of the store,

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Diane began conversing with a stranger, who told her that he had found a

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marijuana patch and needed someone to watch the road while he harvested

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the plants. He offered the girls $1,000 to serve as lookouts. The girls

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entered his vehicle, and the man drove them 30 to 40 miles, stopping once

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to purchase beer, and again to obtain storage bags for carrying the

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marijuana. At trial, Amy identified the man as defendant.

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The car stopped at a dirt road in a rural area. Defendant told Amy

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to wait by the vehicle, and he and Diane walked up the path and out of

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Amy’s view. Shortly thereafter, defendant returned and asked Amy to

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help him carry the bags. Amy went with him and saw Diane’s partially

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clothed body lying facedown on the ground. Diane appeared to be dead

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or unconscious. Amy tried to run away, but defendant caught her, tore her

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clothes, forced her to orally copulate him, and raped and sodomized her.

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Amy testified at trial that defendant explained to her: “I’m really sorry I

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had to do this, but you know, I had a shitty day. . . .”

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Defendant informed Amy that “your friend was an asshole, she

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called me a few names, and I think she’s dead.” He also told Amy that he

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planned to hit Amy with a rock to render her unconscious. By misleading

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defendant into believing that she had been abused as a child, and

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promising that she would not contact the police, Amy persuaded defendant

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not to knock her out, and eventually he drove her back to a location near

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the 7-Eleven store. He gave her a quarter to phone home, and drove away.

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Amy immediately contacted her sister and, shortly thereafter, spoke with

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law enforcement officers. Later that evening, Amy directed the officers

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to the crime scene, where Diane’s body was found. The cause of Diane’s

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death was identified as massive cerebral contusions and hemorrhage,

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caused by external trauma to the head.

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Law enforcement investigators recovered evidence indicating that

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Amy and Diane each had been sexually assaulted. A fingerprint matching

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that of defendant was recovered from a beer bottle found close to Diane’s

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body. Tire impressions found in the vicinity of the murder scene were

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consistent with those of defendant’s vehicle, which Amy also identified as

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the one she and Diane had entered. Shoeprints were consistent with a

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partially burned shoe found in a 55-gallon drum outside defendant’s

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residence. Other physical evidence also connected defendant to the crime

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scene. Defendant was arrested on May 8, 1986 – five days after the

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murder of his young niece, Shelah McMahan. In a police lineup, Amy

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was shown five individuals including defendant, and collapsed upon

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viewing him; immediately thereafter, she identified defendant as the man

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who had assaulted her. Defendant’s time cards indicated that, on the day

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the crimes were committed, he worked until 11:30 a.m. on a construction

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job near the 7-Eleven store where the girls were picked up. A few days

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later, one of defendant’s coworkers observed that defendant had a

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bandaged hand and that his right arm was in a sling; the physician who

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treated defendant’s injury testified that it was commonly known as a

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“boxer’s fracture,” because it typically is sustained by striking a closed-fist

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blow against a fixed or hard object.

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I. GUILT PHASE EVIDENCE
A. The Prosecution’s Case
1. Overview

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The prosecution’s theory of the case was that defendant’s effort to

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entice the girls into his vehicle and drive them to a remote area was part

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of a premeditated plan to commit rape, and that the murder of Diane was
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committed in the course of perpetrating rape. To establish that theory, the

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prosecution presented Amy’s testimony, and introduced physical and

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circumstantial evidence linking defendant to the crimes.

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2. The Events of March 24, 1986

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Amy testified that she and Diane left high school on March 24,

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1986, stopping first at a nearby Der Wienerschnitzel restaurant for a soda,

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then at another restaurant, Don Jose’s, where Diane submitted an

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application for employment. The girls thereafter crossed the street to an

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area adjacent to a 7-Eleven store to wait for Diane’s boyfriend, David

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Starbuck.

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A brown Toyota vehicle entered a nearby driveway, and Diane

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began conversing with its driver. Amy joined in the conversation. The

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driver informed the girls that “he had found a marijuana field and he had

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a lady that was going to go with him and she couldn’t make it, and he

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couldn’t take another day off work and . . . I guess [the marijuana] wasn’t

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his, and so he needed someone to watch the road while he went and

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chopped down the marijuana. . . . He just wanted one of us.” The man

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informed the girls that he would pay $1,000 for the assistance he

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requested, adding that “we would be back in an hour.”

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The girls decided that if one of them were going to accompany the

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man, they both would do so, and so they entered his vehicle. Amy noticed

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an orange towel on the dashboard. Amy told Diane: “Oh, David is going

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to kill you for doing this.” The man responded: “Will he kill you for

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making a thousand dollars in an hour? Why would he kill you for making

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a thousand dollars in an hour?”

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Amy estimated that the three of them thereafter traveled about 30

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or 40 miles, stopping at a Circle-K store because the driver said he was

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thirsty. The man returned to the car with a six-pack of Budweiser beer in
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bottles. The three drank the beer. The man informed the girls that he

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would need bags to put the marijuana in “[a]nd that it wouldn’t be cool to

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put it in a white plastic bag.” He sent Amy back into the store to obtain

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some paper bags. The trio then drove to a Thrifty store where the girls

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procured more bags. Next, they traveled to a hardware store, because the

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man said “the marijuana was thick and that he needed to get a hatchet to

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chop it down with.” The man entered the store for the purpose of

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purchasing a hatchet, emerging shortly thereafter without one, however,

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informing the girls that the hatchet cost $15, which was too much money

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for him to pay. He explained, “It’s okay because I have a screwdriver in

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the trunk.”

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Diane responded: “I have this knife if you want to use that,” and

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gave the man a small buck knife that she kept in her purse. Amy

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expressed her displeasure with this arrangement, and the man returned the

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knife to Diane. The trio then drove for awhile on a freeway, exiting near

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a field. The man tried to drive the vehicle into the field, but was unable to

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do so. He told the girls, “I know another way to get in,” and they kept

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driving.

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The car proceeded onto a dirt road near a sign that read, “80 Acres

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for Sale,” passing a Volkswagen car shell. The vehicle stopped; the

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occupants emerged from the car, and the man removed the bags from the

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trunk. He told Amy to watch the road while he and Diane harvested the

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marijuana. Before departing, the man relieved himself; while he was

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doing so, the girls agreed to call to each other to make sure everything was

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all right. But after a few minutes, the man and Diane returned, the man

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informing the girls that the marijuana patch was not there. They returned

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to the car, and drove to where the dirt road stopped at a dead end. The

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man put the cap on his beer bottle, placed the bottle in a white plastic bag,
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and left the bag outside the car. The man and Diane walked up a dirt path,

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while Amy stayed by the vehicle. Diane had her knife with her.

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Amy waited for about 15 or 20 minutes, picking at the label on her

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bottle of beer. She started calling Diane’s name, but heard no response.

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She threw the bottle into a bush. She noticed a bumper sticker on the

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man’s vehicle. It read, “Skier.” She also noticed the license plate holder,

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which exhibited the words, “Have a Nice Day.”

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At some point thereafter, the man returned to the vehicle, alone. He

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informed Amy that Diane was cooling her feet in a spring and that he

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needed Amy’s assistance to carry down the bags. Amy followed the man

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up the trail. Informing her that he saw a snake, the man picked up a rock.

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Amy told him to give it to her. The man did so, saying, “But I’ll have to

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get another one, you don’t want me to get killed, do you?” Amy gave the

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rock back to the man.

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At approximately the same time, Amy saw Diane’s body, partially

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clothed and lying facedown. Frightened, Amy started to run back down

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the path. The man chased her, hitting her in the back with a rock, causing

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her to fall down. He started punching Amy in the face, and the two fell

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into a gully. Amy pleaded with the man to let her hear Diane say

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something. The man repeatedly told her to shut up, that Diane was

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unconscious and unable to speak. “You’re kind of funny, kid,” he added,

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“I’m about to rape you and all you can do is think about your friend.”

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The man stood behind Amy, tore her blouse, pulled her skirt up, and

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ripped off her panties. She noticed that his trousers were down and he was

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holding his penis, “just slapping it back and forth.” Angrily, the man kept

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telling her, “Don’t look at me.” But Amy continued to glance back at the

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man. “It’s hard for me to get it up after I just got it on with your friend,”

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he explained.
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The man attempted to sodomize Amy. Repeatedly unable to

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achieve penetration, he turned Amy around, asking her, “How are you at

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giving head, kid?” He placed Amy on her knees, telling her, “Do it,” and

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shoved his penis into her mouth. After the man achieved an erection, he

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turned Amy around, began biting her neck, and sodomized her.

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Amy asked the man if he was going to kill her. He replied, “I’ve

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done this in people’s houses and I’ve never killed anyone yet.” He then

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dragged Amy back up the path toward Diane’s body, telling her that she

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had better shut up or he was going to get his Vaseline. While he was

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dragging Amy along, he picked up a small square jar of Vaseline.
The man threw Amy down and forced her to orally copulate him
again. He applied the Vaseline to himself. Then he raped her.

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Amy asked the man again if he was going to kill her. He said that

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he was going to render her unconscious by hitting her on the back of the

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neck with a rock. Amy suggested that he tie her up instead, dig a hole, and

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place her in the hole. The man agreed that it would be a good idea to tie

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her up, and did so with her blouse and bra.

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The man informed Amy that he had to find Diane’s knife, but his

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efforts to locate it were unsuccessful and he returned to Amy, telling her

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that “your friend was an asshole, she called me a few names, and I think

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she’s dead.” Amy replied that there was no reason he also had to kill her.

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The man repeated his desire to render her unconscious to allow him time

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to get away. Amy pleaded with the man not to hit her, concocting a false

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story that when she was three years old, her father used to hit and beat her,

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and that she was afraid of being hit.

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Upon hearing Amy’s pleas for mercy, the man’s attitude began to

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change. He said he understood what Amy had gone through “because I

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was raped myself by three [B]lack men and I’m really sorry I had to do

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this, but you know, I had a shitty day. . . .”

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Amy continued to promise that she would not tell anybody, so he

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untied her and took her back down the trail, repeatedly complaining, “You

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made me hurt my hand, kid.” Amy noticed that his hands were “really

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dirty” and “permanently stained.” Still fearing for her life, Amy asked the

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man to hold her hand. Instead, he put his arm around her and continued

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to express remorse. He placed Amy in his vehicle, and the pair drove

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away. When Amy asked whether she could disclose Diane’s whereabouts,

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the man replied: “I wouldn’t do that. . . . This is what you’re going to tell

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them. You’re going to tell them it was a [B]lack man, a [B]lack man took

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you – if you have to tell them anything.”

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He added: “I’m putting 15 years of my life in your hands, kid.”

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Amy renewed her promise not to discuss the incident, to which the man

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replied, “But that doesn’t matter because by the time they pick me up . .

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. I can get out before the . . . sentencing. . . . Anyway, I’ve got two good

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friends that would do anything for me.”

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The man dropped Amy off approximately one block from a 7-

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Eleven store. As Amy emerged from the car, the man warned her not to

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call the police. Then he gave her a quarter to phone home and departed.

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Amy called her sister, informing her of the incident. The sheriff’s

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department was contacted, and Amy later accompanied detectives to

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search for Diane.

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3. The Crime Scene Investigation

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Riverside County Sheriff’s Department Detective Richard Moker

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testified that, in the evening of March 24, 1986, he accompanied Amy in

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an effort to locate Diane’s body. He described the manner in which he and

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other law enforcement officers attempted to retrace the route the girls had
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taken, the officers relying upon Amy’s description of the stores the trio

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had visited, distinctive road signs they had observed, and the crime scene

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terrain. At approximately 11:00 p.m., after nearly six hours of searching,

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the officers located the Volkswagen shell. Shortly thereafter, the officers

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found a white plastic sack containing a Budweiser six-pack container.

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Fearful that the man who assaulted her might be lurking in the area, Amy

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asked the officers whether they were armed and indicated that she wanted

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to leave as soon as possible. She also told them where Diane’s body could

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be found. Thereafter, one of the officers transported Amy to the hospital

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to enable her to undergo a rape examination, while investigators searched

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the crime scene.

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On cross-examination, Detective Moker testified that when he first

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encountered Amy, she informed him that Diane could be found “lying on

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her back” (thereby conflicting with Amy’s testimony that she saw Diane

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lying facedown).

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Riverside County Detective Michael Lackie testified regarding the

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investigation law enforcement officers conducted at the crime scene in the

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early morning hours of March 25, 1986, describing the steps he and

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Detective Moker took to avoid disturbing evidence found at the scene. In

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addition to encountering Diane’s lifeless and bloodstained body

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(unclothed below the waist, with panties wrapped around one leg), officers

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located nearby a buck knife with the blade extended, a shoe impression,

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a Budweiser beer bottle, and paper grocery bags. Farther away from

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Diane’s body, officers found four different tire impressions and a shoe

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impression at the spot where Amy said defendant had parked the vehicle,

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a white plastic sack containing an empty Budweiser beer bottle with a cap

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on it, a discarded Budweiser beer bottle with the label partially picked off,

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and Amy’s torn undergarments. Lackie testified that the shoe impression
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found near the spot where the vehicle had been parked appeared to

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resemble a similar impression found near Diane’s body. He added that

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officers were unable to locate any marijuana growing in the area.

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James Hall, a criminalist employed by the California Department of

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Justice, assisted in the investigation of the crime scene on March 25, 1986.

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Hall checked Diane’s body for loose hairs and fibers, collecting what

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appeared to be a loose pubic hair from Diane’s thigh.

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Michael Renney, a senior evidence technician employed by the

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Riverside County Sheriff’s Department, testified that on March 26, 1986,

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he tested for the presence of fingerprints several items recovered from the

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crime scene, obtaining a latent print from the Budweiser beer bottle found

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in the white plastic sack.

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4. The Victims’ Injuries

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Dr. Claire McArthur, an emergency room physician employed by

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Riverside General Hospital, testified that in the early morning of March

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25, 1986, she examined Amy, discovering a large bruise on Amy’s upper

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back, abrasions about both knees, and a bruise to Amy’s perineum (the

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area near the vagina and rectum). Dr. McArthur also found sand-like

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particles in Amy’s vagina, a circumstance that Dr. McArthur testified

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would be “highly unlikely” in the absence of penetration.

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cross-examination, Dr. McArthur acknowledged that she asked Amy

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whether she had been sodomized, and that Amy had responded in the

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negative. On redirect examination, Dr. McArthur testified that sexual

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assault victims Amy’s age typically are “very reluctant” to discuss a

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sexual assault, and opined that Amy had been the victim of such an

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assault. Criminalist James Hall testified that Amy’s slip bore a seminal

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fluid stain.

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13

On

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Dr. Dewitt Hunter, a Riverside County pathologist, testified that on

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March 26, 1986, he performed an autopsy on Diane’s body. The autopsy

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revealed that the cause of Diane’s death was major trauma to her head that

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led to massive cerebral contusion and hemorrhage; her body also exhibited

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minor trauma in certain other locations, and exhibited evidence indicating

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that Diane had been sexually assaulted. With regard to the head injuries,

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Dr. Hunter testified that Diane had suffered several “crush-type

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lacerations” and a skull fracture, most likely caused by a rock or brick-like

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instrument. Diane’s face also had numerous contusions and abrasions,

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consistent with her head having been pushed into the dirt. Her larynx

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contained foreign vegetable material (such as a leaf or twig) indicating that

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it had been inhaled shortly before death. The middle of her back revealed

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an extensive contusion. Diane’s iliac crest (the front of the pelvic bone)

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showed abrasions consistent with someone having kneeled or sat on her

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back. Diane’s knees, elbows, and buttocks also showed abrasions. There

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was a reddening of the vaginal area consistent with the application of

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force, and there were abrasions and “ill-defined” contusions on her inner

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and upper thighs consistent with an effort to force apart Diane’s legs.

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Although no seminal fluid was discovered on Diane’s body or clothing, a

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Vaseline-like substance was found around her vaginal area and inner

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thighs.

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5. The Brown Toyota With the Message “Have a Nice

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Day”

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Riverside County Sheriff’s Department Sergeant Ronald Wade

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testified that on May 4, 1986, approximately six weeks after Diane and

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Amy were attacked, he observed a vehicle that appeared to be similar to

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the description of the suspect vehicle involved in the Diane Harper

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homicide. The vehicle, a brown Toyota Corolla, was parked next to a
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mobilehome in the Mead Valley area. Wade returned the next day and

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observed that the vehicle bore certain distinctive markings, including

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decals on the rear bumper and a license plate frame that read, “Have a

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Nice Day.” Wade proceeded to the mobilehome on May 6 and spoke with

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an individual who identified himself as “Joe Hart.” (At trial, Wade

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identified the individual with whom he spoke as defendant.) Wade asked

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defendant where he was working on March 24, 1986. Defendant replied

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that he was working in the Riverside/La Sierra area at McKinley and

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Magnolia Avenues; defendant checked his pocket calendar to verify his

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recollection. The location was not far from the spot where Diane and Amy

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had been picked up that day. Detective Lackie subsequently testified that

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the distance between the locations was 1.9 miles and required

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approximately four minutes of travel time by car.

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Upon returning to the Riverside Sheriff’s Department headquarters,

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Wade contacted the California Department of Justice in Sacramento for

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the purpose of obtaining Hart’s criminal history and fingerprints. Michael

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Renney testified that he subsequently examined these known fingerprints

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of defendant and matched that of defendant’s right ring finger to the latent

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print Renney obtained on March 26 from the Budweiser beer bottle found

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in the white plastic sack at the crime scene. Joe Sypnicki, a latent print

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examiner employed by the California Department of Justice, testified that

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he, too, compared the two prints, concluding “[t]here is absolutely no

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doubt whatsoever” that the latent impression lifted from the Budweiser

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beer bottle is that of defendant’s right ring finger. On cross-examination,

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Sypnicki acknowledged that no known method exists for ascertaining the

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date a particular fingerprint was made, and he therefore could not render

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an opinion as to the age of the print found on the beer bottle.

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15

1

Having been informed of Sergeant Wade’s observations, Detective

2

Michael Lackie traveled on May 7, 1986, to the Mead Valley address

3

occupied by Hart and obtained consent from Hart’s wife, Linda, to

4

examine the brown Toyota parked in the driveway. Lackie brought

5

photographs of the tire impressions found at the crime scene, and

6

determined that each of the vehicle’s tires had a different tread design and

7

that each appeared to match the impressions depicted in the photographs.

8

The license plate frame read “Have a Nice Day.” The vehicle had other

9

distinctive features similar to those Amy had described to law enforcement

10

officers. A “fairly fresh,” torn portion of a bumper sticker depicting the

11

letters, “I E R,” lay on the ground; it appeared to partially match the

12

“SKIER” bumper sticker Amy had recalled seeing on the vehicle. Lackie

13

also observed, strewn about in the yard adjacent to the residence,

14

Budweiser beer bottles similar to the type that Amy described defendant

15

as having purchased on March 24. Lackie also saw Marlboro 100

16

cigarette butts in the vicinity; Amy had informed officers that defendant

17

had smoked Marlboro 100’s. Similar beer bottles and cigarette butts had

18

been recovered at the crime scene. Lackie also saw an orange towel

19

located in a planter attached to the residence.

20

6. Defendant’s Arrest and the Ensuing Searches

21

Detective Lackie testified that after he completed his observations

22

of the brown Toyota and the surrounding yard area, he learned from

23

another investigator that one of defendant’s fingerprints on file appeared

24

to match a fingerprint located on a bottle found in the plastic sack at the

25

crime scene. Lackie thereafter obtained a search warrant, returning to the

26

Hart residence on May 8, 1986, to execute the warrant. By the time

27

Lackie arrived at the residence, law enforcement officers already had taken

28

defendant into custody.
16

1

Detective Moker testified that he placed defendant under arrest on

2

May 8, 1986. Moker recalled that at the time of defendant’s arrest,

3

defendant’s hair was “fluffy or wavy or dry looking . . . [with] the part in

4

the middle. . . .” Detective Lackie testified that at the time of the arrest,

5

defendant wore soiled pants and had “extremely soiled hands.”

6

Detective Lackie further testified that law enforcement officers

7

seized the brown Toyota (and another vehicle) in order to conduct a

8

subsequent search. In the mobilehome, officers found a jar of Vaseline in

9

the master bedroom, another jar of petroleum jelly in the bathroom, and

10

Marlboro 100 cigarettes. Outside the residence (crumpled up against the

11

fence at the edge of the property), Lackie found two more pieces of a

12

bumper sticker that appeared to have been torn from the “SKIER” bumper

13

sticker on the brown Toyota. Lackie found a pair of matched tennis shoes,

14

partially burnt, in a 55-gallon drum that appeared to have served as an

15

incinerator. The tread design on the shoes appeared to match certain shoe

16

impressions found at the crime scene. Lackie described the shoes at the

17

time they were discovered in the drum as having been in “pretty good

18

condition. . . . There were no obvious gouges, tears, marks, signs of

19

destruction that I could see other than what was created by the burns –

20

burning.” Lackie also observed Circle-K plastic sacks among trash

21

located at the side of the mobilehome.

22

Criminalist James Hall testified that on the day of defendant’s

23

arrest, he obtained various evidence exemplars from defendant’s body,

24

including those taken from defendant’s pubic hair.

25

defendant’s pubic hair with the specimen recovered from Diane’s thigh,

26

concluding that the hairs were “microscopically similar and, therefore, the

27

evidence hair [found on Diane] could have come from Mr. Hart.” Hall

28

also compared the loose pubic hair with an exemplar taken from Diane’s
17

Hall compared

1

body, noted microscopic differences, and opined that the loose hair had

2

not come from her.

3

Hall testified that he examined Amy’s slip and panties, identifying

4

on the panties human bloodstains of an indeterminable ABO blood type.

5

Hall identified ABO type B blood on Amy’s blouse (Diane had ABO type

6

B blood, Amy had type O, and defendant had type A). Hall identified a

7

seminal fluid stain on Amy’s slip; on cross-examination, he testified that

8

ABO typing and enzyme typing of the stain were inconclusive, and he was

9

uncertain as to the date the stain was made. On redirect examination, Hall

10

stated that defendant is a “nonsecretor,” which means that an examination

11

of defendant’s bodily fluids would not disclose his blood type. Hall

12

acknowledged that the inconclusive nature of the tests conducted on the

13

seminal stain could be due to the strength of the stain, the passage of time,

14

or the nonsecretor status of the donor. Hall identified saliva on the

15

Marlboro 100 cigarette butts collected at the crime scene, but tests as to

16

the blood type of the donor did not yield a blood type, a result Hall

17

testified he would expect if the donor were a nonsecretor.

18

Hall testified that on May 10, 1986, he examined defendant’s

19

vehicle, recovering orange cloth fibers from the dashboard area of the

20

car’s interior.

21
22

7. Amy’s Identification of Defendant
Amy attended a law enforcement lineup on May 12, 1986, in which

23

she observed five individuals through a one-way mirror.

24

recognizing one of the individuals, Amy fell, believing that “the floor

25

would be safer.” She noted on the sheriff’s form that the individual she

26

picked out had “different hair color, looked younger.” In court, she

27

identified that same individual as defendant, and as the man who had

28

picked her up in the brown Toyota.
18

Upon

1

Riverside County Sheriff’s Department Senior Investigator Dennis

2

Harter testified that he was present at the police lineup in which Amy

3

identified defendant as the suspect in her case. Harter testified that as soon

4

as defendant (who occupied the second position in the lineup) entered the

5

lineup room, Amy gestured in his direction and “immediately grabbed her

6

mouth as if to keep herself from yelling, she began to cry and she ducked

7

down to the Claim” below the one-way viewing glass. Harter described

8

Amy’s emotional state when she viewed defendant as “very distraught”;

9

after the participants in the lineup departed from the room, Amy “began

10

to cry uncontrollably.”

Harter added that after she regained some

11

composure, Amy stated, “It’s No. 2, he killed Diane, he killed Diane.”

12

Harter recalled that at the lineup, Amy noted that defendant’s

13

hairstyle appeared different from what it had been on the day she and

14

Diane encountered him. Detective Moker testified that at the lineup,

15

defendant’s hair “appeared to be wet or oily . . . and it was combed almost

16

straight back. . . .” When Harter returned to the jail the next day to visit

17

defendant, defendant’s hair appeared as it did at the time of defendant’s

18

arrest. Photos depicting defendant’s appearance at the lineup, and on the

19

day thereafter, were admitted into evidence.

20

8. Other Evidence

21

Faye Ann Springer, a criminalist employed by the State of

22

California Department of Justice, testified that she attended Diane’s

23

autopsy, removing some of the victim’s pubic hair that appeared to have

24

a foreign material on it, and concluding that the substance was consistent

25

with petrolatum, found in Vaseline. Springer found a similar substance on

26

Diane’s slip. Springer also compared a fiber found in Amy’s shoe with an

27

exemplar taken from a carpet mat found in defendant’s brown Toyota

28

vehicle, concluding that the fibers appeared to be identical. She examined
19

1

photographs of the crime scene tire impressions, concluding that the tread

2

designs for each of the four tires were similar to the exemplar tire

3

impressions (derived from defendant’s vehicle). Springer compared

4

photographs depicting shoe impressions at the crime scene, concluding

5

that they matched the photographs of the exemplars she received. On

6

cross-examination, Springer acknowledged that none of the foregoing

7

similarities was unique; petrolatum is found in several personal care

8

products, and the carpet fiber and tire and shoe impressions were derived

9

from mass-produced products.

10

Joan Baker, the office manager for defendant’s employer (Joe

11

Verska, General Engineering Contractor), testified that defendant worked

12

for the company from February to May 1986. She recognized her own

13

handwriting on his weekly time card filled out on March 26 or 27, 1986;

14

she explained that defendant had been unable to fill out the time card,

15

because “he had hurt his hand and it was bandaged and his arm was in a

16

sling.” The time card showed that on March 24, 1986, defendant worked

17

two hours.

18

Dr. David Fisher, an orthopedic surgeon, testified that on March 28,

19

1986, he treated defendant for a hand injury sometimes referred to as a

20

“boxer’s fracture,” because it is incurred by a close-fisted blow against a

21

hard or fixed object, adding that the injury is “very common to occur

22

within an altercation of some kind.” On cross-examination, Dr. Fisher

23

acknowledged that the injury could occur if someone were to fall with a

24

clenched fist.

25

David Crocker, a field biologist employed by the Metropolitan

26

Water District of Southern California, testified that on April 15, 1986, he

27

was collecting water samples at Lake Mathews (located near La Sierra

28

Boulevard, the street on which the victims’ high school was situated). He
20

1

and a colleague spotted a woman’s black purse near the lake; upon

2

opening the purse, they discovered personal items and Diane’s high school

3

identification card. Crocker and his colleague gave the purse to associates,

4

who recognized the identification as that belonging to the high school

5

student who recently had been murdered. The purse was given to law

6

enforcement officers.

7

Kenneth Widney, defendant’s father-in-law, testified that defendant

8

often wore baseball-type hats, including hats with the letters “C A T” on

9

them. He further testified that at some point prior to defendant’s arrest on

10

May 8, 1986, he observed two pieces of plywood placed in front of

11

defendant’s vehicle and a third piece of plywood on top, leading Widney

12

to opine that defendant was trying to hide the car. Widney also testified

13

that a yellow sticker that read “Caution Child in Car” was placed in the

14

rear window of the vehicle shortly before defendant was arrested.

15

Dr. Craig Rath, a clinical psychologist, testified that on many

16

occasions he had studied a type of criminal who, in many ways, was

17

“relatively socialized,” but who experiences a buildup of tension preceding

18

the commission of a rape (or series of rapes), which then dissipates the

19

tension. Dr. Rath testified that such an individual informally is known as

20

a “binge rapist.” On cross-examination, Dr. Rath acknowledged that he

21

did not examine defendant.

22

B. The Defense Case

23

The defense called Amy, the surviving victim, as its initial witness,

24

and questioned her regarding the events of March 24, 1986, and her

25

participation in the ensuing investigation conducted by law enforcement

26

officials. Amy acknowledged that she willingly joined Diane and the

27

driver of the car for the trip to locate the marijuana patch. Amy also

28

acknowledged initially misleading officers, untruthfully informing them
21

1

that Diane might have known the perpetrator (because “I didn’t want us

2

to get in trouble”), and that the perpetrator was a Black man (because that

3

was what her assailant had instructed her to say). On cross-examination,

4

she confirmed that neither she nor Diane knew the man who assaulted

5

them.

6

Riverside County Deputy Sheriff James Shannon testified that when

7

he encountered Amy at the 7-Eleven in the late afternoon of March 24,

8

1986, she told him, “‘Diane’s dead, I know she is, Diane’s dead.’” She

9

also told him that she had seen Diane unclothed, and “laying on her back”;

10

upon seeing Diane’s body, Amy “started to scream and . . . the suspect hit

11

her several times on the back with a rock.” Amy described her assailant

12

to Shannon as being a “Negro male,” shortly thereafter changing her

13

description. On cross-examination, Shannon testified that Amy explained

14

she initially had given a false description of the suspect because she feared

15

retaliation from the man. Amy described the man as a Caucasian male,

16

approximately 35 years old, wearing a baseball-type cap with the letters

17

“C A T” on it. Shannon further testified on cross-examination that Amy

18

might have told him that she had seen Diane’s back (rather than Diane

19

lying on her back). During Shannon’s questioning of Amy, she was

20

crying, trembling, emotionally upset, and distraught.

21

Riverside County Detective Dennis Harter testified that during an

22

interview he had with Amy in June 1986, Amy stated that she did not see

23

any blood on Diane’s body, or on the hands of the man who assaulted her.

24

Harter reviewed the sequence of events of March 24, 1986, as Amy related

25

them to him during the interview, noting that with regard to the allegation

26

of sodomy, Amy told him that the man “stuck his penis in her butt . . . she

27

said she could feel it moving in and out.”

28
22

1

Riverside County Detective Richard Moker testified regarding his

2

interview with Amy, conducted on March 26, 1986, noting that at one

3

point Amy indicated the man who assaulted her and Diane had, as an

4

inducement for them to join him in the search for the marijuana patch,

5

offered each one of the girls a pound of marijuana to sell. Moker

6

acknowledged that the report he prepared following the interview

7

paraphrased the substance of his interview and contained certain technical

8

terms not used by Amy to describe what occurred when she was sexually

9

assaulted. In an interview Moker conducted on March 27, 1986, Amy told

10

him that when the man released her following the assault, the man gave

11

her directions to tell her sister as to how to reach the location where he had

12

dropped Amy off, and gave her a quarter for a telephone call.

13

Riverside County Detective Michael Lackie testified that his report

14

of the autopsy conducted on Diane Harper’s body, indicating a lack of

15

trauma in the vaginal and anal areas, was erroneous, “and in checking with

16

Faye Springer and other people who were at the autopsy, they told me they

17

clearly understood Dr. Hunter to have made some statement there was

18

signs of sexual assault and there was quite a big to-do in the office because

19

I had written the report and I guess I had missed it.” Lackie also testified

20

that in an interview with Amy, conducted on April 2, 1986, Amy informed

21

him that she (Amy) had used marijuana on a daily basis, but not on March

22

24, 1986, the date the crimes were committed. In response to a question

23

posed by the prosecution, Lackie testified that on March 26, 1986, he

24

ordered blood testing of Amy and Diane’s blood, and that the results

25

indicated there was a small amount of alcohol in each girl’s system, and

26

no evidence of marijuana or any other drug.

27

California Department of Justice Criminalist James Hall testified

28

regarding the analysis performed on the stain found on Amy’s slip,
23

1

indicating that an electrophoresis test was inconclusive as to whether the

2

stain was from seminal or vaginal fluid. On cross-examination, Hall

3

testified that a different test, known as the “P-30” test, indicated the

4

presence of a protein that is a component of semen.

5

examination, Hall acknowledged that he was unable to determine the age

6

of the stain.

On redirect

7

Defendant did not testify, and the prosecution offered no rebuttal.

8

In his closing argument to the jury, defense counsel conceded that

9

defendant took the girls to the remote area and assaulted them, killing

10

Diane. He urged the jury to conclude, however, that Diane had been killed

11

in the course of defendant’s having committed, or having attempted to

12

commit, sodomy – and not rape – and that the evidence therefore

13

supported no more than a verdict of second degree felony murder.[2]

14

[2]

15

enactment of Proposition 115. Under the law at that time,

16

section 189 limited the types of sex offenses that would

17

support a conviction of first degree felony murder to rape (§

18

261) and lewd or lascivious acts with a child under the age of

19

14 years (§ 288). Although murder committed in the course

20

of a sodomy was a special circumstance which, if found true,

21

would support imposition of the death penalty, a jury at the

22

time could consider the sodomy special circumstance only

23

after finding defendant guilty of having committed first

24

degree murder.

25

defendantꞏhadꞏcommitted sodomy, but not rape, and that

26

defendant had not acted with deliberation or premeditation in

27

killing Diane, defense counsel sought to persuade the jury

28

that defendant was guilty of no more than second degree

As noted, the crimes were committed in 1986; prior to the

Thus,

in

24

arguing

at trial that

1

felony murder, in the hope of sparing defendant from a

2

penalty phase and the possibility that the jury would render

3

a verdict of death. (§§ 190, 190.2.)

4

Under the current provisions of section 189 (not

5

applicable to the present case), murder committed in the

6

perpetration of, or attempt to perpetrate, sodomy (§ 286) is

7

first degree murder.

8

At the conclusion of the guilt phase, the jury found defendant guilty

9

of having committed first degree murder, rape, sodomy, and oral

10

copulation, and found true the special circumstance allegations that the

11

murder was committed during the commission of rape and sodomy.

12
13

II. PENALTY PHASE EVIDENCE
A. The Prosecution’s Case

14

The prosecution introduced evidence of five prior offenses

15

committed by defendant, in addition to evidence of the subsequent

16

uncharged murder of defendant’s eleven-year-old niece.

17

1. Debra B. – February 1973 Assault

18

Debra B. testified that in February 1973, when she was 26 years of

19

age, she lived next door to the parents of defendant’s first wife, Kathy, in

20

Anaheim. While Debra was partially dressed one morning, defendant

21

appeared without shoes in her kitchen. He said that he had locked himself

22

out of the house next door, and asked to use the telephone. Debra

23

repeatedly asked defendant to leave. “[T]hen just very suddenly he lunged

24

at me and started choking me,” Debra recalled. The pair fell to the floor.

25

During the ensuing struggle, Debra bit defendant’s hand, causing it to

26

bleed. The struggle ended, and defendant informed her that he could not

27

stop himself from entering people’s homes. Debra arranged for defendant

28
25

1

to speak with one of the ministers at her church. The minister contacted

2

the local police, who placed defendant under arrest.

3

During the ensuing search of defendant’s person, officers found a

4

knotted piece of rope, 42 inches in length, a pocket knife, a piece of

5

electrical wire, 39.5 inches in length, and a key to Debra’s residence.

6

2. Priscilla N. – February 1973 Assault

7

On February 22, 1973, Priscilla N., 18 years of age, was employed

8

as the manager of an apartment complex located in Imperial Beach. At

9

dusk, a man asked her to show him an apartment. Once inside, he grabbed

10

her, and the two struggled to the floor. After she repeatedly screamed, the

11

man ran out of the apartment. She reported the incident to the police,

12

initially identifying another man as her attacker. When defendant was

13

questioned by investigating officers with regard to the Valerie T. and

14

Deborah T. incidents, described below, he admitted attacking Priscilla

15

with the intent to rape her.

16

3. Valerie T. – January 1975 Sexual Assault (footnote

17

omitted)

18

On January 19, 1975, at approximately 9:00 p.m., Valerie T. was

19

walking to her residence, located in Imperial Beach, after having had

20

dinner at a local restaurant. A man grabbed her from behind and placed

21

one hand over her mouth, informing her not to scream. He pulled Valerie

22

into an alley and removed his hand. She immediately screamed, and he

23

placed the blade of a knife across her throat. He ordered her to remove her

24

trousers; when she refused to do so, he did so himself, saying, “Don’t look

25

at me.” He also ripped open her blouse and “mounted” her briefly.

26

“[T]hen he got up and he said, ‘Thank you, ma‘am,’ and took off down the

27

street.” Although Valerie could not recall whether the man’s penis

28

actually penetrated her, she subsequently detected wetness that “wasn't
26

1

mine,” and believed he had ejaculated. A few months after the incident

2

(approximately the time period when defendant admitted to the police that

3

he had attacked her), Valerie identified her assailant in a police photo

4

lineup as defendant, subsequently identifying him again at the penalty

5

phase of the trial.

6

4.

7

Copulation

Marilyn S. – February 1975 Forcible Oral

8

On the evening of February 26, 1975, Marilyn S. went dancing,

9

returning to her Imperial Beach apartment at approximately 1:00 a.m. the

10

next morning. After falling asleep on a couch, she awakened to find a man

11

standing next to her; his hands covered her mouth and neck area. The man

12

wore a ski mask over his face, with holes for his eyes, nose, and mouth.

13

In one hand, he held an open pocketknife. He told Marilyn, “No sudden

14

moves, or you’ll get hurt.” He taped her mouth shut and told her not to

15

scream. The man began caressing Marilyn’s breasts and attempted to

16

remove her pantyhose. The tape eventually became loose and, in the hope

17

of preventing a rape, Marilyn informed him that she was menstruating and

18

had an infectious disease. The man forced her to orally copulate him,

19

eventually ejaculating and forcing her to swallow his semen. He thereafter

20

asked her for money. Marilyn replied that she did not have much, and that

21

she had a young son to raise. The man informed her that he had keys to

22

all of the apartments in the complex, warning her not to contact the police

23

or he would harm her and her son. Because she did not see the man’s face,

24

Marilyn was unable to identify him to the police. One week later,

25

however, while being questioned by the police in connection with the

26

attempted burglary of Deborah T.’s residence, described below, defendant

27

admitted his sexual assault upon Marilyn S., explaining that he had gone

28
27

1

to her apartment complex for the purpose of committing a rape. (Footnote

2

omitted.)

3

5. Deborah T. – March 1975 Attempted Burglary

4

Shortly after midnight on March 5, 1975, the police responded to a

5

telephone call from Deborah T., regarding a possible prowler at the

6

Imperial Beach apartment complex in which she resided. Police officers

7

located defendant, barefoot, 30 to 40 feet from her residence, walking

8

away at a fast pace, and detained him. Although Deborah was unable to

9

identify defendant positively, fingerprints lifted from a window screen at

10

her apartment subsequently were matched to those belonging to defendant.

11

Defendant waived his rights under [Miranda v. Arizona, 384 U.S. 436

12

(1966)], and gave investigating officers a number of varying explanations

13

as to what he was doing at the apartment complex at that hour, initially

14

denying being near Deborah’s window. The following day, after being

15

reread his Miranda rights, defendant confessed that he had opened the

16

window with the intent of sexually assaulting her.

17

interrogation, defendant also described his involvement in certain other

18

offenses that the prosecution offered as evidence in aggravation.

19

During this

6. Shelah McMahan – May 1986 Murder

20

On May 3, 1986, the body of defendant’s 11-year-old niece, Shelah

21

McMahan, was found beneath a mattress, trash bags, and a rock overhang

22

at a garbage dump located in Mead Valley. She had been stabbed

23

numerous times in the neck. A thin rubber molding was wrapped loosely

24

around her neck, and her hands had been tied tightly behind her with a

25

plastic cable tie. Her forearms bore marks that appeared to have been

26

made by handcuffs. Her shirt was ripped and pulled away from her chest.

27

A semen stain was found on her pant leg. Shelah had lived next door to

28

defendant, and had been missing since early that morning.
28

1
2

In the ensuing few days, defendant was seen using a tractor to grade
his backyard. He told others that he was doing landscaping work.

3

On May 8, 1986, defendant was arrested for the crimes committed

4

against Diane and Amy. Pursuant to a search warrant, police investigators

5

searched his mobilehome and the surrounding yard, locating cable ties

6

similar to the one found binding Shelah’s wrists, as well as two sets of

7

handcuffs buried under freshly turned soil within a shed located behind

8

defendant’s residence. A third set of handcuffs was recovered several

9

weeks later.

10

An acquaintance of defendant’s, William Parker, testified that in

11

early 1986, he engaged in a lighthearted discussion with defendant

12

regarding women and bondage, which led defendant to produce three sets

13

of handcuffs from the trunk of a motor vehicle. Defendant told Parker

14

“something to the effect of, ‘this is what you need.’”

15

Criminalist James Hall testified that traces of blood found on one set

16

of the handcuffs recovered from the shed matched Shelah’s blood type,

17

shared by approximately 0.8 percent of the population (i.e., approximately

18

eight out of one thousand people). Criminalist Faye Springer testified that

19

a fiber collected from one pair of handcuffs was similar to the fabric in a

20

black T-shirt worn by Shelah when her body was discovered. The ligature

21

marks on Shelah’s arms resembled those made by the handcuffs. The

22

cable tie that bound Shelah’s wrists had an appearance and trademark

23

similar to a cable tie recovered from defendant’s bedroom. Springer also

24

found a similarity between fibers recovered from Shelah’s T-shirt and

25

those collected from the carpet found in one of defendant’s vehicles, a

26

Ford Mustang.[5]

27

Shelah’s body and from defendant’s Mustang were similar to an exemplar

28

taken from defendant’s dog.

Springer stated that animal hairs recovered from

29

1

[5]

2

cross-examination that Shelah’s hands were found clutching

3

“some greenish gold type carpet fibers.”

4

acknowledged that these particular fibers had not been

5

connected to defendant or to any of his possessions. On

6

cross-examination, Faye Springer and Detective Phillip

7

Sanchez testified similarly.

8

Dr. Rene Modglin, the coroner who performed the autopsy on

9

Shelah’s body, testified that the victim had been stabbed 16 times. The

10

cause of death was a cut to Shelah’s right common carotid artery. The

11

victim’s body bore other bruises and abrasions. Modglin noted that

12

Shelah’s breasts were more fully developed than was typical for a girl of

13

her age. On cross-examination, Modglin testified that he found no

14

evidence of injury to Shelah’s vaginal or anal areas. He found no evidence

15

of semen in her mouth or body, noting that the absence of such evidence

16

did not necessarily mean that Shelah had not engaged in sexual intercourse

17

near the time of her death.

Prosecution witness Ronald Wade testified on
Wade

18

Randy Gresham shared a county jail cell with defendant and another

19

prisoner. Gresham testified as part of an agreement specifying that, rather

20

than face exposure to a prison sentence of 15 years for his involvement in

21

offenses unrelated to the present case, he would be sentenced to a

22

maximum of 10 years.

23

murdering his niece and leaving her body “at a dumping area.” According

24

to Gresham, defendant described her as an 11-year-old with “big breasts,”

25

and “built a lot sexier . . . than an 11-year-old was.” Gresham stated that

26

when defendant discussed killing Shelah, he demonstrated stabbing

27

motions and laughed as he acted out the killing. Defendant informed him

28

that he killed the girl because he was nervous after having talked to her

Gresham testified that defendant admitted

30

1

about his other sexual assaults, had made sexual advances toward her, and

2

was afraid that she would inform her family. Defendant told Gresham that

3

“he really liked Shelah, and did not want to kill her, adding, ‘it[’s] easier

4

after you’d [sic] done it.’” While watching television with Gresham,

5

defendant would compare the breasts of women on television with those

6

of his niece. Defendant expressed concern to Gresham that sheriff’s

7

deputies were searching his backyard, “and he was worried about them

8

searching it. . . . He didn’t want them to find evidence out there.”[6]

9
10

[6]

11

had used drugs heavily prior to his arrest, and suffered

12

symptoms of withdrawal during the time that he was

13

incarcerated with defendant.

14

suffered seizures and “blacked out” a number of times. On

15

one occasion, defendant administered cardiopulmonary

16

resuscitation in order to revive Gresham.

17

On cross-examination, Gresham acknowledged that he

Gresham testified that he

B. The Defense Case

18

At the penalty phase, the defense presented evidence in rebuttal to

19

the prosecution’s case against defendant regarding the murder of Shelah.

20

The defense also presented evidence in mitigation describing defendant’s

21

troubled upbringing and his personal and professional virtues.

22
23

1.

Defense Evidence Contesting the Claim That

Defendant Murdered Shelah

24

The defense presented evidence highlighting the large number of

25

individuals who had access to the Widney residence (where Shelah lived),

26

and in particular sought to cast suspicion on Bobby Asendorf, the brother

27

of the boyfriend of Shelah’s mother. Asendorf, who lived inside a bus

28
31

1

parked on the property, was not permitted to babysit Shelah, because

2

Shelah had a “crush” on him.

3

The defense also emphasized the forensic evidence that did not link

4

defendant to Shelah’s murder. This evidence included the green and gold

5

carpet fibers found in Shelah’s hand, the lack of blood found in

6

defendant’s Ford Mustang, the absence of hair matching that of defendant,

7

and the presence of hair that matched neither Shelah nor defendant. A

8

cigarette butt recovered near the body was analyzed for saliva and

9

determined to reflect type A secretor activity; defendant was a nonsecretor.

10

Cable ties found near the body were dissimilar from those found at

11

defendant’s residence and upon Shelah’s wrists. The molding found

12

wrapped around Shelah’s neck did not match moldings seized by

13

investigators. A shoeprint found on a bedsheet with Shelah’s body was

14

dissimilar to shoes seized from defendant’s residence. The bedsheet,

15

itself, also was dissimilar to those found in the Widney residence and in

16

defendant’s residence.

17

To cast further doubt upon the prosecution’s theory that defendant

18

murdered Shelah, the defense presented evidence suggesting that Shelah

19

died within 90 minutes of 10:44 a.m., May 3 – i.e., a time when it was

20

undisputed that defendant already had returned to his residence.

21

The defense sought to discredit inmate Randy Gresham’s testimony

22

by introducing evidence that Gresham had daily access to newspapers

23

while incarcerated and that Gresham’s plea agreement with the

24

prosecution depended upon his testifying against defendant.

25

David Montgomery testified that he worked with defendant for Joe

26

Verska Construction on the night Shelah disappeared. The pair met

27

shortly after midnight to move sprinklers at a jobsite, a task that required

28

approximately 90 minutes. Thereafter, they returned to defendant’s
32

1

vehicle and drank beer. Montgomery received a telephone call from

2

defendant at approximately 8:00 a.m. that day.

3

Defendant’s wife, Linda Hart, testified that early on the morning of

4

Shelah’s disappearance, she awoke at 2:30 a.m., to make sure that

5

defendant had left for work; he already had left, returning shortly before

6

4:00 a.m. Linda Hart did not see any blood on defendant’s clothing or

7

shoes. He awakened her later in the morning, when it was light.

8

Linda Hart further testified that Shelah often went to church and to

9

the grocery store with the Harts in their Ford Mustang. The Harts’ dog

10

also traveled freely between the Widney and Hart residences. Linda Hart

11

explained that defendant had been grading the backyard on a continual

12

basis, in an effort to produce a level yard.

13

On cross-examination, Linda Hart testified that although she

14

recalled telling a detective, on May 4, 1986, that her husband was gone the

15

previous day at 2:30 a.m., she did not remember telling the detective that

16

the next time she heard from her husband that day was at 7:00 a.m. She

17

did not believe that her husband had killed Shelah or Diane. (Footnote

18

omitted.)

19

Shelah’s mother, Paula McMahan, testified that many individuals

20

visited – and occasionally resided at, or near – the Widney residence

21

where Shelah lived. Because the Widneys had a washer and dryer, the

22

McMahans and Harts often washed their clothes there, sometimes mixing

23

the families’ laundry together. Paula McMahan corroborated portions of

24

Linda Hart’s testimony, explaining that Shelah often played with

25

defendant’s daughters and dog, and frequently had been a passenger in the

26

Harts’ Ford Mustang. She added that plastic cable ties could be found in

27

many locations on the Widney property. On cross-examination, Paula

28

McMahan testified that Shelah was very responsible, and always asked
33

1

permission to leave the property, even with someone familiar to her such

2

as defendant.

3

Shelah’s uncle, Steve Widney, testified that he used cable ties in his

4

job as an installer of rooftop solar panels, storing the ties at various

5

locations on the Widneys’ property.

6

2. Defense Evidence in Mitigation

7

Defendant’s father, Robert Hart, testified regarding his own career

8

in the United States Navy, and the adverse impact that his absences and

9

alcoholism had had upon his family. He praised defendant as having been

10

a good child, an excellent husband, and a loving father. Robert Hart

11

forced defendant to enlist in the Navy and, upon returning, defendant

12

discovered that his first wife, Kathy, had been unfaithful. Defendant

13

began using drugs at this time, was committed as a mentally disordered

14

sex offender to Patton State Hospital, and his marriage to Kathy was

15

dissolved.

16

Defendant’s mother, Iris Hart, corroborated and expanded upon her

17

husband’s testimony.

She also described a serious traffic accident

18

involving defendant when he was four years of age, which led to his

19

suffering a number of chronic problems, including headaches.

20

Defendant’s first wife, Kathy, testified that defendant had been “a

21

very good father.” Defendant had attempted to be a good husband to

22

Kathy, and was “devastated” to learn of her extramarital affair. She also

23

described an event, after the couple had divorced, when defendant visited

24

her and saved the lives of some girls who had fallen into a river when their

25

canoe capsized.

26

Defendant’s second wife, Linda, testified regarding an incident

27

involving a distraught neighbor who had slashed her wrists, explaining

28

that defendant broke down a door, stopped the bleeding, and saved his
34

1

neighbor’s life. She described defendant as a devoted husband and a

2

“fantastic” father, who, while incarcerated, sought to remain as involved

3

as possible with his family. On cross-examination, Linda acknowledged

4

(over an objection) that nine months after defendant’s arrest, she asked

5

another man to live with her for her protection and that of her children,

6

eventually bearing the other man’s child.

7

Several witnesses testified in praise of defendant’s talents as a poet,

8

songwriter, musician, husband, and father. Defendant was very involved

9

with the local church, sang in the church choir, and taught children in

10

Bible school. He was a hard worker who sought to provide for his family.

11

A former employer described defendant as very dependable and honest.

12

C. Prosecution Evidence in Rebuttal

13

Detective Sanchez testified that, during an interview with Linda

14

Hart on May 4, 1986 (following the discovery of Shelah’s body), she

15

stated that her husband was gone at 2:30 a.m. the previous day, and the

16

next time she heard from him was approximately four and one-half hours

17

later, just before 7:00 a.m., when she heard defendant enter the trailer.

18

Linda Hart’s sister-in-law, Cindy Widney, testified that on four

19

occasions, defendant made overtures toward her, once suggesting

20

lightheartedly that if their respective spouses returned “to mom and dad,”

21

the two of them could get married.

22 People v. Hart, 20 Cal. 4th at 567-88.
23 IV.

LEGAL STANDARD

24

A.

25

AEDPA precludes federal courts from granting habeas relief to a state prisoner

AEDPA Deference

26 “with respect to any claim that was adjudicated on the merits in State court
27 proceedings” unless that adjudication:
28
35

1

(1) resulted in a decision that was contrary to, or involved an

2

unreasonable application of, clearly established Federal law, as

3

determined by the Supreme Court of the United States; or (2)

4

resulted in a decision that was based on an unreasonable

5

determination of the facts in light of the evidence presented in the

6

State court proceeding.

7 28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. 86, 97-98 (2011). The above
8 standard “recognizes a foundational principle of our federal system: State courts are
9 adequate forums for the vindication of federal rights.” Burt v. Titlow, 571 U.S. 12, 19
10 (2013). “A proper respect for AEDPA’s high bar for habeas relief avoids unnecessarily
11 ‘disturb[ing] the State’s significant interest in repose for concluded litigation, den[ying]
12 society the right to punish some admitted offenders, and intrud[ing] on state sovereignty
13 to a degree matched by few exercises of federal judicial authority.” Virginia v.
14 LeBlanc, ___ U.S. ___, 137 S. Ct. 1726, 1729 (2017) (quoting Richter, 562 U.S. at 103)
15 (brackets in original). Although AEDPA “stops short of imposing a complete bar on
16 federal court relitigation of claims already rejected in state proceedings,” it nevertheless
17 “reflects the view that habeas corpus is a guard against extreme malfunctions in the
18 state criminal justice systems, not a substitute for ordinary error correction through
19 appeal.” Richter, 562 U.S. at 102-03 (citation and internal quotation marks omitted).
20

Consequently, § 2254(d) “preserves authority to issue the writ in cases where

21 there is no possibility fairminded jurists could disagree that the state court’s decision
22 conflicts with [the Supreme Court’s] precedents.” Id. at 102. Put another way, in order
23 to obtain federal habeas relief, “a state prisoner must show that the state court’s ruling
24 on the claim being presented in federal court was so lacking in justification that there
25 was an error well understood and comprehended in existing law beyond any possibility
26 for fairminded disagreement.” Id. at 103; Titlow, 571 U.S. at 19-20.
27

Clearly established Federal law under § 2254(d)(1) “refers to the holdings, as

28 opposed to the dicta, of [the Supreme Court’s] decisions as of the time of the relevant
36

1 state-court decision.” Carey v. Musladin, 549 U.S. 70, 74 (2006) (quoting Williams v.
2 Taylor, 529 U.S. 362, 412 (2000)). Where no decision of the Supreme Court “squarely
3 addresses” an issue or provides a “categorical answer” to the question before the state
4 court, § 2254 (d)(1) bars relief because the state court’s adjudication of the issue cannot
5 be contrary to, or an unreasonable application of, Supreme Court law. Wright v. Van
6 Patten, 552 U.S. 120, 125-26 (2008) (per curiam); see also Moses v. Payne, 555 F.3d
7 742, 754, 758-60 (9th Cir. 2009). The Supreme Court has “emphasized, time and again,
8 that [AEDPA] prohibits the federal courts of appeals from relying on their own
9 precedent to conclude that a particular constitutional principle is ‘clearly established.’”
10 Lopez v. Smith, 574 U.S. 1, 2 (2014) (per curiam).
11

A state court decision is “contrary to” governing Supreme Court law if it either

12 applies a rule that contradicts the governing Supreme Court law or “confronts a set of
13 facts that is materially indistinguishable from a decision of [the Supreme Court] but
14 reaches a different result.” Brown v. Payton, 544 U.S. 133, 141 (2005). Citation to
15 Supreme Court cases is not required so long as “neither the reasoning nor the result of
16 the state-court decision contradicts them.” Early v. Packer, 537 U.S. 3, 8 (2002); Bell
17 v. Cone, 543 U.S. 447, 455 (2005); Richter, 562 U.S. at 98 (“[A]s this Court has
18 observed, a state court need not cite or even be aware of our cases under § 2254(d).”).
19

A state court’s decision involves an “unreasonable application” of Supreme Court

20 precedent “if the state court identifies the correct governing legal principle from [the
21 Supreme Court’s] decisions but unreasonably applies that principle to the facts of the
22 prisoner’s case.” Williams v. Taylor, 529 U.S. at 413. An “unreasonable” application
23 of federal law is more than an “incorrect” application of federal law. Richter, 562 U.S.
24 at 101; Wiggins v. Smith, 539 U.S. 510, 520-21 (2003). So long as “fairminded jurists
25 could disagree” on the correctness of the state court’s decision, federal habeas relief is
26 unavailable. Richter, 562 U.S. at 101; LeBlanc, 137 S. Ct. at 1728 (“In order for a state
27 court’s decision to be an unreasonable application of this Court’s case law, the ruling
28
37

1 must be ‘objectively unreasonable, not merely wrong; even clear error will not
2 suffice.’”) (quoting Woods v. Donald, 575 U.S. 312, 316 (2015) (per curiam)).
3

To show that a state court’s adjudication of a claim resulted in a decision that was

4 based on an unreasonable determination of the facts in light of the evidence presented
5 in the State court proceeding, the petitioner must show that the state court’s decision
6 rested on a finding of fact that is “objectively unreasonable.” Hibbler v. Benedetti, 693
7 F.3d 1140, 1146 (9th Cir. 2012) (emphasis in original, citation omitted). Again, “[t]he
8 question under AEDPA is not whether a federal court believes the state court’s
9 determination was incorrect but whether that determination was unreasonable – a
10 substantially higher threshold.” Schriro v. Landrigan, 550 U.S. 465, 473 (2007). If a
11 petitioner challenges the state court’s factual findings, the federal court “must be
12 convinced that an appellate panel, applying the normal standards of appellate review,
13 could not reasonably conclude that the finding is supported by the record.” Hibbler,
14 693 F.3d at 1146.
15

In performing its 2254(d) analysis, a federal court is limited to the record that was

16 before the state court that adjudicated the claim on the merits. Pinholster, 563 U.S. at
17 180-81. In practical effect, this means that when the state court record precludes habeas
18 relief, the district court is not required to hold an evidentiary hearing. Id. at 183 (citing
19 Landrigan, 550 U.S. at 474); Murray v. Schriro, 882 F.3d 778, 802 (9th Cir. 2018) (“so
20 long as we are reviewing a petitioner’s claim under AEDPA, our review is limited to
21 the facts before the state court and the petitioner is not entitled to an evidentiary hearing
22 in federal court.”).
23

“[T]he provisions of AEDPA apply with full force even when reviewing a

24 conviction and sentence imposing the death penalty.” White v. Wheeler, ___ U.S. ___,
25 136 S. Ct. 456, 462 (2015); see also Herrera v. Collins, 506 U.S. 390, 405 (1993) (the
26 Supreme Court has “refused to hold that the fact that a death sentence has been imposed
27 requires a different standard of review on federal habeas corpus.”) (citation omitted).
28

B.

AEDPA’s Application
38

1

Here, AEDPA’s deferential standard applies to all of Petitioner’s pending claims.

2 Petitioner raised the majority of those claims on direct appeal. (Dkt. 97-49.) The
3 California Supreme Court rejected those claims and explained its decision in a reasoned
4 opinion. See People v. Hart, 20 Cal. 4th at 588-658. In such a circumstance, this Court
5 performs a “straightforward inquiry” by reviewing “the specific reasons given by the
6 state court and defer[ring] to those reasons if they are reasonable.” Wilson v. Sellers,
7 ___ U.S. ___, 138 S. Ct. 1188, 1192 (2018).
8

Petitioner raised his remaining claims in three state habeas petitions. (Dkt. 98-13,

9 101-1–101-2, 102-1–102-2.) The California Supreme Court denied those claims in
10 summary orders after receiving informal briefing. The claims were denied both “on the
11 merits” without explanation, and for various procedural reasons.6/ (Dkt. 98-12, 99-21,
12 101-13.) In the absence of a reasoned analysis, AEDPA requires this Court to
13 “determine what arguments or theories . . . could have supported[] the state court’s
14 decision.” Richter, 562 U.S. at 102. If “fairminded jurists could disagree” whether
15 those arguments or theories are inconsistent with a Supreme Court’s holding, “the
16 petitioner’s claim must be denied.” Sexton v. Beaudreaux, ___ U.S. ___, 138 S. Ct.
17 2555, 2558 (2018); Richter, 562 U.S. at 98 (“Where a state court’s decision is
18 unaccompanied by an explanation, the habeas petitioner’s burden still must be met by
19 showing there was no reasonable basis for the state court to deny relief.”).
20
21
22
23
24
25
26
27
28

6/

The Court only discusses the procedural claims cited by the state court to the extent
necessary and relevant to the federal action. Additionally, Petitioner raised some claims
multiple times; in certain instances the California Supreme Court denied the same claim
twice on the merits, once with written reasons and once without. In those instances, this
Court reviews the earlier reasoned decision on direct appeal. Where the state court
denied a claim “on the merits” without explanation the second time around, it suggests
that the court relied on its prior reasoning. Cf. Wilson, 138 S. Ct. at 1192 (federal courts
“look through” unexplained decisions “to the last related state-court decision that does
provide a relevant rationale” and “presume[s] that the unexplained decision adopted the
same reasoning.”).
39

1 V.

DISCUSSION

2

A.

3

Petitioner raises multiple allegations of jury bias, addressed below. Petitioner

Juror Bias (Claim 1)

4 raised some of these allegations in the California Supreme Court on direct appeal, and
5 some on state habeas review. The Court indicates which decision it reviews for
6 reasonableness in addressing the claims.
7

Petitioner makes three general arguments. First, he claims the trial court failed

8 to adequately vet (and ultimately dismiss) four jurors who were biased and predisposed
9 to favor guilty and death verdicts. Second, Petitioner argues that the court failed to
10 excuse jurors whose pretrial exposure to media about the case rendered them biased.
11 Third, Petitioner claims the trial court’s failure to dismiss a juror for financial hardship
12 caused him to place undue pressure on other jurors to quickly reach guilt and death
13 verdicts. (SAP at 29-37; Traverse at 20-27.)
14
15

1.

Failure To Root Out Biased Jurors During Voir Dire

Petitioner claims that voir dire questioning was inadequate as to four jurors

16 whose answers suggested they held a bias in favor of the prosecution.
17
18

a.

Legal Standard

“[P]art of the guarantee of a defendant’s right to an impartial jury is an adequate

19 voir dire to identify unqualified jurors.” Morgan v. Illinois, 504 U.S. 719, 729 (1992).
20 The Constitution “does not dictate a catechism for voir dire, but only that the defendant
21 be afforded an impartial jury.” Id.; see also Skilling v. United States, 561 U.S. 358, 386
22 (2010) (“No hard-and-fast formula dictates the necessary depth or breadth of voir
23 dire.”); United States v. Wood, 299 U.S. 123, 145-46 (1936) (“Impartiality is not a
24 technical conception. It is a state of mind. For the ascertainment of this mental attitude
25 of appropriate indifference, the Constitution lays down no particular tests and procedure
26 is not chained to any ancient and artificial formula.”).
27

“Supreme Court case law in the area of juror bias is sparse.” Consequently, from

28 a constitutional perspective, “we don’t know precisely what it means for a juror to be
40

1 biased.” Williams v. Johnson, 840 F.3d 1006, 1010 (9th Cir. 2016) (citing Wood, 299
2 U.S. at 146). However, “we do know that a juror is biased if he is unwilling to follow
3 the law.” Id. The partiality of an individual juror “is plainly [an issue] of historical
4 fact: did a juror swear that he could set aside any opinion he might hold and decide the
5 case on the evidence, and should the juror’s protestation of impartiality have been
6 believed.” Patton v. Yount, 467 U.S. 1025, 1036-37 (1984). Thus, the trial court’s
7 determination that a juror was impartial is entitled to a presumption of correctness. Id.
8 at 1038; 28 U.S.C. § 2254(e).
9

When a prospective juror expressly assures that he or she can set aside any

10 preconceived opinions and render a verdict based on the evidence, a presumption of
11 impartiality attaches. Ybarra v. McDaniel, 656 F.3d 984, 992 (9th Cir. 2011) (citing
12 Murphy v. Florida, 421 U.S. 794, 800 (1974)); Irvin v. Dowd, 366 U.S. 717, 723
13 (1961). The defendant rebuts this presumption by demonstrating that the juror actually
14 held a biased opinion. Ybarra, 656 F.3d at 992.
15

It is not unusual on voir dire examination for a juror’s answers to be “ambiguous

16 and at times contradictory.” This is especially true:
17

in a highly publicized criminal case. It is well to remember that the lay

18

persons on the panel may never have been subjected to the type of leading

19

questions and cross-examination tactics that frequently are employed, . .

20

. . Jurors thus cannot be expected invariably to express themselves

21

carefully or even consistently. Every trial judge understands this, and

22

under our system it is that judge who is best situated to determine

23

competency to serve impartially. The trial judge properly may choose to

24

believe those statements that were the most fully articulated or that

25

appeared to have been least influenced by leading.

26 Yount, 467 U.S. at 1038-39. Where a juror’s answers are particularly ambiguous, “[i]t
27 is here that the federal court’s deference must operate, for while the cold record arouses
28 some concern, only the trial judge could tell which of these answers was said with the
41

1 greatest comprehension and certainty.” Id. at 1040. In light of that deference, “the
2 State’s obligation to the defendant to impanel an impartial jury generally can be
3 satisfied by less than an inquiry into a specific prejudice feared by the defendant.”
4 Ristaino v. Ross, 424 U.S. 589, 595 (1976). More specifically, “to be constitutionally
5 compelled, it is not enough that voir dire questions might have been helpful, rather the
6 failure to ask the questions ‘must render the defendant’s trial fundamentally unfair.’”
7 Kemp v. Ryan, 638 F.3d 1245, 1261 (9th Cir. 2011) (quoting Mu’Min v. Virginia, 500
8 U.S. 415, 425-26 (1991)); see also Morgan, 504 U.S. at 729-30 (the trial court’s sound
9 discretion in conducting voir dire is “subject to the essential demands of fairness.”);
10 Murphy, 421 U.S. at 799 (to resolve the issue of juror impartiality, “we must turn, . . .
11 to any indications in the totality of circumstances that petitioner’s trial was not
12 fundamentally fair.”).
13

Petitioner has not shown that empaneling any of the four jurors at issue rendered

14 his trial fundamentally unfair. The Court discusses the particulars of each juror below.
15
16
17

b.

Relevant Facts and Analysis
(1)

Juror Deborah Wallen

Wallen was initially given several questions on voir dire by the court and both

18 counsel. The juror stated several times that she believed she could be fair and impartial.
19 (5RT at 637-51.) Petitioner’s attorney then brought attention to an answer Wallen
20 provided on a written juror questionnaire. Specifically, Wallen stated on the form that
21 she “testified and was almost [a] victim. A guy raped a girl and tried to get me.”
22 (Clerk’s Transcript on Appeal for Juror Questionnaires, volume one of five (“1JCT”)
23 at 229.) On voir dire, Wallen explained that several years earlier, she was pursued in
24 a “car chase” by a man. Subsequent to that, the man was tried for raping someone else,
25 and Wallen was called to testify about her car chase. Wallen was not herself a victim
26 of rape, and did not know the outcome of the case in which she testified. She stated, “I
27 thought I’d better write it down because it did happen. But, I didn’t go through
28 anything, you know.” (5RT at 651-52.)
42

1

Defense counsel admonished Wallen that at Petitioner’s trial “[y]ou’re going to

2 hear a girl testify that one girl was raped, and she escaped . . . . Are you going to let that
3 bother you?” Wallen answered, “No.” Counsel asked, “Are you sure?” and Wallen
4 replied, “It was a long time ago, . . . .” (5RT at 652-53.)
5

The prosecutor asked Wallen to provide more detail about the incident. Wallen

6 explained that she was driving with her two-year-old son in her car, and the man pulled
7 behind her and flashed his headlights. When Wallen pulled her car over, the man
8 threatened to shoot her if she did not open her car door. Wallen “floored” the gas pedal
9 and fled. (5RT at 653.) Wallen told the prosecutor that “It was quite awhile ago. It is
10 one of those things you would want to forget.” (5RT at 654.)
11

On direct appeal, Petitioner raised a claim arguing that the trial court

12 inadequately examined Wallen regarding the “car chase” incident. The court concluded
13 that further
14

examination was unnecessary in view of Wallen’s notation of the incident

15

on the juror questionnaire, and her responses to questions posed by the

16

prosecutor and defense counsel. In his voir dire of Wallen, defense

17

counsel thoroughly inquired as to this matter. During that inquiry, Wallen

18

indicated that she knew little regarding the rape charge that had been filed

19

against the man, that the [] incident would not bother her if she sat on the

20

jury in the present case, and that the matter had been “a long time ago.”

21

Defense counsel refrained from challenging Wallen for cause. In light of

22

Wallen’s responses, we fail to perceive a deficiency on the part of the trial

23

court, or defense counsel, in refraining from asking additional questions.

24 People v. Hart, 20 Cal. 4th at 590.
25

The California Supreme Court’s analysis and conclusion as to Deborah Wallen

26 were not contrary to, or unreasonable applications of, clearly established Supreme Court
27 precedent. 28 U.S.C § 2254(d)(1). Petitioner has not convincingly argued that this
28 juror held any bias, or that further questioning would have been useful. The record
43

1 demonstrates that the prior incident Wallen referred to was not something in the
2 forefront of her mind, or that gave her any particular predisposition. Instead, Wallen
3 brought up the incident merely in an attempt to be as forthcoming as possible. Beyond
4 that, she clearly communicated that the incident was long in the past, and that she did
5 not – and preferred not to – remember important details (like the outcome of the trial
6 at which she testified). Petitioner has failed to rebut the presumption of correctness as
7 to the state court’s determination that Wallen was not biased. Yount, 467 U.S. at 1038.
8 There is also nothing to show that, in the absence of further voir dire questioning of
9 Wallen, Petitioner’s trial was fundamentally unfair. Kemp, 638 F.3d at 1261; Morgan,
10 504 U.S. at 729-30; Murphy, 421 U.S. at 799.
11
12

(2)

Jury Foreman Oran Pentz

Pentz was a fire captain who worked with law enforcement on occasion. His

13 brother-in-law was also a police officer. (6RT at 795; 2JCT at 285-87.) When
14 questioned on voir dire, Pentz stated that there was nothing about those relationships
15 that caused him to lean pro-prosecution, or that would cause him to find an officer’s
16 testimony inherently more credible than the testimony of others. (6RT at 795-96.)
17

Pentz recalled reading a newspaper article that familiarized him with the general

18 facts of Petitioner’s case. (2JCT at 286-88.) On his juror questionnaire, Pentz stated
19 that he could not:
20

remember all of the details. But what I do . . . remember is that the girls

21

were picked up at the school and taken out to a remote area. The person

22

that picked them up took one of the girls away from the vehicle to a

23

secluded area and, as stated in the newspaper, raped and killed the girl. He

24

then came back to the vehicle and the other girl got scared when she

25

started questioning as to theꞏwhereabouts of her friend. She then talked

26

real nicely to the person that picked them up and he let her go at an

27

unknown location. I cannot remember if she was sexually attacked or not.

28

This is the bits and piecesꞏof the incident that I can recall at this time.
44

1 (2JCT at 288.) Pentz had “not heard the whole story” and did “not know if the person
2 in custody did this.” (2JCT at 287.) When asked about the article by Petitioner’s
3 lawyer, Pentz stated that he found it “pretty much convincing,” but that he would “have
4 to hear the evidence, . . . .” (6RT at 774.) Pentz further explained that the facts he read
5 in the article would be “in [his] mind,” but he was suspicious of media narratives. He
6 ultimately stated that he would base his decision solely on the evidence adduced at trial.
7 (6RT at 774-75, 811-14.) Pentz also stated that his friend’s wife had been the victim
8 of a freeway shooting, but that did not give him stronger feelings in favor of either the
9 prosecution or the defense. (6RT at 776; 2JCT at 287.)
10

Pentz confirmed that he understood the presumption of innocence and could

11 abide by the beyond-a-reasonable-doubt standard of proof. Pentz also agreed that any
12 prior media reports of the case should have no bearing on the jury. (6RT at 791-93,
13 805.) Pentz characterized himself as neutral on the death penalty; he would not
14 automatically vote either for or against that punishment, but instead “would have to see
15 the evidence.” (6RT at 769.) Pentz stated that he could make a decision based solely
16 on the evidence and be fair to both sides in the penalty phase. (6RT at 776, 797.)
17

On direct appeal, Petitioner raised a claim alleging that the trial court’s voir dire

18 questioning of Pentz was inadequate and superficial. The California Supreme Court
19 found that Petitioner’s “assertion is a misleading one, because the prosecutor and
20 defense counsel thoroughly questioned Pentz (who eventually became the jury’s
21 foreperson) as to the matters noted.” The court referenced statements Pentz made that
22 he would evaluate a police officer’s credibility the same as anyone else’s, that the
23 newspaper account did not bias him, and that he agreed he could listen to the facts and
24 be fair to both sides. The court concluded that, “[i]n light of Pentz’s responses, we fail
25 to perceive a deficiency on the part of the trial court in refraining from asking additional
26 questions.” People v. Hart, 20 Cal. 4th at 591.
27

The California Supreme Court’s analysis and conclusion as to juror Pentz were

28 also not contrary to, or unreasonable applications of, clearly established Supreme Court
45

1 precedent. Petitioner fails to point to any actual bias on the part of Pentz, but instead
2 only facts that could suggest bias but were otherwise ambiguous. Yount, 467 U.S. at
3 1038. The California Supreme Court reasonably found that Pentz was subjected to
4 thorough questioning on those subjects. 28 U.S.C § 2254(d)(2). Notably, as discussed
5 further below in addressing pretrial publicity, by Petitioner’s own account the media
6 coverage of his case was not opinion-based or pushing an agenda that he was guilty.
7 And, the facts of the case that Pentz read and recited were mostly undisputed. Aside
8 from that, the juror expressed skepticism toward the media account and stated that he
9 had to hear the evidence to form an opinion. In fact, the juror repeatedly indicated he
10 did not have an opinion without hearing the evidence, and that he could be fair and
11 impartial. That raised a presumption of Pentz’s impartiality that Petitioner has failed
12 to rebut. Ybarra, 656 F.3d at 992; Murphy, 421 U.S. at 800; Irvin, 366 U.S. at 723.
13 There is no clearly established Federal law requiring the court or defense counsel to
14 subject a prospective juror to further questioning to root out bias that Petitioner believes
15 still remained. Ristaino, 424 U.S. at 595. As was the case with Wallen, there is nothing
16 to show that, in the absence of further voir dire questioning of Pentz, Petitioner’s trial
17 was fundamentally unfair. Kemp, 638 F.3d at 1261; Morgan, 504 U.S. at 729-30;
18 Murphy, 421 U.S. at 799.
19
20

(3)

Juror Michael Bantum

On the juror questionnaire, Bantum stated that he read newspaper coverage of

21 Petitioner’s case. At the time he read it, he “felt that if this person was the one who did
22 it he should be punished to the fullest [extent] of the law.” (3JCT at 596-97.) Bantum
23 believed the death penalty was a “necessary option” for certain violent crimes “like
24 premeditated murder, etc.,” that were proven beyond a reasonable doubt. He added that
25 imposing a death sentence would require very strong evidence because a person’s life
26 is at stake. (3JCT at 598.)
27

On voir dire, Bantum stated that he was neutral as to the death penalty. (13RT

28 at 1818.) Petitioner’s attorney asked Bantum whether his view of the case based on the
46

1 newspaper report would affect his decisions as a juror. Bantum answered that it would
2 not because his initial impression of the case was only “based on what [he] had read”
3 and not evidence. (13RT at 1821.) Petitioner’s attorney also asked Bantum if he
4 believed in “an eye for an eye and a tooth for a tooth,” and Bantum replied that he did
5 “in principle” but not as a practical matter. Bantum stated that he could follow the law
6 and be fair. (13RT at 1822-23.) Before being empaneled, Bantum brought to the
7 court’s attention that he was familiar with a prosecution witness, David Starbuck.
8 Bantum was a high school football coach, and he recognized Starbuck as a student or
9 former student at his school. The court asked Bantum if he would be capable of
10 objectively assessing Starbuck’s credibility, and Bantum indicated he could.
11 Petitioner’s counsel expressly agreed that Bantum could still be a fair juror. (16RT at
12 2299.)
13

Petitioner challenged the trial court’s questioning of Bantum in a state habeas

14 petition. (Dkt. 102-1 at 119-20.) The court denied the claim “on the merits” without
15 explanation, and on various state procedural grounds. (Dkt. 98-12 at 1 (denial of claim
16 1).) That conclusion was not unreasonable under AEDPA. Richter, 562 U.S. at 102.
17 Much like Petitioner’s contentions involving juror Pentz, Petitioner fails to point to any
18 actual bias on the part of Bantum that would rebut the presumption of the juror’s
19 impartiality. Ybarra, 656 F.3d at 992; Murphy, 421 U.S. at 800; Irvin, 366 U.S. at 723.
20 And, again, Petitioner cites no Supreme Court precedent requiring more thorough voir
21 dire questioning of Bantum. The only opinion Bantum expressed was that the culprit
22 should be strongly punished; an opinion likely shared by nearly anyone before hearing
23 the evidence, the jury instructions, and the defense theory of the case. See Irvin, 366
24 U.S. at 722-23. Most important, Bantum agreed to base his opinion on the trial
25 evidence. Finally, Bantum’s connection to David Starbuck, a prosecution witness,
26 proved to be tenuous. Bantum recognized the witness as someone who had attended the
27 school where Bantum worked, nothing more. As with the two other jurors discussed
28 above, Petitioner has failed to rebut the presumption of correctness as to the state
47

1 court’s determination that Bantum was qualified as a juror and unbiased, Yount, 467
2 U.S. at 1038, and there is nothing to show that, in the absence of further voir dire
3 questioning of Bantum, Petitioner’s trial was fundamentally unfair. Kemp, 638 F.3d at
4 1261; Morgan, 504 U.S. at 729-30; Murphy, 421 U.S. at 799.
5
6

(4)

Juror Leonard Maslovitz

Maslovitz indicated on his juror questionnaire that his general feelings toward the

7 death penalty were that “[t]hey don’t use it enough.” He also indicated that capital
8 punishment, in his view, was applied randomly and improperly. Where the form asked
9 how strongly he held his views on the death penalty, Maslovitz answered, “Not really.”
10 (2JCT at 305-06.)
11

On voir dire, Maslovitz stated that he was neutral on the death penalty. (7RT at

12 889-90.) When asked about his answers on the questionnaire, Maslovitz clarified that
13 he felt that the death penalty was applied unevenly, and he thought there should be a
14 single, federal standard for imposing it. (7RT at 893.)
15

Maslovitz had a hearing problem and used a hearing aid. He stated that he was

16 nevertheless not missing any of the words spoken in court. (7RT at 890.) At one point
17 soon after the jury was empaneled and trial started, defense counsel expressed concern
18 that Maslovitz was not hearing the proceedings. The trial judge questioned the juror out
19 of the presence of the others. (17RT at 2445-50.) Maslovitz told the court that he was
20 able to hear the proceedings “just perfect[ly]” with or without his hearing aid. (17RT
21 at 2447-48.) Defense counsel then said that, based on his own observations, Maslovitz
22 appeared to be reading people’s lips and perhaps having a harder time following the
23 proceedings when the lights were dimmed. Counsel told the juror that he wanted to
24 “make sure you don’t miss a single thing in this, anything that’s said.” Maslovitz
25 responded that if he missed something, “you’re going to know about it.” Defense
26 counsel followed that up by asking if Maslovitz would raise his hand if he failed to hear
27 something, and Maslovitz answered, “I sure as hell will.” Defense counsel responded,
28 “I’m satisfied.” (17RT at 2448-49.)
48

1

Later, during trial testimony, the court again checked to make sure all the jurors

2 could hear the proceedings. The court specifically reminded Maslovitz, “If you have
3 a problem hearing, just raise your hand and we’ll cover that.” Maslovitz responded, “I
4 will.” (18RT at 2518; see also 33RT at 4275 (the court directed that a microphone be
5 adjusted at the start of a witness’s testimony when Maslovitz indicated he could not
6 hear the witness).)
7

Petitioner challenged the trial court’s voir dire questioning of Maslovitz in a state

8 habeas petition. (Dkt. 102-1 at 120-21.) The court denied the claim “on the merits”
9 without explanation, and on various state procedural grounds. (Dkt. 98-12 at 1 (denial
10 of claim 1).) The state court’s decision was reasonably supported by clearly established
11 Federal law.
12

First, the Court addresses Petitioner’s contention that Maslovitz was

13 inappropriately seated as a juror because of his hearing aid. Maslovitz stated that he
14 could hear the proceedings and never indicated otherwise. The record shows nothing
15 more than a juror with hearing problems that did not affect his ability to comprehend
16 and consider the evidence. Nothing about Maslovitz’s hearing rendered Petitioner’s
17 trial fundamentally unfair. See Lyda v. United States, 321 F.2d 788, 790-91 (9th Cir.
18 1963) (deferring to trial judge’s discretion and in-court observations in denying
19 constitutional claim based on juror’s poor hearing); see also Anderson v. Terhune, 409
20 F. App’x. 175, 179 (9th Cir. 2011) (cited pursuant to 9th Cir. R. 36-3) (trial court’s
21 observations of an allegedly sleeping juror entitled to presumption of correctness absent
22 evidence of “significant” problem).
23

Second, Petitioner mischaracterizes Maslovitz’s statement that the death penalty

24 was applied unevenly. The juror expressly disagreed with the notion (posed by defense
25 counsel) that anyone who commits any murder deserves the death penalty. (7RT at
26 893-95.) Petitioner has made no viable argument that Maslovitz held a bias in favor of
27 capital punishment.
28
49

1

Empaneling Maslovitz on Petitioner’s jury did not render Petitioner’s trial

2 fundamentally unfair. Kemp, 638 F.3d at 1261; Morgan, 504 U.S. at 729-30; Murphy,
3 421 U.S. at 799.
4
5

2.

Jurors Exposed to Pretrial Media

The disturbing crimes against two teenage victims in this case unquestionably

6 received attention in the local Riverside media and community. (See, e.g., Clerk’s
7 Transcript, volume one (“1CT”) at 76-80.) Petitioner argues that these media stories
8 improperly influenced four jurors.
9

The Sixth Amendment requires that evidence against a defendant “come from the

10 witness stand.” Turner v. Louisiana, 379 U.S. 466, 472-73 (1965). Extraneous
11 influences on a jury can, under some circumstances, require the reversal of a conviction.
12 Tong Xiong v. Felker, 681 F.3d 1067, 1075 (9th Cir. 2012). Improper influences on a
13 jury can also give rise to a presumption of prejudice. See generally Mattox v. United
14 States, 146 U.S. 140 (1892); Remmer v. United States, 347 U.S. 227 (1954). However,
15 “[t]he Sixth Amendment entitles a defendant to an ‘impartial’ jury, not to an ignorant
16 one.” Grotemeyer v. Hickman, 393 F.3d 871, 879 (9th Cir. 2004). “It is virtually
17 impossible to shield jurors from every contact or influence that might theoretically
18 affect their vote.” Smith v. Phillips, 455 U.S. 209, 217 (1982). As pretrial publicity is
19 concerned, the Supreme Court has held that a prospective juror’s preliminary
20 knowledge of the facts of the case – and even early preconception about guilt or
21 innocence – is insufficient, without more, to raise a constitutional concern:
22

It is not required, . . . that the jurors be totally ignorant of the facts

23

and issues involved. In these days of swift, widespread and diverse

24

methods of communication, an important case can be expected to arouse

25

the interest of the public in the vicinity, and scarcely any of those best

26

qualified to serve as jurors will not have formed some impression or

27

opinion as to the merits of the case. This is particularly true in criminal

28

cases. To hold that the mere existence of any preconceived notion as to
50

1

the guilt or innocence of an accused, without more, is sufficient to rebut

2

the presumption of a prospective juror’s impartiality would be to establish

3

an impossible standard. It is sufficient if the juror can lay aside his

4

impression or opinion and render a verdict based on the evidence

5

presented in court.

6 Irvin, 366 U.S. at 722-23.
7

Here, Seventy-nine of the 151 prospective jurors on Petitioner’s venire had heard

8 something about the case prior to being called for jury duty. However, none of those
9 potential jurors indicated they knew more than the basic facts of what happened to the
10 two girls, and no one stated that they were exposed to any inflammatory information
11 about Petitioner. (1JCT at 61-62, 69-70, 85-86, 197-98, 237-38, 246-47; 2JCT at 26212 63, 270-71, 278-79, 283, 286-88, 311-12, 319-20, 335-36, 344-45, 353-54, 369-70, 37713 78, 385-86, 425-26, 433-34, 442-43, 450-51, 458-59, 474-75, 490-91, 514-15, 522-23,
14 531-32, 539-40, 547-48, 563-64; 3JCT at 596-97, 604-05, 610, 645-46, 653-54, 669-70,
15 677-78, 700-01, 708-09, 716-17, 724-25, 732-33, 748-49, 810-11, 818-19, 826-27, 85016 51, 858-59; 4JCT at 874-75, 890-91, 906-07, 915, 917, 924-25, 932-33, 940-41, 948-49,
17 956-57, 964-65, 1012-13, 1020-21, 1028-29, 1060-61, 1093, 1100-01, 1116-17, 112418 25; 5JCT at 1140-41, 1148-49, 1156-57, 1164-65, 1172-73, 1188-89, 1204-05, 1212-13,
19 1220-21, 1244-45, 1284-85, 1300-01, 1309, 1311.)
20

Petitioner singles out four of those seventy-nine who were empaneled on his jury.

21 Juror Joann Naleway stated on her juror questionnaire that she heard about the case
22 because she “always listen[s] to tv news.” She further stated that she knew nothing
23 more about the case than the fact that the crime “did happen.” She stated that the
24 information did not make her favor the prosecution or the defense, and that she could
25 refrain from watching tv news during the trial. (1JCT at 197-98.) Juror Martha Lee
26 Ferguson learned about the case from television coverage. But, she also stated she had
27 “not learned much about” anything in the case, and held no biases. (13RT at 1669-70;
28 2JCT at 522-23.) Juror Evelyn Yearsley learned about the case from reading the
51

1 newspaper. The only information that Yearsley offered was that she “[j]ust read
2 newspaper articles.” (2JCT at 450-51.) Finally, juror George Gardner “vaguely
3 remember[ed] news reports” on the case, but recalled “no details,” and the information
4 did not make him biased in any direction. (2JCT at 474-75.)
5

This aspect of Petitioner’s juror bias claim is summarily denied. Petitioner fails

6 to establish that the jurors exposed to pretrial publicity learned anything but superficial
7 facts about the case. There is also no evidence that these jurors were affected at all by
8 the information, let alone biased. The Court addresses this issue further below in
9 discussing Petitioner’s change-of-venue claim, but as to the discrete issue of jury bias,
10 he has fallen far short of rebutting the presumption of impartiality based on any juror’s
11 exposure to pretrial newspaper coverage of his case. Grotemeyer, 393 F.3d at 879;
12 Phillips, 455 U.S. at 217; Irvin, 366 U.S. at 722-23.
13

3.

14

Juror Mike Venable

Petitioner argues that one juror was incapable of serving fairly because of a time

15 conflict with his job. He claims that the court should have released the juror due to
16 financial hardship.
17

a.

18

Factual Background

Mike Venable was a pilot who worked for his family’s crop dusting business.

19 On voir dire, Venable characterized his work as “seasonal” and stated that the “summer
20 months are the busiest months.” (2RT at 255-56.) On December 17, 1987, after
21 Venable was selected as a juror on the case, his seasonal work came up during a
22 discussion about preliminary matters and scheduling. The court told jurors that the trial
23 would commence on January 11, 1988, and estimated that it would take approximately
24 “two to two and a half months.”7/ (16RT at 2312, 2314.) Venable stated that “[i]f this
25
26

7/

Opening statements commenced on January 11, 1988. (17RT at 2350, 2378.) The
jury reached its penalty phase verdict and the court discharged the jurors from service
28 on March 31, 1988. (41RT at 5284-87.)
27

52

1 thing runs in the end part of March and April that would present a – especially the
2 month of April, will present problem for me.” (16RT at 2315-16.) The court
3 responded, “I don’t think that will be a problem. If it is a problem, both counsel know
4 about it, you’ve told us about it ahead of time and perhaps they can stipulate to an
5 alternate coming in rather than excusing you, undue hardship.” (16RT at 2316.)
6

On January 6, 1988, five days prior to opening statements, Venable contacted the

7 court again with concerns over the length of the trial. This time, Venable indicated that
8 his busy season for crop dusting started a month earlier, the last part of February and
9 the full month of March. The court and both counsel agreed at that point that Venable’s
10 switching of his hardship dates was “too late.” The court stated, “[W]e gave him every
11 chance, and now that he has second thoughts about it, I think it’s too late.” (17RT at
12 2346-47.)
13

On the morning that trial began, Venable asked to address the court. (17RT at

14 2353.) When Venable entered the courtroom, the court immediately told him, “Relating
15 to crop dusting, I might indicate that since you’ve already been selected on this jury and
16 we gave you the full opportunity to explain beforehand we will not be releasing you
17 from this case.” Venable explained that when he did the math and concluded he had
18 time to sit on the jury, he started counting in December. “But now I’ve got a feeling
19 this thing is going to run clear through the end of March when it really should only run
20 through February, and that’s without delays.” The court corrected him: “No. We told
21 you specifically that there would – and I told everybody that we would start evidence
22 on January 11th and the case was estimated to take two and a half months from that
23 date, which takes us to the end of March.” The court continued: “We can’t excuse you
24 at this point in time because we only have so many jurors. We’ve already spent
25 probably just on picking a jury a considerable amount of money and time. I can’t do
26 it.” The court suggested that Venable schedule crop dusting jobs for the three days
27 court was not in session (Friday through Sunday). The prosecutor then pointed out that
28
53

1 both counsel hoped the trial would not actually take the full two and a half months. The
2 court stated, “Let’s get going and see how it goes.” (17RT at 2353-55.)
3

The jury reached its verdicts in the guilt phase on February 9, 1988. (27RT at

4 3586.) After the verdicts were read, Venable again requested to speak with the court.
5 (27RT at 3593.) He reminded the court that he brought up his time pressure issue with
6 his job twice before, and stated that the trial had already “kind of lingered on longer
7 than I thought I would be here. I wondered if it would be a good time where maybe you
8 could bring in an alternate in my place to finish this trial, so I could get back to work.”
9 With the court’s agreement to consider his request, Venable agreed to report to begin
10 the penalty phase on February 22. (27RT at 3593-94.)
11

After determining that the penalty phase would likely take at least five weeks, the

12 court preliminarily encouraged the lawyers to stipulate to dismissing Venable. The
13 court reasoned that, although there was likely not good cause to release the juror, the
14 attorneys might prefer to let him go because he might become upset, “might not be the
15 best of jurors,” and might blame the court and the parties. (28RT at 3677-78.) The
16 prosecutor opposed releasing Venable due to the chance of a “domino effect” from
17 other jurors. The prosecutor also pointed out that the case was still running within the
18 time frame originally estimated for trial. Defense counsel argued to release Venable
19 because “it’s awfully hard to hold somebody captive here whose . . . livelihood depends
20 on his business, and that’s in jeopardy [] at the most crucial time right now.” (28RT at
21 3679-80.) The court reiterated that Venable had not shown good cause to be released,
22 “[s]o I’ll just tell him he’ll have to stick it out.” (28RT at 3680-81.)
23

The court subsequently held a conference with Venable off the record.

24 Afterward, the court relayed to the parties that Venable “was very understanding and
25 indicated that he’s been able to work his schedule out so far and will continue to try to
26 do so.” In an effort to meet Venable halfway, the court proposed that the penalty phase
27 be suspended during one of the scheduled weeks so that Venable could complete a crop
28 spraying job in Mexico. The court stated that Venable “wanted me to bring that to both
54

1 your attention and if that can be worked around he said he’d be very appreciative of that
2 fact and that other than that he thinks he can continue being a juror.” (29RT at 3794.)
3

On a subsequent court date, Venable again asked for a week suspension of trial,

4 and added:
5

I can safely say now the whole month of April I’ll be locally

6

available, . . . . The schedule you guys kept here for these last five weeks

7

hasn’t been as strenuous as I thought it was going to be. . . . That’s why I

8

have been able to sit through as long as I have sat through.

9 (30RT at 3801.)
10

Ultimately, Venable was retained as a juror. The court granted his request to

11 suspend the trial for one week, and made other efforts to accommodate Venable’s local
12 crop dusting jobs when scheduling issues arose. (30RT at 3803, 3938-39, 31RT at
13 4015-17; 37RT at 4733-34; 40RT at 5107; 41RT at 5160.) The court allowed Venable
14 two additional days off during deliberations. (41RT at 5279-81.)
15

On direct appeal, the California Supreme Court denied Petitioner’s claim

16 concerning Venable as follows:
17

The record indicates that from the time Venable was selected as a

18

juror, he repeatedly expressed concern to the trial court regarding the

19

possibility that his service on defendant’s jury might interfere with his

20

crop-dusting duties.

21

one-week recess were granted in March to accommodate his desire to

22

fulfill a particular crop-dusting job, he could continue serving as a juror.

23

The court granted the recess, and Venable evidently was present in court

24

whenever his attendance as a juror was required. There is no indication

25

that he was unable to discharge his duties as a juror. Under these

26

circumstances, the trial court did not abuse its discretion in declining to

27

discharge Juror Venable.

Venable assured the court, however, that if a

28
55

1

Although it is true that Juror Venable expressed an interest that the

2

proceedings continue apace, the record does not indicate that he lacked the

3

“spiritual contentment and mental detachment that good jurors require,”

4

as alleged by defendant. Nor does the record demonstrate that Venable

5

was unable “to perform the functions of a juror.” Rather, Venable’s

6

comments suggest that he was concerned the trial might not conclude

7

within the time period originally estimated by the trial court. In a lengthy

8

capital trial, such concerns are not unusual; we perceive no abuse of

9

discretion in the manner in which the trial court addressed those concerns.

10

We therefore reject defendant’s contention that the trial court erred in

11

refraining from excusing juror Venable.

12 People v. Hart, 20 Cal. 4th at 597 (citations omitted). On state habeas review, the state
13 court denied the same claim – with the additional supporting affidavit – without
14 substantive comment.
15
16

b.

Analysis

Based on the facts discussed above, there is no evidence supporting the assertion

17 that Venable was incompetent to serve as a juror; it was not unreasonable for the
18 California Supreme Court to affirm the trial court’s empaneling and refusing to release
19 him. The Court separately takes up Petitioner’s claim that Venable committed juror
20 misconduct in Claim 3. But, merely as to the juror’s fitness to serve, there is no merit
21 to Petitioner’s allegations. Here, it was by far the “judge who [was] best situated to
22 determine competency.” Yount, 467 U.S. at 1039. Venable’s state of mind about his
23 pressing crop dusting obligations was well known to the court. The judge met privately
24 with the juror about scheduling, and made a number of compromises designed to allow
25 Venable to remain on the jury and temporarily satisfy his job obligations. Venable not
26 only appeared agreeable to those compromises, but he expressed appreciation, and
27 eventually informed the court that the trial schedule was moving fast enough for him
28 to complete his service. (29RT at 3794; 30RT at 3801.)
56

1

The Court is not presented with a situation where a trial judge simply refused to

2 release a juror for hardship. The judge surely refused to release Venable, but then bent
3 over backwards to alleviate the hardship, including suspending the capital trial for a
4 week so Venable could take a crop dusting job. The record reveals that the judge, the
5 parties, Venable, and the other jurors actively engaged in a collective and extensive
6 effort to make the scheduling work. It does not show a juror so caught between a rock
7 and a hard place that he was unable to make a thoughtful decision based upon the
8 evidence. There is no indication that Venable’s presence on the jury rendered the trial
9 fundamentally unfair, or that deference to the trial judge’s decision should be disturbed
10 here. Morgan, 504 U.S. at 729-30. Petitioner’s related habeas claim fails under
11 AEDPA. Richter, 562 U.S. at 102.
12

In light of the foregoing, Claim 1 is DENIED.

13

B.

14
15

Violation of Fair Cross-Section Jury Requirement Based on Allegedly
Underrepresented Hispanics in Jury Pool (Claim 2)

Petitioner argues his right to be tried by a jury drawn from a fair cross-section of

16 the community was violated because Hispanics and “other cognizable groups” were
17 systematically excluded from the jury pool. (SAP at 37-41; Traverse at 27-30.)
18 Petitioner estimates the percentage of Hispanics in the population of Riverside County
19 at the time of his 1988 trial using 1980 and 1990 census statistics – which he claims
20 also undercounted Hispanics by an unknown quantity. He compares that percentage
21 (25.92%) to the number of Hispanic surnames in his jury pool, which he concludes was
22 7.9%. He argues that his calculations show the percentage of Hispanics in his jury pool
23 was impermissibly lower than in the surrounding community. (SAP at 38-39; see also
24 Dkt. 10 at 77.)
25
26

1.

Factual and Legal Background

Petitioner also refers to: (1) a 1986 study addressing problems with the Riverside

27 County jury selection system; and (2) a 1987 order issued by a Riverside County
28 Superior Court judge finding that those problems resulted in unconstitutional
57

1 underrepresentation in the jury pool by various groups - Hispanics included. (SAP at
2 39-41; see also dkt. 10-1 at 90-114.) The court order was issued in a different criminal
3 case a few months before Petitioner’s trial. Petitioner does not include the relevant
4 order in his exhibits – he only proffers transcripts of a related evidentiary hearing and
5 a separate order in that case. (Dkt. 10 at 95–144; dkt. 10-1 at 1–88, 116–65; dkt. 11 at
6 10–253.) However, subsequent case law adequately identifies and discusses that July
7 1987 order addressing underrepresentation of various groups in the Riverside County
8 jury pool. See People v. Jackson, 13 Cal. 4th 1164, 1193-95 (1996) (discussing People
9 v. Neidiffer & Cruz, Cal. Super. Ct. Riverside Cty., No. CR-24472 (1987)). In Jackson,
10 the California Supreme Court characterized the relevant order as a finding:
11

that the process of selecting jury panels in Riverside County resulted in the

12

underselection of people 18 to 24 years old, poor people, and Hispanics.

13

Several causes for the underrepresentation were identified: inconsistent

14

methods for excusing prospective jurors, duplications and dated

15

information used in forming the jury pool, and lack of follow-up with

16

those persons not responding to the jury summons.

17 Id. at 1192-93 (footnote omitted).
18

As a result of the superior court’s findings, Riverside County established a plan

19 to reform its jury selection system. The county formed a committee, which “made
20 several changes in the procedures for assembling jury venires, . . . .” Id. at 1193. The
21 committee also implemented a periodic survey to monitor whether the procedural
22 changes were successfully remedying the underrepresentation. Finally, the committee
23 implemented interim measures while the new procedures were being developed
24 “including allowing additional peremptory challenges, excusing panels that appeared
25 to be imbalanced, and, if the panel appeared to be unrepresentative, permitting a
26 defendant to contact the jury commissioner to verify the ethnic composition of the
27 venire from which the panel was drawn.” Id.; see also In re Seaton, 34 Cal. 4th 193,
28 205 (2004) (“[A] superior court ruled in People v. Neidiffer & Cruz (citation omitted)
58

1 that Riverside County’s jury selection was unconstitutional because it systematically
2 underrepresented Hispanics, young adults, and low-income residents. The court
3 ordered substantial modifications to the county’s jury selection process for that case.”).
4
5

2.

Relevant Federal Law and Analysis

A defendant has a constitutional right to be tried by an impartial jury selected

6 from a fair cross section of the community. Taylor v. Louisiana, 419 U.S. 522, 528-29
7 (1975). To establish a prima facie violation of the fair-cross-section requirement, a
8 defendant must show:
9

(1) that the group alleged to be excluded is a “distinctive” group in the

10

community; (2) that the representation of this group in venires from which

11

juries are selected is not fair and reasonable in relation to the number of

12

such persons in the community; and (3) that this underrepresentation is

13

due to systematic exclusion of the group in the jury-selection process.

14 Duren v. Missouri, 439 U.S. 357, 364 (1979).
15

However, the fair-cross-section principle “must have much leeway in

16 application.” Berghuis v. Smith, 559 U.S. 314, 321 (2010). “[N]either Duren nor any
17 other decision of [the Supreme Court] specifies the method or test courts must use to
18 measure the representation of distinctive groups in jury pools.” Id. at 329.
19

Further, states have “broad discretion” to “prescribe relevant qualifications for

20 their jurors and to provide reasonable exemptions.” Id. at 333 (citation omitted). A
21 showing that a jury venire underrepresents an identifiable group is, without more, an
22 insufficient showing of systematic exclusion under the third prong of the Duren test.”
23 Randolph v. California, 380 F.3d 1133, 1141 (9th Cir. 2004). There is no clearly
24 established Supreme Court precedent establishing systematic exclusion “merely by
25 pointing to a host of factors that, individually or in combination, might contribute to a
26 group’s underrepresentation.” Berghuis, 559 U.S. at 332 (emphasis in original). The
27 Supreme Court has also never clearly decided “whether the impact of social and
28 economic factors can support a fair cross-section claim.” Id. at 333 n.6.
59

1

The California Supreme Court denied Claim 2 on the merits on state habeas

2 review without comment.8/ (Dkt. 101-13 (claim J).) As a result, under AEDPA, the
3 Court reviews the reasonableness of that decision by determining whether any
4 arguments or theories under Duren and Berghuis could have supported the state court’s
5 decision. Richter, 562 U.S. at 102. Petitioner is not entitled to habeas relief.
6

Petitioner satisfies the first Duren requirement, as Hispanics are a “distinctive”

7 group in the community. United States v. Hernandez-Estrada, 749 F.3d 1154, 1159
8 (9th Cir. 2014); Randolph, 380 F.3d at 1140; United States v. Nelson, 137 F.3d 1094,
9 1101 (9th Cir. 1998) (“It is undisputed that Hispanics are a ‘distinctive’ group for
10 purposes of” the Duren analysis).9/
11

As for the second requirement, Petitioner’s calculation regarding the makeup of

12 his jury pool relies entirely on a tally of Hispanic surnames. (SAP at 39 n.19.) There
13 is no clearly established Federal law providing that a petitioner can establish a Duren
14 violation by broadly and stereotypically categorizing surnames. The state court could
15 reasonably have found that Petitioner failed to proffer reliable statistics establishing
16 underrepresentation. Berghuis, 559 U.S. at 332; see also United States v. Gelb, 881
17 F.2d 1155, 1161-62 (2d Cir. 1989) (second prong of Duren test failed in part because
18
19
20
21
22
23
24
25
26
27

8/

The California Supreme Court alternatively denied this claim on procedural
grounds. This Court declines to address Respondent’s related procedural default
arguments. (Answer Memorandum (dkt. 93-1) at 53); cf. Franklin v. Johnson, 290 F.3d
1223, 1232 (9th Cir. 2002) (“courts are empowered to, and in some cases should, reach
the merits of habeas petitions if they are, on their face and without regard to any facts
that could be developed below, clearly not meritorious despite an asserted procedural
bar.”); cf. Flournoy v. Small, 681 F.3d 1000, 1004 n.1 (9th Cir. 2012) (“While we
ordinarily resolve the issue of procedural bar prior to any consideration of the merits on
habeas review, we are not required to do so when a petition clearly fails on the
merits.”).
9/

Petitioner has not satisfied Duren’s first requirement concerning any “other
28 cognizable groups.”
60

1 “[s]tereotypical ethnic or religious characterizations of surnames are unreliable and only
2 tenuous indicia of a jury’s makeup.”).
3

Petitioner’s claim also falls short under Duren’s third prong. As discussed above,

4 Petitioner’s argument that the exclusion of Hispanics was systematic relies on a superior
5 court order decided in another case prior to his trial, and an earlier study discussing
6 several flaws in with Riverside County’s jury selection system. The order in Neidiffer
7 & Cruz – issued by a state court – is clearly not binding on this Court, let alone under
8 AEDPA. See 28 U.S.C. § 2254(a) (a prisoner may seek federal habeas relief “only on
9 the ground that he is in custody in violation of the Constitution or laws or treaties of the
10 United States.”); Van Patten, 552 U.S. at 125-26 (only Supreme Court cases constitute
11 clearly established Federal law for relief under AEDPA). Moreover, as also discussed
12 above, in response to Neidiffer & Cruz, Riverside County implemented several remedial
13 measures. Petitioner’s assertion that the conditions addressed by Neidiffer & Cruz
14 “were not corrected” before his trial is not based on any evidence other than his
15 unreliable calculations about the demographics of his jury pool. Further, assuming
16 Petitioner’s trial commenced before the corrective measures were put in place, it
17 appears there were interim measures available that the defense did not use, such as
18 seeking additional peremptory challenges or requesting a new panel if his appeared to
19 be racially imbalanced. See Jackson, 13 Cal. 4th at 1193. The California Supreme
20 Court could reasonably have determined that Petitioner failed to show a relationship
21 between the allegedly low percentage of Hispanics in his venire and the juror-selection
22 system the County used at the time of his trial. Consequently, this Court “cannot
23 conclude that the underrepresentation of Hispanics is, as Duren requires, ‘inherent in
24 the particular jury-selection process.’” Randolph, 380 F.3d at 1141-42 (quoting Duren,
25 439 U.S. at 366); Berghuis, 559 U.S. at 332.
26

Petitioner claims that he is not required to prove his Duren claim at this stage of

27 the federal habeas proceedings. Instead, to the extent his calculations or conclusions
28 about the jury selection system at the time of his trial are speculative, he presumes the
61

1 state court’s denial of his claim relied on “evidentiary findings about the statistical
2 composition of the venire . . . without giving Hart an opportunity to subpoena and
3 present evidence.” Those hypothetical findings were ostensibly an unreasonable
4 determination of the facts under AEDPA. (Traverse at 29-30.) Petitioner’s assertion
5 invites the Court to follow him down a dubious path at odds with AEDPA’s stringent
6 standard: he essentially argues that the Court should construe his failure to clear
7 AEDPA’s high hurdle as instead the state court’s “unreasonable” failure to develop
8 evidence. Sections 2254(d)(2) and (e)(1) do not provide such a convenient end-run
9 around AEDPA’s constraints on federal habeas relief. Beyond that, the state court’s
10 silent denial of Petitioner’s claim about the makeup of his jury pool could have been
11 supported by Duren. Richter, 562 U.S. at 101-02; LeBlanc, 137 S. Ct. at 1728. The
12 Court’s analysis ends there.10/
13

The California Supreme Court was not objectively unreasonable under Duren and

14 its progeny in denying Petitioner’s claim based on the demographics of Petitioner’s jury
15 pool. Claim 2 is DENIED.
16

C.

17

Petitioner brings a jury misconduct claim based on comments allegedly made by

Juror Misconduct (Claim 3)

18 juror Mike Venable during guilt-phase deliberations. He also argues that an article in
19 the local newspaper on the second day of trial constituted an improper, external
20 influence on the jury’s verdict. (SAP at 41-43; Traverse at 30-33.)
21

1.

22

Background Facts

Petitioner points to a newspaper article that appeared in the Riverside Press-

23 Enterprise newspaper on January 12, 1988, the day after opening statements began.
24
25

10/

Petitioner’s perfunctory assertion that his Duren claim is bolstered by the
26 prosecutor using peremptory challenges to dismiss four jurors with Hispanic surnames
has no bearing on the Court’s conclusion, and fails to articulate a separate cognizable
27
federal claim. See James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994) (conclusory allegations
28 do not warrant federal habeas relief).
62

1 (Dkt. 12 at 299.) The article was titled “Murder Trial Begins.” It showed a photograph
2 of Petitioner in court.

The article discussed the estimated trial schedule and

3 summarized the opening statements the day prior. The article also summarized the
4 charges, explained that Petitioner was potentially facing the death penalty, and stated
5 that Petitioner “pleaded innocent.” The piece explained that, if the jury found Petitioner
6 guilty, there would be a separate penalty phase of the trial. The article continued as
7 follows:
8

Hart was arrested May 8 by Riverside County sheriff’s detectives

9

while they were investigating the death of Shelah McMahan, an 11-year-

10

old Mead Valley girl found fatally stabbed in a junkyard near her home.

11

Authorities said she is Hart’s niece. [¶] Detectives discovered that Hart’s

12

car matched the vehicle description that was provided by the surviving

13

victim in the Harper case. That led to other evidence being developed in

14

the Harper case with charges being filed. [¶] Hart has not been charged

15

in connection with McMahan’s death. However, the district attorney’s

16

office has said that jurors in the current trial are expected to hear evidence

17

of McMahan’s slaying during the penalty phase, if one is held. [¶]

18

According to authorities, Hart spent 33 months in Patton State Hospital in

19

San Bernardino as a mentally disordered sex offender during the late

20

1970s. He went there after pleading guilty to attempted burglary with

21

intent to commit rape in connection with alleged attacks on San Diego area

22

women. he was released from Patton in 1978 despite doctors’ warnings

23

that he still was dangerous.

24 (Id.)
25

On the morning the article appeared, Petitioner’s attorney requested that the jury

26 be polled to determine whether any jurors were aware of the article. From there,
27 counsel requested individual, closed hearings to determine whether any of those jurors
28 actually read the article. Counsel also sought a “gag order” from the court prohibiting
63

1 law enforcement officials from providing further information to the media about the
2 case.

Petitioner’s lawyer expressed particular concern and frustration about

3 “conjecture” regarding uncharged crimes that appeared in the article. The prosecutor
4 argued against a gag order on the ground that both the court and the parties had already
5 thoroughly admonished jurors, even as late as the prior evening, “that once the trial got
6 under way that there might very well be articles in the newspaper and that they were to
7 avoid those . . . .” (17RT at 2477-80.)
8

The trial court agreed to question the jurors and expressed disappointment at the

9 content of the article. The court also noted that if any juror read the article, the court
10 would have to replace that juror or declare a mistrial. The court denied the request for
11 a gag order on the ground that enforcement was too difficult and the court did not
12 anticipate that law enforcement would provide new information to the media. (17RT
13 at 2480-83.)
14

The court inquired with the jury, and no jurors indicated that they had read the

15 article. (17RT at 2484.) The court then gave an extended admonishment as follows:
16

Okay, I’m very grateful that you did not read it. You’ll have to be

17

alert now and sometimes you’ll start looking at the paper and not even

18

realizing it is an article about this case[. A]s soon as you do, just put it

19

aside. If it is important to you, you can have somebody in your family cut

20

it out and save it, but please don’t read the material in the newspaper.

21

See, you were here and you got to see it yourself, so you don’t have

22

to go to the newspaper to get this kind of material because what you’re

23

doing is you’re getting it from a reporter, through the editor, through the

24

newspaper policy, and it finally comes out as to what is going to be

25

presented in the newspaper, and between you and me, if I have seen it

26

myself, I don’t need somebody else telling me what I’ve just seen. That’s

27

why we don’t like you to go to the newspaper.

28
64

1

Can you all – I just wanted to remind you that it’s now started, the

2

first article is there, there’ll probably be other articles, and just be alert to

3

it and not read the newspaper. As to, I mean you can read the newspaper,

4

the sports page and everything else and have somebody look through that

5

part of it, read the rest of it, but just avoid sections about this case, and

6

there should be, you know, there probably won’t be an article everyday

7

and only a small column, small part of it.

8

Everybody understand?

9

All right, thank you very much.

10 (17RT at 2484-85.)
11

In regard to juror Venable, Petitioner proffers a July 11, 2002 declaration by one

12 of the jurors on Petitioner’s case. (Dkt. 12 at 71-73, Decl. of George Gardner.) In the
13 declaration, Gardner states that, during guilt-phase deliberations, an unidentified juror:
14

threatened to hang the jury by voting not guilty if we didn’t hurry up and

15

agree on a guilty verdict. He said he was losing money sitting there on

16

jury duty because he flew airplanes that were contracted with the

17

Department of Forestry/Fire Service and that they were extremely busy

18

due to the hot weather which was causing brush fires. Therefore, he

19

demanded that we wrap it up or he would vote not guilty.

20 (Id. at ¶5.) Petitioner argues that the juror Gardner refers to was Mike Venable. He
21 claims Venable made the comment due to the time pressure from his crop dusting
22 business, discussed in detail above. Petitioner reasons that Venable’s alleged comments
23 deprived him of a fair and impartial jury by forcing other jurors who might have been
24 on the fence about a decision to quickly reach a guilty verdict.
25

The California Supreme Court denied this claim on state habeas review on the

26 merits but without substantive comment.
27

2.

Analysis

28
65

1

As already discussed, a defendant “is entitled to a jury that reaches a verdict on

2 the basis of evidence produced at trial, exclusive of extrinsic evidence.” Grotemeyer,
3 393 F.3d at 877 (internal quotation marks and citation omitted). When faced with an
4 allegation that the jury was exposed to extrinsic evidence, a trial court should hold a
5 hearing with all interested parties to determine the circumstances and impact of the
6 material on the jury. Remmer, 347 U.S. at 229-30; see also Phillips, 455 U.S. at 215
7 (“This Court has long held that the remedy for allegations of juror partiality is a hearing
8 in which the defendant has the opportunity to prove actual bias.”). “‘[T]he extent, if at
9 all, to which the jurors saw or discussed the extrinsic evidence,’ is a question of
10 historical fact as to which the state court’s findings are entitled to a presumption of
11 correctness.” Burks v. Borg, 27 F.3d 1424, 1432 (9th Cir. 1994) (quoting Dickson v.
12 Sullivan, 849 F.2d 403, 406 (9th Cir. 1988)); see also United States v. Bagnariol, 665
13 F.2d 877, 885 (9th Cir. 1981) (the trial judge is uniquely qualified to appraise what
14 effect information has on the jury, and that judge’s conclusion deserves substantial
15 weight). Finally, a trial judge’s curative admonishment is “generally deemed sufficient
16 as curative of prejudicial impact,” United States v. Bagley, 641 F.2d 1235, 1241 (9th
17 Cir. 1981), and “[a] jury is presumed to follow its instructions.” Spencer v. Peters, 857
18 F.3d 789, 803 (9th Cir. 2017) (quoting Weeks v. Angelone, 528 U.S. 225, 234 (2000)).
19
20

a.

Newspaper Article

Here, on the morning that the article appeared in the newspaper, the trial judge

21 held a hearing and heard arguments from both parties. The court granted an unopposed
22 defense request to bring in the jurors and ask them if they had read the article. None of
23 the jurors indicated that they read it. The trial judge accepted the jury’s answer,
24 impliedly finding that jurors were not exposed to extrinsic evidence. The court then
25 gave an extended admonishment that the jurors were to decide the case based on the
26 evidence presented in court, and not secondhand from the newspaper. The trial court’s
27 implied factual finding that the jury was not exposed to the article is entitled to a
28 presumption of correctness, which Petitioner has not rebutted. Burks, 27 F.3d at 1432.
66

1

Petitioner has equally failed to rebut the presumption that jurors followed their

2 repeated instructions to steer clear of newspaper accounts of the trial and consider only
3 the trial evidence. Spencer, 857 F.3d at 803. Petitioner has otherwise cited no clearly
4 established Federal law requiring the trial court here to presume jurors were untruthful
5 in their answers and press them further. The Supreme Court requires a trial court to
6 hold a hearing, as was done here. Remmer, 347 U.S. at 229-30; see also Van Patten,
7 552 U.S. at 125-26.
8

Because this Court presumes the correctness of the trial court’s conclusion that

9 “no prejudicial information was actually introduced,” the Court finds “there was no
10 constitutional error.” Burks, 27 F.3d at 1432 n.6; see also Bell v. Soto, Nos. EDCV 0811 1913 JLS (SS), EDCV 10-14 JLS (SS), 2015 WL 2453512, at *29 (presuming
12 correctness of state court’s finding that the jury was not exposed to extrinsic
13 information), report and recommendation adopted, 2015 WL 2453518 (C.D. Cal. May
14 20, 2015).
15
16

b.

Alleged Comments By Juror Venable

Petitioner’s juror misconduct claim based on Mike Venable also fails. This

17 subclaim relies entirely on the affidavit of a fellow juror about comments Venable
18 allegedly made during guilt-phase deliberations.
19

Federal courts “flatly prohibit” the admission of juror testimony to impeach a

20 verdict except where “an extraneous influence” affected the verdict. Tanner v. United
21 States, 483 U.S. 107, 117 (1987) (citations omitted); Estrada v. Scribner, 512 F.3d
22 1227, 1237 (9th Cir. 2008) (juror’s declaration that he felt pressured to vote guilty
23 inadmissible evidence of subjective mental process); Traver v. Meshriy, 627 F.2d 934,
24 941 (9th Cir. 1980) (once the verdict has been delivered and accepted in open court, and
25 the jury is polled and discharged, jurors may not claim that their assent was mistaken
26 or unwilling) (citation omitted).
27

The Federal Rules of Evidence provide that:

28
67

1

During an inquiry into the validity of a verdict or indictment, a juror

2

may not testify about any statement made or incident that occurred

3

during the jury’s deliberations; the effect of anything on that juror’s or

4

another juror’s vote; or any juror’s mental processes concerning the

5

verdict or indictment. The court may not receive a juror’s affidavit or

6

evidence of a juror’s statement on these matters.

7 Fed. R. Evid. 606(b) (emphasis added). A federal court may only receive such evidence
8 where “extraneous prejudicial information was improperly brought to the jury’s
9 attention,” an “outside influence was improperly brought to bear upon any juror,” or
10 “there was a mistake in entering the verdict on the verdict form.” Id. Consistent with
11 Rule 606(b), the Ninth Circuit has held that “intrinsic jury processes will not be
12 examined on appeal and cannot support reversal.” Bagnariol, 665 F.2d at 887.
13

In this case, Petitioner seeks to have the Court receive the affidavit of a juror

14 about a “statement made . . . during the jury’s deliberations,” which the Court may not
15 do. Fed. R. Evid. 606(b); Tanner, 483 U.S. at 117; Estrada, 512 F.3d at 1237.
16

Petitioner claims that the affidavit at issue falls into an exception to Rule 606(b).

17 He argues that the Court may consider a juror’s affidavit about deliberations where the
18 subject concerns exposure to extrinsic evidence or juror bias. (Traverse at 32.) Even
19 assuming that is true, neither situation is present here. Venable certainly did not expose
20 other jurors to extraneous information influencing their verdict. As the Court’s
21 discussion above shows, the jury became very familiar with Venable’s scheduling
22 issues due to his crop dusting business. It was discussed in court with the jury present
23 several times. There is nothing about that information which would have had any
24 bearing on the verdict. The alleged misconduct was, by Petitioner’s own account, how
25 Venable acted on that information – pressuring other jurors to reach a verdict. In other
26 words, the offending act was, if anything, an internal influence on the verdict, and the
27 Court may not consider another juror’s affidavit on such an issue. Estrada, 512 F.3d
28 at 1237; see also Vasquez v. Walker, 359 F. App’x. 758, 760 (9th Cir. 2009) (“internal
68

1 influences” are not admissible to impeach a verdict). Petitioner’s suggestion that
2 Venable’s alleged statements to the other jurors evidenced his bias is equally
3 unavailing. Petitioner’s premise is that Venable was rushed, not biased in favor of the
4 prosecution or the defense. If Venable’s motivation was to finish with the trial and get
5 back to work, it follows that he would be impatient to reach any verdict, not a particular
6 verdict.
7

Any other internal discussions among the jury do not warrant circumventing Rule

8 606(b). See United States v. Leung, 796 F.3d 1032, 1036 (9th Cir. 2015) (“Juror
9 testimony cannot be used to impeach a verdict even when a feckless jury decides the
10 parties’ fates through a coin flip or roll of the dice.”) (citing Warger v. Shauers, 574
11 U.S. 40, 45 (2014)); id. at 1038 (“[J]uror testimony that other jurors engaged in
12 premature deliberations or made up their minds about the case before deliberations
13 began is inadmissible [under Rule 606(b)] to demonstrate that the jury engaged in
14 flawed processing of the evidence.”); United States v. Rutherford, 371 F.3d 634, 640
15 (9th Cir. 2004) (juror statements that they improperly considered the defendant’s failure
16 to testify during deliberations was inadmissible under Rule 606(b)); Belmontes v.
17 Brown, 414 F.3d 1094, 1124 (9th Cir. 2005) (jury’s improper speculation during death
18 penalty deliberations as to whether sentence rendered would really be carried out is an
19 issue that “concerns intrinsic jury processes” and cannot lead to habeas relief), rev’d on
20 other grounds, Ayers v. Belmontes, 549 U.S. 7 (2006); see also Tanner, 483 U.S. at
21 121-22 (juror affidavits alleging that some jurors were under the influence of drugs and
22 alcohol were inadmissible under Rule 606(b)); id. at 120-21 (“[F]ull and frank
23 discussion in the jury room, jurors’ willingness to return an unpopular verdict, and the
24 community’s trust in a system that relies on the decisions of laypeople would all be
25 undermined by a barrage of postverdict scrutiny of juror conduct.”).
26

The California Supreme Court’s denial of Petitioner’s juror misconduct claims

27 on the merits was neither contrary to nor an unreasonable application of clearly
28 established Federal law. It also did not result in a decision that was based on an
69

1 unreasonable determination of the facts in the record. § 28 U.S.C. 2254(d). Petitioner’s
2 request for relief on Claim 3 is DENIED.
3

D.

Denial of Change of Venue (Claim 4)

4

Petitioner’s next claim again concerns juror bias. This time, however, he takes

5 aim more squarely at the pretrial publicity. Petitioner contends that the nature and
6 extent of the media coverage of his capital case rendered it impossible to fairly try the
7 case before impartial jurors in a Riverside County courtroom. Petitioner argues that the
8 local media coverage of his case was exceptionally heavy due to the nature of the
9 crimes, the ages of the victims, and the capital charges. He contends that media reports
10 included the circumstances surrounding Diane Harper’s killing and details about
11 psychological damage to Amy Ryan.

The coverage also included facts about

12 Petitioner’s prior criminal record and mental history, including his treatment years
13 earlier as a mentally disordered sexual offender. Petitioner emphasizes one article in
14 particular that reported he was released despite doctors warning that he was dangerous.
15 (SAP at 44-45; Traverse at 34.)
16

As to the effect on the jury, Petitioner points to the fact that six of the twelve

17 jurors who heard the case had been exposed to pretrial publicity. Petitioner also largely
18 repeats arguments he made previously about the effect that pretrial articles had on jurors
19 Bantum and Pentz. (SAP at 46-47.) Based on all that, Petitioner concludes that the trial
20 court violated his constitutional rights by rejecting a defense request for a change of
21 venue. (SAP at 43-47; Traverse at 33-35.)
22
23

1.

Background Facts

Prior to jury selection, Petitioner’s counsel made a written motion for a change

24 of venue and attached three newspaper articles to illustrate the content being
25 disseminated to the public. (1CT at 72-80.) The trial court denied the motion.
26

The California Supreme Court denied Petitioner’s constitutional challenge to the

27 ruling on direct appeal. Specifically, the court weighed several factors: the extent of
28 media attention the case received in Riverside County, the size of the county, the
70

1 content and timing of the coverage, and whether Petitioner or the victims were
2 prominent members of the local community. People v. Hart, 20 Cal. 4th at 598-99.
3 Based on those factors, the state high court agreed with the trial court’s finding that the
4 reporting was “‘neutral,’ not inflammatory, and insufficient to sway public opinion.”
5 Id. at 599. The court concluded that the publicity surrounding Petitioner’s trial “was
6 insignificant in comparison with other cases in which a denial of a motion to change
7 venue was upheld.” Id. The court further found that there were no facts brought out
8 during voir dire to indicate any juror was biased based on pretrial publicity. The court
9 reasoned that any prospective jurors exposed to publicity only had “a slight level of
10 awareness” of the case, and none of them “recalled seeing or hearing any reports
11 regarding defendant.” Id. at 600. Based on all of its findings, the court concluded that
12 Petitioner failed to show “error or prejudice in the denial of his motion for change of
13 venue.” Id.
14
15

2.

Legal Standard

It is a “basic requirement of due process” that a trial court transfer a proceeding

16 to a different venue at the defendant’s request “if extraordinary local prejudice will
17 prevent a fair trial.” Skilling v. United States, 561 U.S. 358, 378 (2010) (quoting In re
18 Murchison, 349 U.S. 133, 136 (1955)); Murray, 882 F.3d at 802. Consistent with that
19 principle, the Supreme Court has presumed prejudice in and reversed state criminal
20 trials that were “utterly corrupted by press coverage.” Skilling, 561 U.S. at 380 (quoting
21 Murphy, 421 U.S. at 798-99); see also Sheppard v. Maxwell, 384 U.S. 333, 353-55, 358
22 (1966) (although “months [of] virulent publicity” about the defendant and the crime
23 did not alone deny due process, the added “carnival atmosphere” of media coverage of
24 the trial, in which “bedlam reigned at the courthouse during the trial and newsmen took
25 over practically the entire courtroom” warranted reversal); Estes v. Texas, 381 U.S. 532,
26 536, 538 (1965) (heavy media presence in the courtroom “led to considerable
27 disruption” of pretrial proceedings); Rideau v. Louisiana, 373 U.S. 723, 725-27 (1963)
28 (local television stations broadcasted the defendant’s filmed confession before trial).
71

1

Supreme Court precedent does not “stand for the proposition that juror exposure

2 to information about a state defendant’s prior convictions or to news accounts of the
3 crime with which he is charged alone presumptively deprives the defendant of due
4 process.” Murphy, 421 U.S. at 799; see also Skilling, 561 U.S. at 381 (“Prominence
5 does not necessarily produce prejudice, and juror impartiality, we have reiterated, does
6 not require ignorance.”). As discussed earlier, in any notable criminal case “scarcely
7 any of those best qualified to serve as jurors will not have formed some impression or
8 opinion as to the merits of the case.” Irvin, 366 U.S. at 722-23. Therefore, it is only the
9 “extreme case” that violates the Constitution, Skilling, 561 U.S. at 381; Hayes v. Ayers,
10 632 F.3d 500, 508 (9th Cir. 2011), and a federal court looks more broadly at
11 “indications in the totality of circumstances that [the] petitioner’s trial was not
12 fundamentally fair.” Murphy, 421 U.S. at 799; Skilling, 561 U.S. at 384 (“[P]retrial
13 publicity – even pervasive, adverse publicity – does not inevitably lead to an unfair
14 trial.”) (citation omitted).
15

Alternatively, “a defendant may establish the existence of actual prejudice if,

16 during voir dire, potential jurors who have been exposed to pretrial publicity express
17 bias or hostility toward the defendant that cannot be cast aside.” Murray, 882 F.3d at
18 802-03. That determination requires “deference to the trial court’s assessment of the
19 impartiality of potential jurors, since that assessment ‘is ordinarily influenced by a host
20 of facts impossible to fully capture in the record . . .’” Id. at 803 (quoting Skilling, 561
21 U.S. at 386); see also Mu’Min, 500 U.S. at 427 (“The judge of that court sits in the
22 locale where the publicity is said to have had its effect and brings to his evaluation of
23 any such claim his own perception of the depth and extent of news stories that might
24 influence a juror. . . .”).
25
26

3.

Analysis

Based upon the legal standard articulated above, Petitioner’s constitutional claim

27 concerning pretrial publicity – and the failure to move the location of his trial – does not
28 entitle him to federal habeas relief. The decision and reasoning of the California
72

1 Supreme Court were consistent with clearly established Federal law. Petitioner’s
2 allegations describe the type of pretrial publicity that does not lead to a presumption of
3 prejudice requiring a change of venue: some level of understandably pervasive media
4 attention that reported facts of the case and Petitioner’s criminal history. Murphy, 421
5 U.S. at 799; Skilling, 561 U.S. at 381. The Court disagrees with Petitioner’s assertion
6 that the fact-based coverage Petitioner complains of “virtually assured” that he “would
7 be found guilty and sentenced to death.” Further, the fact that some of the news
8 coverage also discussed Petitioner’s mental health history, as well as trauma to the
9 surviving victim, did not render the trial “utterly corrupted by press coverage” in the
10 totality of the circumstances. Skilling, 561 U.S. at 380, 384; see also id. at 382
11 (distinguishing Supreme Court cases presuming prejudice in part because “although
12 news stories about Skilling were not kind, they contained no confession or other
13 blatantly prejudicial information of the type readers or viewers could not reasonably be
14 expected to shut from sight.”); Murphy, 421 U.S. at 799.
15

Petitioner also argues that his trial lawyer “failed to marshal all of the evidence

16 supporting a change of venue, . . . .” (SAP at 45.) Petitioner points out that his attorney
17 characterized the number of newspaper reports as “[n]umerous” and “extensive” despite
18 attaching only three articles to the motion for change of venue. (SAP at 45; Traverse
19 at 34.) Petitioner has attached several additional articles to illustrate his point. Most
20 of them appeared early in the investigation in 1986.

Others reported Shelah

21 McMahan’s killing in May 1986. One article discussed a lawsuit filed by Amy Ryan’s
22 family based on her treatment by Riverside County authorities (discussed more fully in
23 Claim 15). After Petitioner’s arrest, some articles profiled him and his history, one
24 discussing Petitioner’s prior treatment in Patton State Hospital as a mentally disordered
25 sex offender. That article stated that he had been released from the hospital despite
26 doctors concluding that he was still dangerous. Other articles gave accounts of the
27 pretrial and trial proceedings. (Dkt. 16 at 220-23; Dkt. 16-1 at 1-23.) It is unnecessary
28 for this Court to determine the precise number of articles or radio broadcasts that
73

1 covered Petitioner’s case prior to trial. Petitioner has not sufficiently alleged that any
2 of the coverage – even if it was repeated – was consistent with a case of the Supreme
3 Court finding a presumption of prejudice. See Sheppard, 384 U.S. at 353-55, 358;
4 Estes, 381 U.S. at 536, 538; Rideau, 373 U.S. at 725-27. As discussed above, “even
5 pervasive, adverse [pretrial] publicity” cannot, on its own, violate due process. Skilling,
6 561 U.S. at 384.
7

In Claim 1, the Court has already discussed and rejected Petitioner’s assertions

8 of “actual prejudice” exposed during voir dire. The court comes to the same conclusion
9 as it concerns Petitioner’s change-of-venue claim. The record in this proceeding,
10 specifically the juror questionnaires and voir dire questioning, paints a picture that does
11 not support Petitioner’s claims of pervasive and prejudicial media coverage. As
12 discussed above, none of the members of Petitioner’s jury appeared biased or unable
13 to hear the evidence based on exposure to pretrial media reports. The California
14 Supreme Court’s consistent finding was not unreasonable under AEDPA. Richter, 562
15 U.S. at 101-02.
16

Moreover, out of 151 potential jurors on Petitioner’s panel, he points to only one

17 who “was so prejudiced by what he heard that he had to be excused.” (SAP at 46-47.)
18 And, even that contention is a misleading interpretation of the record. The prospective
19 juror at issue, Charles Mohn, stated that he had followed the case “closely” prior to
20 being called as a juror. But, he never referred to any media reports. Instead, Mohn
21 candidly stated that was a “native Riversider,” an active member of the local
22 community, and his brother-in-law was a local police officer. (11RT at 1343.) The trial
23 judge even commented that Mohn was “familiar to me and I recognize that you are
24 involved in a great number of civic events in this community and you are freely
25 donating of your time and services of your agency.” (11RT at 1343-44.) In light of
26 Mohn’s very close ties to people in the local community, he believed that he had
27 already heard too much about the case to base his opinion on the evidence presented.
28 In fact, Mohn implied that what he heard about the case prior to trial came from law
74

1 enforcement, not media reports. (11RT at 1343 (“My brother-in-law’s a policeman.
2 I just – I feel like I know too much of one side of this particular case.”).) Petitioner fails
3 to point to any potential juror who was excused or even raised a red flag during voir
4 dire due to prejudicial media coverage. Murray, 882 F.3d at 802-03.
5

The California Supreme Court’s conclusion that Petitioner failed to show “error

6 or prejudice in the denial of his motion for change of venue” is consistent with clearly
7 established Supreme Court precedent, and was based upon a reasonable interpretation
8 of the facts in the record. 28 U.S.C. § 2254(d).
9

Petitioner’s request for habeas relief on Claim 4 is DENIED.

10

E.

11

Conflict of Interest Based on Defense Counsel’s Fee Arrangement
(Claim 5)

12

Petitioner next argues that the indigent representation contract signed by his guilt-

13 phase trial attorney and lead counsel on the entire case, William Barnett, created
14 unconstitutional conflicts of interest. (SAP at 48-55; Traverse at 35-40.)
15

1.

16

Relevant Terms of the Contract

In the SAP and the Traverse, Petitioner correctly sets forth the terms of the

17 original and renewed agreements at issue, and the Court summarizes the pertinent
18 provisions here.11/ Barnett and his partners contracted with the Riverside County
19 Superior Court to provide representation for criminal cases in which the county public
20 defender had a conflict of interest (also known as a “conflict panel”). (Dkt. 9 at 28-29.)
21 Under the contract’s terms, the county could assign Barnett up to four special
22 circumstance/capital cases during the course of one year. In exchange, Barnett received
23 $620,000 in twelve monthly installments. (Id. at 32-33, 36.) Barnett and his partners
24 were not prohibited from taking other cases that posed no conflict. The contract
25
11/

Because the terms did not materially change from year to year, the Court cites to
the contract in effect from July 1, 1987 through June 30, 1988. That period started
27
several months before jury selection and ran approximately one month after the court
28 imposed Petitioner’s sentence.
26

75

1 required Barnett to bear most costs beyond that sizable sum, including any additional
2 lawyers and professional services that were not reimbursed under California law. (Id.
3 at 29-30, 32-34.) The contract allowed additional compensation in “an extreme
4 circumstance.” (Id. at 32-33.)
5
6

2.

Legal Standard

The Sixth Amendment’s right to counsel includes “a correlative right to

7 representation that is free from conflicts of interest.” Rowland v. Chappell, 876 F.3d
8 1174, 1191 (9th Cir. 2017) (quoting Wood v. Georgia, 450 U.S. 261, 271 (1981)). To
9 demonstrate a Sixth Amendment violation based on a conflict of interest, “a defendant
10 who raised no objection at trial must demonstrate that an actual conflict of interest
11 adversely affected his lawyer’s performance.” Id. (quoting Cuyler v. Sullivan, 446 U.S.
12 335, 348 (1980)). An “actual conflict” is a conflict that concretely and adversely makes
13 a difference in the attorney’s performance, not “a mere theoretical division of loyalties.”
14 Id.; Mickens v. Taylor, 535 U.S. 162, 171, 172 n.5 (2002). More specifically, a
15 petitioner must show “that some plausible alternative defense strategy or tactic might
16 have been pursued but was not and that the alternative defense was inherently in
17 conflict with or not undertaken due to the attorney’s other loyalties or interests.” United
18 States v. Walter-Eze, 869 F.3d 891, 901 (9th Cir. 2017) (quoting United States v. Wells,
19 394 F.3d 725, 733 (9th Cir. 2005)).
20
21

3.

Analysis

Petitioner’s claim fails. Most notably, he cites no clearly established Supreme

22 Court precedent holding that a constitutional conflict-of-interest arises from an indigent
23 fee arrangement such as Barnett’s. Van Patten, 552 U.S. at 125-26. “That the Supreme
24 Court has not announced such a holding is not surprising,” cf. Moses v. Payne, 555 F.3d
25 at 761, as rulings in this Circuit indicate a lean in the opposite direction. See Williams
26 v. Calderon, 52 F.3d 1465, 1473 (9th Cir. 1995) (the “theoretical conflict that exists
27 between an attorney’s personal fisc and his client’s interests in any pro bono or
28 underfunded appointment case. . . without more, do[es] not require Sixth Amendment
76

1 scrutiny.”); see also Kaempf v. Yates, CV 10-2633 PSG (VBK), 2013 WL 1858786, at
2 *1 (C.D. Cal. Mar. 27, 2013), report and recommendation accepted by 2013 WL
3 185772 (C.D. Cal. Apr. 26, 2013) (“This Court is not aware of any Supreme Court case
4 which holds that a flat-fee agreement for the services of a private criminal defense
5 attorney, without more, represents a conflict of interest that entitles a petitioner to
6 habeas relief. Public defenders, . . . handle enormous caseloads on fixed budgets and
7 with limited investigative resources every day.”).
8

There is also nothing to indicate that an actual conflict manifested in Petitioner’s

9 case. Walter-Eze, 869 F.3d at 901. Petitioner certainly posits theories as to why
10 Barnett’s fee arrangement might alter the lawyer’s motivations. For example, Petitioner
11 argues that Barnett had to share his flat fees with other lawyers brought into the case.
12 From this, Petitioner assumes Barnett had a financial motive to preclude Steven Harmon
13 (penalty-phase counsel) from all guilt-phase proceedings. There is nothing in the record
14 to support that assertion. Indeed, the record supports a different conclusion. Per
15 Harmon’s own statement, Barnett kept him out of the courtroom as a matter of trial
16 strategy. (See Dkt. 10 at 50 (“[Barnett] indicated that he wished to preserve [Harmon’s]
17 ‘pristine credibility’ before the members of the jury, thus encouraging them to approach
18 the question of penalty as a fresh matter, unencumbered by any resentment or distrust
19 of defense counsel which they might have built up during the guilt phase.”12/).
20 Petitioner also asserts that Harmon himself “was dissuaded from conducting all
21 appropriate investigation warranted by the facts” because Barnett complained about
22 Harmon’s investigative costs. (SAP at 53.) Yet, Harmon makes no such statement in
23 his declaration. While Harmon mentions in a single sentence that Barnett complained
24 about expenses, he does not state that the complaints motivated his actions. Harmon
25
26

12/

The fact that Harmon appears subtly critical of Barnett’s strategy in his
declaration does not lend credence to the assertion that Barnett acted due to an actual
28 conflict of interest with Petitioner.
27

77

1 does, however, declare that his penalty-phase investigations included looking into the
2 Shelah McMahan homicide and investigating other possible suspects, interviewing
3 Petitioner’s family members, visiting various physical locations, and retaining a
4 psychiatrist to examine Petitioner. As for any investigation that Harmon now claims
5 he did not undertake, there is no indication that Barnett’s fees or complaints about
6 expenses had any bearing on that.13/ (Dkt. 10 at 48.)
7

Even more generally, Petitioner contends that Barnett’s guaranteed flat-fee

8 contract encouraged Barnett to devote disproportionate attention to his paying clients
9 and cut costs by limiting investigations in Petitioner’s case. But, again, there is nothing
10 to show that Barnett had or acted on these motivations, or that his financial interests
11 were “squarely” opposed to Petitioner such that he could not competently represent
12 him. See Walter-Eze, 869 F.3d at 902 (“As human beings, attorneys always have
13 interests of their own independent of those of their clients. Thus, courts have held that
14 as a general matter, there is a presumption that the lawyer will subordinate his pecuniary
15 interests and honor his primary professional responsibility to his clients in the matter
16
17
18
19
20
21
22
23
24
25
26
27
28

13/

Petitioner suggests that his speculation gave rise to a “prima facie” case for relief
in the California courts, rendering the state court’s summary denial of the claim without
factual development “objectively unreasonable” under AEDPA. (Traverse at 38-39.)
The “prima facie” language Petitioner references is found in the California Rules of
Court. See Cal. Ct. R. 4.551(c)(1) (providing that a state court must issue an order to
show cause if a habeas petitioner makes a “prima facie showing” of entitlement to
relief). The Court finds this to be an issue of state law, as the California Supreme Court
is the appropriate arbiter of what a “prima facie showing” means in that state. See
Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (the United States Supreme Court has
“repeatedly held that a state court’s interpretation of state law, including one announced
on direct appeal of the challenged conviction, binds a federal court sitting in habeas
corpus.”); see also Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“[I]t is not the
province of a federal habeas court to reexamine state-court determinations on state-law
questions.”). Further, the Court notes that a similar claim in a different action, which
Petitioner references to bolster his assertion, was dismissed on summary judgment. See
Staten v. Woodford, CV No. 01-9178 MWF (Dkt. 201); see also Hibbler, 693 F.3d at
1146; Pinholster, 563 U.S. at 180-81; Murray, 882 F.3d at 802.
78

1 at hand.”) (citations and internal quotation marks omitted); see also Williams v.
2 Calderon, 52 F.3d at 1473 (“[T]he fact that payment for any investigation or psychiatric
3 services could have come from counsel’s pocket forced counsel to choose between
4 Williams’ interests and his own” created “no conflict of constitutional dimension.”).
5

Under AEDPA’s highly deferential standard, the California Supreme Court

6 reasonably rejected Petitioner’s conflict of interest claim. Claim 5 is DENIED.
Shackling/Unlawful Restraint (Claim 7)14/

7

F.

8

Petitioner argues that the jury’s “repeated exposure” to him in shackles rendered

9 his trial constitutionally unfair. He also argues that his restraints inhibited his
10 “emotional and psychological abilities to aid in his own defense and function properly,”
11 and that they even “contributed to his failure to testify.” Consistent with case law
12 governing in-court shackling, Petitioner argues that he “need not demonstrate actual
13 prejudice to make out a due process violation.” (SAP at 210-14; Traverse at 129-31.)
14

However, Petitioner does not allege that he was shackled in the courtroom.

15 Instead, he contends that he was “restrained by use of a waist chain and leg irons” as
16 he “was transferred from the county jail to and from the courtroom by officers.” (SAP
17 at 211-12; Traverse at 129.) As discussed below, restraints imposed en route to court
18 are governed by a different standard.
19

Visible shackling in court is forbidden in a capital case, even during the penalty

20 phase (after the presumption of innocence no longer applies), unless there is a showing
21 of a “special need.” Deck v. Missouri, 544 U.S. 622, 626, 630 (2005). However, visible
22 shackling outside the courtroom violates due process only if the criminal defendant
23 demonstrates actual prejudice. Wharton v. Chappell, 765 F.3d 953, 964 (9th Cir. 2014).
24 The reason for the distinction between shackling in open court and shackling during
25 transportation is that “[e]ven the most unsophisticated juror knows that defendants may
26
27

14/

Claims 6, 13, 21, and 39 (and portions of claims 12 and 16) are addressed out of
28 order for the sake of efficiency and to place them in the proper context.
79

1 have to post bail and that some lack the resources to do this.” Id. at 965 (citation and
2 internal quotation marks omitted). “Under these circumstances we cannot think that the
3 emotional impact of seeing the defendant in custody is necessarily hostile – it may be
4 quite the reverse.” Id. (citation omitted). Moreover, “[i]t is a normal and regular as
5 well as a highly desirable and necessary practice to handcuff prisoners when they are
6 being taken from one place to another, and the jury is aware of this.” Id. (citation
7 omitted).
8

The Ninth Circuit’s Wharton decision expressly found the distinction between

9 in-court and out-of-court shackling to be consistent with the Supreme Court’s decision
10 in Deck. Id. at 965; see also Maxwell v. Roe, 606 F.3d 561, 567 (9th Cir. 2010) (under
11 AEDPA, “clearly established federal law consists of the holdings of the Supreme Court
12 at the time of the state court decision; however, circuit court precedent may be
13 persuasive in determining what law is clearly established and whether a state court
14 applied that law unreasonably.”) (citation and internal quotation marks omitted); see
15 also Williams v. Taylor, 529 U.S. at 381-82 (while AEDPA “limits the source of
16 doctrine on which a federal court may rely,” “[i]t does not, . . . purport to limit the
17 federal courts’ independent interpretive authority with respect to federal questions.”)
18 (citation omitted).
19

More specifically, in Deck, the Supreme Court’s holding was motivated by three

20 main factors: the presumption of innocence, the fact that being physically restrained in
21 court diminishes a defendant’s ability to participate in the case, and a “courtroom’s
22 formal dignity, which includes the respectful treatment of defendants.”15/ Deck, 544
23 U.S. at 630-32. From that, the Ninth Circuit in Wharton concluded:
24
25
26

15/

The Supreme Court noted that the penalty phase of a capital case only implicates
the latter two considerations. As to the first, “the defendant’s conviction means that the
28 presumption of innocence no longer applies.” Deck, 544 U.S. at 632.
27

80

1

Unlike shackling in the courtroom, shackling during transport does not

2

affect the defendant’s ability to assist counsel during trial.” (Citation

3

omitted.) Nor does it have any effect on the dignity of the courtroom;

4

indeed, it could be perceived as increasing the dignity of the courtroom

5

because a prisoner’s shackles are removed for open-court proceedings.”

6

(Citation omitted.) Admittedly, visible shackling during transportation

7

might affect the jury’s perception of the presumption of innocence,

8

(citation omitted), but that concern is mitigated greatly by the reasons

9

discussed above – jurors know that, as a matter of routine, some

10

defendants are in custody during trial and that security needs during

11

transport demand restraints.

12 Wharton, 765 F.3d at 965.
13

Under the appropriate standard – requiring actual prejudice – Petitioner’s claim

14 fails. Wharton, 765 F.3d at 964. Petitioner’s sister declares that she saw him “brought
15 up a stairwell from the jail in shackles, both wrists and feet, and marched in front of the
16 jury. . . . at every break.” (Dkt. 10 at 14.) Petitioner claims that on numerous occasions
17 the restraints “caused him to rattle while passing before members of the jury.” He
18 posits that “[t]his constant image . . . was embedded into the collective subconscious of
19 the waiting jury members.” (SAP at 211-12.) Yet, the juror who provided a declaration
20 to Petitioner’s habeas attorneys was apparently not so affected. He states, “During the
21 trial, Joseph Hart always wore decent clothes and looked very proper with his hair
22 neatly cut.” At some point, the juror “observed that he was shackled,” but recalls that
23 “they did a good job in trying to cover them up.” (Dkt. 12 at 71.)
24

Additionally, contrary to Petitioner’s assertion that the trial court gave no

25 admonition about Petitioner’s restraints, the trial court said the following to the jury:
26

Mr. Hart is in custody which means that he has to be transported to

27

the court; and when anybody is transported, they are transported with

28

certain security precautions taken including being handcuffed.
81

1

Does everybody understand that’s not evidence of guilt, that’s just

2

a requirement here and the fact that a person cannot make bail is not

3

evidence of guilt.

4

Do you all understand that?

5

All right.

6

In a case where persons are charged with this kind of offense, the

7

law provides there’s probably no bail going to be set anyway, so whether

8

the person is guilty or not guilty, they are going to be in custody in all

9

likelihood, so if you start inferring because a person has handcuffs on that

10

they’re guilty, basically you’ve abdicated your jurors’ duties, you have

11

allowed irrelevance to come into the case.

12

Do you all understand that?

13 (18RT at 2483-84.)
14

The jury was aware that Petitioner was transported to and from court in restraints.

15 If they were not already aware from seeing him pass by, the court informed them. And,
16 consistent with Wharton, the court admonished jurors of the practical reality that, for
17 security purposes, transporting jail detainees to court requires restraints. Also, the court
18 stated the obvious, that anyone accused of the unusually violent crimes alleged in
19 Petitioner’s case was unlikely to be released before trial, so one would expect to see that
20 person in restraints on his way to court. Wharton, 765 F.3d at 965.
21

There is no indication that jurors were unable to see reason here; indeed, one

22 juror casually mentions seeing the restraints and appears more interested in how well
23 authorities covered them up than how they affected the juror’s impression of Petitioner.
24 Petitioner points to no facts supporting his assertion that prejudicial images were
25 “embedded into the collective subconscious” of the jurors. Further, he fails to explain
26 how being transported to court in restraints inhibited his ability to participate in the case
27 or testify once he arrived. The California Supreme Court’s denial of Petitioner’s
28
82

1 shackling claim was not objectively unreasonable under AEDPA. Richter, 562 U.S. at
2 101; LeBlanc, 137 S. Ct. at 1728. Claim 7 is DENIED.
3

G.

Claims Based on Mental Health (Claims 8 and 9)

4

Petitioner argues that he was mentally incompetent to stand trial and that he was

5 deprived of the right to a psychiatric evaluation. (SAP at 214-20; Traverse at 131-40.)
6 The California Supreme Court denied both claims on state habeas review without
7 substantive comment. Because neither of Petitioner’s assertions involving his mental
8 health are colorable, these claims fail.
9
10

1.

Competency to Stand Trial

A defendant is mentally competent to stand trial if he “has sufficient present

11 ability to consult with his lawyer with a reasonable degree of rational understanding and
12 . . . has a rational as well as factual understanding of the proceedings against him.”
13 Clark v. Arnold, 769 F.3d 711, 729 (9th Cir. 2014) (quoting Dusky v. United States, 362
14 U.S. 402, 402 (1960)). A trial court has a sua sponte duty to inquire into the issue “if
15 a reasonable judge would be expected to have a bona fide doubt as to the defendant’s
16 competence.” Id. (citation omitted, italics in original). A bona fide doubt exists if there
17 is substantial evidence of incompetence. Id.
18

Federal courts “have recognized a high bar for what constitutes a ‘bona fide

19 doubt’ of competence.” Id. Factors relevant to this determination include “evidence
20 of a defendant’s irrational behavior, his demeanor at trial, and any prior medical opinion
21 on competence to stand trial.” Drope v. Missouri, 420 U.S. 162, 180 (1975). Other
22 evidence includes the observations provided by trial counsel. Medina v. California, 505
23 U.S. 437, 450 (1992) (“[D]efense counsel will often have the best-informed view of the
24 defendant’s ability to participate in his defense.”). A bona fide doubt “relates not to
25 mental illness in general but to the practical aspects of the defense of the action.”
26 Bassett v. McCarthy, 549 F.2d 616, 619 (9th Cir. 1977).
27

Although the Court, in evaluating a substantive due process claim of mental

28 incompetency, “may consider facts and evidence that were not available to the state trial
83

1 court before and during trial,” courts nevertheless “disfavor retrospective
2 determinations of incompetence, and give considerable weight to the lack of
3 contemporaneous evidence of a petitioner’s incompetence to stand trial.” Williams v.
4 Woodford, 384 F.3d 567, 608 (9th Cir. 2004). In Williams, a capital habeas proceeding,
5 the court gave “little weight to the declarations of the mental-health experts that
6 Williams submitted in his habeas corpus proceedings.” The court found that the
7 declarations were “not entirely credible.”

The court determined that these

8 “retrospective assessments” of the petitioner’s mental health failed in a number of
9 respects. They did not adequately tie the petitioner’s mental defects to the facts of the
10 case.

They failed to describe how the mental impairments interfered with the

11 petitioner’s understanding of the proceedings against him or with his ability to assist
12 counsel in presenting a defense. They also failed to point to “any manifestation of
13 Williams’s incompetence in the trial-court record,” nor did they explain portions of the
14 record in which the petitioner appeared to act rationally. Id. at 609. The Williams court
15 also:
16

accord[ed] little weight to the competency assessments of Williams’s

17

habeas corpus experts because they are based not upon medical reports

18

contemporaneous to the time of the preliminary hearings or trial, but upon

19

declarations submitted by Williams’s friends and family and

20

neuropsychological testing conducted more than ten years after trial. We

21

have previously held that retrospective competency determinations,

22

although disfavored, are permissible when it is possible to make an

23

accurate retrospective evaluation,

24

contemporaneous medical reports. (Citation omitted.) Without the benefit

25

of such contemporaneous reports, the passage of time and the difficulties

26

inherent in evaluating the defendant’s competence from a written record

27

reduce the likelihood of an accurate retrospective determination.

28
84

for

example, by consulting

1 Id. at 609-10; see also Pate v. Robinson, 383 U.S. 375, 387 (1966) (refusing to order
2 a competency proceeding “six years after the fact” because that passage of time would
3 only aggravate “the difficulty of retrospectively determining an accused’s competence
4 to stand trial.”) In light of the court’s doubt about the accuracy of the retrospective
5 reports, the court concluded that they were “not especially probative of whether
6 Williams actually was incompetent at the time of his trial.” Williams v. Woodford, 384
7 F.3d at 610.
8

Here, Petitioner fails to provide a persuasive reason that the trial court reasonably

9 should have formed a bona fide doubt about his competency to stand trial. The trial
10 transcripts do not reveal any abnormal in-court behavior by Petitioner that would have
11 raised a red flag for the court. Medina, 505 U.S. at 450. Further, the mental health
12 evidence that Petitioner asserts was available at the time of trial – his prior commitment
13 as a sexually violent sex offender, sinus problems and severe headaches, a history of
14 head injuries, physical and emotional abuse by his father in childhood, a learning
15 disability, psychoactive and mood-altering drugs, a prior suicide attempt – is
16 insufficient to counter the record of Petitioner’s rational participation in his trial. (See
17 Dkt. 9-1 at 101-03; dkt. 16-1 at 34-41, 43; see also dkt. 96-5, 96-6, 97-32 (showing
18 Petitioner’s rational conduct and concern for his case in his Marsden hearings).)
19 Without minimizing the seriousness of the information Petitioner puts forth, for
20 purposes of the Court’s analysis under the difficult standard for establishing mental
21 incompetency, Petitioner’s evidence appears scattershot and indiscriminate. None of
22 these facts rise to the level of warranting further evidentiary development, nor do they
23 raise a red flag that Petitioner suffered from a concealed mental condition that prevented
24 him from participating meaningfully in his trial. The trial court clearly lacked
25 substantial evidence to raise a bona fide doubt about Petitioner’s mental competency
26 to stand trial. Clark, 769 F.3d at 729; Drope, 420 U.S. at 180; see also Maxwell, 606
27 F.3d at 569 (bona fide doubt existed where the defendant was unable to verbally or
28 physically control himself in the courtroom; paranoid and psychotic behavior impaired
85

1 his communication with defense counsel; he attempted suicide during trial; and he spent
2 a substantial portion of trial involuntarily committed to a psychiatric hospital).
3

Additionally, the evidence Petitioner proffers in support of his incompetency

4 claim consists primarily of evaluations performed years after his trial. The Court
5 affords this evidence little weight. Williams v. Woodford, 384 F.3d at 609-10;
6 Robinson, 383 U.S. at 387.
7

Petitioner has not persuaded the Court that he had an inability to consult with his

8 lawyers with a reasonable degree of rational understanding, or that he was unable to
9 rationally understand his trial. Clark, 769 F.3d at 729; Dusky, 362 U.S. at 402. His
10 claim based on mental incompetency is denied.
11
12

2.

Failure to Appoint Psychiatrist

Petitioner similarly contends he was deprived of his right to meaningful

13 psychiatric assistance under Ake v. Oklahoma, 470 U.S. 68 (1985).
14

Under Ake, when a defendant demonstrates to the trial judge that his sanity at the

15 time of the offense is to be a significant factor at trial, the State must, at a minimum,
16 assure the defendant access to a competent psychiatrist who will conduct an appropriate
17 examination and assist in evaluation, preparation, and presentation of the defense. Ake,
18 470 U.S. at 83; McWilliams v. Dunn, ___ U.S. ___, 137 S. Ct. 1790, 1793-94 (2017).
19 However, “Ake makes clear that psychiatric assistance is a contingent, not an absolute,
20 right: it holds that when a defendant has made a preliminary showing that his sanity at
21 the time of the offense is likely to be a significant factor at trial the state must provide
22 psychiatric assistance.” Gretzler v. Stewart, 112 F.3d 992, 1001 (9th Cir. 1997).
23

As the Court discusses further in this Order, Petitioner’s defense strategy was not

24 consistent with a theory based on mental impairment. Petitioner’s sanity was simply
25 not a significant factor at trial. Gretzler, 112 F.3d at 1001. Beyond that, Petitioner’s
26 Ake claim fails for much the same reason that his mental incompetency claim failed.
27 Petitioner did not make a factual showing sufficient to give the trial court any reason
28 to doubt his sanity, either at trial or at the time of the offenses. Petitioner has not shown
86

1 he was entitled to the assistance of a psychiatrist, let alone a certain level of professional
2 psychiatric assistance. Ake, 470 U.S. at 83.
3

The Court also notes that the present case is readily distinguishable from Ake.

4 In that case, insanity was the only defense. The defendant exhibited extremely bizarre
5 behavior at his arraignment, enough so that the court ordered a competency evaluation.
6 A psychiatrist subsequently found the defendant to be incompetent to stand trial, and
7 suggested that he be committed to a mental facility. When the court eventually found
8 him competent to stand trial, it was with the caveat that he was heavily sedated. Ake,
9 470 U.S. at 86. All of those factors were absent from Petitioner’s trial proceedings.
10 There is no indication in the record that Petitioner’s behavior was bizarre before or
11 during his trial.
12

The evidence presented by Petitioner does not meet the showing found sufficient

13 by the Supreme Court in Ake. The state court’s denial of this claim was not an
14 unreasonable application of federal law. 28 U.S.C. § 2254(d).
15

All of Petitioner’s claims based on mental impairments and drug abuse, including

16 Claims 8 and 9, are DENIED.
17

H.

Failure to Preserve Evidence (Claim 10)

18

Petitioner argues that the government violated due process by failing to preserve

19 blood evidence found on a pair of handcuffs and Amy Ryan’s blouse. (SAP at 220-23;
20 Traverse at 140-45.) Petitioner raised this claim in his habeas petition before the
21 California Supreme Court. The claim was denied without substantive comment on the
22 merits. (Dkt. 101-2 at 111–16; dkt. 101-13.) As a result, this Court must determine
23 whether any theories under clearly established federal law could have supported the
24 state court’s denial of relief. Richter, 562 U.S. at 102. Specifically here, “[t]he clearly
25 established Supreme Court precedent governing this claim is California v. Trombetta,
26 467 U.S. 479 [] (1984), and Arizona v. Youngblood, 488 U.S. 51 [] (1988).” Sanders
27 v. Cullen, 873 F.3d 778, 811 (9th Cir. 2017).
28
87

1

Under Trombetta and Youngblood, the government’s failure to preserve evidence

2 violates a criminal defendant’s due process rights if that evidence (1) possessed an
3 exculpatory value that was apparent before its destruction; (2) is unattainable through
4 comparable evidence by other reasonably available means; and (3) was destroyed by
5 the government in bad faith. Id.; see also Youngblood, 488 U.S. at 57-58.
6

“The exculpatory value of an item of evidence is not ‘apparent’ when the

7 evidence merely ‘could have’ exculpated the defendant.” United States v. Drake, 543
8 F.3d 1080, 1090 (9th Cir. 2008) (emphasis in original) (citing Youngblood, 488 U.S. at
9 56). It is not enough to point to evidence that was “simply an avenue of investigation
10 that might have led in any number of directions.” Youngblood, 488 U.S. at 56 n.*.
11

Further, the bad faith requirement is intended to limit the police’s obligation to

12 preserve evidence “to reasonable bounds.” Bad faith arises only in “that class of cases
13 where the interests of justice most clearly require it, i.e., those cases in which the police
14 themselves by their conduct indicate that the evidence could form a basis for
15 exonerating the defendant.” Id. at 58. “The presence or absence of bad faith turns on
16 the government’s knowledge of the apparent exculpatory value of the evidence at the
17 time it was lost or destroyed.” Sanders, 873 F.3d at 811 (citation omitted); United
18 States v. Robertson, 895 F.3d 1206, 1211 (9th Cir. 2018) (citation omitted).
19

There is no clearly established Federal law requiring the police to collect or

20 obtain evidence. See Youngblood, 488 U.S. at 59 (“[T]he police do not have a
21 constitutional duty to perform any particular tests.”); see also District Attorney’s Off.
22 for Third Judicial Dist. v. Osborne, 557 U.S. 52, 73-74 (2009) (dicta strongly implying
23 that substantive due process does not currently impose a duty to gather evidence).
24 Notably, Trombetta and Youngblood expressly impose a duty to preserve already25 collected evidence. Trombetta, 467 U.S. at 481 (“[T]he question presented is whether
26 the Due Process Clause requires law enforcement agencies to preserve breath samples
27 of suspected drunken drivers.”); Youngblood, 488 U.S. at 334 (due process challenge
28 to the police’s failure to preserve semen samples).
88

1
2
3

1.

Failure To Preserve Blood on Handcuffs (Penalty Phase
Evidence)

Petitioner alleges that the Riverside County Sheriff’s Department destroyed blood

4 flakes found on a pair of handcuffs. The handcuffs and the blood flakes were part of
5 the prosecution’s penalty-phase case, specifically, the allegations that Petitioner killed
6 his niece days before his arrest on the capital charges. The Court delves thoroughly into
7 that evidence in Claim 27. Here, the Court only discusses the facts relevant to
8 Petitioner’s Trombetta/Youngblood claim.
9

A detective found the handcuffs at issue buried in a shed on Petitioner’s property.

10 (33RT at 4304.) On those handcuffs, the detective found and collected minuscule
11 flakes. (33RT at 4334, 4336-37, 4340.) The detective who discovered the flakes
12 scraped them into a small envelope for testing. (33RT at 4337-38.) Forensic testing
13 determined that they were dried flakes of blood. The flakes were consistent with the
14 blood type of the victim, Shelah McMahan. (34RT at 4374.) More specifically, the
15 flakes tested positive for a blood type characterized as “ABO type A, PGM type 2+ 1
16 +.” This was not Petitioner’s blood type, but was the same as Shelah McMahan’s.
17 (34RT at 4376; 35RT at 4506-08.) Criminalist James Hall testified that approximately
18 eight in one thousand people (.8% of the population) shared that specific blood type.
19 (35RT at 4512, 4515.)
20

The forensic examiner who tested the flakes testified that, due to their minuscule

21 size, the samples were destroyed during the testing process, and there was nothing left
22 over. (35RT at 4427-28, 4433, 4484-85.)
23

Petitioner argues that these facts show that law enforcement willingly destroyed

24 evidence before the defense could examine it. He further claims that the exculpatory
25 value of the blood flakes on the handcuffs was “clearly apparent” because additional
26 testing by a defense expert might have revealed that they did not match Shelah
27 McMahan’s blood type. He also argues that, by destroying the blood samples, the
28
89

1 sheriff’s department prevented any future DNA test that might have exonerated him.
2 (SAP at 221-22; Traverse at 141-44.)
3

Petitioner cannot receive federal habeas relief on these allegations. What

4 Petitioner alleges as “clearly apparent” exculpatory evidence is actually the opposite.
5 The blood flakes on the handcuffs inculpated him. Any exculpatory value is based on
6 speculation.

Such speculation that further testing could have contradicted the

7 criminalist’s conclusions is squarely insufficient to qualify as “apparent” exculpatory
8 value. Drake, 543 F.3d at 1090; Youngblood, 488 U.S. at 56.
9

Petitioner has also made a speculative and inadequate showing of bad faith by

10 law enforcement. Sanders, 873 F.3d at 811; Youngblood, 488 U.S. at 57-58. He
11 assumes something nefarious happened based on the way the detective collected the
12 blood flakes, and the fact that the crime lab failed to preserve samples for the defense.
13 But, the prosecution’s witnesses explained at trial the specific circumstances under
14 which the samples were destroyed, i.e., during the testing process they were used up.
15 This may not have been the best practice, but it also does not present a case “in which
16 the police themselves by their conduct indicate that the evidence could form a basis for
17 exonerating the defendant.” Youngblood, 488 U.S. at 58. There is no evidence from
18 which to conclude that any member of law enforcement knew of exculpatory value in
19 this evidence at the time of its destruction. Sanders, 873 F.3d at 811; Robertson, 895
20 F.3d at 1211.
21
22

2.

Destruction Of Blouse Blood Spatter (Guilt Phase Evidence)

Petitioner’s second Trombetta/Youngblood subclaim alleges that the Riverside

23 County Sheriffs failed to preserve blood spatter that was found on Amy Ryan’s blouse.
24 (SAP at 222-23; Traverse at 142-44.) This subclaimm also fails.
25

The sheriff’s department found a smear and red spots on Amy Ryan’s blouse that

26 appeared to be blood. (20RT at 2800.) However, criminalist James Hall stated that “the
27 amount of blood was very limited and the stain was quite light.” (Dkt. 12-2 at 31.) Hall
28 testified that he was able to determine that the smear was blood, and was the same blood
90

1 type as Diane Harper. (22RT at 3087-88; see also dkt. 12-1 at 35.) However, the
2 blouse was too lightly stained from the smear to allow testing for any further
3 conclusions. (Dkt. 12-1 at 36.) The spatter marks were too light to be confirmed as
4 human blood. (Dkt. 12-1 at 36.) The blouse was turned over to the defense for testing,
5 and the laboratory used by the defense reached inconclusive results. One stain was
6 confirmed to be blood, with no further conclusions, and other marks were not confirmed
7 to be blood. (Dkt. 9 at 183.)
8

The essence of Petitioner’s argument is not that law enforcement failed to

9 preserve blood evidence for defense testing. The blouse was turned over to the defense
10 and tested. Petitioner’s complaint is that the sheriff’s department failed to test the
11 blouse fast enough to get better samples. (Traverse at 143-44.) Aside from Petitioner’s
12 speculation that time was of the essence in testing the blouse for blood, his claim does
13 not allege a violation of clearly established Supreme Court precedent. There is no
14 clearly established Federal law requiring the police to collect evidence at all, let alone
15 within a certain time frame. See Youngblood, 488 U.S. at 59 (“[T]he police do not have
16 a constitutional duty to perform any particular tests.”); see also Osborne, 557 U.S. at
17 73-74; Van Patten, 552 U.S. at 125-26; Lopez v. Smith, 574 U.S. at 2. Further,
18 Petitioner again fails to point to any apparent exculpatory value in this evidence.
19 Drake, 543 F.3d 1090; Youngblood, 488 U.S. at 56. Finally, there is nothing to suggest
20 that any action or omission as it concerned the spatters on Amy Ryan’s blouse occurred
21 in bad faith. Sanders, 873 F.3d at 811; Robertson, 895 F.3d at 1211; see also United
22 States v. Barton, 995 F.2d 931, 936 (9th Cir. 1993) (“The Supreme Court has held that
23 the negligent destruction of evidence does not violate due process.”) (citing
24 Youngblood, 488 U.S. at 58).
25

The California Supreme Court’s denial of Petitioner’s due process claims based

26 upon the destruction of evidence was reasonable under Trombetta and Youngblood. See
27 Richter, 562 U.S. at 102. Claim 10 is DENIED.
28

I.

Evidentiary Challenge to Images of Victims (Claim 11)
91

1

Petitioner complains that the trial court admitted inflammatory evidence. At the

2 outset, Petitioner appears to challenge every photograph, slide and videotape admitted
3 at trial without a coherent legal theory. (SAP at 224-27.) The Court need not address
4 that. Petitioner eventually hones in on more specific photographic evidence. In the
5 guilt phase, Petitioner takes issue with photographs of Diane Harper’s body. He argues
6 that most or all of the photos were unduly gruesome and cumulative. As to the penalty
7 phase, Petitioner argues that the court should not have allowed multiple photos of
8 Shelah McMahan’s body because they were irrelevant, and that the court allowed an
9 excessive number of them. Petitioner argues that all of the photographs were too
10 inflammatory to allow the jury to fairly consider the evidence. (SAP at 223-28;
11 Traverse at 145-49.)
12

On direct appeal, the California Supreme Court denied Petitioner’s challenges to

13 the photographs. The court addressed the claims under state evidentiary rules, and
14 ultimately concluded in footnotes that there was no constitutional violation in light of
15 the fact the photographs were properly admitted into evidence. The court thoroughly
16 discussed all the challenged photographs and concluded that they were relevant to
17 multiple issues in the case. As for the guilt-phase photographs of Diane Harper’s body,
18 the court found that they corroborated witness testimony about how events transpired,
19 Petitioner’s presence at the scene, whether sexual assault occurred, how the victim
20 received various injuries to her body, and Petitioner’s state of mind in committing the
21 killing, including planning and premeditation. People v. Hart, 20 Cal. 4th at 616. As
22 to the penalty-phase photographs of Shelah McMahan, the California Supreme Court
23 found that they were relevant to corroborate witness testimony about the vicious nature
24 of Shelah’s killing, where she was killed, if her body was subsequently moved, how she
25 was bound, whether the killing was premeditated, and whether ligature marks matched
26 handcuffs and a cable tie found on Petitioner’s property. Id. at 644-46.
27

Although Petitioner purports to raise his evidentiary claims based on his federal

28 rights, he has not actually done so. The premise of his constitutional claim is that the
92

1 evidence at issue was unduly prejudicial, which is governed by the California Evidence
2 Code. See Cal. Evid. Code § 352. A federal court may entertain a habeas petition by
3 a state prisoner “only on the ground that he is in custody in violation of the Constitution
4 or laws or treaties of the United States.” 28 U.S.C. § 2254(a); McGuire, 502 U.S. at 675 68; see also Windham v. Merkle, 163 F.3d 1092, 1103 (9th Cir. 1998) (a federal habeas
6 court has “no authority to review alleged violations of a state’s evidentiary rules . . . .”).
7 Moreover, a habeas petitioner cannot “transform a state law issue into a federal one
8 merely by asserting a violation of due process,” which is what Petitioner has attempted
9 to do here. Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996); see also Miller v.
10 Stagner, 757 F. 2d 988, 993-94 (9th Cir. 1985). Petitioner’s evidentiary claim is not
11 cognizable in this Court.
12

Further, even assuming Petitioner had raised a cognizable federal issue, it would

13 fall considerably short. “Under AEDPA, even clearly erroneous admissions of evidence
14 that render a trial fundamentally unfair may not permit the grant of federal habeas
15 corpus relief if not forbidden by ‘clearly established Federal law,’ as laid out by the
16 Supreme Court.” Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009) (citation
17 omitted). And, as it concerns Petitioner’s evidentiary claims:
18

The Supreme Court has made very few rulings regarding the

19

admission of evidence as a violation of due process. Although the Court

20

has been clear that a writ should be issued when constitutional errors have

21

rendered the trial fundamentally unfair, (citation omitted), it has not yet

22

made a clear ruling that admission of irrelevant or overtly prejudicial

23

evidence constitutes a due process violation sufficient to warrant issuance

24

of the writ. Absent such “clearly established Federal law,” we cannot

25

conclude that the state court’s ruling was an “unreasonable application.”

26 Id.
27

Petitioner’s evidentiary claims, even had they been cognizable, are without merit

28 under AEDPA because there is no clearly established Supreme Court precedent
93

1 addressing the issue. Id.; see also Walker v. Davis, 617 F. App’x 794, 795 (9th Cir.
2 2015) (finding that, based on Holley, there was no clearly established Federal law
3 prohibiting “potentially irrelevant and prejudicial autopsy photographs” of a minor
4 victim) (cited pursuant to 9th Cir. R. 36-3).
5

Even beyond the confines of AEDPA, the evidence at issue here would not lead

6 to relief. “The admission of evidence does not provide a basis for habeas relief unless
7 it rendered the trial fundamentally unfair in violation of due process.” Johnson v.
8 Sublett, 63 F.3d 926, 930 (9th Cir.1995) (citing McGuire, 502 U.S. at 67-68). Such a
9 due process violation may occur only “if there are no permissible inferences the jury
10 may draw from” the evidence. Boyde v. Brown, 404 F.3d 1159, 1172 (9th Cir. 2005)
11 (emphasis in original, citation and internal quotation marks omitted). As the state court
12 thoroughly concluded, the photographs Petitioner complains of were separately relevant
13 on multiple fronts: to show the manner of the killings, various marks on the victims, any
14 planning involved, as well as Petitioner’s connection to the crimes and crime scenes.
15 Petitioner does not convincingly explain why this evidence was irrelevant or unfair, but
16 instead focuses on the possibility that it had an emotional impact on the jury. The
17 photographs were certainly unfavorable to him, but that is not sufficient to satisfy the
18 due process standard.

The evidence at issue did not render Petitioner’s trial

19 fundamentally unfair. See Gerlaugh v. Stewart, 129 F.3d 1027, 1032 (9th Cir. 1997)
20 (admission of “admittedly gruesome photos of the decedent” was within the trial court’s
21 discretion and did not implicate federal due process rights); see also Villafuerte v.
22 Stewart, 111 F.3d 616, 627 (9th Cir. 1997) (graphic photographs did not render trial
23 fundamentally unfair where they were relevant to issues in the case); Batchelor v. Cupp,
24 693 F.2d 859, 865 (9th Cir. 1982) (several gruesome photographs of victim’s body did
25 not render the trial fundamentally unfair).
26

Petitioner’s evidentiary claims in Claim 11 are DENIED.

27
28
94

Guilt Phase Brady16/ Claims (Claim 12)

1

J.

2

Petitioner argues that the government withheld several items of exculpatory

3 evidence that were material to both phases of the trial. The Court addresses the two
4 Brady subclaims concerning the guilt phase here. Petitioner raised his Brady claims in
5 his habeas petition before the California Supreme Court. The claim was denied without
6 substantive comment on the merits. This Court determines whether Brady could have
7 supported the state court’s denial of relief. Richter, 562 U.S. at 102.
8

1.

9

Legal Standard

Under Brady, a prosecutor violates due process by suppressing evidence

10 favorable to an accused and material to either guilt or punishment. Sanders, 873 F.3d
11 at 801; Brady, 373 U.S. at 87. “Evidence favorable to the accused” includes evidence
12 that would help impeach a witness. Sanders, 873 F.3d at 801-02 (citing Giglio v.
13 United States, 405 U.S. 150, 154-55 (1972)).
14

“Under Brady’s suppression prong, if ‘the defendant is aware of the essential

15 facts enabling him to take advantage of any exculpatory evidence,’ the government’s
16 failure to bring the evidence to the direct attention of the defense does not constitute
17 ‘suppression.’” Cunningham v. Wong, 704 F.3d 1143, 1154 (9th Cir. 2013) (quoting
18 Raley v. Ylst, 470 F.3d 792, 804 (9th Cir.2006)). Put another way, if the defendant
19 “‘possessed the salient facts regarding the existence of the records he claims were
20 withheld’ such that defense counsel ‘could have sought the documents through
21 discovery,’ there was no suppression under Brady.” Id. (quoting Raley, 470 F.3d at
22 804). The Ninth Circuit recently explained that, for Brady purposes, a defendant is
23 aware of the existence of the materials if he “either participated personally in the
24 creation of the records or the records were disputed in the case.” Mellen v. Winn, 900
25 F.3d 1085, 1100 (9th Cir. 2018).
26
27
28

16/

Brady v. Maryland, 373 U.S. 83 (1963).
95

1

Evidence is “material” within the meaning of Brady “when there is a reasonable

2 probability that, had the evidence been disclosed, the result of the proceeding would
3 have been different.” Turner v. United States, ___U.S. ___, 137 S. Ct. 1885, 1893
4 (2017) (citations omitted). A “reasonable probability” of a different result means that
5 suppressed evidence “undermines confidence in the outcome of the trial.” Id. (quoting
6 Kyles v. Whitley, 514 U.S. 419, 434 (1995)). In making a materiality determination,
7 courts must evaluate the withheld evidence in the context of the entire record. Id.
8 Further, “[t]he mere possibility that an item of undisclosed information might have
9 helped the defense, or might have affected the outcome of the trial, does not establish
10 ‘materiality’ in the constitutional sense.” United States v. Agurs, 427 U.S. 97, 109-10
11 (1976); Barker v. Fleming, 423 F.3d 1085, 1099 (9th Cir. 2005).
12
13
14

2.

Analysis
a.

Impeachment Evidence on Dr. DeWitt Hunter

Petitioner first argues that the prosecution withheld substantial impeachment

15 material about a county pathologist who testified during the guilt phase of trial. (SAP
16 at 229-31, Traverse at 150-56.)
17
18

(1)

Background Facts

Jury selection in Petitioner’s case commenced in November 1987, and trial

19 proceedings were completed upon Petitioner’s sentencing in May 1988. (1RT at 1;
20 42RT at 5290, 5312-14.) In January 1988, during the guilt phase of trial, the
21 prosecution called Dr. Dewitt Talmage Hunter to testify in its case-in-chief. (23RT at
22 3142, 3189.) Dr. Hunter was a Riverside County pathologist who had performed over
23 5,000 autopsies. (23RT at 3190.) Dr. Hunter performed the autopsy on Diane Harper.
24 A criminalist employed by the California Department of Justice, Faye Springer, was
25 also present during the autopsy. (23RT at 3191-92; see also 21RT at 2982.)
26

Dr. Hunter concluded that Diane Harper died from “massive cerebral contusion

27 and hemorrhage” caused by the blows to the head. (23RT at 3204.) The doctor testified
28 that Diane Harper’s autopsy revealed “essentially two categoriesꞏof significant findings,
96

1 one was that of major trauma to the head and to the back. And, coincidentally, minor
2 trauma in various sites over the body. There was physical evidence consistent with
3 possible sexual violation.” (23RT at 3192.)
4

More specifically, Dr. Hunter found seven “impact-type lacerations” on Harper’s

5 head, five on the back-right side of the head, one on the left side of the forehead, and
6 one on the top of the head. (23RT at 3193-95.) Harper’s skull also contained fractures
7 caused by “a large amount of force.” (23RT at 3195-96.) Dr. Hunter opined that “a
8 rock or brick-like instrument” inflicted the head wounds. (23RT at 3197-98.) He
9 characterized the injuries as “overkill.” (23RT at 3211.) Dr. Hunter concluded that all
10 five of the blows to the back of Harper’s head would have knocked her unconscious,
11 and three of the blows could have independently caused Harper’s death. Dr. Hunter
12 also saw bruises and twenty to twenty-four scratches on Harper’s face and forehead.
13 (23RT at 3199, 3201.) Dr. Hunter testified that the facial scratches could have been
14 caused by Harper’s face being driven into the dirt, which was consistent with her body
15 being found face-down in the dirt. (23RT at 3200.) Harper also had minor injuries to
16 her right ear, which Dr. Hunter opined could have been caused by a glancing blow
17 while she was being struck in the back of the head. (23RT at 3200-01.)
18

Dr. Hunter also found injuries consistent with a blow to Harper’s lower

19 neck/upper back area. (23RT at 3202.) Additionally, the doctor found bruises and a
20 scratch on the front of Harper’s pelvic bone, which were consistent with someone
21 placing pressure on her back while she was face-down. (23RT at 3203-04.) Harper also
22 had scratches on her knees, elbows, and buttocks, and bruises on her elbows. (23RT at
23 3204, 3225.)
24

Dr. Hunter examined Harper’s body for evidence of sexual assault. The doctor

25 “saw no physical evidence to indicate” forced penetration to Harper’s vagina. (23RT
26 at 3207.) However, the doctor did observe reddening in “the area surrounding the
27 vaginal entrance,” which he opined could be caused by “forceful massage.” (23RT at
28 3207-08.) Dr. Hunter also found that “abrasions and ill-defined contusions were
97

1 present on both inner and upper thighs.” Additionally, the doctor found “a Vaseline2 like substance” on the area surrounding the vaginal opening and on the inner thighs.
3 (23RT at 3209.) He opined that the injuries to the inner and upper thighs were
4 consistent with someone trying to force Harper’s legs apart. (23RT at 3210.) Dr.
5 Hunter concluded that all of the above “changes seen in the perineal area” were
6 “consistent with sexual violation.” (23RT at 3210-11.) Dr. Hunter testified that his
7 conclusion was uncertain, but that it was 90% accurate. (23RT at 3211.)
8

In his guilt-phase rebuttal closing argument, the prosecutor referred to Dr.

9 Hunter’s testimony three times. First, the prosecutor discussed Dr. Hunter’s testimony
10 that he found a Vaseline-type substance on Harper’s upper, inner thigh. The prosecutor
11 also mentioned the criminalist’s corroborating testimony that water beaded up on
12 Harper’s thighs when Dr. Hunter was washing off the body. (See 21RT at 2984.) The
13 prosecutor argued that the location of the petroleum substance was more consistent with
14 rape than sodomy. (26RT at 3557.) Second, the prosecutor reminded the jury that Dr.
15 Hunter testified about injuries to Harper’s inner thighs that were consistent with
16 someone trying to force her legs apart. (26RT at 3559.) Third, the prosecutor argued
17 that Harper was not putting up any resistance to Petitioner after the first blow, as
18 evidenced by Dr. Hunter’s testimony that she would have been knocked unconscious.
19 (26RT at 3564.)
20

Petitioner argues that “[w]hile the state presented and relied upon Dr. Hunter’s

21 testimony in Petitioner’s case, the District Attorney’s Office was in possession of
22 information showing it considered Dr. Hunter incompetent, sloppy and unreliable.”
23 (SAP at 229.) In support for that proposition, Petitioner proffers the following:
24

•

An undated internal memo drafted by Riverside Deputy District Attorney

25

Randall White. The memo included an attached declaration dated April

26

26, 1989, and was directed to Chief Deputy District Attorney Donald

27

Inskeep. White alleged that “a number of homicide cases” had been

28

“hampered by gross errors committed by” Dr. Hunter. The deputy then
98

1

cited two examples. In one case, Dr. Hunter testified five times over the

2

course of two separate trials. In the first trial, Dr. Hunter testified

3

unequivocally that the decedent had no skull fractures. In the second, “the

4

testimony changed dramatically – there were indeed several skull fractures

5

. . . .” The deputy stated that some of the discrepancies in the doctor’s

6

testimony “could have been avoided simply by a reading of [Dr. Hunter’s]

7

own autopsy protocol.” The doctor also gave “conflicting testimonies” as

8

to the time of the decedent’s death, forcing the deputy to find other

9

witnesses and “nearly result[ing] in jury confusion to an irreparable

10

degree.” The deputy found Dr. Hunter’s “attempted explanations . . .

11

totally unacceptable and implausible.” In the second example, the deputy

12

stated that Dr. Hunter gave incorrect and equivocal opinion testimony as

13

to the time and cause of the decedent’s death. In general, the deputy

14

reported that Dr. Hunter’s testimony came off as “rather timid, unsure and

15

unclear. It is replete with ambiguity, while at the same time bland and

16

uninteresting. In short, it is generally dull and confusing.” (Dkt. 9-1 at

17

27.)

18

•

A letter dated March 10, 1989 from Deputy District Attorney Dan Lough,

19

also to Inskeep. This deputy called Dr. Hunter to testify in a death penalty

20

case, People v. Seaton (discussed in detail below). The deputy found that

21

the doctor had a “careless approach to reports.” Specifically, the deputy

22

reported that despite performing the autopsy on the victim in that case, Dr.

23

Hunter “failed to obtain and read his notes prior to testifying.”

24

Consequently, the doctor referred to “lacerations” as “incisions,” and gave

25

questionable testimony about blood clotting that was rebutted by the

26

defendant’s expert. The deputy concluded that Dr. Hunter was “sloppy in

27

procedure and careless in the preparation of reports.” (Dkt. 9-1 at 30.)

28
99

1

•

An undated memo from Deputy District Attorney Wayne Astin to Inskeep.

2

The deputy stated that, while testifying in a 1985 murder case, Dr. Hunter

3

“reversed in his mind the location of the damage to the victim’s skull,”

4

which caused the doctor to draw an erroneous conclusion as to which blow

5

was the cause of death. The deputy was forced to correct the doctor by

6

showing him autopsy photographs, after which the doctor corrected some

7

of his testimony but not as to the cause of death. The deputy stated that

8

“[f]ortunately, the cause of death was not a critical issue in the case.

9

Although I did not interview the jurors after the verdict, I was told they

10
11

more or less thought he was incompetent.” (Dkt. 9-1 at 32.)
•

A letter, dated December 18, 1988, drafted by a pathologist in competition

12

with Dr. Hunter to provide the county’s pathology and toxicology services

13

(Dr. Rene Modglin). The letter contained a paragraph discussing Dr.

14

Hunter:

15

Dr. Hunter, the only other bidder, to my

16

knowledge is not himself a Board Certified

17

Forensic Pathologist.

18

recently heard, there have been several cases

19

autopsied by Dr Hunter that have created some

20

problems for the County.

21

woman’s body had to be exhumed somewhere

22

out of state and a second autopsy showed it was

23

a homicide when Dr. Hunter indicated it vas

24

not. I heard that the second pathologist noted

25

that the first autopsy vas a “very sloppy job.”

26

Also apparently there were some tense

27

courtroom moments in the low desert when Dr.

28

Hunter testified that there were photos taken

Additionally, I have

100

Apparently a

1

with probes on a homicide case that vas being

2

prosecuted. He allegedly wouldn’t be swayed

3

from his original testimony and only after a

4

lengthy, behind-closed-door session did he

5

admit that he had been incorrect, causing

6

somewhat of a problem for the prosecutor.

7

These are only two known problems – but over

8

such a short period of time and on such

9

important matters. Credibility and reputation

10

are so important.

11 (Dkt. 9-1 at 34-35.)
12

•

Two January 1989 Riverside Press-Enterprise news articles discussing an

13

internal dispute between Riverside authorities over who would conduct an

14

autopsy in a murder case. The district attorney’s office requested Dr.

15

Modglin, citing the fact that Dr. Hunter was not board-certified by the

16

American Board of Forensic Pathology. The county coroner, Raymond

17

Carrillo, was quoted as saying that Dr. Hunter was “board qualified” and

18

would take the examination to be certified soon. The coroner was angry

19

about the dispute, and was also quoted as saying, “All this concern is over

20

a couple of cases he’s messed up” despite the fact that Dr. Hunter had

21

“conducted thousands of autopsies, including those on homicide victims.”

22

Carrillo “talked to [Dr. Hunter] and was satisfied with his explanations”

23

about the mistakes.

24 (Dkt. 9-1 at 37-39.)
25

•

Another January 1989 article in the Riverside Press-Enterprise. The

26

article discussed a decedent, Ella Payne, and her death by hanging. Dr.

27

Hunter performed the autopsy. Dr. Hunter had ruled the woman’s death

28

a suicide, but the woman’s husband was subsequently charged in a
101

1

military tribunal with killing her. Testimony before that tribunal accused

2

Dr. Hunter of “overlook[ing] so many details” that insurance officials

3

questioned whether the autopsy was done on the right person. The body

4

was exhumed for a second autopsy by a military doctor. The second

5

autopsy “supported the theory the woman had been murdered.”17/

6 (Dkt. 9-1 at 41.)
7

(2)

8

People v. Seaton

The Brady issue Petitioner raises concerning information on Dr. Hunter was

9 previously litigated in another capital case. See People v. Seaton, 26 Cal. 4th 598, 64610 50 (2001). In Seaton, Dr. Hunter was the pathologist who conducted the autopsy and
11 testified at trial. Dr. Hunter’s alleged mistakes and prior criticism eventually led to
12 various claims on appeal, including a Brady claim nearly identical – and based on the
13 same facts – as Petitioner’s Brady claim.
14

Petitioner proffers a May 9, 1989 declaration from Stuart Sachs, the trial attorney

15 who represented Ronald Harold Seaton. Sachs’s declaration was made in support of
16 Seaton’s motion for a new trial. In the declaration, Sachs stated that Dr. Hunter testified
17 in Seaton’s case on November 9, 1988.18/ The attorney alleged that Doctor Hunter’s
18 testimony regarding the number of times the victim was attacked, whether there was
19
20
21
22
23
24
25
26
27
28

17/

The Court takes judicial notice of subsequent news articles reporting that Payne’s
husband was cleared and the charge dismissed. George Frank, Marine Cleared in
Hanging Death of His Wife, Los Angeles Times (March 29, 1989),
http://articles.latimes.com/1989-03-29/local/me-682_1_marine-corps; George Frank,
Marine Once Suspect in Death Angry at Police, Los Angeles Times (March 31, 1989),
http://articles.latimes.com/1989-03-31/local/me-816_1_marine-corps. The Court may
not and does not judicially notice these articles for their truth, but to more thoroughly
and accurately show the information which had a bearing on Dr. Hunter’s reputation.
See Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 960 (9th
Cir. 2010) (federal courts may take judicial notice of newspaper articles and other
publications to indicate what information was in the public realm at the time).
18/

As discussed above, Petitioner’s trial ran from January to March 1988.
102

1 pre-mortem bleeding, and certain conclusions based on blood spatter was inconsistent
2 with his autopsy findings. Sachs claimed that the doctor also failed to bring his notes
3 from the autopsy to testify in court. In response to “this surprising and somewhat
4 illogical testimony,” the defense hired its own pathologist. The defense expert
5 contradicted Dr. Hunter’s conclusions. Sachs contended that the prosecution’s case in
6 both phases relied heavily on Dr. Hunter’s testimony that the victim was attacked two
7 separate times.
8

Sachs then referenced the three articles from January 1989 in the Riverside Press-

9 Enterprise. According to Sachs, based on those articles county coroner Raymond
10 Carrillo was subpoenaed, and gave testimony further clarifying his remarks to the
11 media. Carrillo testified that there was debate about whether to have Dr. Hunter
12 continue with county autopsies. Those conversations occurred between December 1988
13 and January 1989. During that time, Dr. Hunter admitted to Carrillo that he had made
14 “some mistakes in the past concerning certain diagnoses in autopsies.” Carrillo then
15 provided Sachs with two internal memos from the district attorney’s office referencing
16 “a couple of cases.” After an additional discovery request, the prosecutor in Seaton’s
17 case furnished another internal memo discussing Dr. Hunter.
18

Sachs drew the conclusion that:

19

[I]t seems safe to say that the various memos were written in December

20

1988 or early January, 1989 with the expressed intent of compiling

21

negative information about Dr. Hunter that could be forwarded by both the

22

District Attorney’s Office and Damon Reference Laboratories to Mr.

23

Carrillo in an effort to prevent Dr. Hunter from being awarded the County

24

contract to perform autopsies, due to his apparent reputation for

25

incompetence.

26

Sachs believed that he did not have any of this new information during Seaton’s

27 trial because it “probably didn’t materialize until December 1988 . . . .”
28
103

1

Sachs argued in his declaration that “the jury was given a false sense of

2 credibility and competency” with respect to Dr. Hunter. The lawyer contended that the
3 court should reopen testimony by both Dr. Hunter and his supervisor to be impeached
4 with the additional information and to determine Dr. Hunter’s reputation within the
5 district attorney’s office.
6

Sachs referenced the cases discussed in the Randall White memo (summarized

7 above). Sachs stated that in one case Dr. Hunter “testified to minimal skull fractures
8 and acknowledged that previously he had indicated no skull fractures. This is a perfect
9 example of how Dr. Hunter pays such little attention to details.” Sachs sought to cross10 examine Dr. Hunter about that case. Sachs also referenced the Payne case, and sought
11 to cross-examine Dr. Hunter about the Payne autopsy. (Dkt. 9-1 at 43-52.)
12

The trial court ultimately denied Seaton’s new trial motion, and Seaton raised

13 several related appellate issues. One of those claims alleged, as Petitioner does here,
14 that the prosecution’s failure to disclose evidence about Dr. Hunter’s errors and
15 reputation within the district attorney’s office violated Brady. Seaton, 26 Cal. 4th at
16 646-50. More specifically, Seaton argued that the internal memos that came to light
17 were Brady material that the prosecution had a duty to disclose during trial. Id. at 648.
18

The California Supreme Court found that two of the memos (the White and Astin

19 memos) were not material for Brady purposes.

The court first questioned the

20 admissibility of the memos without reaching a decision on that issue.19/ The court rested
21 its holding on the reasoning that the memos “complained about discrepancies between
22 what Dr. Hunter observed and recorded during autopsies and what he later testified to
23 in court,” and that “[t]he information in the prosecutors’ memoranda would have shown
24 Dr. Hunter to the jury as a careless and ill-prepared witness when testifying to his
25
26
27
28

19/

See Wood v. Bartholomew, 516 U.S. 1, 5-6 (1995) (evidence that is inadmissible
under state law is not material for Brady purposes).
104

1 recollection of factual observations he had made earlier.” The court explained that
2 Seaton did not “dispute that Dr. Hunter accurately described his observation of clotted
3 blood around the murder victim” but that Seaton instead objected “to the conclusions
4 Dr. Hunter drew from those facts. . . . their portrayal, although unflattering, would have
5 done little to impeach his scientific explanation of the causes of the clotted blood.” Id.
6 at 648-49 (emphasis in original). In applying Brady, the state high court reasoned that
7 the information contained in those memos did not give rise to a reasonable probability
8 that the jury would have rejected Dr. Hunter’s expert opinion, and would then have
9 acquitted Seaton on that basis. Id. at 649.
10

As for the internal memo related directly to the Seaton case, the California

11 Supreme Court found that the prosecutor was only “expressing his doubts” about Dr.
12 Hunter’s theory on blood clotting. The court concluded that “such doubts are not a
13 form of impeaching evidence that must be disclosed.” The material constituted an
14 inadmissible and irrelevant lay opinion on expert testimony. Further, “every lawyer
15 presenting a case at trial makes an internal assessment of the strengths and weaknesses
16 of the witnesses as the trial proceeds. Such assessments need not be revealed to the
17 opposing party.” Id.
18

The court in Seaton also found that there was no evidence to suggest the

19 prosecutor was aware, prior to trial, of any information casting doubt on the accuracy
20 of Dr. Hunter’s testimony. “Rather, the prosecutor’s doubts about the accuracy of Dr.
21 Hunter’s testimony were apparently based on the trial testimony of a defense witness,
22 Dr. Root. Both defendant and the jury, of course, learned of this evidence at the same
23 time as the prosecutor, when Dr. Root testified.” Id.
24
25

(3)

Analysis

Petitioner is unable to establish that the California Supreme Court’s summary

26 denial of his Brady claim was objectively unreasonable under AEDPA. Richter, 562
27 U.S. at 101; LeBlanc, 137 S. Ct. at 1728. At the outset, none of the material supporting
28 Petitioner’s claim would constitute Brady evidence. All of the memos and articles he
105

1 proffers were created in December 1988 or later. His trial was over and his sentence
2 formally imposed by May 1988. (See 42RT at 5290, 5312-13.) Thus, Brady’s
3 suppression prong is not satisfied here. See Strickler v. Greene, 527 U.S. 263, 282
4 (1999) (under Brady, “evidence must have been suppressed by the State, either willfully
5 or inadvertently.”); see also United States v. Price, 566 F.3d 900, 910 n.11 (9th Cir.
6 2009) (the “government has no obligation to produce information which it does not
7 possess or of which it is unaware.”) (quoting Sanchez v. United States, 50 F.3d 1448,
8 1453 (9th Cir.1995)).
9

But, Petitioner is not specifically arguing that the memos and articles were Brady

10 material. He instead attempts to paint a picture demonstrating that problems with Dr.
11 Hunter were so pervasive that the Riverside County District Attorney’s office must have
12 raised questions internally about him by the time of trial. The Court is mindful of Ninth
13 Circuit precedent holding that the suppression prong of Brady may be met without a
14 conclusive record as to whether the government actually possessed Brady material.
15 Price, 566 F.3d at 910 (citing Carriger v. Stewart, 132 F.3d 463, 479 (9th Cir. 1997)).
16 Where the proponent of a Brady claim produces “some evidence to support an inference
17 that the government possessed or knew about material favorable to the defense and
18 failed to disclose it,” the burden shifts to the government to show that all Brady material
19 was turned over. Id.; see also Kyles, 514 U.S. at 437 (“[T]he prosecution, which alone
20 can know what is undisclosed, must be assigned the consequent responsibility to gauge
21 the likely net effect of all such evidence and make disclosure when the point of
22 ‘reasonable probability’ is reached.”).
23

However, “some evidence” does not mean a defendant shifts the burden by

24 simply alleging that where there’s smoke, there’s fire, without any showing that
25 exculpatory evidence existed. See Price, 566 F.3d at 902, 910-11 (prosecutor revealed
26 that a detective may have known about undisclosed criminal history of a witness whose
27 testimony “sealed [the defendant’s] fate”); see also Carriger, 132 F.3d at 479-80
28 (prosecution failed to turn over criminal records of its “star witness”). Whereas an
106

1 inconclusive record might lead to further evidentiary development, a record based on
2 speculation does not. Woods v. Sinclair, 764 F.3d 1109, 1128 n.10 (9th Cir. 2014)
3 (federal habeas petitioner was not entitled to an evidentiary hearing to develop Brady
4 claim where he alleged “no facts to support his claim beyond the suspicion that the
5 prosecution’s delay in obtaining and reporting DNA test results indicates the destruction
6 and non-disclosure of exculpatory evidence. Bare allegations, speculation, and wishful
7 suggestions do not entitle a petitioner to an evidentiary hearing.”) (citation, internal
8 quotation marks, and brackets omitted).
9

Here, the record actually supports the inference that no Brady material existed at

10 the time of Petitioner’s trial. As stated above, the material Petitioner proffers was dated
11 after Petitioner’s trial ended. Adding to that, though, Stuart Sachs, the attorney who
12 represented Ronald Seaton in a capital trial that ran from approximately November
13 1988 to January 1989, declared that the controversy surrounding Dr. Hunter “came as
14 a complete surprise to me.” His surprise was apparently due to the fact that the memos
15 complaining about Dr. Hunter “were written in December 1988 or early January, 1989,”
16 during Seaton’s trial and several months after Petitioner’s trial ended. And, Sachs
17 stated that those memos were specifically drafted by prosecutors as part of a campaign
18 to persuade officials to award another doctor with a county contract. That assertion is
19 evidenced by additional documents proffered by Petitioner here. (Dkt. 9-1 at 34-35, 45,
20 47.) There is nothing to indicate or imply that any deputy district attorney complained
21 about Dr. Hunter in writing prior to that campaign.
22

Moreover, in Seaton, discovery was allowed on this exact Brady issue. Yet, even

23 after that discovery was conducted, the California Supreme Court still concluded that
24 “there is nothing to suggest that, before trial [in November 1988], the prosecutor was
25 aware of any such information.” Seaton, 26 Cal. 4th at 649. To the extent Petitioner
26 asserts that Dr. Hunter’s reputation must have been tarnished by the time of his own
27 trial in late 1987 and early 1988, there is nothing supporting the conclusion that there
28 was Brady material to this effect. Woods, 764 F.3d at 1128 n.10. Petitioner fails to
107

1 convince the Court that any exculpatory evidence existed or was suppressed as it
2 concerned Dr. Hunter during the relevant period. Sanders, 873 F.3d at 802; Price, 566
3 F.3d at 910 n.11.
4

Petitioner also fails to establish materiality. It is here where the context of Dr.

5 Hunter’s testimony is crucial. The primary focus of that testimony was to establish
6 Diane Harper’s cause of death. And, unlike allegations in another case that Dr. Hunter
7 made errors involving critical and disputed evidence, in this case there was no serious
8 dispute over the cause of Harper’s death.20/ The doctor’s findings confirmed what was
9 fairly obvious from other testimony and photographs, that Harper was killed by forceful
10 blows to the head. (23RT at 3193-99, 3201, 3204, 3211.) Also, apparently quite
11 different from Dr. Hunter’s “sloppy” and ill-prepared testimony in some other cases,
12 at Petitioner’s trial he referred several times to his autopsy notes to ensure the accuracy
13 of his testimony. (23RT at 3191, 3200-01, 3209, 3225-26.) At one point, Dr. Hunter
14 expressly used his notes to correct an error in his testimony and commented that he
15 should have referred to them in the first place. (23RT at 3200.)
16

On these facts, the reasoning of the California Supreme Court in Seaton applies

17 with equal force in Petitioner’s case: to the extent internal memos, had they existed yet,
18 would have shown that Dr. Hunter could be sloppy and made errors by failing to review
19 his notes, the sting of that impeachment evidence would have been severely curtailed
20 by the autopsy notes in the doctor’s lap at Petitioner’s trial. There is little chance – let
21 alone a reasonable probability – that the issues which eventually came to light about Dr.
22 Hunter’s mistakes would have caused the jury in Petitioner’s case to reject his expert
23 opinion and acquit Petitioner. Seaton, 26 Cal. 4th at 649; Turner, 137 S. Ct. at 1893.
24
25
26

20/

The tangential nature of Dr. Hunter’s testimony is also evidenced by the fact that
it spans a mere thirty pages of the 5300-page Reporter’s Transcript. (23RT 3189-3211,
28 3223-29.)
27

108

1

Petitioner logically hones in on a portion of Dr. Hunter’s testimony in which the

2 doctor opined that Diane Harper’s body showed evidence of sexual assault or attempted
3 sexual assault. That issue was, of course, crucial to the defense case and the special
4 circumstance findings. But, this aspect of Dr. Hunter’s testimony was corroborated by
5 other evidence. Criminologist Faye Springer noticed Vaseline on Diane Harper’s inner
6 thighs. Springer also removed and tested one of Harper’s pubic hairs and determined
7 that a petroleum wax product like Vaseline was on it. (21RT at 2993-98.) Coupled
8 with testimony establishing that Petitioner had Vaseline and used it to sexually assault
9 Amy Ryan, Dr. Hunter’s corroborated conclusions were only a portion of the
10 compelling evidence that Petitioner sexually assaulted the murder victim.
11

Still more important, though, and as the California Supreme Court concluded in

12 Seaton, there is ultimately a disconnect between the impeachment material that
13 eventually came to light and Dr. Hunter’s straightforward testimony in Petitioner’s case,
14 which was carefully moored to his autopsy notes. There is little chance that attacking
15 the doctor’s sloppy or even incompetent practices in unrelated cases would have
16 undermined confidence in the testimony the doctor gave here, let alone the outcome of
17 the whole trial. Turner, 137 S. Ct. at 1893; Agurs, 427 U.S. at 109-10; Barker, 423 F.3d
18 at 1099.
19

Petitioner is not entitled to federal habeas relief for his Brady claim concerning

20 issues that arose months after his trial involving Dr. Hunter. The California Supreme
21 Court’s summary denial did not amount to an erroneous application of Brady, let alone
22 one so erroneous as to exceed fairminded disagreement. Richter, 562 U.S. at 103;
23 Titlow, 571 U.S. at 19-20.
24
25

b.

Evidence of Third Party Culpability

Petitioner argues that the prosecution failed to turn over evidence that Amy Ryan

26 received threatening phone calls after the crimes occurred that were determined not to
27 be connected to Petitioner. The Court summarily denies this claim because the evidence
28
109

1 was patently immaterial. Turner, 137 S. Ct. at 1893. Even assuming the defense was
2 truly unaware of the police reports at issue, this evidence had no bearing on the trial.
3

Throughout the SAP, Petitioner makes numerous attempts to take advantage of

4 Amy Ryan’s predictably erratic behavior, her treatment by the police, and phone calls
5 she received in the period after Petitioner – by the defense’s own admission – sexually
6 assaulted her and murdered her friend. And, Petitioner seeks to draw inconsistent
7 conclusions from this evidence. On one hand, Petitioner posits that Amy was
8 Petitioner’s accomplice to her friend’s murder. Conversely, here, Petitioner apparently
9 assumes that the phone call evidence would have persuaded the jury to believe the
10 perpetrator was the caller, and that Petitioner was not even present at the crime scene.
11 When these fantastical theories start to break down or run contrary to each other,
12 Petitioner reverts to the more general contention that the evidence would have helped
13 undermine Amy’s credibility, but never in ways that are convincingly material to the
14 outcome. Put simply, this line of attack is unpersuasive, as Petitioner’s trial lawyers
15 skillfully understood.
16

The evidence that Petitioner was at the crime scene and that he committed the

17 violence was overwhelming. Amy positively identified Petitioner and testified in detail
18 about her own protracted sexual assault by Petitioner, and his statements to her about
19 killing Diane. There was physical evidence of sexual assault on Diane’s body.
20 Petitioner’s fingerprint was recovered from a beer bottle found near Diane’s body. Tire
21 impressions found near the crime scene were consistent with the tires on Petitioner’s
22 car. The cause of Diane’s death was external head trauma, and Petitioner subsequently
23 had hand and right arm injuries consistent with striking hard blows. That compelling
24 evidence is precisely why the defense conceded the basic facts and argued that
25 Petitioner was only guilty of second degree felony murder. In short, Petitioner has not
26 demonstrated that there is a reasonable probability this evidence, if disclosed, would
27 have undermined confidence in the outcome of his trial. Turner, 137 S. Ct. at 1893.
28
110

1

The state court’s denial of Petitioner’s guilt-phase Brady claims was reasonable

2 under AEDPA. Claim 12 is DENIED as to those claims.
3

K.

Breakdown of Relationship with Guilt Phase Counsel/Denial of
Marsden21/ Motions (Claim 14)

4
5

Petitioner contends his relationship with his guilt-phase lawyer, William Barnett,

6 was irreparably broken, and that the trial court deprived him of his right to counsel
7 when it rejected his attempts to remove Barnett. (SAP at 247-65; Traverse at 172-190.)
8 The record reveals a decidedly different picture, as discussed below.
9

1.

10

Legal Standard

“The Sixth Amendment guarantees criminal defendants the right to effective

11 assistance of counsel at all critical stages of the proceeding.” Carter v. Davis, 946 F.3d
12 489, 507 (9th Cir. 2019) (quoting Coleman v. Alabama, 399 U.S. 1, 7 (1970)).
13 However, under clearly established Federal law, that right only guarantees “an effective
14 advocate” and does not mean that the defendant “will inexorably be represented by the
15 lawyer whom he prefers.” Id. (quoting Wheat v. United States, 486 U.S. 153, 159
16 (1988)).
17

The Ninth Circuit has interpreted the relevant Supreme Court precedent to mean

18 that an irreconcilable conflict only arises “where there is a complete breakdown in
19 communication.” Id. at 507 (citation omitted); see also Schell v. Witek, 218 F.3d 1017,
20 1026 (9th Cir. 2000) (the Sixth Amendment is violated where there is a “total lack of
21 communication or other significant impediment” between the lawyer and client).
22 Further, “[d]isagreements over strategical or tactical decision[s] do not rise to level of
23 a complete breakdown in communication.” Carter, 946 F.3d at 507-08 (citations
24
25
26

21/

Under People v. Marsden, 2 Cal. 3d 118, 124-25 (1970), a criminal defendant in
California must be given an opportunity to explain his or her reasons for moving to
28 substitute appointed counsel.
27

111

1 omitted); see also Morris v. Slappy, 461 U.S. 1, 13-14 (1983) (the Sixth Amendment
2 does not guarantee a “meaningful relationship” between a defendant and counsel).
3

When examining whether a Sixth Amendment violation occurred, “the

4 appropriate inquiry focuses on the adversarial process, not on the accused’s relationship
5 with his lawyer as such.” United States v. Cronic, 466 U.S. 648, 657 n.21 (1984).
6
7

2.

Background Facts

Petitioner requested – and the trial court held – three separate Marsden hearings

8 before and during trial.
9
10

a.

Marsden Hearing #1

The first hearing was held approximately two months before jury selection

11 commenced, on September 28, 1987. At that hearing, Petitioner complained that
12 Barnett had only met with him once despite Petitioner making multiple requests to see
13 him. Barnett responded as follows:
14

I have been on this case since before the preliminary hearing. The

15

case was prepared to go to trial on April 24th, and I announced ready. At

16

that time the penalty phase attorney was not ready and requested more

17

time; and then Paul Zellerbach, the prosecutor, agreed that they needed

18

some more time. So, it has come on that way.

19

There is nothing more on this case that can be done. Everyone has

20

been interviewed. The forensic evidence has all been reviewed heavily

21

and thoroughly. [¶] Mr. Grossman and I at preliminary hearing time spent

22

hours with Hr. Hart.

23

We stopped trying to visit Mr. Hart. The investigators stopped

24

trying to visit Mr. Hart when[,] every time they would go up[,] there were

25

penalty phase investigators spending hours up there. They went over

26

daily, I guess, over reports, et cetera, with Mr. Hart.

27

I told Mr. Hart a long time back that I was not going to come up and

28

babysit him, and I wasn’t going to come up and visit and chat, that I was
112

1

hired and appointed to prepare his case, [and] that is what I would work

2

on; but any time Mr. Hart had any new evidence or something to add to

3

the case, to let me know either by collect phone call or – [but] Mr Hart

4

would send a list of questions that all had to do with why haven’t I been

5

there.

6

When he says no one has been interviewed, this case has been

7

prepared and ready for trial since April 24th – well, before that. I

8

announced ready on the 24th.

9

When Mr. Hart gives me a list of questions that [do not] require my

10

presence, the next time I see him in court I tell him the answers. He has

11

hated the answers.

12

Mr. Grossman can verify how thoroughly we talked with Mr. Hart

13

and discussed all of the evidence with Mr. Hart, and that part of the

14

evidence that we had to overcome, or have problems with, and that part

15

that needs explaining.

16

And when Mr. Hart said to me, “Listen, didn’t Judy tell you I was

17

mad at you?” I said, “Yeah, she did,” but I said, “I am not here to run a

18

popularity contest. I am here to be the best you can possibly have. That

19

is what you have got. If you are mad at me, I am sorry; but I am busting

20

my ass on the case. That is what I will do, and not visit.”

21

So, there isn’t anything to do on this case that hasn’t been done,

22

except possibly be at Mr. Hart’s beck when he wants us to come up there.

23

He has free and total access to the telephone for collect calls any time he

24

wants to call, and they accept the charges and relay messages.

25
26

There isn’t any new evidence on the case, there hasn't been from the
very beginning. That is where we are at.

27
28
113

1

If Mr. Hart – well, you can tell from what he said. There isn’t

2

anything I haven’t done on the case for the forensic part of the case and

3

legal part of the case. I just haven’t visited him.

4 (Dkt. 96-5 at 4-6.)
5

The court asked Barnett if, in his view, the working relationship with Petitioner

6 had materially deteriorated. Barnett answered:
7

No. I just think what happened, when a second set of investigators

8

and a second attorney entered the case, Mr. Hart began to get daily visits

9

and all kinds of – I think Mr. Hart then wanted everybody to do this; and

10

it isn’t going to help Mr. Hart’s case if I come up there and spend 24 hours

11

a day with him. What is going to help his case is for me to get a chance

12

to try it.

13

I don’t think, not on my end, it has deteriorated. We talk. I don’t

14

think he is angry at me. I just think he wants me to come and visit him

15

more, and that isn’t going to help anything.

16 (Dkt. 96-5 at 6-7.)
17

Petitioner subsequently confirmed that his only concern was that he felt he did

18 not “know what is going on. I mean, I am sitting back, you know.” Barnett agreed to
19 visit Petitioner and discuss the case, adding that “the posture of the case has not
20 changed since the day . . . of the preliminary hearing.” The court denied Petitioner’s
21 request to relieve Barnett. (Dkt. 96-5 at 7-8.)
22
23

b.

Marsden Hearing #2

About a month later, on October 30, 1987, Petitioner made a new request to

24 relieve Barnett. This time, Petitioner stated that he was worried the defense was not
25 ready to start trial because – again – Barnett was not keeping Petitioner apprised about
26 the progress of the lawyer’s investigations. Petitioner also claimed that Barnett was
27 intimidating when they met, and that Petitioner was afraid to bring up questions he had
28
114

1 about the case. Petitioner stated that he lacked confidence in Barnett and did not want
2 him to continue as Petitioner’s attorney. (Dkt. 96-6 at 3-5.)
3

As in the first Marsden hearing, Barnett explained in detail the work that was

4 going into the case. He first stated that the only significant witness to the guilt phase
5 was Amy Ryan, and that she was refusing to meet with the defense. Barnett also
6 explained that the defense case hinged on forensic evidence, and that the defense hired
7 a forensic expert who had thoroughly reviewed the case. Barnett also stated that he had
8 already explained to Petitioner “on every occasion that we have ever talked what the
9 evidence is and what we have to overcome.” Additionally, Barnett discussed the fact
10 that penalty-phase defense investigators were meeting with Petitioner more frequently
11 due to the nature of the defense’s penalty-phase case. Barnett opined that those
12 meetings were creating an unrealistic expectation on Petitioner’s part that guilt-phase
13 investigators (and Barnett) should meet more often with him. Finally, Barnett stated
14 that he was not providing copies of police reports to Petitioner due to confidentiality
15 issues, i.e., for fear of other inmates seeing the information. (Dkt. 96-6 at 5-8.) Barnett
16 added the following:
17

On any kind of a case such as this, it probably would behoove the

18

attorney that’s in it to welcome an opportunity to get off the case because

19

these are very difficult, but that isn’t my attitude. This Court has tried

20

cases with me, and it makes no difference whether Mr. Hart likes me. He

21

needs me. He needs my expertise. He needs the defense that I would give

22

him, and I would give as vigorous a defense to people who don’t like me

23

as who do like me because it has nothing to do with my professional pride

24

nor my professional ethics.

25 (Dkt. 96-6 at 6.)
26

Petitioner expressed concern that he was not privy to some other inmates who

27 were potential prosecution witnesses. Barnett provided the court with the names of
28 those possible witnesses, stated that he already told Petitioner who those witnesses
115

1 were, and explained that Petitioner said he had never met them. However, Barnett also
2 (correctly) predicted that none of those witnesses would testify for the prosecution in
3 the guilt phase. (Dkt. 96-6 at 9-10.)
4

The court told Petitioner that Barnett had “more experience in this county with

5 capital litigation than any other attorney in the county,” and that it is sometimes sound
6 strategy in capital cases to keep a “low profile” in the guilt phase when the evidence is
7 extremely damaging so as to retain credibility for the penalty phase. Petitioner stated
8 that he understood. The court denied the request to relieve Barnett. (Dkt. 96-6 at 109 13, 18.)
10
11

c.

Marsden Hearing #3

After the evidence was complete during the guilt phase of trial, on February 4,

12 1988, Petitioner made his last Marsden motion. This time he raised complaints about
13 Barnett’s performance. He argued that Barnett should have challenged a pretrial lineup
14 based on his alleged mistreatment and compulsion to participate in it without a lawyer
15 present. (Dkt. 97-32 at 3-4.) The court summarily rejected Petitioner’s argument,
16 finding that the only legal basis for challenging the pretrial lineup would be that it was
17 unduly suggestive. (Dkt. 97-32 at 4-5.) The court then, having heard the trial evidence,
18 spoke frankly to Petitioner:
19

[T]he bottom line question, . . . [is] the underlying fairness of the

20

lineup, and I would have to make those decisions based upon what I see

21

in terms of the picture, and what I’ve seen from Amy Ryan[. A]nd based

22

upon what she said in court and so forth, it strikes me that the lineup was

23

still fair and in all likelihood allowed in[,] and that’s beyond the point of

24

saying . . . there’s lots of evidence connecting you with this offense, Mr.

25

Hart.

26 (Dkt. 97-32 at 6.) Petitioner responded, “Right, I understand that.” (Dkt. 97-32 at 6.)
27

The court continued:

28
116

1

The fingerprint, the four different tires on the car, at some point in

2

time it gets to be, the lineup almost becomes icing on the cake. She came

3

into court, she’s identified you in court and I suspect if we didn’t have any

4

evidence of the lineup at all, it would make no difference in this particular

5

case in terms of tying you to the offense. What you’re guilty of is a

6

different question, but tying you to being up there with the two girls, I

7

would – I’ve tried not to form conclusions, I have tried to act 1ike a juror,

8

but I have heard the evidence, and I must say from my point of view the

9

evidence against you that you were up in that area is more than

10

overwhelming.

11 (Dkt. 97-32 at 6.) Petitioner responded, “Yes, I mean we’re not disputing the fact that
12 I was up there.” (Dkt. 97-32 at 6.)
13

Petitioner also faulted Barnett for failing to impeach Amy Ryan sufficiently on

14 various aspects of her testimony, such as which of the two girls approached his car first
15 and whether the girls were feuding. (Dkt. 97-32 at 7-10.) The court responded that
16 some of those issues were immaterial and others were more appropriately raised in
17 Barnett’s closing argument. (Dkt. 97-32 at 9-11.) Barnett stated that he wrote an
18 outline of that argument for Petitioner’s review, so Petitioner “knows the direction of
19 the argument.” (Dkt. 97-32 at 11.)
20

Petitioner more generally complained that Barnett had failed to present “any

21 other possibilities of what else could have happened,” and the court responded, “He’s
22 a lawyer[,] not a magician. I mean, seriously, what could he say?” (Dkt. 97-32 at 13.)
23 After additional discussion about why a diminished capacity defense was not
24 appropriate under the circumstances, Petitioner stated, “I’ve just been sitting here . . .
25 you know, my life is on the line and I’m just sitting here wanting questions asked, and
26 I don’t feel they were being asked. It’s . . . very possible, he is a lawyer, he knows what
27 he’s doing and he knows the strategy . . . .” (Dkt. 97-32 at 15.) Petitioner subsequently
28 added: “I know, I did everything except leave my driver’s license [at the crime scene].”
117

1 (Dkt. 97-32 at 17.) After further discussion about other concerns Petitioner had such
2 as pretrial publicity (an issue that had already been thoroughly vetted during voir dire),
3 Petitioner stated, “I’m just, you know, my life is on the line, I am scared to death, and
4 I felt like I have been sitting here and not saying anything that’s been on my mind and
5 I wanted to get this off my mind, the questions that have been bothering me.” (Dkt. 976 32 at 20.)
7

The court concluded as follows:

8

I see no basis, no ruling has been asked for, we’ve had the talk. For

9

the record, it strikes me [from] what I’ve heard here, the investigation [by

10

defense counsel was] perhaps even more extensive than I had

11

anticipated[,] and I anticipated even an extensive investigation, so from

12

what I’ve heard here, everything brought up, you have already looked

13

[in]to, Mr. Barnett, so I commend you on that.

14 (Dkt. 97-32 at 21.)
15
16

d.

State Court Decision

The California Supreme Court affirmed the trial court’s refusals to relieve Barnett

17 as follows:
18

The record amply supports each one of the trial court’s rulings

19

denying defendant’s Marsden motions. At the first hearing, the trial court

20

reasonably concluded that trial counsel was prepared for trial and therefore

21

did not need to visit defendant on a regular basis. “[T]he number of times

22

one sees his attorney, and the way in which one relates with his attorney,

23

does not sufficiently establish incompetence.” At the second hearing, the

24

trial court reasonably concluded that trial counsel’s decision not to provide

25

defendant with copies of the police reports was a tactical decision made in

26

defendant’s best interests. At the third hearing, the trial court recognized

27

the tactical bases for trial counsel to refrain from challenging the

28

testimony of victim Amy R. regarding minor details of her testimony, and
118

1

reiterated the view that trial counsel’s investigation had been more than

2

adequate.

3

In sum, the record is clear that the trial court provided defendant

4

with repeated opportunities to voice his concerns, and upon considering

5

those concerns reasonably found them to be insufficient to warrant

6

relieving trial counsel. We therefore find no basis for concluding that the

7

trial court either failed to conduct a proper Marsden inquiry or abused its

8

discretion in declining to substitute counsel.

9 People v. Hart, 20 Cal. 4th at 604 (citations omitted).
10
11

e.

Petitioner’s Supplemental Authority

After briefing was completed in this federal habeas action, Petitioner pointed the

12 Court to a subsequently-decided Supreme Court case, McCoy v. Louisiana, ___ U.S.
13 ___, 138 S. Ct. 1500 (2018). In that case, the Supreme Court held that “a defendant has
14 the right to insist that counsel refrain from admitting guilt, even when counsel’s
15 experienced-based view is that confessing guilt offers the defendant the best chance to
16 avoid the death penalty.” Id. at1505. In McCoy, the High Court also held that such an
17 error is structural, and not subject to harmless error review. Id. at 1511-12. If “a client
18 declines to participate in his defense, then an attorney may permissibly guide the
19 defense pursuant to the strategy she believes to be in the defendant’s best interest.
20 Presented with express statements of the client’s will to maintain innocence, however,
21 counsel may not steer the ship the other way.” Id. at 1509. Notably, in McCoy, the
22 defendant “vociferously insisted that he did not engage in the charged acts and
23 adamantly objected to any admission of guilt.” Id. at 1505. The defendant was
24 “furious” when his counsel told him about the plan to concede guilt, and told counsel
25 not to make the concession. Id. at 1506. The defendant also testified to his innocence
26 in contradiction of his attorney’s theory of the case. Id. at 1507. In essence, the
27 defendant “opposed [his lawyer’s] assertion of his guilt at every opportunity, before and
28 during trial, both in conference with his lawyer and in open court.” Id. at 1509.
119

1

The Supreme Court specifically held that, once the defendant communicated his

2 insistence that he was innocent “to court and counsel, strenuously objecting to [the
3 lawyer’s] proposed strategy, a concession of guilt should have been off the table,” and
4 that the trial court violated the Sixth Amendment by allowing counsel to concede guilt
5 despite the defendant’s “insistent objections.” Id. at 1512.
6

In Petitioner’s case, the defense conceded that Petitioner was the perpetrator, but

7 proffered that the forensic evidence only proved, at most, second-degree murder.
8 Petitioner claims he disagreed with that approach and that his case falls within the ambit
9 of McCoy. (Dkt. 133.)
10
11

3.

Analysis

The conclusion of the California Supreme Court was not contrary to, or an

12 unreasonable application of, clearly established Federal law. 28 U.S.C. § 2254(d). The
13 trial record reveals that Petitioner received from Barnett what the Sixth Amendment
14 guarantees: “an effective advocate.” Carter, 946 F.3d at 507; Wheat, 486 U.S. at 159.
15 Petitioner’s Marsden hearings do not reveal a lawyer and client embroiled in any
16 measurable conflict. Petitioner never objected to Barnett’s vigorous efforts on his part.
17 Nor did Petitioner ever articulate a legitimate basis for his dissatisfaction. Instead, the
18 record reveals that Petitioner had anxiety about the damning evidence against him as
19 his trial date approached. And, for his part, Barnett made his strategy and reasoning
20 abundantly clear. He did not want to waste time meeting regularly with Petitioner to
21 discuss the evidence, but instead focus his efforts on developing a trial strategy based
22 on challenging the prosecution’s forensic evidence.
23

As discussed later in this Order, there were sound strategic reasons for counsel’s

24 approach to choosing a defense theory, which included remaining circumspect about
25 impeaching the credibility of the young, living victim. There is no indication that
26 Petitioner failed to understand his lawyer’s strategy, especially since Petitioner
27 eventually admitted that the evidence identifying him as the perpetrator gave the
28 attorney so little to work with. Carter, 946 F.3d at 507 (Sixth Amendment violation
120

1 only occurs where there is a “complete breakdown in communication”); Schell, 218
2 F.3d at 1026 (a Sixth Amendment violation means a “total lack of communication”).
3 Moreover, even assuming Petitioner disagreed with his attorney’s strategy, that alone
4 would not constitute an irreconcilable conflict. Carter, 946 F.3d at 507-08 (citations
5 omitted). Additionally, to the extent Petitioner claimed that Barnett was intimidating,
6 there is nothing in the record to conclude that it materially affected the defense case.
7 Cronic, 466 U.S. 648, 657 n.21 (“the appropriate inquiry focuses on the adversarial
8 process, not on the accused’s relationship with his lawyer as such.”); Morris, 461 U.S.
9 at 13-14 (the Sixth Amendment does not guarantee a “meaningful relationship” between
10 a defendant and counsel).
11

Finally, as discussed above, Petitioner did not assert his innocence, let alone

12 vociferously. His case is far and away distinguishable from McCoy despite his
13 argument to the contrary. There is no reason to conclude that Barnett conceded any fact
14 that was not abundantly clear from the evidence, or that he did so over Petitioner’s
15 objection. (See Dkt. 97-31 at 33-34 (Petitioner affirmatively agreeing with defense
16 strategy).) The fact is that Petitioner’s Marsden motions were indicative of general
17 angst about the evidence against him in light of the stakes, not an irreconcilable conflict
18 with his attorney, or because Petitioner was insistent about his innocence despite
19 counsel’s concessions to the contrary. Carter, 946 F.3d at 507; McCoy, 138 S. Ct. at
20 1512.
21

Claim 14 is DENIED.

22

L.

23

Petitioner argues that the trial court committed a number of constitutional

Exclusion of Impeachment Evidence of Amy Ryan (Claim 15)

24 violations by excluding evidence of a lawsuit the surviving victim filed against the
25 Riverside County Sheriff’s Department. (SAP at 265-72; Traverse at 190-95.)
26

On direct appeal, the California Supreme Court denied Petitioner’s related claim

27 based on the following findings of fact and legal conclusions:
28
121

1

Amy filed a civil suit alleging that the Riverside County Sheriff’s

2

Department mistreated her and lied to her at the time she reported the

3

murder of her friend, Diane. Prior to commencement of the parties’

4

opening statements (at a hearing conducted outside the jury’s presence

5

pursuant to [California] Evidence Code section 402), the trial court ruled

6

that the allegations set forth in the civil suit would be inadmissible as

7

character evidence against sheriff’s department officials, but might be

8

admissible as impeachment evidence if discrepancies appeared in the

9

testimony offered at trial by Amy and the officials.

10

During trial, defendant’s counsel requested a second hearing on this

11

issue outside the jury’s presence. At that hearing, counsel contended that

12

evidence pertaining to Amy’s civil suit was “relevant in that it might be

13

motivation for Amy to make a stronger statement for herself, and for the

14

officers to make a protective statement for themselves.” The prosecutor

15

contended that evidence of Amy’s civil suit was irrelevant and, even if it

16

were relevant, should be excluded pursuant to [California] Evidence Code

17

section 352. In support of his argument, the prosecutor observed that “90

18

percent of the investigative reports prepared by the detectives in this case

19

or – who are the subjects of the civil lawsuit, were prepared at sometime

20

prior to the lawsuit even being filed.”

21

The trial court found: “Th[is] court’s confident that within the

22

meaning of Evidence Code section 352, whatever probative value that

23

evidence would have, and I can’t think of very much, is substantially

24

outweighed by the probability that it . . . will first of all necessitate undue

25

consumption of time and will create a substantial danger, undue prejudice,

26

of confusing the issues, and of misleading the jurors. [¶] I think that what

27

goes into filing a lawsuit [–] that motivation is really impossible for us to

28

know, and what [e]ffect that lawsuit has on people testifying, especially
122

1

when there are written police reports, especially when there are statements

2

made before a lawsuit was even conceived as a possible way to go. [¶] It

3

strikes me that there’s just not probative value to that. So, for those

4

reasons, the court will exclude that evidence.”

5

On appeal, defendant contends the trial court prejudicially erred in

6

excluding evidence of Amy’s civil suit. In defendant’s view, evidence of

7

that lawsuit provided a “relevant basis upon which to attack [Amy’s]

8

credibility.” ([Cal.] Evid Code[] § 780.) Defendant contends that he was

9

entitled to expose the biases or motives to lie that may have been held by

10

the witnesses who testified against him, and that the trial court’s ruling

11

infringed upon his rights to a fair trial, to counsel, to confront the

12

witnesses against him, to due process of law, and to a reliable verdict

13

under the United States and California Constitutions.

14

....

15

[D]efendant’s contentions do not withstand scrutiny. Assuming,

16

without deciding, that evidence of Amy’s civil suit satisfied the definition

17

of relevancy set forth in [California] Evidence Code section 210, we

18

conclude that the trial court did not abuse its discretion in excluding the

19

proffered evidence pursuant to [California] Evidence Code section 352.

20

In basing its ruling upon the principles set forth in the latter statute, the

21

trial court accepted defendant’s contention – at least, for purposes of

22

argument – that the proffered evidence had some relevance. As noted, the

23

trial court thereafter concluded that Amy’s civil suit had only minimal

24

probative value, and that such value was substantially outweighed by the

25

probability that presentation of the evidence would require the undue

26

consumption of time and would create a substantial risk of confusing the

27

issues and misleading the jurors.

28

....
123

1

Here, the trial court properly could conclude the circumstance that

2

Amy filed a civil suit against the Riverside County Sheriff’s Department

3

was of attenuated significance to the issues contested at trial, particularly

4

inasmuch as the observations of sheriff’s deputies that were material to the

5

present case were set forth to a great extent in reports prepared well before

6

Amy filed her civil suit, and because the deputies’ observations and

7

recollections could be tested on cross-examination on the basis of those

8

reports.

9

admission of evidence of Amy’s civil suit would have permitted the focus

10

of the testimony to shift away from the events leading to and involving the

11

charged offenses, to the conduct of law enforcement officers after those

12

offenses had been committed. The trial court acted within its discretion

13

in determining that such a shift presented a substantial risk of confusing

14

or misleading the jury.

Further, the trial court properly could determine that the

15

Nor do we find any constitutional infirmity in the trial court’s

16

ruling. The court merely exercised its discretionary power to preclude

17

examination on collateral matters. (Citation omitted.)

18

Finally, even if we were to assume that the trial court erred in

19

excluding this evidence, reversal would not be warranted. Defendant’s

20

involvement in the murder of Diane Harper and the sexual assault of Amy

21

was firmly established. His defense focused upon the nature of the sexual

22

misconduct committed at the crime scene. Hence, under any prejudicial

23

error standard, the asserted error was harmless. (Citations omitted.)

24 People v. Hart, 20 Cal. 4th at 604-07 (footnotes omitted); (see also 17RT at 2326-34.)
25

As is made clear by the state court’s decision, the issue Petitioner raises is

26 fundamentally an evidentiary issue governed by state law. As a result, it is not
27 cognizable here. 28 U.S.C. § 2254(a); McGuire, 502 U.S. at 67-68; Windham, 163 F.3d
28
124

1 at 1103.

Petitioner’s attempts to shoehorn in constitutional arguments are not

2 successful. Langford, 110 F.3d at 1389; see also Miller, 757 F. 2d at 993-94.
3

Further, even assuming there was a viable constitutional argument to be made

4 here, AEDPA places too high of a hurdle. Petitioner’s claim, had it implicated the
5 Constitution, would concern his constitutional right to present a complete defense. See
6 Crane v. Kentucky, 476 U.S. 683, 690 (1986) (“[T]he Constitution guarantees criminal
7 defendants a meaningful opportunity to present a complete defense.”) (internal
8 quotation marks omitted). But, for relief under AEDPA, the governing law must be
9 clearly established, and the Supreme Court has only set forth clearly established
10 principles governing the right to present a defense “in cases where defendants have
11 argued that state evidentiary rules, by their own terms, impinge upon their constitutional
12 right to present a complete defense.” Moses, 555 F.3d at 757. Petitioner’s argument
13 “is best interpreted as challenging the trial court’s exercise of discretion” to exclude the
14 evidence under California Evidence Code section 352, and there is no Supreme Court
15 precedent squarely addressing that issue. Id. at 758. Nor has the Supreme Court clearly
16 established “‘a controlling legal standard’ for evaluating discretionary decisions to
17 exclude the kind of evidence at issue here.” Id. at 758-59 (citation omitted); see also
18 Holmes v. South Carolina, 547 U.S. 319, 326 (2006) (trial judges may exclude evidence
19 if its probative value is outweighed by other factors such as unfair prejudice, confusion
20 of the issues, or potential to mislead the jury). Consequently, the California Supreme
21 Court’s decision affirming the trial court’s ruling in this case “cannot be contrary to or
22 an unreasonable application of clearly established Supreme Court precedent.” Moses,
23 555 F.3d at 759.
24

Finally, even beyond the confines of AEDPA, Petitioner has not demonstrated

25 that the evidentiary ruling at issue implicates his constitutional rights. “[A] defendant’s
26 right to present relevant evidence is not unlimited, but rather is subject to reasonable
27 restrictions,” such as evidentiary and procedural rules. Moses, 555 F.3d at 757 (quoting
28 United States v. Scheffer, 523 U.S. 303, 308 (1998)). The exclusion of evidence under
125

1 such well-established evidentiary rules is unconstitutional only where it “significantly
2 undermine[s] fundamental elements of the accused’s defense.” Scheffer, 523 U.S. at
3 315. Generally, without “unusually compelling circumstances” the right to present a
4 defense is not outweighed by the strong state interest in administration of its trials.
5 Moses, 555 F.3d at 757; Perry v. Rushen, 713 F.2d 1447, 1452 (9th Cir. 1983). As
6 discussed in other sections of this Order, Barnett reasonably focused his defense of
7 Petitioner on forensic weaknesses in the prosecution’s case in lieu of attempting to
8 implicate Amy Ryan in the crimes. Not only would the excluded evidence have played
9 little role in the “fundamental elements” of Petitioner’s defense, it would have opened
10 the door to an unusually risky victim-blaming strategy. Scheffer, 523 U.S. at 315.
11 Petitioner’s right to present a defense was not violated here.
12

Petitioner is not entitled to federal habeas relief for his challenge to the state

13 court’s evidentiary ruling. Claim 15 is DENIED.
14

M.

Prosecutorial Misconduct (Claim 16)

15

Petitioner raises two constitutional claims aimed at the prosecutor’s conduct in

16 the penalty phase of trial. The first concerns testimony the prosecutor elicited and
17 related comments the prosecutor made in his closing argument. The second alleges that
18 the prosecutor knowingly presented false testimony by jailhouse informant Randall
19 Gresham. (SAP at 272-81; Traverse at 196-202.) The Court addresses the former
20 argument here. The latter subclaim is addressed later in this Order.
21

Petitioner argues that the prosecutor made several improper references to his own

22 presence during various parts of the murder investigation. Notably, after asking several
23 witnesses to confirm that he was present at crime scenes, autopsies, etc., the prosecutor
24 later stated in the penalty-phase rebuttal closing argument that:
25

I’ve been living with this case for almost two years, actually, over two

26

years. From the date of March 24th when I was called out to the Badlands,

27

I had the unfortunate opportunity of seeing Diane Harper’s body. [¶] I

28

also had the unfortunate opportunity of seeing Shelah McMahan’s body.
126

1

[¶] Obviously, words are insufficient by me to relate to you the feelings

2

I experienced.

3 (41RT at 5240-41.)
4 Petitioner argues that the prosecutor’s comments implied personal knowledge of the
5 legitimacy of the investigation. (SAP at 272-79; Traverse at 196-98.)
6

A prosecutor has a duty to refrain from using improper methods to procure a

7 conviction. United States v. Hill, 953 F.2d 452, 458 (9th Cir. 1991). However, a
8 prosecutor must have reasonable latitude to fashion closing arguments. United States
9 v. Molina, 934 F.2d 1440, 1445 (9th Cir. 1991). Thus, while inappropriate comments
10 by the prosecutor in the presence of the jury may constitute prosecutorial misconduct,
11 it is not enough that the prosecutor’s remarks were undesirable or even universally
12 condemned. Darden v. Wainwright, 477 U.S. 168, 179-81, 106 S. Ct. 2464 (1986).
13 The determinative inquiry is whether the prosecutor’s comments so infected the trial
14 with unfairness as to make the resulting conviction a denial of due process. Id. at 181;
15 see also Duckett v. Godinez, 67 F.3d 734, 743 (9th Cir. 1995). It is also incumbent upon
16 Petitioner to affirmatively demonstrate he was prejudiced, Gallego v. McDaniel, 124
17 F.3d 1065, 1079 (9th Cir. 1997), and the actions of the prosecutor must be considered
18 in the context of the entire trial. United States v. Weitzenhoff, 35 F.3d 1275, 1291 (9th
19 Cir. 1993).
20

On direct appeal, the California Supreme Court ruled that the issue was waived

21 because the defense made no objection at trial to the alleged misconduct. However, the
22 court alternatively held that:
23

even if defendant had preserved his claim and we were to assume that the

24

challenged remarks of the prosecutor constituted misconduct, we would

25

conclude that in view of the overwhelming evidence against defendant and

26

the nature of the prosecutor’s comments, there is no possibility that the

27

jury would have reached a verdict more favorable to defendant in the

28

absence of these comments.
127

1 People v. Hart, 20 Cal. 4th at 619-20.
2

Petitioner has provided the Court with no guidance to define “improper

3 vouching” under clearly established Federal law. He cites only one Supreme Court case
4 addressing vouching, United States v. Young, 470 U.S. 1 (1985), a decision in which the
5 Federal Rules of Criminal Procedure, not the Constitution, provided the relevant legal
6 standard. See id. at 15. Although not controlling here, the Ninth Circuit’s definition
7 of improper vouching provides some guidance. Circuit courts have recognized two
8 types of improper vouching by a prosecutor: “The first type consists of placing the
9 prestige of the government behind a witness through personal assurances of the
10 witness’s veracity. The second type consists of suggesting that information not
11 presented to the jury supports the witness’s testimony.” Draper v. Rosario, 836 F.3d
12 1072, 1083 (9th Cir. 2016) (citations and internal quotation marks omitted). The
13 prosecutor’s actions here do not belong in either category.
14

In Petitioner’s case, the prosecutor merely established through various witnesses

15 his own presence at the scene of various portions of the investigation. Then, during
16 argument, the prosecutor commented on his own emotional reaction to seeing the bodies
17 of the young victims. This was hardly new information to jurors, who heard graphic
18 testimony and were shown photographs of the victims. Petitioner has failed to establish
19 “improper vouching” under any particular standard, let alone clearly-established Federal
20 law. Van Patten, 552 U.S. at 125-26.
21

Petitioner also falls short of demonstrating that the prosecutor’s comments, or the

22 related testimony, was so egregious that they could have rendered his trial
23 fundamentally unfair. Darden, 477 U.S. at 181. Whatever speculative inference a juror
24 might have made about the evidence after learning the prosecutor was involved in the
25 investigation, it would have been minuscule in the context of an entire trial in which the
26 evidence of Petitioner’s guilt was overwhelming. See Hall v. Whitley, 935 F.2d 164,
27 165-66 (9th Cir. 1991) (rejecting due process challenge to prosecutor’s closing
28 argument where “put in proper context, the comments were isolated moments in a three
128

1 day trial.”); see also Comer v. Schriro, 463 F.3d 934, 961 (9th Cir. 2006) (comment by
2 prosecutor could not violate due process in light of strength of evidence of petitioner’s
3 guilt).
4

Petitioner also complains that the state court, by concluding that there was “no

5 possibility that the jury would have reached a verdict more favorable to defendant in the
6 absence of these comments,” employed the wrong standard for determining
7 prosecutorial misconduct. Petitioner’s argument is beside the point. Indeed, the state
8 court’s language refers to the harmless error standard for reversal on appeal under state
9 law. See People v. Watson, 46 Cal. 2d 818, 836 (1956) (trial error requires reversal
10 only where it is “reasonably probable that a result more favorable to the appealing party
11 would have been reached in the absence of the error.”). That the state court also found
12 Petitioner’s prosecutorial misconduct claim harmless under state law does not discount
13 the fact that it rejected the claim on the merits for reasons entirely consistent with
14 Darden. Richter, 562 U.S. at 98 (“[A]s this Court has observed, a state court need not
15 cite or even be aware of our cases under § 2254(d).”).
16

Petitioner is not entitled to federal habeas relief for his claim of prosecutorial

17 misconduct based on improper vouching. Darden, 477 U.S. at 181.
18

The first subclaim in Ground 16 is DENIED.

19

N.

20

Petitioner challenges the trial court’s instruction regarding consciousness of guilt

Instructional Error: Destruction of Evidence (Claim 17)

21 and the destruction of evidence. (SAP at 281-83; Traverse at 202-03.)
22
23
24

1.

Factual Background
a.

Relevant Trial Evidence

Amy Ryan testified that, on the day of the crimes, Petitioner drove a brown two-

25 door Toyota. (18RT at 2526, 2529.) She saw an orange towel on the dashboard.
26 (18RT at 2583.) The victim also testified that the back of the car had a license plate
27 frame that read, “Have a Nice Day.” The car had two rear bumper stickers; one said
28 “Skiier” and the other said “State Farm.” (18RT at 2553-55.)
129

1

Just over a month after the crimes, homicide investigators spotted Petitioner’s

2 brown Toyota Corolla parked at his residence. Believing it matched the vehicle
3 described by Amy Ryan, those investigators contacted the detectives conducting the
4 Diane Harper murder investigation. (20RT at 2852-55, 2859-60, 2892-93.) Those
5 detectives went the following day to Petitioner’s residence. Petitioner’s wife gave them
6 permission to inspect Petitioner’s car. (20RT at 2893-95.) The detectives compared the
7 car to photos taken at the crime scene. They found that the tires on Petitioner’s car
8 matched the tire prints at the crime scene. (20RT at 2895-96.) Amy Ryan told the
9 detectives there were two screwdrivers in the car, and the detectives found them. (20RT
10 at 2897.) The car also had several other features that Amy Ryan described, including
11 a license plate frame that read, “Have a Nice Day,” a State Farm bumper sticker, and
12 another bumper sticker “that was partially removed.” Detectives noticed “a couple
13 marks from a bumper sticker that had been removed from on top of the” partially14 removed sticker. (20RT at 2896-97.) On the ground in front of the car, a detective
15 found “a torn portion of a bumper sticker which [had] the block letters I E R on it, as
16 well as part of a mountain skiing type scene.” (20RT at 2897-98.) The detective
17 observed that the removed portion of the bumper sticker was “fairly fresh looking” and
18 had recently been torn off. (20RT at 2900.)
19

While searching Petitioner’s property, detectives found an orange towel. They

20 also found several beer bottles and cigarette butts, which were the same brand and type
21 found at the crime scene. (20RT at 2899-2900.)
22

After the sheriff’s forensic department found a match between Petitioner’s

23 fingerprints and a fingerprint lifted from a beer bottle at the crime scene, detectives
24 obtained a search warrant for Petitioner’s residence. (20RT at 2900-02.) That search
25 turned up additional incriminating evidence, such as jars of Vaseline – Amy Ryan
26 testified that Petitioner used Vaseline in assaulting her, and a petroleum jelly substance
27 was discovered on Diane Harper’s inner thighs – and a brand of cigarettes that the
28 victim described Petitioner smoking. (20RT at 2905.) A search of the outside
130

1 perimeter of the residence turned up other portions of a torn bumper sticker “that had
2 Skiier and the skiing design on it.” Those pieces were crumpled together into a ball.
3 (20RT at 2907-08.) Detectives also found a pair of partially-burned tennis shoes in a
4 55-gallon drum that had been used as an incinerator. (19RT at 2764-65, 2772; 20RT
5 at 2908.) The tread on the shoes matched shoe prints found at the crime scene. (20RT
6 at 2909.)
7

Petitioner’s father-in-law testified that, at some point prior to Petitioner’s arrest,

8 he noticed that Petitioner had used three pieces of plywood to conceal the brown Toyota
9 on the property. The father-in-law assumed Petitioner was hiding the car from a bill
10 collector. (22RT at 3037-38.) He also noticed that a yellow sticker saying “Caution
11 Child in Car” had been put on the rear window shortly before Petitioner’s arrest. (22RT
12 at 3040.) There was also testimony that Petitioner changed his hairstyle to some degree
13 before he was put in a lineup and positively identified by Amy Ryan, and that he
14 changed it back the next day. (20RT at 2882-83.)
15

Finally, after the crimes were committed, Diane Harper’s purse and belongings

16 were found in a local reservoir. (19RT at 2707-13.)
17
18

b.

Proceedings Concerning the Jury Instruction

The prosecutor requested that the court include CALJIC No. 2.06 in the jury

19 instructions, California’s standard instruction concerning a defendant’s attempts to
20 suppress evidence and the jury’s option to consider those attempts as consciousness of
21 guilt. The court inquired whether the prosecutor requested the instruction based on “the
22 shoes among other things and bumper sticker” as well as “hiding the car with the
23 plywood and possibly changing appearance and so forth.” The prosecutor replied,
24 “Yes, Your Honor.” The defense did not object and the court agreed to give the
25 instruction. (26RT at 3434.) Neither this instruction nor the evidence supporting it
26 played any part in closing arguments, as the defense theory of the case conceded that
27 Petitioner killed one victim and sexually assaulted the other.
28

The trial court ultimately gave the jury CALJIC No. 2.06 as follows:
131

1

If you find that a defendant attempted to suppress evidence against

2

him in any manner, such as by destroying evidence or by concealing

3

evidence, such attempts may be considered by you as a circumstance

4

tending to show a consciousness of guilt. However, such evidence is not

5

sufficient in itself to prove guilt and [its] weight and significance, if any,

6

are matters for your consideration.

7 (26RT at 3468); see CALJIC No. 2.06.
8
9

c.

State Court Decision

On direct appeal, the California Supreme Court denied Petitioner’s challenge to

10 CALJIC No. 2.06, in pertinent part, as follows:
11

In the present case, the record discloses evidence that, after Diane

12

was murdered, defendant disposed of her purse, including her

13

identification, at Lake Matthews, removed and replaced bumpper stickers

14

on his car, burned a pair of tennis shoes, and used plywood to shield his

15

car from view. Furthermore, when defendant was arrested, he wore his

16

hair parted in. the middle, wavy and fluffy, similar to the style Amy had

17

described, but at the in-person lineup, defendant wore his hair wet or oily,

18

and combed straight back. The next day, defendant returned to his

19

previously preferred “dry look.”

20

The jury reasonably could infer from the foregoing evidence that

21

defendant attempted to suppress evidence. Actual destruction of that

22

evidence was not required. The trial court therefore properly instructed

23

the jury pursuant to CALJIC No. 2.06.

24 People v. Hart, 20 Cal. 4th at 621.
25
26

2.

Legal Standard

Generally, claims regarding improper jury instructions are not cognizable on

27 federal habeas review. McGuire, 502 U.S. at 71-72 (“[T]he fact that an instruction was
28 allegedly incorrect under state law is not a basis for [federal] habeas relief”). Instead,
132

1 a petitioner must show that the challenged instruction “so infected the entire trial that
2 the resulting conviction violates due process.” Henderson v. Kibbe, 431 U.S. 145, 155
3 (1977); see also McGuire, 502 U.S. at 75 (noting that erroneous jury instructions may
4 not serve as the basis for habeas relief unless they have “so infused the trial with
5 unfairness as to deny due process of law.”).
6

Thus, a federal court’s inquiry on habeas review is not whether the challenged

7 instruction “is undesirable, erroneous, or even ‘universally condemned,’ but [whether]
8 it violated some right which was guaranteed to the defendant by the Fourteenth
9 Amendment.” Cupp v. Naughten, 414 U.S. 141, 146 (1973). “[N]ot every ambiguity,
10 inconsistency, or deficiency in a jury instruction rises to the level of a due process
11 violation.” Middleton v. McNeil, 541 U.S. 433, 437 (2004). Moreover, “a single
12 instruction to a jury may not be judged in artificial isolation, but must be viewed in the
13 context of the overall charge.” Boyde v. California, 494 U.S. 370, 378 (1990) (citation
14 omitted). If a petitioner fails to demonstrate that the instructional error violated his
15 right to due process, he fails to establish that the jury instructions were contrary to
16 federal law and his claim must be denied. See Henderson, 431 U.S. at 155.
17

A “permissive inference” in a jury instruction “suggests to the jury a possible

18 conclusion to be drawn if the State proves predicate facts, but does not require the jury
19 to draw that conclusion.” Francis v. Franklin, 471 U.S. 307, 314 (1985). “A
20 permissive inference does not relieve the State of its burden of persuasion because it
21 still requires the State to convince the jury that the suggested conclusion should be
22 inferred based on the predicate facts proved.” Id. Consequently, “[a] permissive
23 inference violates the Due Process Clause only if the suggested conclusion is not one
24 that reason and common sense justify in light of the proven facts before the jury.” Id.
25 at 314-15 (citing Cty. Court of Ulster Cty. v. Allen, 442 U.S. 140, 157-63 (1979)).
26 “Ultimately, the seminal Supreme Court cases on this issue all say the same thing: a
27 permissive inference violates due process when the presumed fact does not follow from
28 the facts established.” Hall v. Haws, 861 F.3d 977, 991 (9th Cir. 2017).
133

1
2

3.

Analysis

The California Supreme Court’s conclusion was not contrary to, or an

3 unreasonable application of, clearly established Federal law. 28 U.S.C. § 2254(d).
4

Petitioner’s argument is that the evidence did not support giving CALJIC No.

5 2.06. He claims the record is devoid of facts showing that any of the evidence at issue
6 was actually destroyed or suppressed, let alone intentionally or due to a consciousness
7 of guilt. (SAP at 282.) Petitioner’s contention is unpersuasive. The instruction at issue
8 concerned attempts “to suppress evidence . . . in any manner.” (26RT at 3468
9 (emphasis added).) A bumper sticker was partially scraped off of Petitioner’s car. A
10 pair of shoes was partially burned. Plywood was put over Petitioner’s car in a way that
11 concealed it. A new sticker had been put on the car. The victim’s purse turned up in
12 a reservoir. Petitioner changed his hairstyle for a single day, when he was also
13 appearing in a lineup. All of these facts patently constitute evidence of attempts to
14 suppress evidence.

Petitioner cannot plausibly claim that the instruction was

15 unsupported by the evidence, or that the inference of evidence suppression did not
16 follow from those facts. Francis, 471 U.S. at 314-15; Hall, 861 F.3d at 991.
17

Additionally, the jury was instructed that it may consider that evidence as

18 consciousness of guilt. Under the circumstances, CALJIC No. 2.06 was squarely a
19 constitutional permissive inference instruction. Francis, 471 U.S. at 314. That being
20 the case, the prosecution was not required to definitively prove that the evidence at
21 issue was suppressed, only that the suggested conclusion was “one that reason and
22 common sense justify in light of the proven facts before the jury.” Id. at 314-15; Allen,
23 442 U.S. at 157-63. The Court concludes that the circumstances cited by the trial court
24 in allowing the instruction, and the California Supreme Court in upholding it, certainly
25 led to a common-sense conclusion that Petitioner made efforts to hide evidence of his
26 crime and identity as the perpetrator. Here, there is no due process violation. Hall, 861
27 F.3d at 991.
28
134

1

Petitioner has otherwise failed to show any constitutional infirmity in CALJIC

2 No. 2.06, particularly in light of the proceedings as a whole. In the end, Petitioner’s
3 consciousness of guilt was irrelevant; the evidence implicating Petitioner as the
4 perpetrator was overwhelming to the point that the defense reasonably chose not to
5 dispute it.22/ Therefore, the challenged instruction could not have “so infected the entire
6 trial that the resulting conviction violates due process.” Henderson, 431 U.S. at 155;
7 Boyde v. California, 494 U.S. at 378.
8

Claim 17 is DENIED.

9

O.

10

Instructional Error: Failure to Clarify Elements (Claim 18)

Petitioner argues that the trial court violated various constitutional rights by

11 failing to clearly differentiate the consequences of sodomy and rape on the murder
12 charges and special circumstance findings. (SAP at 283-88; Traverse at 203-04.)
13

1.

14

Background Facts
a.

15

The Defense Theory

The prosecution tried Petitioner for murder under several alternate theories. Two

16 of those were first degree murder theories. The jury could find Petitioner guilty of first
17 degree murder in one of two ways: (1) willful, deliberate, and premeditated murder; or
18 (2) felony murder based on the allegation that Petitioner killed Diane Harper in the
19 commission or attempted commission of rape. (See 26RT at 3479-81, 3511-14.)
20

At the time of Petitioner’s trial, California Penal Code section 189 limited the

21 types of sex offenses that could support a conviction of first degree felony murder.
22 Although those enumerated offenses included rape, they did not include sodomy.23/
23
24

22/

The record reflects that the prosecutor requested this instruction before he learned
25 the defense’s theory of the case. (26RT at 3434, 3495-96.)
23/

The California Legislature later amended the statute pursuant to a voter initiative
known as the Crime Victims Justice Reform Act, approved by voters as Proposition
27
115, on June 5, 1990. See Raven v. Deukmejian, 52 Cal. 3d 336, 340, 344 (1990). State
28
(continued...)
26

135

1 Hence, the prosecution’s first degree felony murder allegation was limited to the
2 commission of rape as a predicate offense.
3

However, once the jury found Petitioner guilty of first degree murder, the special

4 circumstance allegations brought sodomy back into the jury’s consideration – sodomy
5 is (and was) included on the list of enumerated special circumstances which, if found
6 true, support the imposition of the death penalty. Cal. Penal Code § 190.2(a)(17)(D).
7 Petitioner’s jury was instructed accordingly. (26RT at 3482-84.)
8

Additionally, Petitioner’s jury was given the option of convicting Petitioner of

9 second degree felony murder. A killing that occurred during the commission of sodomy
10 would constitute second degree felony murder, and the jury was instructed accordingly.
11 See Cal. Penal Code §§ 187(a), 189(b); (26RT at 3478, 3481-82.)
12

Given the overwhelming evidence that Petitioner was the perpetrator of the

13 crimes against Amy Ryan and Diane Harper, these legal distinctions formed the basis
14 of Petitioner’s guilt-phase defense. Petitioner’s lawyer argued to the jury that Petitioner
15 had only committed sodomy, not rape, and that Petitioner had not acted with
16 deliberation or premeditation in killing Diane Harper. In other words, defense counsel
17 sought to persuade the jury that Petitioner was guilty of no more than second degree
18 felony murder in the hope of sparing Petitioner from a penalty phase and possible death
19 sentence. (26RT at 3536-45.)
20

b.

21

Relevant Jury Instructions

The trial court read the murder charge and related allegations. (26RT at 3475-

22 76.) The court then summarized the elements of murder in general, providing that:
23

each of the following elements must be proved: [¶] Number One, that a

24

human being was killed, [¶] Number Two, that the killing was unlawful,

25
26

23/

(...continued)
law now includes sodomy among the enumerated crimes that may support a first degree
28 felony murder conviction. Cal. Penal Code §§ 189, 286.
27

136

1

and

[¶]

Number Three, that the killing was done with malice

2

aforethought, or occurred during the commission or attempt to commit

3

rape, or occurred during the commission or attempt to commit a felony

4

inherently dangerous to human life. Sodomy is a felony inherently

5

dangerous to human life.

6 (26RT at 3478.)
7

Next, the court set forth the elements of each murder theory in detail. The court

8 started by introducing and defining one theory of first degree murder: a willful,
9 deliberate and premeditated killing. (26RT at 3479-80.) Then, the court discussed and
10 defined felony first degree murder. Specifically, the court explained that first degree
11 felony murder was an unlawful killing “which occurs as a result of the commission of
12 or attempt to commit the crime of rape, . . . .” (26RT at 3481.) Next, the court moved
13 to the various types of second degree murder. The court instructed the jury that second
14 degree felony murder was an unlawful killing “which occurs as a direct causal result .
15 . . of the commission of or attempt to commit a felony inherently dangerous to human
16 life, namely, the crime of sodomy, . . . .” (26RT at 3481-82.)
17

After finishing the instructions addressing the murder charge, the court instructed

18 the jury on the special circumstance allegations. Specifically, the court provided that:
19

If you find the defendant in this case guilty of murder of the first

20

degree, you must then determine . . . if the murder was committed under

21

one or more of the following specia1circumstances: [¶] That the murder

22

was committed while the defendant was engaged in the commission of,

23

attempted commission of, or the immediate flight after committing or

24

attempting to commit a rape or sodomy[.]

25 (26RT at 3482-83 (emphasis added).) The court then more fully set forth the elements
26 required to prove the special circumstance allegations:
27

To find that either of the special circumstances referred to in these

28

instructions as murder in the commission of, attempted commission of, or
137

1

the immediate flight after committing or attempting to commit a rape or

2

sodomy, is true, it must be proved; [¶] Number One, that the murder was

3

committed while the defendant was engaged in the commission or

4

attempted commission or the immediate flight after committing or

5

attempting to commit a rape or sodomy. [¶] Number Two, that the

6

defendant intended to kill a human being. [¶] Number Three, that the

7

murder was committed in order to carry out or advance the commission or

8

attempted commission of the crime of rape or sodomy. In other words, the

9

special circumstance referred to in these instructions is not established if

10

the rape or sodomy or attempted rape or sodomy was merely incidental to

11

the commission of the murder.

12 (26RT at 3483-84.)
13

The trial court also expressly instructed jurors to consider the charges and special

14 circumstance allegations separately. (26RT at 3483, 3489-90.)
15
16

c.

Prosecutor’s Relevant Arguments

In his closing argument, the prosecutor read and discussed the jury’s instructions.

17 In doing so, the prosecutor further clarified (and editorialized) the distinction between
18 the murder theories as it concerned the commission of rape or sodomy:
19

We have our standard murder theory, I guess as far as criminal law

20

is concerned, and the standard or customary murder legal theory is that

21

there must be malice aforethought for a murder. And to raise that murder

22

from second degree to first degree, there must be premeditation and

23

deliberation. That’s one road to travel, one legal theory, and there’s a

24

totally and separate distinct road that vou can travel that’s called the

25

Felony Murder Rule.

26

...

27
28
138

1

Now, we’re going to go to the Felony Murder Rule and, again, the

2

law is going to appear to you possibly to be a little strange in this area with

3

respect to the crime or killing being a first degree murder[.]

4

...

5

What’s interesting is that the law distinguishes a rape or attempt to

6

commit rape from a sodomy or attempt to commit sodomy. I can’t tell you

7

why, but I think – well, that’s the law. You have to live and abide by the

8

law.

9

If you believe, for the sake of argument, that the killing occurred

10

during a sodomy or attempt[ed] sodomy, then it’s going to be a second

11

degree felony murder. The law distinguishes between a rape and a

12

sodomy. If someone is killed during the course of a rape or an attempt to

13

commit rape, the law says that’s more serious than a sodomy[. ] I don’t

14

know why, for the life of me, I couldn’t figure thatꞏone out, but

15

nonetheless that’s the law.

16

If the killing occurred during a sodomy or attempt at sodomy, then

17

it’s second degree [] felony murder[. ] [I]f it’s a rape or attempt to commit

18

rape, it’s a first degree felony murder. As far as my thinking is concerned

19

there shouldn’t be any distinction between the two, but I don’t make the

20

laws, so that’s just the situation we have.

21

It’s kind of interesting that if a criminal, any criminal, decides to kill

22

somebody, let’s say that he wants to sodomize this person rather than rape

23

him, the law is almost going to reward him because he chose one means

24

of sexual assault versus another. Again, that’s the law.

25 (26RT at 3511, 3513-14.)
26

As for the special circumstance allegations, the prosecutor emphasized to the jury

27 that those were distinct from the charged crimes:
28
139

1

But, again, you only consider the special circumstance allegations

2

if you have found Mr. Hart guilty of first degree murder, because that’s

3

what’s going to determine whether or not we go to the second phase of the

4

trial. [¶] If Mr. Hart is found guilty of second degree murder, that’s it.

5

You don’t have to worry about the special circumstance allegations, and

6

you don’t have to worry about a second phase to this trial, we’ll stop right

7

there, as far as a presentation of evidence is concerned.

8 (26RT at 3496-97.)
9
10

2.

California Supreme Court Decision

The state high court denied Petitioner’s related instructional error claim on direct

11 appeal as follows, in pertinent part:
12

At trial, the prosecution’s theory of the case was that defendant’s

13

effort to entice the girls into his vehicle and drive them to a remote area

14

was part of a premeditated plan to commit rape, and that the murder of

15

Diane was committed in the course of perpetrating rape. As noted, the

16

defense did not deny that defendant was the man who took the girls to the

17

remote area and assaulted them, killing Diane; instead, defense counsel

18

argued to the jury that the evidence suggested Diane had been killed in the

19

course of defendant having committed, or having attempted to commit,

20

sodomy, and therefore supported no more than a verdict of second degree

21

felony murder.

22

The trial court instructed the jury on the law of murder (CALJIC

23

No. 8.10 (1983 rev.)), further explaining the elements of first and second

24

degree murder as well as felony murder. With respect to the latter theory,

25

the trial court instructed the jury that underꞏthe law applicableꞏat the time,

26

a killing committed during the course of a rape or attempt to commit rape

27

was first degree felony murder, and that a killing committed during the

28
140

1

course of a sodomy, or attempt to commit sodomy, was second degree

2

felony murder. Defendant did not object to any of these instructions.

3

Defendant now contends that the jury instructions were

4

impermissibly ambiguous and that the trial court failed to fulfill its sua

5

sponte duty to offer clarifying instructions informing the jury that a first

6

degree murder could not be based upon the underlying felony of sodomy

7

or attempted sodomy, even though first degree murder committed in the

8

commission of such crimes could support a special circumstance finding.

9

...

10

[The] jury instructions were not ambiguous. The jurors were

11

instructed that if they found defendant guilty of murder in the first degree,

12

then they were to determine whether either special circumstance was true.

13

The jurors also were instructed to decide each special circumstance

14

separately. These instructions correctly stated the law; if defendant

15

wanted additional, clarifying instructions, he should have requested them.

16

No ambiguity appearing, the trial court complied with its duty to “fully

17

instruct the jury on the law applicable” and had no duty to further instruct

18

the jury.

19 People v. Hart, 20 Cal. 4th at 621-22 (citations and footnote omitted, emphasis in
20 original).
21
22

3.

Analysis

The California Supreme Court’s reasoning was not contrary to, or an

23 unreasonable application of, clearly established Federal law. 28 U.S.C. § 2254(d). “An
24 omission, or an incomplete instruction, is less likely to be prejudicial than a
25 misstatement of the law.” Henderson, 431 U.S. at 155. Petitioner fails to establish that
26 additional clarifying instructions were constitutionally required here. He does not argue
27 that the jury instructions misstated the law. His premise is that the law was confusing
28 and that the trial court either clumsily or inadequately attempted to untie the knots for
141

1 the jury. It is certainly correct that the legal distinction between rape and sodomy
2 required an explanation, and that it required jurors to separately consider the allegations
3 without conflating them. It was also essential that the jury consider the special
4 circumstance allegations separately so as not to confuse them with elements of the
5 charged crimes. But, the jury was instructed accordingly. Petitioner’s contention that
6 the jury was still confused in the absence of more instructions “is too speculative to
7 justify the conclusion that constitutional error was committed.” Henderson, 431 U.S.
8 at 157.
9

The Court’s conclusion is bolstered when the instructions are considered in

10 proper context. Boyde v. California, 494 U.S. at 378. The legal distinction between
11 sodomy and rape as it concerned first and second degree murder was central to the
12 closing arguments. The prosecutor explained it in detail, and the defense rested its
13 entire case on it. Jurors were not left to wade through a thicket of confusing jury
14 instructions; they were correctly instructed on the law, and then the attorneys focused
15 them on the central issue. Petitioner is unable to rebut the presumption that the jury
16 followed its instructions, Spencer, 857 F.3d at 803; Weeks, 528 U.S. at 234, and he has
17 not shown that lack of further clarity “so infected the entire trial that the resulting
18 conviction violates due process.” Cupp, 414 U.S. at 147; Henderson, 431 U.S. at 154;
19 McGuire, 502 U.S. at 75.
20

Petitioner fails to establish an extreme malfunction in California’s criminal

21 justice system based on the failure to give clarifying instructions here. Richter, 562
22 U.S. at 102. Claim 18 is DENIED.
23

P.

Insufficient Evidence of Guilt (Claim 19)

24

Petitioner contends the evidence was insufficient to prove he committed any of

25 the offenses, or to find the special circumstances true. As to Diane Harper’s death,
26 Petitioner argues that there were no eyewitnesses and there was no evidence to prove
27 his mental state. He also contends there was no physical evidence to prove the sex
28 crimes committed against Harper. As to Amy Ryan, Petitioner again points to a lack
142

1 of physical evidence to prove that he sexually assaulted her, and he asserts that she was
2 not a credible witness. (SAP at 288-93; Traverse at 205-07.) None of Petitioner’s
3 arguments pass muster under the long-established constitutional standard governing
4 insufficient evidence claims.
5
6

1.

Legal Standard

The United States Supreme Court has “made clear that [insufficient evidence]

7 claims face a high bar in federal habeas proceedings because they are subject to two
8 layers of judicial deference.” Coleman v. Johnson , 566 U.S. 650, 651 (2012) (per
9 curiam).
10

The first layer is the standard of review for insufficient evidence claims, which

11 has long been “whether, after viewing the evidence in the light most favorable to the
12 prosecution, any rational trier of fact could have found the essential elements of the
13 crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979)
14 (italics in original); Lucero v. Holland, 902 F.3d 979, 990 (9th Cir. 2018). Under this
15 standard, “it is the responsibility of the jury – not the court – to decide what conclusions
16 should be drawn from evidence admitted at trial.” Cavazos v. Smith , 565 U.S. 1, 2
17 (2011) (per curiam). Consequently, “[a] reviewing court may set aside the jury’s
18 verdict on the ground of insufficient evidence only if no rational trier of fact could have
19 agreed with the jury.” Id.; see also Johnson, 566 U.S. at 656 (“[T]he only question
20 under Jackson is whether [the jury’s] finding was so insupportable as to fall below the
21 threshold of bare rationality.”).
22

The Jackson standard “gives full play to the responsibility of the trier of fact

23 fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw
24 reasonable inferences from basic facts to ultimate facts.” Jackson, 443 U.S. at 319.
25 Consequently, a reviewing court “faced with a record of historical facts that supports
26 conflicting inferences must presume – even if it does not affirmatively appear in the
27 record – that the trier of fact resolved any such conflicts in favor of the prosecution, and
28 must defer to that resolution.” Id. at 326; McDaniel v. Brown, 558 U.S. 120, 133
143

1 (2010).

A jury’s credibility determinations receive “near-total deference under

2 Jackson.” Bruce v. Terhune, 376 F.3d 950, 957 (9th Cir. 2004); see also Schlup v.
3 Delo, 513 U.S. 298, 330 (1995) (“[U]nder Jackson, the assessment of the credibility of
4 witnesses is generally beyond the scope of review.”).
5

The second layer is the “additional layer of deference” under AEDPA. A

6 petitioner must also establish that the state court unreasonably applied the Jackson
7 standard to the facts of the case. Emery v. Clark, 604 F.3d 1102, 1111 n.7 (9th Cir.
8 2010); Juan H. v. Allen, 408 F.3d 1262, 1274-75 (9th Cir. 2005). More specifically, “a
9 federal court may not overturn a state court decision rejecting a sufficiency of the
10 evidence challenge simply because the federal court disagrees with the state court. The
11 federal court instead may do so only if the state court decision was ‘objectively
12 unreasonable.’” Cavazos v. Smith, 565 U.S. at 2 (quoting Renico v. Lett, 559 U.S. 766,
13 773 (2010)); Lucero, 902 F.3d at 991.
14
15

2.

Crimes Against Diane Harper

“Insufficient evidence claims are reviewed by looking at the elements of the

16 offense under state law.” Maquiz, 907 F.3d at 1218 (citation omitted)). In its opinion
17 on direct appeal, the California Supreme Court set forth the relevant elements of the
18 challenged offenses under state law. Since “a state court’s interpretation of state law,
19 including one announced on direct appeal of the challenged conviction, binds a federal
20 court sitting in habeas corpus,” Richey, 546 U.S. at 76, this Court defers to the state’s
21 supreme court’s recitation of those elements:
22

Murder is the unlawful killing of a human being with malice aforethought.

23

As pertinent here, all murder which is perpetrated by any kind of willful,

24

deliberate, and premeditated killing is murder of the first degree. The

25

mental state required is, of course, a deliberate and premeditated intent to

26

kill with malice aforethought. Similarly, all murder which is committed

27

in the perpetration of, or attempt to perpetrate certain enumerated felonies,

28

including rape, is murder of the first degree. The mental state required is
144

1

simply the specific intent to commit the underlying felony; neither intent

2

to kill, deliberation, premeditation, nor malice aforethought is needed.

3

There is no requirement of a strict causal or temporal relationship between

4

the felony and the murder. All that is demanded is that the two are parts

5

of one continuous transaction. There is, however, a requirement of proof

6

beyond a reasonable doubt of the underlying felony.

7 People v. Hart, 20 Cal. 4th at 608-09 (citations, brackets, and internal quotation marks
8 omitted).)
9

The Court’s task is not to determine whether the state court’s analysis was wrong,

10 but whether it was so lacking in justification that there is no possibility for fairminded
11 disagreement. Richter, 562 U.S. at 103. Here, the state court reasonably pointed to the
12 manifest evidence that satisfied Jackson: Dr. Hunter’s autopsy revealed that at least five
13 forceful blows – likely with the use of a rock or a brick – were inflicted to the back of
14 Diane Harper’s head, fracturing her skull and driving her face six inches into the
15 ground. Petitioner’s shoe print was found next to Harper’s body. Amy Ryan testified
16 that Petitioner told her that Harper called him names and, as a result, was likely dead.
17 People v. Hart, 20 Cal. 4th at 609. It was objectively reasonable for the state court to
18 conclude that this evidence was constitutionally sufficient to prove deliberate and
19 premeditated murder. Cavazos v. Smith, 565 U.S. at 2; Lucero, 902 F.3d at 990-91.
20

Similarly, the state court reasonably concluded that the evidence was

21 constitutionally sufficient to find Petitioner guilty under a felony murder theory, i.e.,
22 that Petitioner killed Diane Harper while he was engaged in raping her or attempting
23 to rape her. Again, the state court pointed to the evidence showing guilt: Harper’s body
24 was found naked from the waist down with her underwear wrapped around one leg.
25 Her thighs had scrapes, bruises, and the presence of a foreign pubic hair. Her vagina
26 showed reddening, and a Vaseline-like substance – the same one used to rape Amy –
27 was found on her upper, inner thighs. Moreover, Amy Ryan testified that, while
28 Petitioner attempted to sodomize her, he explained that his difficulty obtaining an
145

1 erection was because he “just got it on with your friend.” People v. Hart, 20 Cal. 4th
2 at 609-10. Petitioner’s attempts to attack the credibility of this evidence does nothing
3 to satisfy the double deference required here. It was not objectively unreasonable for
4 the state court to conclude that a rational jury could find Petitioner guilty of first degree
5 murder under a felony murder theory based on this evidence. Jackson, 443 U.S. at 319;
6 Cavazos v. Smith, 565 U.S. at 2.
7

The same goes for the state court’s conclusion regarding the rape and sodomy

8 special circumstances. Petitioner attempts to focus on gray areas in the evidence such
9 as the lack of vaginal injuries to Harper and the lack of proof that she was alive when
10 she was assaulted. These assertions again ignore the legal standard governing this
11 Court’s review. Viewing the evidence, as this Court must, in the light most favorable
12 to the prosecution, Jackson, 443 U.S. at 319, a rational jury could certainly infer from
13 the evidence – a body found naked from the waist down, underwear wrapped around
14 one leg, scrapes, bruises, a foreign pubic hair on the thigh, vaginal reddening and the
15 presence of a lubricant – that Petitioner killed Diane in the course of forcibly raping or
16 trying to rape her. Adding to that, Petitioner’s statements that Diane was calling him
17 names and that he “just got it on with” her, while not conclusive proof of when he raped
18 or attempted to rape her, certainly adds to the reasonable inference that Petitioner
19 committed the acts while Diane was still alive. Cavazos v. Smith, 565 U.S. at 2; Lucero,
20 902 F.3d at 990-91. It was reasonable for the California Supreme Court to conclude
21 that the evidence was sufficient under Jackson to support the jury’s special
22 circumstance findings.
23
24

3.

Crimes Against Amy Ryan

Perhaps Petitioner’s emptiest argument is that there was insufficient evidence that

25 he raped or sodomized Amy despite her pointed testimony to the contrary. The
26 California Supreme Court denied this claim as follows:
27

Defendant contends that the evidence relating to the sexual offenses

28

committed against Amy was insufficient. In fact, however, the evidence
146

1

was abundant. Amy’s own testimony, which provided graphic detail of

2

the attack, would have been sufficient by itself. That testimony was

3

corroborated by physical evidence: seminal fluid was found on Amy’s

4

slip, bruises and abrasions were found on her body, her perineum was

5

injured and there was much sand in this area, and sand-type particles also

6

were found inside her vagina. In addition to the emergency room

7

physician’s testimony voicing the opinion that Amy had been sexually

8

assaulted, and Amy’s own testimony to the same effect, the physical

9

evidence clearly was sufficient to support defendant’s conviction of the

10

sexual offenses committed against her.

11 People v. Hart, 20 Cal. 4th at 611-12. It is unnecessary to retread the principles
12 articulated above. Suffice it to say that the state court’s analysis and conclusion as it
13 concerned the crimes against Amy Ryan were not remotely contrary to, or unreasonable
14 applications of, clearly established Federal law, and were based upon a reasonable
15 interpretation of the trial facts. 28 U.S.C. § 2254(d). To the extent Petitioner argues
16 that Amy was simply not to be believed, that is not for this Court to decide. Walters v.
17 Maass, 45 F.3d 1355, 1358 (9th Cir. 1995) (on federal habeas review, “[t]he reviewing
18 court must respect the province of the jury to determine the credibility of witnesses,
19 resolve evidentiary conflicts, and draw reasonable inferences from proven facts by
20 assuming that the jury resolved all conflicts in a manner that supports the verdict.”);
21 Jackson, 443 U.S. at 326 (“ a federal habeas corpus court faced with a record of
22 historical facts that supports conflicting inferences must presume – even if it does not
23 affirmatively appear in the record – that the trier of fact resolved any such conflicts in
24 favor of the prosecution, and must defer to that resolution.”).
25

The lynchpin of all of Petitioner’s arguments is that various charges were not

26 conclusively proven with direct, physical and indisputable evidence, or that alternative
27 scenarios were possible. However, Petitioner did not dispute that he drove both teenage
28 victims to a remote area, and that one of them was killed. Amy Ryan testified that
147

1 Petitioner and Harper walked away together, and Petitioner came back alone. Petitioner
2 then hit Amy Ryan on the back of the head with a rock, beat her, sodomized her, forced
3 her to orally copulate him, and raped her using a lubricant. Later, the police found
4 Harper’s body naked from the waist down, head brutally beaten into the ground, with
5 scratches, bruises, and lubricant on her thighs. One might imagine any number of
6 scenarios that are theoretically possible – including Petitioner’s assertion that Amy
7 Ryan participated in her friend’s murder. However, it is clearly established that a jury
8 may draw reasonable inferences from trial facts. Jackson, 443 U.S. at 319. The jury
9 made a reasonable inference that Petitioner killed Harper, that he either did so with
10 premeditation or during the course of rape, and that he committed the charged sexual
11 offenses against Amy Ryan. The California Supreme Court did not offend Jackson by
12 affirming the jury’s patently reasonable conclusions. Cavazos v. Smith, 565 U.S. at 2.
13
14

4.

Deference to State Law

Finally, Petitioner’s assertion that the state court “articulated the wrong standard

15 regarding felony murder” invites a federal court down a prohibited road. It is not for
16 this Court to question the California Supreme Court’s interpretation of California’s
17 felony murder principles. Richey, 546 U.S. at 76; McGuire, 502 U.S. at 67-68.
18 Petitioner attempts to circumvent this principle by citing to Boyer v. Belleque, 659 F.3d
19 957 (9th Cir. 2011). (Traverse at 207.) Specifically, Petitioner refers to Boyer’s
20 statement that, in assessing insufficient evidence claims, federal courts look to state law
21 only to establish the elements of the crime. See Boyer, 659 F.3d at 965 (quoting Juan
22 H., 408 F.3d at 1278 n.14). Petitioner takes this passage out of context. Boyer was
23 addressing an argument brought by the Oregon Attorney General that the entire analysis
24 under Jackson was a state law issue. Id. (“The State argues that the state courts’
25 determination that the evidence was sufficient to prove the crime of attempted
26 aggravated murder under Oregon law is a state-law issue that is not reviewable in a
27 federal habeas proceeding.”). The court in Boyer was simply explaining that there is
28 a federal component to an insufficient evidence claim; that the state court’s legal
148

1 analysis under Jackson is not entitled to total deference. Id. (“To accept the State’s
2 argument that sufficiency of the evidence is entirely a state law issue would nullify the
3 federal constitutional prohibition against convicting persons absent proof of guilt
4 beyond a reasonable doubt, a principle firmly established by the United States Supreme
5 Court’s precedent.”). Boyer did not hold that once a federal court extracts the
6 substantive elements of the crimes from state law, the federal court may then question
7 the state court on other issues of state law.
8

Regardless, Petitioner’s argument under state law appears to be incorrect. He

9 claims that the California Supreme Court wrongly articulated the felony murder rule
10 because he committed his crimes during the “Carlos window” – the period between the
11 California Supreme Court’s decision in Carlos v. Superior Court, 35 Cal. 3d 131
12 (1983), and the court overruling that decision in People v. Anderson, 43 Cal. 3d 1104
13 (1987). (Traverse at 205-06.) During the Carlos window, the intent to kill was an
14 element of felony murder special circumstance allegations. See People v. Friend, 47
15 Cal. 4th 1, 57 n.30 (2009); see also Carlos, 35 Cal. 3d at 153-54 (“[W]e construe the
16 word ‘intentionally’ in subdivision (b) of section 190.2 to apply to all defendants –
17 actual killers and accomplices alike – and to require an intent to kill before a defendant
18 is subject to a special circumstance finding under paragraph 17 of that section.”). In
19 arguing that the California Supreme Court erred, Petitioner erroneously conflates the
20 elements of the crime of felony murder with felony murder special circumstances.
21 Petitioner’s jury was instructed correctly, pursuant to Carlos, that an element of the
22 felony murder special circumstance allegations was the intent to kill. (26RT at 3484.)
23 But, also consistent with established California law at the time of Petitioner’s trial, the
24 trial court instructed the jury that the crime of felony murder only required the specific
25 intent to commit the underlying felony. (26RT at 3480-82); see also People v. Bryant,
26 56 Cal. 4th 959, 965 (2013) (“Felony-murder liability does not require an intent to kill,
27 or even implied malice, but merely an intent to commit the underlying felony.”); People
28 v. Cain, 10 Cal. 4th 1, 36 (1995) (finding that the trial court “correctly instructed the
149

1 jury that the intent necessary to find defendant guilty of first degree murder under the
2 felony-murder theory was a specific intent to commit one or more of the felonies
3 underlying the charge” in a case where the crimes were committed in 1986, during the
4 Carlos window). The California Supreme Court’s decision on direct appeal appears
5 consistent with those instructions and the law.
6

Claim 19 is DENIED.

7

Q.

8

Petitioner raises a standalone claim of actual innocence, presumably as to all the

Factual Innocence (Claim 20)

9 charges. In support, he alleges various claims of ineffective assistance of counsel
10 (“IAC”), conflict of interest, prosecutorial misconduct, and trial court error – issues that
11 the Court separately addresses elsewhere in this Order. Petitioner appears to be arguing
12 that the cumulative effect of all those alleged errors was compounded by the
13 insufficiency of evidence, resulting in a miscarriage of justice. (SAP at 293-95;
14 Traverse at 207-09.)

The California Supreme Court denied Petitioner’s actual

15 innocence claim on state habeas review without substantive comment.
16

The United States Supreme Court has “not resolved whether a prisoner may be

17 entitled to habeas relief based on a freestanding claim of actual innocence.” McQuiggin
18 v. Perkins, 569 U.S. 383, 392 (2013); see also Herrera, 506 U.S. at 400 (actual
19 innocence claims “have never been held to state a Claim for federal habeas relief absent
20 an independent constitutional violation occurring in the underlying state criminal
21 proceeding. . . . This rule is grounded in the principle that federal habeas courts sit to
22 ensure that individuals are not imprisoned in violation of the Constitution - not to
23 correct errors of fact.”); Gimenez v. Ochoa, 821 F.3d 1136, 1145 (9th Cir. 2016) (the
24 Ninth Circuit has “only assumed, but ha[s] not held, that petitioners may bring [] a
25 freestanding innocence claim.”) (citation omitted). As a result, there is no clearly
26 established Federal law supporting Petitioner’s claim; Claim 20 fails under AEDPA on
27 that basis alone. Van Patten, 552 U.S. at 125-26.
28
150

1

In Herrera, the Supreme Court assumed “for the sake of argument . . . that in a

2 capital case a truly persuasive demonstration of ‘actual innocence’ made after trial
3 would render the execution of a defendant unconstitutional, and warrant federal habeas
4 relief if there were no state avenue open to process such a claim.” Herrera, 506 U.S.
5 at 417. However, “the threshold showing for such an assumed right would necessarily
6 be extraordinarily high.” Id. The Court did not discuss the parameters of that showing.
7

Ensuing Ninth Circuit decisions that have “assumed” the viability of a

8 freestanding actual innocence claim have used the “fundamental miscarriage of justice”
9 standard, also known as the Schlup24/ “gateway” showing.25/ Jones v. Taylor, 763 F.3d
10 1242, 1246-47 (9th Cir. 2014). Under Schlup, a petitioner must proffer new evidence,
11 based on which “it is more likely than not that no reasonable juror would have found
12 [the] petitioner guilty beyond a reasonable doubt.” Id. at 1247; House v. Bell, 547 U.S.
13 518, 537 (2006); Schlup, 513 U.S. at 327. The new evidence must be reliable, and a
14 reviewing court “may consider how the timing of the submission and the likely
15 credibility of the affiants bear on the probable reliability of that evidence.” Schlup, 513
16 U.S. at 332; Lee v. Lampert, 653 F.3d 929, 937-38 (9th Cir. 2011) (“Schlup requires a
17 petitioner ‘to support his allegations of constitutional error with new reliable evidence
18 – whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or
19 critical physical evidence – that was not presented at trial.’”) (quoting Schlup, 513 U.S.
20 at 324). “The habeas court then considers all the evidence, old and new, incriminating
21 and exculpatory, admissible at trial or not. . . . On this complete record, the court makes
22
23
24

24/

Schlup v. Delo, 513 U.S. 298 (1995).

25/

That standard is normally intended for situations where a strong showing of
25 innocence may overcome certain procedural barriers to have a constitutional claim
26 considered on the merits. See McQuiggin, 569 U.S. at 392-94; see also Herrera, 506
U.S. at 404 (“The fundamental miscarriage of justice exception is available only where
27
the prisoner supplements his constitutional claim with a colorable showing of factual
28 innocence.”) (emphasis in original) (citation and internal quotation marks omitted).
151

1 a probabilistic determination about what reasonable, properly instructed jurors would
2 do.” Lee, 653 F.3d at 938 (citations, brackets, and internal quotation marks omitted).
3

Ultimately, the evidence of innocence must be “so strong that a court cannot have

4 confidence in the outcome of the trial unless the court is also satisfied that the trial was
5 free of nonharmless constitutional error.” Schlup, 513 U.S. at 316. “At a minimum, the
6 petitioner must ‘go beyond demonstrating doubt about his guilt, and must affirmatively
7 prove that he is probably innocent.’” Jones, 763 F.3d at 1246 (quoting Carriger, 132
8 F.3d at 476).
9

Petitioner does not make a proffer of new evidence in Claim 20. Instead, he

10 refers to his Brady and Youngblood/Trombetta claims, and essentially argues that the
11 government is holding his new, verdict-altering evidence. (Traverse at 208.) Petitioner
12 cites no precedent providing habeas relief on a claim of actual innocence where, instead
13 of proffering newly-discovered evidence, the petitioner merely makes reference to
14 evidence he believes was withheld. Petitioner’s claim is not in accord with the relevant
15 legal standard. House, 547 U.S. at 537; Schlup, 513 U.S. at 327.
16

Furthermore, to the extent Petitioner argues that he never received the

17 opportunity in the state courts to develop his Brady and Youngblood/Trombetta clams,
18 that is not an issue to be taken up in the analysis of an actual innocence claim.
19 Petitioner otherwise seems to be raising a quasi-cumulative error claim, which the Court
20 also addresses in other sections of this Order.
21

Based upon the foregoing, Petitioner has fallen far short of demonstrating that “it

22 is more likely than not that no reasonable juror would have found [him] guilty beyond
23 a reasonable doubt.” Schlup, 513 U.S. at 327; House, 547 U.S. at 537. Put another
24 way, particularly in light of the Court’s analysis under Jackson in Claim 19, Petitioner
25 has not affirmatively proven that he is probably innocent. Jones, 763 F.3d at 1246.
26

The California Supreme Court’s denial of Petitioner’s actual innocence claim was

27 reasonable under AEDPA, and Claim 20 is DENIED.
28

R.

Deficient Statutory Notice of Evidence in Aggravation (Claim 22)
152

1

Petitioner claims the trial court committed constitutional error by allowing the

2 prosecution to proceed with a statutorily-required “notice of aggravation” that lacked
3 sufficient detail. (SAP at 296-300; Traverse at 209-11.) This claim is not cognizable
4 on federal habeas review. Citing very general due process and right-to-confrontation
5 principles, Petitioner takes issue with the way the California Supreme Court construed
6 a California statute, a matter that is not for this Court to decide.
7

California Penal Code section 190.3 provides that:

8

Except for evidence in proof of the offense or special circumstances

9

which subject a defendant to the death penalty, no evidence may be

10

presented by the prosecution in aggravation unless notice of the evidence

11

to be introduced has been given to the defendant within a reasonable

12

period of time as determined by the court, prior to trial.

13

Before Petitioner’s trial, the prosecution provided such a notice to comply with

14 section 190.3. That document generally reflected the prosecution’s intention to present
15 evidence at the penalty phase regarding the circumstances of crimes Petitioner
16 committed against eight victims: (1) Diane Harper and Amy Ryan; (2) Shelah
17 McMahan; (3) Debra B.; (4) Valerie T.; (5) Priscilla N.; (6) Marilyn S.; (7) Deborah T.;
18 and (8) an unnamed victim whose alleged sexual assault was not ultimately presented.
19 (SAP at 297); People v. Hart, 20 Cal. 4th at 638. The defense challenged the document
20 as incomplete because it did not list all of the specific evidence the prosecutor intended
21 to present. The trial court denied the defense motion. People v. Hart, 20 Cal. 4th at
22 638-39.
23

Petitioner’s direct appeal included a challenge to the trial court’s ruling. The

24 California Supreme Court denied the claim. The court first noted that it had already
25 repeatedly rejected similar arguments. The court then explained that the purpose of the
26 notice required by section 190.3 “is to advise the accused of the evidence against him
27 so that he may have a reasonable opportunity to prepare a defense at the penalty phase.”
28 However, the court clarified that “the prosecutor is not prevented from introducing all
153

1 the circumstances of a duly noticed incident or transaction simply because each and
2 every circumstantial fact was not recited therein.” Instead, “[t]he notice is sufficient if
3 it gives defendant a reasonable opportunity to prepare a defense to the allegations.”
4 Turning to the notice provided by the prosecution in Petitioner’s case, the court found
5 that it:
6

informed the defense of the names of each one of the women who had

7

been victimized by defendant’s sexual assaults, the specific dates

8

onꞏwhich those assaults took place, and the counties in which the crimes

9

occurred. The notice was filed well before the commencement of the guilt

10

phase proceedings.

11 The court concluded that the information provided was adequate to satisfy the notice
12 requirement of section 190.3.
13 Id. at 639 (citations and internal quotation marks omitted).
14

Petitioner argues that the California Supreme Court’s analysis was an arbitrary

15 application of state procedure in violation of his right to due process. The basis of his
16 claim is that evidence means evidence, and the state high court’s “absurd” interpretation
17 of the statutory language stripped away the statute’s procedural protections. (Traverse
18 at 210-11); see also Hicks v. Oklahoma, 447 U.S. 343, 346-47 (1980).
19

As the Court has already explained in detail, “a state court’s interpretation of state

20 law, including one announced on direct appeal of the challenged conviction, binds a
21 federal court sitting in habeas corpus.” Richey, 546 U.S. at 76; McGuire, 502 U.S. at
22 67-68 (“[I]t is not the province of a federal habeas court to reexamine state-court
23 determinations on state-law questions.”). This principle could not apply with more
24 force than it does here; the Court is not deferring to just any state court’s interpretation
25 of state law, but the state’s high court, the ultimate arbiter of what California statutory
26 law means. McClung v. Emp. Dev. Dep’t, 34 Cal. 4th 467, 472 (2004) (it is the duty of
27 the California Supreme Court “to state the true meaning of [a] statute finally and
28
154

1 conclusively.”); see also People v. Johnson, 53 Cal. 4th 519, 527-28 (2012) (decisions
2 of the California Supreme Court are binding upon all California courts).
3

Petitioner has otherwise not alleged or shown that any decision of the United

4 States Supreme Court confers a right to notice of evidence. Van Patten, 552 U.S. at
5 125-26; Moses, 555 F.3d at 754, 758-60; Turner v. Calderon, 281 F.3d 851, 867-68 (9th
6 Cir. 2002) (finding no constitutional right to a list of possible prosecution witnesses in
7 penalty phase); Gray v. Netherland, 518 U.S. 152, 167-68 (“A defendant’s right to
8 notice of the charges against which he must defend is well established. But a
9 defendant’s claim that he has a right to notice of the evidence that the state plans to use
10 to prove the charges stands on quite a different footing. We have said that the Due
11 Process Clause has little to say regarding the amount of discovery which the parties
12 must be afforded.”) (italics in original) (citations and internal quotation marks omitted).
13 Petitioner’s claim is not cognizable, and his references to broad constitutional principles
14 do not change that conclusion. Langford, 110 F.3d at 1389. Claim 22 is DENIED.
15

S.

Denial of Request for Limited Voir Dire (Claim 23)

16

Petitioner claims the trial court violated due process by denying a defense request

17 to conduct limited voir dire before the penalty phase of trial. The defense sought to
18 question the jury to ensure that none of the jurors had become biased. The defense’s
19 concerns focused on Petitioner’s absence when the guilt-phase verdicts were read (he
20 requested not to be present), and his having a new attorney represent him in the penalty
21 phase. The trial court denied Petitioner’s request for voir dire under state statutory law,
22 finding that he did not show good cause to open questioning of the jurors.(Traverse at
23 211-14; see also 1CT at 167-73; 27RT at 3605-05.)
24

This claim is also not cognizable on federal habeas review. 28 U.S.C. § 2254(a);

25 McGuire, 502 U.S. at 67-68. Petitioner’s appeal to general due process principles such
26 as the prohibition against arbitrary or fundamentally unfair proceedings is insufficient
27 to “transform a state law issue into a federal one . . . .” Langford, 110 F.3d at 1389; see
28 also Miller, 757 F. 2d at 993-94.
155

1

The Court otherwise finds that the state court’s denial of Petitioner’s related

2 claim on direct appeal was not contrary to, or an unreasonable application of, clearly
3 established Supreme Court precedent. 28 U.S.C. § 2254(d).
4

Claim 23 is DENIED.

5

T.

6
7

Challenge to Admission of Facts and Circumstances of Prior
Convictions in Penalty Phase (Claim 24)

Petitioner argues that the trial court violated several constitutional principles by

8 allowing victim testimony during the penalty phase of his trial.
9
10

1.

Background Facts

As evidence in aggravation in the penalty phase, the prosecution first presented

11 the testimony of witnesses Debra B. and Deborah T. Debra B. testified about the details
12 of a 1973 assault and burglary, during which Petitioner broke into her residence and
13 choked her. (30RT at 3832-48.) Deborah T. testified about an instance in 1975 when
14 Petitioner poked his head through a window in her apartment. After the police arrived,
15 the victim discovered that a bedroom window had also been partially opened. (30RT
16 at 3913-19.) Petitioner had been arrested and ultimately pleaded guilty to crimes in
17 both instances. People v. Hart, 20 Cal. 4th at 641. The prosecution offered the
18 testimony of Debra B. pursuant to California Penal Code section 190.3(b), which
19 provides that in determining penalty, a jury may consider “[t]he presence or absence of
20 criminal activity by the defendant which involved the use or attempted use of force or
21 violence or the express or implied threat to use force or violence.” Deborah T.’s
22 testimony was offered pursuant to the subsequent section, 190.3(c), which provides that
23 in determining penalty, the jury may consider “[t]he presence or absence of any prior
24 felony conviction.” Id.
25
26
27

2.

Analysis
a.

Due Process

Petitioner’s principal contention is that allowing these victims to testify amounted

28 to re-adjudicating the original cases. He argues that both women testified to facts that
156

1 were not part of his plea deals. Petitioner claims that the testimony violated due
2 process, double jeopardy, equal protection, speedy trial rights, and state statutory law.
3 (SAP at 303-13; Traverse at 214-17.) As with some of his previous claims, Petitioner’s
4 due process challenge hinges upon his own interpretation of the relevant state statute.
5 Petitioner contends that the statutory aggravating factors in contention here are
6 restricted to “the fact of the conviction itself.” (Traverse at 215 (emphasis in original).)
7 Therefore, he argues that presenting testimony which included details of the offenses
8 violated the statutory language, added prejudicial and inflammatory facts precluded by
9 the statute, and arbitrarily deprived Petitioner of important state law protections. See
10 Hicks, 447 U.S. at 346 (“[A]n arbitrary disregard of the petitioner’s right to liberty is
11 a denial of due process of law.”). But, the California Supreme Court construed its own
12 statute differently.
13

On direct appeal, the California Supreme Court denied Petitioner’s claim by

14 referencing its prior precedent denying similar claims. People v. Hart, 20 Cal. 4th at
15 641. Although not controlling, that precedent is significant here. The state high court
16 has held that section 190.3(b) allows “[t]he details and circumstances” of qualifying
17 prior crimes as evidence in aggravation, not merely the fact that those convictions
18 occurred. People v. Cain, 10 Cal. 4th 1, 71 (1995). That evidence is admissible “even
19 if the defendant was previously prosecuted for the same conduct, so long as the
20 defendant was not acquitted of the offense.” Id. As for section 190.3(c), the California
21 Supreme Court specifically found in Petitioner’s case that the evidence of the crime
22 against Deborah T. “fell squarely within the meaning” of that provision. People v.
23 Hart, 20 Cal. 4th at 642.
24

As before, this Court defers to the California Supreme Court’s interpretation of

25 its own state’s laws. Richey, 546 U.S. at 76; McGuire, 502 U.S. at 67-68; McClung, 34
26 Cal. 4th at 472. Further, the state court’s interpretation of its statute to include the facts
27 and circumstances of Petitioner’s prior crimes in the penalty phase appears consistent
28 with clearly established Federal law. See Jurek v. Texas, 428 U.S. 262, 276 (1976)
157

1 (“What is essential [for a capital sentencing scheme] is that the jury have before it all
2 possible relevant information about the individual defendant whose fate it must
3 determine.”); California v. Ramos, 463 U.S. 992, 1006 (1983) (holding that California’s
4 capital sentencing system “ensures that the jury will have before it information
5 regarding the individual characteristics of the defendant and his offense, including the
6 nature and circumstances of the crime and the defendant’s character, background,
7 history, mental condition, and physical condition.”) (citing Cal. Penal Code § 190.3).
8 In fact, in rejecting constitutional challenges to California’s capital sentencing scheme,
9 the United States Supreme Court has explained that section 190.3(b) “is phrased in
10 conventional and understandable terms and rests in large part on a determination
11 whether certain events occurred, thus asking the jury to consider matters of historical
12 fact.” Tuilaepa v. California, 512 U.S. 967, 976 (1994) (emphasis added). There was
13 no violation of clearly established Federal law. Petitioner’s due process challenge fails.
14
15

b.

Double Jeopardy

Petitioner’s double jeopardy claim is similarly flawed. It rests on the assumption

16 that Petitioner’s guilt of the prior offenses was re-litigated during the penalty phase of
17 his capital trial. Notably, in denying a double jeopardy challenge like the one Petitioner
18 makes here, the California Supreme Court made a significant distinction as it concerns
19 evidence proffered in aggravation. “The defendant is not being tried again, or made
20 subject to punishment or conviction, for the same offense; instead, the evidence is
21 admitted to assist the jury in its determination of the appropriate sentence on the current
22 charge.” Cain, 10 Cal. 4th at 71. Petitioner fails to cite any Supreme Court cases
23 rebutting the California Supreme Court’s conclusion. Penalty phase proceedings are
24 not a retrial on criminal charges. See Deck, 544 U.S. at 632 (the presumption of
25 innocence no longer applies in the penalty phase of a bifurcated trial); see also
26 Betterman v. Montana, ___ U.S. ___, 136 S. Ct. 1609, 1616 (2016) (“[F]actual disputes,
27 if any there be, at sentencing, do not go to the question of guilt; they are geared, instead,
28
158

1 to ascertaining the proper sentence . . . .”). Petitioner fails to show an entitlement to
2 relief under AEDPA based on his double jeopardy claim.
3

c.

Equal Protection

4

Petitioner’s equal protection claim also fails. The Equal Protection Clause of the

5

Fourteenth Amendment commands that no “State shall ‘deny to any person within its

6

jurisdiction the equal protection of the laws,’ which is essentially a direction that all

7

persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living

8

Center, 473 U.S. 432, 439 (1985) (quoting Plyler v. Doe, 457 U.S. 202, 216 (1982)).

9

However, mere allegations of different treatment do not establish an equal protection

10

violation. See McQueary v. Blodgett, 924 F.2d 829, 835 (9th Cir. 1991) (“[T]he

11

Constitution does not require identical treatment. There must be an allegation of

12

invidiousness or illegitimacy in the statutory scheme before a cognizable claim arises:

13

it is a ‘settled rule that the Fourteenth Amendment guarantees equal laws, not equal

14

results.’”) (emphasis in original) (quoting Personnel Adm’r v. Feeney, 442 U.S. 256,

15

273 (1979)). Additionally, only if the statute at issue affects a “suspect class” or

16

“burdens the exercise of a constitutional right, then courts must apply [a] strict

17

scrutiny” analysis. Ball v. Massanari, 254 F.3d 817, 823 (9th Cir. 2001). Otherwise,

18

rational basis review applies. Id.

19

To survive rational basis review, a statute must be rationally related

20

to a legitimate government purpose. Using such rational-basis review, a

21

statute is presumed constitutional, and the burden is on the one attacking

22

the legislative arrangement to negative every conceivable basis which

23

might support it. We are compelled under rational-basis review to accept

24

a legislature’s generalizations even when there is an imperfect fit between

25

means and ends.

26

Dent v. Sessions, 900 F.3d 1075, 1082 (9th Cir. 2018) (citations and internal quotation

27

marks omitted).

28
159

1

Petitioner argues that interpreting section 190.3 so broadly, as to include the

2

facts and circumstances of the crimes proffered in aggravation, subjects capital

3

defendants as a class to different treatment from non-capital defendants. He cites to

4

People v. Guerrero, 44 Cal. 3d 343, 355 (1988), for the proposition that in non-capital

5

cases, courts are confined “to the record of the conviction – but no further” in using

6

prior convictions to enhance a sentence. (Traverse at 216.)

7

Petitioner has not alleged “invidiousness or illegitimacy” in the capital statutory

8

scheme. He certainly points out a hypothetical difference: California does have

9

recidivist provisions that allow for enhanced sentences based solely on the fact that

10

certain qualifying prior felonies were committed or prison terms served. See Cal Penal

11

Code §§ 667, 667.5, 1170.12. However, these provisions serve different purposes than

12

California’s capital sentencing scheme. For example, the purpose behind California’s

13

Three Strikes law is “to ensure longer prison sentences and greater punishment for

14

those who commit a felony and have been previously convicted of serious and/or

15

violent felony offenses.” Cal. Penal Code § 667(b). It is precisely the fact of certain

16

prior felony offenses that the California legislature sought to trigger a harsher

17

punishment. See Ewing v. California, 538 U.S. 11, 28 (2003)(“[T]he State of

18

California has a reasonable basis for believing that dramatically enhanced sentences

19

for habitual felons advances the goals of its criminal justice system in [a] substantial

20

way.”). That legislative goal is quite different from the aim of constitutionally valid

21

capital sentencing proceedings, for which the evidence seeks to ensure that “the jury

22

ha[s] before it all possible relevant information about the individual defendant whose

23

fate it must determine.” Jurek, 428 U.S. at 276. The different treatment Petitioner

24

points to here is not invidious or illegitimate, but rationally serves very different goals.

25

McQueary, 924 F.2d at 835. Thus, Petitioner fails to set forth a cognizable equal

26

protection claim. Further, even if he did get past that initial hurdle, Petitioner does not

27

allege that death penalty defendants as a class are subject to a heightened level of

28

scrutiny under equal protection principles. For the same reasons articulated above, the
160

1

Court also finds that the alleged difference in treatment between capital and noncapital

2

defendants here – even assuming an imperfect fit between means and ends – is

3

certainly rationally related to legitimate government purposes. Dent, 900 F.3d at 1082.

4

d.

Speedy Trial Rights

5

Petitioner’s allegation that his right to a speedy trial was violated fails for

6

slightly different reasons. To the extent Petitioner argues that certain facts surrounding

7

his prior crimes were being litigated for the first time during the penalty phase of his

8

capital trial, he had no speedy trial right. Betterman, 136 S. Ct. at 1618 (“The Sixth

9

Amendment speedy trial right, . . . does not extend beyond conviction, which

10

terminates the presumption of innocence.”). Moreover, to the extent he somehow

11

traces the speedy trial issue back to the convictions in the original cases, his claim is

12

foreclosed by Lackawanna County Dist. Attorney v. Coss, 532 U.S. 394 (2001). In

13

Coss, the Supreme Court held that “once a state conviction is no longer open to direct

14

or collateral attack in its own right because the defendant failed to pursue those

15

remedies while they were available (or because the defendant did so unsuccessfully),

16

the conviction may be regarded as conclusively valid,” and that “[i]f that conviction

17

is later used to enhance a criminal sentence, the defendant generally may not challenge

18

the enhanced sentence through a petition under § 2254 on the ground that the prior

19

conviction was unconstitutionally obtained.” Id. at 403-04. Petitioner has no speedy

20

trial right available in this proceeding as it concerns the crimes used in aggravation at

21

the penalty phase of his capital trial.

22

Based upon the foregoing, Claim 24 is DENIED.

23

U.

24

Improper Admission of Unadjudicated Offenses in Penalty Phase
(Claim 25)

25

Petitioner next claims that the trial court committed constitutional error by

26

allowing the prosecution to present four unadjudicated offenses in aggravation during

27

the penalty phase. (SAP at 313-15; Traverse at 218.)

28
161

1

The Supreme Court has expressly found it constitutional when “[s]entencing

2

courts have not only taken into consideration a defendant’s prior convictions, but have

3

also considered a defendant’s past criminal behavior, even if no conviction resulted

4

from that behavior.” Nichols v. United States, 511 U.S. 738, 747 (1994). California’s

5

capital sentencing scheme affirmatively allows the presentation of unadjudicated prior

6

offenses involving the use or attempted use of force or violence. See Cal. Penal Code

7

§ 190.3 (“As used in this section, criminal activity does not require a conviction.”).

8

Petitioner, however, argues that the unadjudicated offenses proffered in the penalty

9

phase of his trial were allegedly committed too long ago and that the statute of

10

limitations had run on them. He contends it is “unconstitutional for a state to use prior

11

crimes as aggravation evidence for which the statute of limitations has passed.”

12

Petitioner relies on Dickey v. Florida, 398 U.S. 30 (1972), for his proposition.

13

Petitioner also claims generally that the remoteness of the prior unadjudicated offenses

14

rendered the evidence about them too unreliable for a capital penalty proceeding.

15

(SAP at 313-15; Traverse at 218.)

16

The California Supreme Court denied Petitioner’s challenge on direct appeal,

17

citing to state law which provided that neither the expiration of the statute of

18

limitations nor remoteness in time was a basis for excluding evidence in aggravation.

19

People v. Hart, 20 Cal. 4th at 642. The state court decision does not run afoul of any

20

clearly established Federal law.

21

In Dickey, the prosecution failed to bring a criminal defendant to trial for nearly

22

eight years. The prosecution cited no reason for the delay aside from convenience.

23

During the delay two witnesses died, another became unavailable, and police records

24

were lost. The Court found a violation of the defendant’s right to a speedy trial.

25

Dickey, 398 U.S. at 37-38. As this Court discussed above, Petitioner’s penalty phase

26

was not a retrial on any of the circumstances in aggravation; all related evidence was

27

admitted solely to “assist the jury in its determination of the appropriate sentence on

28

the current charge.” Cain, 10 Cal. 4th at 71. As the presumption of innocence had
162

1

terminated upon Petitioner’s convictions in the guilt phase, Petitioner had no

2

constitutional speedy trial right in the penalty phase. Betterman, 136 S. Ct. at 1618.

3

Petitioner has otherwise not pointed to anything in the record indicating that the

4

passage of time rendered the evidence of his unadjudicated offenses inherently

5

unreliable, or that the presentation of that evidence during the penalty phase rendered

6

his sentencing proceeding fundamentally unfair. See Ford v. Wainwright, 477 U.S.

7

399, 411 (1986); see also Betterman, 136 S. Ct. at 1617.

8

Claim 25 is DENIED.

9

V.

Miranda Issue in Penalty Phase (Claim 26)

10

Next, Petitioner argues that his confessions to four prior crimes proffered in

11

aggravation during the penalty phase were obtained in violation of his Miranda rights.

12

(SAP at 315-19; Traverse at 219-24.) The California Supreme Court denied this claim

13

in a reasoned decision on direct review. People v. Hart, 20 Cal. 4th at 642-43.

14

As the facts giving rise to Petitioner’s Miranda claim are not in dispute, this

15

Court quotes the California Supreme Court’s recitation of the facts as follows:

16

On March 5, 1975, as part of the investigation into the incident

17

involving Deborah T., Imperial Beach Police Officer Charles Hamilton

18

informed defendant of his rights under Miranda v. Arizona, [384 U.S. 436

19

(1966)], and upon obtaining defendant’s waiver, proceeded to ask

20

defendant certain questions involving the matter. Defendant denied

21

having been near the victim’s window. After the interview concluded,

22

Hamilton learned that a fingerprint expert had matched defendant’s

23

fingerprints to those found on Deborah T.’s window.

24

The following morning, Hamilton visited defendant at Ream Field,

25

the naval facility where defendant was stationed, and reread defendant his

26

Miranda rights. Defendant said that he understood those rights, and

27

asked: “I have the right to an attorney?”

28

affirmatively. When defendant asked, “What if I can’t afford one?,”
163

Hamilton responded

1

Hamilton replied, “Then the court will appoint you one.” Defendant

2

thereafter asked whether the legal officer of the naval base could serve as

3

his attorney. A naval investigator informed defendant that such an officer

4

could not represent defendant in a civilian court of law. Defendant asked

5

Hamilton whether he was going to be arrested. Hamilton responded

6

affirmatively, informing defendant that approximately four hours would

7

be required to obtain an arrest warrant. Defendant responded: “Okay, I’ll

8

talk to you, what do you want to talk about?” He thereafter described his

9

involvement in other attacks upon women.

10

At trial, defendant objected to the introduction of evidence

11

pertaining to his confession to the unadjudicated offenses, on the ground

12

that the foregoing colloquy evidenced defendant’s invocation of his right

13

not to speak with Hamilton. The trial court denied the challenge.

14

People v. Hart, 20 Cal. 4th at 642-43; (see also RT at 3709-21; SAP at 316-18).

15

It is clearly established that, in the context of Miranda warnings, both the right

16

to remain silent and to counsel must be invoked unambiguously. Berghuis v.

17

Thompkins, 560 U.S. 370, 381-82 (2010) (right to silence); Davis v. United States, 512

18

U.S. 452, 459 (1994) (right to counsel). “An invocation is unambiguous if the accused

19

‘articulate[s] his desire to have counsel present sufficiently clearly that a reasonable

20

police officer in the circumstances would understand the statement to be a request for

21

an attorney.’” Petrocelli v. Baker, 869 F.3d 710, 723 (9th Cir. 2017) (quoting Davis,

22

512 U.S. at 459). An ambiguous or equivocal reference to an attorney does not invoke

23

the right to counsel. See Davis, 512 U.S. at 459-62 (“Maybe I should talk to a lawyer”

24

was not a request for counsel requiring that police questioning cease); Petrocelli, 869

25

F.3d at 723 (“I’d sort of like to know what my . . . lawyer wants me to do” was not a

26

request for counsel requiring immediate cessation of questioning).

27

The lynchpin of Petitioner’s Miranda claim – in the state courts and now here

28

– is that his inquiry about whether a naval officer could represent him functioned to
164

1

invoke his right to an attorney. The state court concluded otherwise. People v. Hart,

2

20 Cal. 4th at 643. As this Court has made clear, its review of the state court’s decision

3

is stringently limited to determining whether that court drew an objectively

4

unreasonable conclusion under Miranda and its progeny. Richter, 562 U.S. at 101;

5

LeBlanc, 137 S. Ct. at 1728. It is clear the state court did not act so irrationally.

6

Petitioner, of course, has his own interpretation of what his words meant, but that is not

7

this Court’s concern. It is patently reasonable to conclude that, at the time of

8

questioning, Petitioner was merely inquiring as to whether he could be represented by

9

a military lawyer. The police officer expressly informed Petitioner that he had the right

10

to have a lawyer, and that an attorney would be appointed for him if he could not

11

afford to hire one. Petitioner expressed no desire for that alternative, but instead

12

communicated his desire to cooperate and answer questions after learning that a naval

13

base lawyer was not available to him. On these facts, it was reasonable for the state

14

court to conclude that there was no invocation of the right to counsel. Davis, 512 U.S.

15

at 459; Petrocelli, 869 F.3d at 723; see also Thompkins, 560 U.S. at 386 (answering

16

questions is a “course of conduct indicating waiver” of the right to remain silent).

17

Claim 26 is DENIED.

18

W.

19

Petitioner makes several challenges to the penalty-phase evidence presented in

20
21

Claims Involving Shelah McMahan’s Murder (Claim 27)

aggravation involving the uncharged murder of his niece, Shelah McMahan.
1.

Background Facts

22

At the penalty phase of Petitioner’s trial, the prosecution presented several

23

witnesses and other evidence to prove that Petitioner committed the grisly murder of

24

his eleven-year-old niece less than a week before his arrest in the capital case. That

25

evidence is discussed in detail below.

26

a.

Prosecution Evidence

27

Petitioner’s mother-in-law, Carol Widney, testified about the family’s living

28

arrangements at the time that her granddaughter, Shelah McMahan, was killed.
165

1

Specifically, Widney and her husband lived in a house. Shelah’s mother, boyfriend,

2

and younger siblings lived in a trailer located in the backyard. Shelah occupied two

3

rooms in her grandparents’ house, but she occasionally slept in her family’s trailer with

4

her siblings. Petitioner and his wife lived in a mobile home located on a property two

5

doors down. (32RT at 4062-65.) The couple did not have a phone so it was customary

6

for them to come over to Widney’s house to make calls. (32RT at 4068.)

7

Carol Widney was very close with her granddaughter. (32RT at 4066, 4087-88.)

8

Widney viewed Shelah as a responsible child who never left suddenly or without

9

notice. (32RT at 4075, 4086.) On May 2, 1986 (a Friday), Shelah missed school due

10

to a cold. She spent the day in and around the house, doing laundry, watching

11

television, and occasionally checking in on her grandmother, who had minor surgery

12

that morning. (32RT at 4072-75.) That night, Shelah went to bed on a sofa in the

13

family room of the house, which she often did on Friday nights. After midnight, just

14

before Carol Widney went to bed, she saw Shelah lying on the sofa watching

15

television. (32RT at 4076-78.) Shelah was wearing a t-shirt and sweat pants. (32RT

16

at 4078-79.)

17

The next morning at 7 a.m., Carol Widney found Shelah’s pillow and blankets

18

on the floor, but Shelah was gone. (32RT at 4081-82, 4086.) Carol Widney testified

19

that the front door to the residence was locked overnight, but sliding glass doors in the

20

back of the house were left unlocked so family members living on the property could

21

get in and out. (32RT at 4084-85.) Carol Widney and her husband had a dog that

22

barked only at strangers to the household. (32RT at 4091-92.) The dog was hostile

23

enough to strangers that Kenneth Widney, Carol’s husband, testified that he was

24

“positive that no one would come in our yard with the dog there” without permission.

25

(33RT at 4281.) There was also a shed on the property. A police officer previously

26

lived on the property and still had police gear stored in that shed. (32RT at 4094-95.)

27

Debora Carco, a family friend who lived with the Widneys, testified that she also

28

saw Shelah on the family room sofa. Carco was up very late, and saw Shelah asleep.
166

1

Carco turned off the television. Carco woke up between 6:30 and 7:00 a.m. the next

2

morning and Shelah was gone. (32RT at 4160.)

3

A police report reflected that Petitioner told Carol Widney that he entered the

4

house early in the morning on May 3, 1986, and saw Shelah sleeping on the family

5

room sofa. (32RT at 4153.) Another family member, Roy Widney, recalled Petitioner

6

saying that he entered the house around 4:00 a.m., and that he did not notice one way

7

or another whether Shelah was there. (33RT at 4350.) Roy Widney also testified that,

8

in the days following Shelah’s murder, he saw Petitioner using a small tractor on his

9

property “doing some grading.” Roy asked Petitioner what he was doing, and

10

Petitioner responded that he “was just doing some landscaping grading work.” (33RT

11

at 4351.)

12

Shelah’s body was discovered on the late morning of May 3, 1986,

13

approximately one to two miles away from the Widney residence. (32RT at 4173,

14

4176.) The body was in a vacant road area filled with trash and old mattresses. (32RT

15

at 4177, 4189.) Shelah’s body was face down under a rock, partially covered with a

16

brown trash bag. (32RT at 4178-79, 4200.) A mattress had been wedged between the

17

rock and the body to cover it up. (32RT at 4198.) Other trash bags full of debris and

18

pieces of trash had been placed adjacent to the body to keep it hidden. (32RT at 4199,

19

4217.) Shelah’s shirt was torn and pulled down below her breast area. (32RT at 4200,

20

4203.) Her hands were tied behind her back with a black plastic cable tie. (32RT at

21

4200-02; 33RT at 4258; 36RT at 4639.) A strip of grey molding from a window

22

screen was wrapped around her neck. (35RT at 4480-81.) She was wearing grey sweat

23

pants. (32RT at 4204.) Carpet fibers were found in one of Shelah’s hands, which were

24

never matched to any other evidence. (32RT at 4222-25; 37RT at 4698-99.) The

25

pillow she had been sleeping on was also found with her body. (32RT at 4077-78;

26

33RT at 4261-62.) Shelah’s autopsy revealed multiple stab wounds to her neck, one

27

of which was fatal. (32RT at 4209-10; 36RT at 4638, 4641-43.)

28
167

1

In June 1986, Kenneth Widney found handcuffs in a makeshift shed on

2

Petitioner’s property. (33RT at 4262-63, 4276-77.) During an earlier search of

3

Petitioner’s property, a detective found a key to the handcuffs and a key holder near

4

the partially-burnt shoes that were admitted during the guilt phase. (33RT at 4300-02.)

5

The handcuffs contained small flakes of blood which were consistent with Shelah’s

6

blood type. (35RT at 4506-08.) A police officer positively identified the handcuffs

7

as a pair he had given or sold to the officer who once lived on the Widney property and

8

still had items stored there. (35RT at 4517.) In a corner of Petitioner’s bedroom, a

9

detective also found a plastic bag. Inside the bag they found a black plastic cable tie.

10

(33RT at 4303, 4309.) More cable ties were found outside on Petitioner’s property.

11

(33RT at 4321-22.) A detective also found additional handcuffs buried in freshly-

12

turned soil inside Petitioner’s shed. (33RT at 4304-05, 4307-08.)

13

A forensic analysis concluded that two fibers found on Shelah McMahan’s t-

14

shirt were similar to rug fibers found inside Petitioner’s Mustang. (34RT at 4383;

15

35RT at 4463-64.) Dog hair found on Shelah’s clothing was similar to dog hair found

16

in Petitioner’s Mustang, as well as the hair type of Petitioner’s dog. (35RT at 4488.)

17

One pair of handcuffs found on Petitioner’s property also contained a fiber that was

18

similar to the fibers that composed Shelah’s t-shirt. (34RT at 4384.) Through

19

experimentation, a criminalist determined that indentations made by the handcuffs

20

were similar to indentations shown on Shelah’s wrist in autopsy photographs. (34RT

21

at 4392-94.) The criminalist also compared the black cable tie found in Petitioner’s

22

bedroom with the cable ties that bound Shelah’s wrists, and determined that they were

23

the same length, same width, were made by the same manufacturer, and were the same

24

line of cable ties made by that manufacturer. (34RT at 4397-99, 4403-04.) An

25

unidentified seminal stain was found on the back of Shelah’s sweat pants. (34RT at

26

4404, 4406; 35RT at 4477.)

27

Randall Gresham, a state prisoner, testified for the prosecution in the penalty

28

phase of trial. (36RT at 4531-32.) In May 1986, Gresham was placed in a segregation
168

1

cell with Petitioner and one other person, Kevin Warp, in the Riverside County Jail.

2

(36RT at 4532-33.) Gresham shared a cell with Petitioner for approximately one

3

month. (36RT at 4533.) During that time, Gresham and Petitioner “had many

4

conversations” about their criminal cases. (36RT at 4534-35, 4545.) Petitioner told

5

Gresham that he killed his eleven-year-old niece. (36RT at 4535.) He claimed to have

6

done so because he had told her about his prior crimes and had sexual conversations

7

with her. He was afraid she would tell family members about that. He regretted killing

8

her because he liked her. (36RT at 4546-48.) Petitioner told Gresham that killing was

9

“easier after you’d done it.” (36RT at 4549.)

10

Petitioner said that his niece was physically more developed than an eleven-year-

11

old and “built a lot sexier.” (36RT at 4535.) Petitioner told Gresham that he lived near

12

his niece and had access to her house. He said that he entered the house while she was

13

sleeping and told her he wanted to go outside to talk to her. (36RT at 4536-37.)

14

Petitioner never told Gresham how he killed Shelah, but he did occasionally make

15

stabbing motions acting the killing out, at times when joking about it with Warp.

16

(36RT at 4537-39.) Petitioner told Gresham that he did not admit the murder to his

17

family. (36RT at 4539.) When watching television in the cell, Petitioner would

18

compare the bodies of females on the screen with his niece’s body. (36RT at 4540.)

19

Petitioner expressed concerns after getting off the phone with his wife that the police

20

were searching his backyard. He was particularly worried that they might find a steak

21

knife and a piece of carpet with blood on it that he left there. (36RT at 4540-41.)

22

Petitioner told Gresham that prior to his arrest he used his father-in-law’s small tractor

23

to move soil around in his backyard. (36RT at 4541-42.) Petitioner also told Gresham

24

that he had three sets of handcuffs and had lost a handcuff key in his back yard. (36RT

25

at 4542.) Additionally, Petitioner told Gresham he dropped Shelah McMahan’s body

26

off “at a dumping area.” (36RT at 4545.) Petitioner mulled the idea of blaming a “guy

27

named Andy that was a speed head out there that was always going crazy” on Shelah’s

28

murder. (36RT at 4545-46.)
169

1

b.

Defense Evidence

2

A coworker of Petitioner’s testified that he worked late into the night with

3

Petitioner at a job site on a Friday night. Petitioner also called the coworker early the

4

next morning before 8 a.m. The coworker did not recall the date that these events

5

occurred. (38RT at 4752-54, 4756-57, 4758-59.) However, the defense put into

6

evidence a phone bill for the Widney residence that showed a phone call to Petitioner’s

7

coworker at approximately 6:55 a.m. on May 3, 1986. (38RT at 4762-64; 41RT at

8

5179, 5226.)

9

Although the coworker could not specifically remember during his testimony

10

what time he and Petitioner finished and left the job site, he had previously told

11

detectives that they finished by 1:30 a.m. (38RT at 4758.) Petitioner rejoined the

12

coworker at the job site the next morning around 10 or 11 a.m. Petitioner was there

13

with his wife and children, and “they were planning on going to the lake” after the men

14

finished moving some sprinklers at the job site. (38RT at 4760.)

15

Carol Widney and a detective were also called by the defense. They testified

16

that Widney was shown a photograph of a bed sheet that was bunched up over the

17

lower portion of Shelah’s body when it was found. Widney did not recognize that bed

18

sheet as one that had come from her house. (38RT at 4766-67, 4770-73.) The

19

detective also testified that other cable ties were found at the location where Shelah’s

20

body was discovered. He additionally testified that a search of the area where

21

Petitioner had been turning over soil with a tractor revealed no evidence relevant to the

22

McMahan homicide. Lastly, the detective testified that the travel time between

23

Petitioner’s residence and his job site was approximately forty to forty-seven minutes.

24

(38RT at 4774-78.)

25

Petitioner’s wife, Linda Hart, testified that she usually drove their brown Toyota

26

and Petitioner drove the Mustang. But, the couple occasionally traded off, and

27

whenever the family went somewhere together they drove the Mustang. (38RT at

28

4790.) Linda Hart also testified that Petitioner had a daughter from a previous
170

1

marriage, and that his daughter was close friends with Shelah and spent a lot of time

2

with her. (38RT at 4790-92.) As a result of that friendship, Shelah accompanied the

3

Hart family on various outings in the Mustang. (38RT at 4792-93.) Linda Hart

4

testified that the Widney family and her family often gathered in the family room of

5

the Widney house. Both the Harts’s and Widney’s dogs were often present with them.

6

(38RT at 4793-96.)

7

Linda also corroborated the coworker’s testimony that Petitioner went to a job

8

site at night on Friday, May 2, 1986. (38RT at 4796-98.) Linda did not recall what

9

time Petitioner left for work, but she remembered going to bed and waking up at 2:30

10

a.m. Petitioner was not home. (38RT at 4798-4800.) At approximately 4 a.m.,

11

Petitioner woke Linda up and said he was home. (38RT at 4800.) Petitioner was

12

wearing the same clothes he wore to work, and Linda did not see anything like blood

13

on them. (38RT at 4802-03.) After some time passed, Linda fell asleep again. At

14

some point after it was light out, Petitioner woke her up again. He was then with her

15

and their children the entire day, traveling to his job site and then to Lake Perris.

16

(38RT at 4804-06.) At some point after Shelah went missing, Petitioner and Linda

17

joined the entire Widney family at the Widney residence. Linda heard Petitioner say

18

that he got home from work at 4 a.m., had not seen anything strange on the streets, and

19

that he went over to the Widney house at 7 a.m. to make a phone call. (38RT at 4810.)

20

Linda also testified that her husband had been working on a long-term grading project

21

in their back yard. (38RT at 4811.)

22

The defense also called Shelah’s mother (and Linda Hart’s sister), Paula

23

McMahan, to testify. Paula testified that many people came and went from the Widney

24

property; mostly friends of her brother’s and another man living there at the time,

25

Bobby Asendorf. (39RT at 4859-60.) The Widney residence was not usually locked

26

at night. (39RT at 4861.) Paula had seen cable ties around the Widney property.

27

(39RT at 4861-62.) Paula testified that Shelah had a fairly normal niece-uncle

28

relationship with Petitioner. Shelah was not extremely close to Petitioner, but mostly
171

1

liked him except when he would argue with her mother. (39RT at 4864.) Shelah did

2

not appear fearful of Petitioner, and she spent a lot of time at the Hart residence playing

3

with Petitioner’s daughters. (39RT at 4865-67.) Petitioner’s dog came over to the

4

Widney property often, including into the trailer where Paula stayed with her

5

boyfriend. Shelah played with the Harts’ dog often. (39RT at 4867.) Paula also

6

testified that, contrary to Carol Widney’s account, on the Friday evening before Shelah

7

went missing, Shelah was in the trailer for an extended period and only left to sleep

8

inside the residence when it became too cold. (39RT at 4868.) Additionally, Paula

9

testified that two days before Shelah died, Petitioner had given Shelah and a friend a

10

ride to the store in his Mustang. (39RT at 4871.)

11

Lastly, the defense called Steven Widney, Paula and Linda’a brother. Steven

12

testified that he lived on the Widney property for a period of time, worked with black

13

cable ties, and brought many of them home. They were left around the property.

14

(39RT at 4990-96.)

15

In the prosecution’s rebuttal case, an officer testified that Linda told him

16

Petitioner’s primary car was the Mustang, and that she never drove the vehicle. (40RT

17

at 5080.)

18
19

2.

Claims and Analysis
a.

Admissibility of McMahan Evidence

20

Petitioner first argues that evidence of Shelah McMahan’s murder was

21

inadmissible in the penalty phase. The prosecution offered the evidence under

22

California Penal Code section 190.3(b), criminal activity involving the use or

23

attempted use of force or violence. Petitioner argues that state law prohibits the

24

admission of felony convictions in the penalty phase unless those crimes preceded the

25

commission of the capital crimes. By admitting the McMahan evidence in the penalty

26

phase without first trying Petitioner for McMahan’s murder, the prosecution ostensibly

27

made an improper end-run around California law. (SAP at 320-21; Traverse at 232-

28

33.) Petitioner’s overriding concern seems to be that the prosecutor was essentially
172

1

permitted to mount a separate murder prosecution in the penalty phase. (See SAP at

2

321 (“Here, the jury heard a murder trial within a murder trial . . . Mr. Hart was an

3

accused standing trial for a separate murder before a jury that had already found him

4

guilty of a first degree murder, but with none of the safeguards to which an accused is

5

entitled.”).)

6

The California Supreme Court had a different interpretation of state law. On

7

direct appeal, the state high court rejected Petitioner’s statutory claim by referring to

8

its prior precedent. People v. Hart, 20 Cal. 4th at 648-49. In that prior precedent, the

9

California Supreme Court found “no legislative intent to limit the penalty phase

10

evidence to forceful or violent criminal activity which preceded the charged offense.”

11

People v. Hovey, 44 Cal. 3d 543, 578 (1988); see also People v. Balderas, 41 Cal. 3d

12

144, 202 (1985) (“Subdivision (b) allows in all evidence of violent criminality to show

13

defendant’s propensity for violence.”) (italics in original). As with Petitioner’s other

14

non-cognizable claims, he has again taken issue with an interpretation by the state’s

15

highest court on an issue of state law. That is not for this Court to decide. Richey, 546

16

U.S. at 76; McGuire, 502 U.S. at 67-68.

17

Petitioner attempts to federalize this claim by arguing that allowing the

18

prosecutor to subvert a subsection of the capital sentencing scheme renders the statute

19

arbitrary. See Gregg v. Georgia, 428 U.S. 153, 189 (1976) (“[W]here discretion is

20

afforded a sentencing body on a matter so grave as the determination of whether a

21

human life should be taken or spared, that discretion must be suitably directed and

22

limited so as to minimize the risk of wholly arbitrary and capricious action.”). The

23

Court disagrees. The state supreme court merely construed the statute’s meaning

24

differently than Petitioner did. The court did not permit the prosecutor to bypass any

25

part of the statute. As to the “murder trial within a murder trial,” Petitioner only

26

establishes that his penalty phase was unconventional. Petitioner fails to show that the

27

admission of the McMahan evidence rendered the capital punishment statute overly

28
173

1

broad or applied it arbitrarily in violation of due process. Petitioner’s subclaim fails

2

here.

3

b.

Sufficiency of McMahan Evidence

4

The Court has already discussed in detail the Jackson standard, and AEDPA’s

5

doubly-deferential review of a state court’s application of that standard. There is no

6

need to reiterate it at length here, particularly in light of the detailed penalty-phase

7

evidence articulated above. The prosecution presented ample evidence linking

8

Petitioner to Shelah McMahan’s murder. Petitioner was the girl’s uncle, lived two lots

9

away, and had convenient access to the girl’s sleeping area. There was no evidence of

10

a struggle and no one heard the Widney’s dog bark, a persuasive indication that the

11

perpetrator was familiar and lured Shelah out of bed. Petitioner admitted to being in

12

the house during the early morning hours when the girl went missing.

13

A sheriff’s detective found a cable tie identical to the ties used to bind the

14

victim’s wrists, not only on Petitioner’s property, but inside a shopping bag in his

15

bedroom. Handcuffs found on Petitioner’s property matched markings on the victim’s

16

wrist, contained blood flakes consistent with the victim’s blood type, and had a fiber

17

on them that was similar to the fibers that composed the victim’s t-shirt. A handcuff

18

key and holder were also found in the area where it appeared Petitioner was trying to

19

incinerate evidence. Fibers found on the victim’s shirt were similar to fibers found in

20

Petitioner’s Mustang. A cell mate of Petitioner’s testified not only that Petitioner

21

confessed to killing Shelah, but that Petitioner also told him other facts connecting

22

Petitioner to Shelah’s murder: the victim’s age and physical build; Petitioner’s sexual

23

attraction to her; Petitioner’s motive for killing her; Petitioner’s easy access to her

24

sleeping area; Petitioner luring her out of bed; Petitioner stabbing her; Petitioner

25

leaving her body “at a dumping area”; Petitioner mulling the idea of blaming a third

26

party for the killing. Petitioner unquestionably takes issue with the value and

27

legitimacy of much of this evidence, and his lawyer did an exceptional job of

28

challenging it on cross-examination. But, that is not relevant to the Court’s analysis
174

1

here.

2

Constitution – that is, whether any rational jury could have concluded that Petitioner

3

was the perpetrator – it is clear that it was. Jackson, 443 U.S. at 319; Lucero, 902 F.3d

4

at 990; Johnson, 566 U.S. at 656 (“[T]he only question under Jackson is whether [the

5

jury’s] finding was so insupportable as to fall below the threshold of bare rationality.”).

6

Petitioner also complains that “the [California Supreme Court] never mentioned

7

any evidence establishing the requisite intent to kill.” (Traverse at 231.) Petitioner’s

8

contention ignores the powerful circumstantial evidence, which certainly was discussed

9

by the California Supreme Court, that the victim was woken up by her killer, lured to

10

another location, and brutally and repeatedly stabbed. Petitioner also admitted to a cell

11

mate that he killed Shelah to keep her from telling her family about his other crimes.

12

See People v. Stitely, 35 Cal. 4th 514, 543 (2005) (in California, reviewing courts look

13

to circumstantial evidence showing motive, planning activity, and manner of killing

14

to determine the sufficiency of evidence of premeditation). Petitioner otherwise seeks

15

to re-examine the credibility of the evidence against him and cast a different narrative

16

as to what conclusions should be drawn from it. (SAP at 321-25.) That is not a

17

component of the Jackson analysis. Jackson, 443 U.S. at 319, 326; Cavazos v. Smith,

18

565 U.S. at 2; McDaniel, 558 U.S. at 133; Bruce, 376 F.3d at 957; Schlup, 513 U.S. at

19

330.

20

determining that the evidence was sufficient here. People v. Hart, 20 Cal. 4th at 649-

21

50; Johnson, 566 U.S. at 651; Emery, 604 F.3d at 1111 n.7; Juan H., 408 F.3d at

22

1274-75.

23

As to whether all of this evidence was minimally sufficient under the

The California Supreme Court did not unreasonably apply Jackson in

c.

Admission of McMahan Evidence Without a Hearing

24

Petitioner argues very generally that the evidence of Shelah McMahan’s murder

25

was so unreliable that the trial court should have granted a defense motion for a pretrial

26

hearing, either before an advisory jury or the court, before admitting it. (SAP at 325-

27

29; Traverse at 225-28.) Petitioner does not make more than a drive-by mention of

28

federal law. (SAP at 327-29; Traverse at 225.) While Petitioner does a thorough job
175

1

of summarizing his trial attorney’s exceptional advocacy in arguing this issue,

2

Petitioner fails to articulate a federal claim. The state court’s denial of this claim under

3

state law did not unreasonably apply any clearly-established Supreme Court precedent,

4

as AEDPA requires. 28 U.S.C. § 2254(d)(1); Richey, 546 U.S. at 76; McGuire, 502

5

U.S. at 67-68.

6

d.

7

Failure To Require Jury Unanimity on McMahan
Evidence

8

Petitioner also claims his constitutional rights were violated because the trial

9

court failed to instruct the jury that they were specifically and unanimously required

10

to find that Petitioner was guilty of murdering Shelah McMahan before imposing the

11

death penalty. (Traverse at 228-30.) Petitioner’s claim essentially criticizes the state

12

court’s conclusion that “the jury need not have unanimously agreed that the

13

prosecution met its burden of proof as to the ‘other crimes’ evidence before a single

14

juror could consider that evidence.” People v. Hart, 20 Cal. 4th at 649. Petitioner’s

15

argument lacks merit.

16

Petitioner’s jury was instructed with former CALJIC No. 8.84.1 (1986 rev.)

17

(renumbered as CALJIC No. 8.85), which provided that “[i]n determining which

18

penalty is to be imposed on defendant, you shall consider all of the evidence which has

19

been received during any part of the trial in this case, except as you may be hereafter

20

instructed.” The instruction then listed the enumerated aggravating and mitigating

21

factors provided in California Penal Code section 190.3, and directed jurors to

22

“consider, take into account and be guided by the following factors, if applicable.”

23

(41RT at 5266-68.)

24
25
26
27
28
176

1

The jury was also given California’s then-standard concluding instruction in

2

death penalty cases (former CALJIC No. 8.84.2 (1986 rev.)).26/ That instruction

3

discussed the jury’s weighing of aggravating and mitigating factors as follows:

4

It is now your duty to determine which of the two penalties, death

5

or confinement in the state prison for life without possibility of parole,

6

shall be imposed on defendant.

7

After having heard all the evidence, and after having heard and

8

considered the arguments of counsel, you shall consider, take into account

9

and be guided by the applicable factors of aggravating and mitigating

10

circumstances upon which you have been instructed.

11

The weighing of aggravating and mitigating . . . circumstances does

12

not mean a mere mechanical counting of factors on each side of an

13

imaginary scale, or the arbitrary assignments of weights to any of them.

14

You are free to assign whatever moral or sympathetic value you deem

15

appropriate to each and all of the various factors you are permitted to

16

consider.

17

In weighing the various circumstances you simply determine under

18

the relevant evidence which penalty is justified and appropriate by

19

considering the totality . . . of the aggravating circumstances with the

20

totality of the mitigating circumstances.

21

To return a judgment of death, each of you must be persuaded that

22

the aggravating circumstances are so substantial in comparison with the

23

mitigating circumstances that it warrants death instead of life without

24

parole.

25

(41RT at 5269-70.)

26
27

26/

The current version of the instruction (CALJIC No. 8.88) uses substantially
28 similar language despite various revisions in the years since Petitioner’s trial.
177

1
2

Additionally, Petitioner’s jury was instructed as follows regarding the
consideration of other criminal acts:

3

Evidence has been introduced for the purpose of showing that the

4

defendant has committed criminal acts which involved the express or

5

implied use of force or violence or the threat of force or violence. Before

6

you may consider any of such criminal acts as an aggravating

7

circumstance in this case, you must first be satisfied beyond a reasonable

8

doubt that the defendant did in fact commit such acts.

9
10
11

(41RT at 5268.)
Finally, Petitioner’s jury was given a general unanimity instruction. (41RT at
5270) (“In order to make a determination as to penalty, all 12 jurors must agree.”).

12

Petitioner fails to show that the instructions as given were constitutionally

13

inadequate. See Smith v. Spisak, 558 U.S. 139, 148 (2010) (state court reasonably

14

upheld under AEDPA penalty phase jury instructions that “focused only on the overall

15

balancing question” of aggravating and mitigating factors); see also Boyde v.

16

California, 494 U.S. at 386 (rejecting Eighth and Fourteenth Amendment challenges

17

to former CALJIC Nos. 8.84.1 and 8.84.2); Clemons v. Mississippi, 494 U.S. 738, 746

18

(1990) (“[T]he Sixth Amendment does not require that a jury specify the aggravating

19

factors that permit the imposition of capital punishment.”). Petitioner has not cited any

20

clearly established Supreme Court precedent requiring the additional instructions he

21

sets forth here, and the Court is unaware of any. See Van Patten, 552 U.S. at 125-26.

22

This subclaim also fails.

23

e.

Failure to Grant Immunity to Testify

24

Petitioner challenges the trial court’s denial of his motion for use immunity. The

25

defense requested that Petitioner be permitted to testify in response to the McMahan

26

evidence without that testimony later being used against him. (SAP at 329-30;

27

Traverse at 233.) Petitioner reasons that he “faced a dubious choice” because he was

28
178

1

forced to choose between two constitutional rights: the right to testify, and the right to

2

remain silent if he was later tried for the murder of his niece. (SAP at 329.)

3

The California Supreme Court denied Petitioner’s claim by citing prior state and

4

federal precedent. People v. Hart, 20 Cal. 4th at 650. Notably, the state court cited

5

McGautha v. California, 402 U.S. 183 (1971), vacated on other grounds, 408 U.S. 941

6

(1972). In that case, the United States Supreme Court denied an identical claim as it

7

concerned unitary capital trials. The High Court concluded that:

8

[t]he criminal process, like the rest of the legal system, is replete with

9

situations requiring the making of difficult judgments as to which course

10

to follow. Although a defendant may have a right, even of constitutional

11

dimensions, to follow whichever course he chooses, the Constitution does

12

not by that token always forbid requiring him to choose.

13

Id. at 213 (citation and internal quotation marks omitted).

14

Petitioner criticizes the California Supreme Court for relying on McGautha

15

because the United States Supreme Court later vacated that decision in part. However,

16

“the Supreme Court and [the Ninth Circuit] have continued to rely on the quoted

17

passage above.” Stuard v. Stewart, 401 F.3d 1064, 1068 n.17 (9th Cir. 2005); see also

18

Bonin v. Calderon, 59 F.3d 815, 839-40 (9th Cir. 1995).

19

Beyond that, Petitioner has pitted an actual constitutional right against a

20

hypothetical one, without any legal support for doing so. Specifically, he certainly had

21

a right to testify in his capital trial. But, Petitioner then asserts only a hypothetical

22

right to silence in a hypothetical trial that never occurred. Petitioner cites no clearly

23

established Supreme Court precedent that would require a trial court to grant immunity

24

under the circumstances presented here. See United States v. Yarbrough, 852 F.2d

25

1522, 1529 (9th Cir. 1988) (no Fifth Amendment violation where defendants in a

26

federal trial could “only speculatively point to some future state court homicide

27

prosecution” in which their right to silence would be implicated). This subclaim also

28

fails under AEDPA.
179

1

f.

2

Brady Claims Related to Shelah McMahan Evidence
(1)

Randall Gresham Impeachment Evidence

3

As discussed in detail above, jailhouse informant Randall Gresham testified for

4

the prosecution in the penalty phase of trial. (36RT at 4531-32.) Gresham testified

5

that Petitioner confessed to murdering his niece, and made several other inculpatory

6

statements involving her homicide, during a month-long period while Gresham was

7

housed with Petitioner in a segregation cell in the Riverside County Jail. (36RT at

8

4532-42.) Petitioner claims Gresham received a much more favorable sentence

9

reduction than the prosecutor disclosed in exchange for his testimony. (Traverse at

10
11

156-64.)
(a)

Background Facts

12

The jury heard evidence that Gresham was convicted in 1986 of two counts of

13

robbery, and one count each of assault on a police officer, auto theft, and for being an

14

ex-felon in possession of a firearm. (36RT at 4534.) According to the testimony,

15

Gresham received a ten-year sentence on all of those charges in exchange for his

16

testimony at Petitioner’s trial. (36RT at 4544.) Gresham testified that, had he not

17

made the deal, he believed he was facing fifteen years in prison if convicted of his

18

charges. (36RT at 4582.) The jury also heard evidence that, at the time that Gresham

19

asked his lawyer to contact the district attorney about Petitioner’s case, he had been

20

arrested for the attempted murder of a police officer. (36RT at 4561-66.)

21

In 2006, in preparation to file a state habeas petition, Petitioner’s lawyer sought

22

and received various documents from the Riverside District Attorney in discovery.

23

(SAP at 235; Traverse at 165; dkt. 99-14 at 78-80.) Among those documents was

24

evidence, ostensibly not provided to the defense at trial, that Gresham was facing

25

significantly more prison time when he made his deal. Specifically, the transcript of

26

Gresham’s plea proceeding (which was apparently not ordered or prepared until after

27

Petitioner’s trial) reflects that “[a]ll other charges which the People presently have any

28

information regarding will not be filed,” and that a “five year prior” sentence
180

1

enhancement would also not be filed against him. (Dkt. 39 at 251; see also dkt. 40-1

2

at 51-58 (referring to “other counts” that were not yet filed to be included in Gresham’s

3

ten-year deal).) As to those “other charges,” Petitioner offers criminal history

4

documents for Gresham that appear to show the sheriff’s department suspected

5

Gresham in a multitude of other robberies. (Dkt. 55–56-6 at 34.) Gresham, in a

6

declaration, states that his lawyer showed him:

7

a computer printout which he said the cops had given him. On the

8

printout, it had page after page of 211’s – robbery charges – that I was

9

suspected of. [] I didn’t do the robberies on the sheet, there must have

10

been over 30 of them, but I was scared that I would go away to prison for

11

the rest of my life if I were charged and convicted of them.

12

(Dkt. 40-1 at 29-30.)

13

Based on that, Gresham “was scared as hell, and knew I needed to make a deal.”

14

Gresham states that “the decision not to investigate the other crimes was a critical part

15

of the deal I made. I would not have made it otherwise.” Gresham also declares that

16

before he testified in Petitioner’s case, his attorney and the prosecutor directed him not

17

to offer details of his plea deal unless asked. (Dkt. 40-1 at 30-31.) During Gresham’s

18

trial testimony, Petitioner’s attorney asked him whether he became “aware that other

19

charges had been filed or pressed” against him. Gresham discussed only the charged

20

crimes and stated, “That’s all I can think of . . . .” (36RT at 4563.)

21

(b)

Procedural Default

22

Before discussing the merits of this Brady claim, the Court addresses procedural

23

bar. Respondent timely asserted procedural default as a defense to this subclaim in the

24

Answer. (Dkt. 93-1 at 35-36, 147-48.) The Court subsequently ordered the parties to

25

brief procedural default on this issue. (Dkt. 134.) After considering the parties’

26

submissions and the governing law, the Court finds this subclaim is procedurally

27

barred.

28
181

1

The procedural default doctrine bars review of a petitioner’s federal habeas

2

claim when the claim was rejected in state court based on an adequate and independent

3

state procedural rule. Davila v. Davis, ___ U.S. ___, 137 S. Ct. 2058, 2064 (2017);

4

Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). California law provides that

5

claims in a state habeas petition which are “substantially delayed without justification

6

may be denied as untimely.” Walker v. Martin, 562 U.S. 307, 310 (2011). The United

7

States Supreme Court has conclusively held that California's timeliness rule is both an

8

adequate and independent state rule. Id. at 315, 321-22; see also Bennett v. Mueller,

9

322 F.3d 573, 582-83 (9th Cir.), cert. denied, 540 U.S. 938 (2003) (holding that

10

California’s timeliness rule is independent; cited in Martin to show that the rule’s

11

independence was no longer in dispute).

12

Petitioner raised his Brady claim in three state habeas petitions. In all three, the

13

California Supreme Court expressly denied the claim on the merits. However, in all

14

three, the Brady claim was alternatively denied as untimely, with citations to the

15

seminal state cases governing this issue, In re Clark, 5 Cal. 4th 750 (1993); and In re

16

Robbins, 18 Cal. 4th 770 (1998).27/ (Dkt. 101-2 at 126-31; dkt. 101-13; dkt. 102-2 at

17

115-21; dkt. 98-12 at 2; dkt. 98-13 at 18-45; dkt. 99-21.)

18

“California courts signal that a habeas petition is denied as untimely by citing

19

the controlling decisions, i.e., Clark and Robbins.” Martin, 562 U.S. at 310. Here, the

20

state court did just that. Consequently, the state court denied Petitioner’s Brady claim

21

based on an adequate and independent state ground, and the claim is therefore

22

procedurally defaulted in this Court. Davila, 137 S. Ct. at 2064; Coleman, 501 U.S.

23

at 729-30; Martin, 562 U.S. 307, 315, 321-22. Nothing in Petitioner’s papers

24

persuades the Court to the contrary.

25

An otherwise defaulted claim may be heard on the merits where “the prisoner

26

can demonstrate cause for the procedural default and actual prejudice, or demonstrate

27
28

27/

The state court also invoked other procedural bars that are not relevant here.
182

1

that the failure to consider the claim[] will result in a fundamental miscarriage of

2

justice.” Bennett, 322 F.3d at 580. In light of those exceptions to procedural bar, the

3

Court specifically provided Petitioner with an opportunity to establish cause and

4

prejudice, or a miscarriage of justice. (Dkt. 134 at 2.) However, his arguments were

5

again not persuasive. The Court finds that Petitioner’s Brady subclaim is procedurally

6

barred.

7

(c)

Merits

8

Even assuming Petitioner’s Brady claim as it concerns Gresham had not been

9

defaulted, the claim would still not entitle him to federal habeas relief. As discussed

10

above, the state court denied this Brady subclaim expressly on the merits (in the

11

alternative to procedural default), so AEDPA applies. 28 U.S.C. § 2254(d). Under that

12

difficult standard, the claim fails. As discussed in reference to Petitioner’s earlier

13

Brady allegations, evidence is only “material” within the meaning of Brady “when

14

there is a reasonable probability that, had the evidence been disclosed, the result of the

15

proceeding would have been different.” Turner, 137 S. Ct. at 1893.

16

Petitioner’s materiality argument focuses on the multiple ways his defense

17

counsel might have attacked Gresham’s credibility had he been properly armed with

18

all the information about the alleged deal. Petitioner’s penalty-phase attorney declares

19

that, had he been in possession of this evidence, he would have “made every attempt”

20

on cross-examination to uncover Gresham’s desperation and fear of being imprisoned

21

for life. (Dkt. 40-1 at 41.) However, even assuming Gresham had been entirely

22

discredited by the jury, the Court cannot conclude there was a reasonable probability

23

of a different result without ignoring the other, powerful evidence implicating

24

Petitioner in his niece’s murder. Turner, 137 S. Ct. at 1893.

25

As discussed in detail above, ample evidence connected Petitioner to his niece’s

26

killing: The Court reiterates that evidence an additional time here for emphasis. He

27

lived on an adjacent property and had access to the room where she was sleeping. He

28

regularly came in and made phone calls from that room. He admitted that he actually
183

1

did go into the room at some point during the time she disappeared. Shelah’s

2

grandmother testified that Shelah was a responsible child who never left suddenly or

3

without notice. It did not appear that Shelah was forcibly taken from where she had

4

been sleeping, leading to the inference that she was lured away by someone she trusted.

5

That inference was further supported by the fact Shelah disappeared from the house in

6

the middle of the night, and the Widneys had a dog on the property that barked at

7

strangers to the household. Handcuffs were later discovered on Petitioners property

8

containing blood flakes that were consistent with Shelah’s blood type, and a fiber that

9

was similar to the fibers that composed Shelah’s t-shirt. Through experimentation, a

10

criminalist also determined that indentations made by the handcuffs were similar to

11

indentations shown on Shelah’s wrist in autopsy photographs. When Shelah’s body

12

was discovered on a vacant lot, her hands were tied behind her back with a black

13

plastic cable tie. Black plastic cable ties were found by the police in Petitioner’s

14

bedroom and around his property. A criminalist compared the black cable tie found

15

in Petitioner’s bedroom with the cable ties that bound Shelah’s wrists, and determined

16

that they were the same length, same width, were made by the same manufacturer, and

17

were the same line of cable ties made by that manufacturer. Forensic analyses

18

concluded that fibers and dog hair found on Shelah’s clothing were similar to fibers

19

found inside Petitioner’s Mustang and Petitioner’s dog’ hair.

20

Based upon the foregoing, Petitioner is unable to point to material Brady

21

evidence involving Gresham. The Court is mindful of the added impact Petitioner’s

22

confession to the murder of his niece might have had. However, in this case, in light

23

of all the evidence pointing to Petitioner’s guilt as the perpetrator in his niece’s murder,

24

there is not a reasonable probability of a different result. Turner, 137 S. Ct. at 1893;

25

Kyles, 514 U.S. at 434. Notably, the evidence at issue was presented in the penalty

26

phase, so the jury was ultimately deciding whether to impose the death penalty (not

27

whether Petitioner was guilty of this crime). The penalty phase evidence also included

28

Petitioner’s brutal crimes against Amy Ryan and Diane Harper, as well as his history
184

1

of sexual crimes. The jury could have considered the brutal murder of an eleven-year-

2

old to be the ugliest of Petitioner’s crimes, and yet still have imposed the death penalty

3

based solely on the other evidence. See Agurs, 427 U.S. at 109-10; see also Barker,

4

423 F.3d at 1099 (the mere possibility that undisclosed information might have helped

5

the defense or affected the outcome of the trial does not establish materiality).

6

Because the alleged withholding of impeachment evidence as to witness Gresham was

7

immaterial for Brady purposes, the second Brady subclaim in Claim 12 is DENIED.

8

(d)

Knowingly Presenting False Evidence

9

Finally, the Court addresses the remaining subclaim in Claim 16, in which

10

Petitioner similarly complains that Gresham lied on the stand and prosecutors

11

knowingly allowed that to happen. (SAP at 279-81; Traverse at 199-202.)

12

“The Supreme Court has long recognized that ‘[t]he principle that a State may

13

not knowingly use false evidence . . . to obtain a tainted conviction [is] implicit in any

14

concept of ordered liberty,’ and a violation of due process.” Lanuza v. Love, 899 F.3d

15

1019, 1025 (9th Cir. 2018) (quoting Napue v. Illinois, 360 U.S. 264, 269 (1959)

16

(brackets in original)). It is therefore unconstitutional for a prosecutor to knowingly

17

introduce, solicit, or allow false testimony. Mendez v. Swarthout, 734 F. App’x. 421,

18

424 (9th Cir. 2018) (citing Napue, 360 U.S. at 269) (cited pursuant to 9th Cir. R. 36-3).

19

To prevail on a constitutional false testimony claim, a petitioner must show “(1)

20

the testimony . . . was actually false, (2) the prosecution knew or should have known

21

that the testimony was actually false, and (3) the false testimony was material.”

22

Sanders, 873 F.3d at 794 (quoting Reis-Campos v. Biter, 832 F.3d 968, 976 (9th Cir.

23

2016)); see also Hein v. Sullivan, 601 F.3d 897, 908 (9th Cir. 2010) (same).

24

Speculation that the prosecutor knew or should have known that a witness’s

25

testimony was false is insufficient under Napue. Skains v. California, 386 F. App’x

26

620, 621-22 (9th Cir. 2010) (cited pursuant to 9th Cir. R. 36-3). However, materiality

27

under Napue is less demanding than Brady. “Under Napue, a conviction must be set

28

aside whenever there is any reasonable likelihood that the false testimony could have
185

1

affected the judgment of the jury.” Reis-Campos, 832 F.3d at 976 (emphasis in

2

original, citations and internal quotation marks omitted); see also Dow v. Virga, 729

3

F.3d 1041, 1048 (9th Cir. 2013) (same).

4

The California Supreme Court rejected Petitioner’s Napue claim without

5

substantive comment on state habeas review. Consequently, this Court must determine

6

whether any arguments or theories under Napue could have supported the state court’s

7

decision. Richter, 562 U.S. at 102.

8

The Court has already discussed the issues surrounding Gresham’s testimony in

9

detail in addressing the related Brady claim. It is unnecessary to retread the same

10

information here. Suffice it to say that, even in light of Napue’s lowered materiality

11

standard, it was objectively reasonable for the California Supreme Court to reject

12

Petitioner’s claim because the testimony was not material to the outcome.

13

Reis-Campos, 832 F.3d at 976; Dow, 729 F.3d at 1048; Richter, 562 U.S. at 102. As

14

the Court explained above, Gresham’s testimony was unnecessary to persuade the jury

15

that Petitioner killed his niece, or to persuade jurors to sentence Petitioner to death.

16

There is not a reasonable likelihood that the testimony at issue – even assuming

17

without finding that it was false – changed the jury’s decision. Reis-Campos, 832 F.3d

18

at 976; Dow, 729 F.3d at 1048.

19
20

The second prosecutorial misconduct subclaim in Claim 16 is DENIED.
(2)

Third Party Culpability Evidence

21

Petitioner complains that the prosecution failed to turn over several items of

22

evidence ostensibly pointing to other suspects in his niece’s murder: carpet fibers, a

23

bus and a trailer on the Widney property, Shelah’s diary, and two police reports

24

referencing different individuals who were under investigation at some point.

25

(Traverse at 165; dkt. 39 at 110, 113-32, 135, 138.) It is unnecessary for the Court to

26
27
28
186

1

delve into each of Petitioner’s failed arguments.28/ Aside from the fact that the

2

exculpatory value in any of these items of evidence is patently unconvincing, this

3

Brady claim fails for the same fundamental reason as the previous one. Whether

4

Petitioner focuses on the government’s alleged failure to turn over this evidence or his

5

penalty-phase attorney’s failure to more vigorously pursue these avenues of strategy,

6

he reaches the same obstacle. The penalty phase evidence implicating Petitioner in his

7

niece’s murder was strong enough that efforts to deflect blame were futile at best, and

8

would have appeared desperate and dishonest at worst. Further, the jury heard ample

9

additional evidence even beyond Shelah’s killing from which to impose the death

10

penalty. Because the alleged withholding of this evidence was immaterial to the

11

outcome, the state court’s denial of this claim was reasonable. Richter, 562 U.S. at

12

101; Turner, 137 S. Ct. at 1893; Kyles, 514 U.S. at 434; Agurs, 427 U.S. at 109-10;

13

Barker, 423 F.3d at 1099.

14

As Petitioner has not shown an entitlement to federal habeas relief on any of his

15

penalty-phase claims involving the Shelah McMahan homicide, Claim 27 is DENIED.

16

X.

17

Improper Admission of Cindy Widney’s Testimony in Penalty Phase
(Claim 28)

18

Petitioner complains that the prosecution’s rebuttal evidence in the penalty phase

19

was improperly admitted in violation of due process. (SAP at 331-35; Traverse at 234-

20

37.) This claim is not cognizable in a federal habeas petition.

21

1.

Background Facts

22

Petitioner’s penalty-phase evidence was initially focused on rebutting the

23

prosecution’s evidence that he murdered his niece. (38RT at 4745-56, 4760-67, 4770-

24

78, 4782-84, 4786-4807, 4810-11, 4839-40; 39RT at 4856-72; 4990-96.) However,

25

the defense also presented testimony in mitigation from multiple witnesses, including

26
27

28/

Petitioner’s tortured interpretation of the young girl’s diary entries is particularly
28 unpersuasive.
187

1

Petitioner’s parents, wife, mother-in-law, sister-in-law, ex-wife, and ex-sister-in-law.

2

The testimony painted a picture of Petitioner as a good husband, excellent father, active

3

churchgoing citizen, hardworking employee, and an honest, reliable person. Both his

4

wife and ex-wife testified to separate incidents in which Petitioner literally saved

5

someone’s life. Witnesses also explained that Petitioner was damaged by triggering

6

life events such as a serious auto accident as a young child, and later, his ex-spouse’s

7

infidelity. (39RT at 4887-4906, 4916-31, 4933-42, 4946-47, 4950-61, 4964-76, 4984-

8

86, 4998-5008; 40RT at 5019-23, 5028.)

9

In rebuttal, the prosecutor first proffered the testimony of Petitioner’s other

10

sister-in-law, Cindy Widney. In an admissibility hearing, the prosecutor argued that

11

Cindy would testify about unwelcome sexual advances that Petitioner made to her.

12

The prosecutor cntended that the testimony was relevant rebuttal evidence because “the

13

defense has portrayed Mr. Hart as a very caring and loving husband and father to his

14

children, and that is not quite the case.” (40RT at 5038.) Defense counsel objected to

15

the testimony on the basis that the defense was not timely notified about it, and because

16

it did not rebut evidence that Petitioner was a good father. (40RT at 5040-41.) The

17

court allowed the testimony. As to its relevance as rebuttal evidence, the court found:

18

It strikes me that one of the strengths that I have heard or I

19

perceived was presented to me is that he had a good family relationship

20

and was thought of highly by [his in-laws], by his parents, by Linda Hart,

21

and so forth. And it would strike me that him making advances to another

22

person of this nature would be in direct contradiction to what’s been

23

presented, [and] I would think this is as direct [a] contradiction of that as

24

I could imagine.

25

(40RT at 5041-42.) The court further (subsequently) found that:

26

As to [California Evidence Code section] 352, as I interpret the

27

language, evidence that is prejudicial is evidence that might be considered

28
188

1

by the jury in an improper fashion, and it strikes me that that’s not really

2

the case here.

3

If this is true, and obviously I’ll have to wait and hear the witness,

4

if it strikes me this is true, it does indicate that there was something going

5

on with Mr. Hart and even among the relatives, it indicates that the

6

picture of, you know, of rather pleasant, relaxed, caring family life was

7

not completely true.

8

(40RT at 5043-44.)

9

Cindy Widney testified about four incidents. In one, Petitioner kissed her

10

without her consent and she told him no. He answered, “You can’t hurt a guy for

11

trying.” In the second, Petitioner came to Widney’s residence when her husband was

12

out and she was sunbathing in her yard. Petitioner told Widney he had been dreaming

13

about her. When she asked him to leave, he said, “I can’t help what I’m dreaming.”

14

On a third occasion, Petitioner joked that maybe he should marry Widney. On the

15

fourth occasion, Petitioner again came to Widney’s home while she was alone and she

16

was too afraid to answer the door. Widney closed her blinds and turned on the shower

17

so Petitioner would think she was busy and leave. Widney then called her neighbor

18

and asked her to watch Petitioner’s movements. The neighbor told Cindy that he was

19

entering the residence through a side gate. Cindy grabbed a baseball bat and closed

20

herself in her bedroom. Petitioner then came to the door and opened it. Widney asked,

21

“[W]hat are you doing in my house?” Petitioner responded that he “didn’t know if you

22

were raped, hurt or what.” Petitioner apparently left when Widney threatened to call

23

the police. (40RT at 5047-58, 5073-75.)

24

2.

Analysis

25

Petitioner claims Widney’s testimony violated due process because it violated

26

California law. Specifically, he argues that none of the incidents she testified to

27

amounted to criminal activity, so the testimony was not admissible under California

28
189

1

Penal Code section 190.3(b). He also claims the testimony was irrelevant and not

2

proper rebuttal evidence.

3

On direct appeal, the California Supreme Court again disagreed with Petitioner’s

4

interpretation of state law. The state high court found that section 190.3(b) was

5

inapplicable, and that Widney’s testimony was admissible as rebuttal to Petitioner’s

6

evidence of his character, background, and history. (See Cal. Penal Code § 190.3 (“In

7

the proceedings on the question of penalty, evidence may be presented by both the

8

people and the defendant as to any matter relevant to aggravation, mitigation, and

9

sentence including, but not limited to, . . . the defendant’s character, background,

10

history, mental condition and physical condition.”). The court further found that any

11

alleged error was not prejudicial to Petitioner, as Widney’s testimony stood against the

12

backdrop of Petitioner’s conviction of one brutal murder, multiple sexual assaults, and

13

overwhelming penalty-phase evidence that Petitioner murdered his eleven-year-old

14

niece and assaulted other women. People v. Hart, 20 Cal. 4th at 652-53.

15

As was the case with several other claims, Petitioner makes this claim solely

16

under state law. He again only purports to make a federal argument for what is in fact

17

a state evidentiary claim. The premise of his constitutional claim is that the evidence

18

at issue was irrelevant and unduly prejudicial, which is governed by California law.

19

See Cal. Penal Code § 190.3. This is another claim that follows squarely under Holley,

20

McGuire, Richey, and Windham – cases holding that a federal court holds no authority

21

to review alleged violations of a state’s laws or evidentiary rules. Holley, 568 F.3d at

22

1101; McGuire, 502 U.S. at 67-68; Richey, 546 U.S. at 76; Windham, 163 F.3d at

23

1103. Also, as already stated, a habeas petitioner cannot “transform a state law issue

24

into a federal one merely by asserting a violation of due process,” which is what

25

Petitioner has attempted to do here. Langford, 110 F.3d at 1389. As a federal court

26

may entertain a habeas petition by a state prisoner “only on the ground that he is in

27

custody in violation of the Constitution or laws or treaties of the United States,” 28

28

U.S.C. § 2254(a), Petitioner’s claim is not cognizable here.
190

1

Lastly, for precisely the same reasons given by the California Supreme Court,

2

even if Petitioner had shown that the state courts violated clearly established Federal

3

law here, the alleged evidentiary error was harmless for the reasons articulated by the

4

California Supreme Court. See Brecht v. Abrahamson, 507 U.S. 619, 623, 637 (1993)

5

(a habeas petitioner is entitled to relief only if an alleged error had a “substantial and

6

injurious effect or influence in determining the jury’s verdict,” and only if he can

7

establish actual prejudice).

8

Claim 28 is DENIED.

9

Y.

10

Instructional Error: Failure to Instruct on Elements of Other
Criminal Acts Presented in Penalty Phase (Claim 29)

11

Petitioner argues that it was unconstitutional for the trial court not to instruct the

12

jury on the elements of every crime proffered in aggravation in the penalty phase of

13

trial. (SAP at 335-37; Traverse at 237-43.) Petitioner’s argument misconstrues the

14

jury’s responsibility in weighing aggravating and mitigating evidence.

15

In California, a death sentence is authorized by statute when the jury finds

16

special circumstance allegations true beyond a reasonable doubt at the guilt phase. See

17

Cal. Penal Code § 190.2; Pensinger v. Chappell, 787 F.3d 1014, 1025 (9th Cir. 2015)

18

(“California’s death penalty statute requires the jury to find the existence of special

19

circumstances to distinguish between defendants who are eligible for the death penalty

20

and those who are not.”). Special circumstance findings at the guilt phase alternatively

21

give the option of imposing life in prison without the possibility of parole. See Cal.

22

Penal Code § 190.2(a).

23

Thus, the penalty phase is not a proceeding in which a defendant’s maximum

24

punishment is determined or increased. See Noguera v. Davis, 290 F. Supp. 3d 974,

25

1092 (C.D. Cal. 2017) (“[O]nce the jury has found a special circumstances to be true,

26

unanimously and beyond a reasonable doubt, death is an authorized punishment.”).

27

Instead, it is a sentencing proceeding in which the jury decides based upon various

28

factors which eligible penalty to impose, life without parole or death. See Cal. Penal
191

1

Code §190.3. Unlike the guilt phase, the California Supreme Court describes the

2

penalty phase in a California trial as “a moral and normative process” in which “it is

3

not necessary to give instructions associated with the usual factfinding process.”

4

People v. Carter, 30 Cal. 4th 1166, 1220 (2003) (quoting People v. Holt, 15 Cal. 4th

5

619, 684 (1997)); see also Cal. Penal Code § 190.3(k) (the jury in the penalty phase

6

must consider and “be guided by” the aggravating and mitigating circumstances);

7

California v. Ramos, 463 U.S. at 1008 n.22 (“[T]he constitutional prohibition on

8

arbitrary and capricious capital sentencing determinations is not violated by a capital

9

sentencing scheme that permits the jury to exercise unbridled discretion in determining

10

whether the death penalty should be imposed after it has found that the defendant is a

11

member of the class made eligible for that penalty by statute.”) (citation and internal

12

quotation marks omitted).

13

Consistent with this principle, “a trial court has no sua sponte duty” under state

14

law “to instruct the jury as to the elements of all of the other crimes that have been

15

introduced at the penalty phase.” People v. Davenport, 41 Cal. 3d 247, 281 (1985).

16

California courts do permit such instructions where a party requests them or the trial

17

court deems them “vital to a proper consideration of the evidence.” But, the California

18

Supreme Court also recognizes the potential prejudice to the defendant if given as a

19

matter of course. Id. at 281-82 (“[A] defendant, for tactical reasons, may not want the

20

penalty phase instructions overloaded with a series of lengthy instructions on the

21

elements of alleged other crimes because he may fear that such instructions could lead

22

the jury to place undue emphasis on the other crimes rather than on the central question

23

of whether he should live or die.”). Petitioner points to no clearly established Federal

24

law invalidating the state’s law or its reasoning. Van Patten, 552 U.S. at 126.

25

Petitioner’s case, in fact, highlights the soundness of the state’s approach. At

26

his penalty phase, the prosecution presented evidence of five prior criminal acts and

27

the uncharged murder of Petitioner’s niece. All of the criminal acts alleged by the

28

prosecution boiled down to what facts the jury believed, not whether elements of the
192

1

corresponding crimes were satisfied. Debra B. testified that Petitioner attacked and

2

choked her in her apartment in 1973. Priscilla N. and the police testified that in 1973

3

she was attacked her in her apartment and Petitioner confessed that he was the

4

perpetrator (and that his intent was to rape her). Valerie T. testified that in 1975

5

Petitioner grabbed her from behind, pulled her into an alley, placed a knife to her

6

throat, pulled down her jeans, and attempted to penetrate her with his penis. Marilyn

7

S. testified (and there was evidence of Petitioner’s confession) that in 1975 Petitioner

8

broke into her apartment and forced her to orally copulate him at knife point. Deborah

9

T. testified that in 1975 Petitioner poked his head into her apartment window and he

10

confessed that he was there to sexually assault her. Similarly, the jury either believed

11

Petitioner was the perpetrator of the gruesome killing of his niece, or they did not.

12

While the criminal nature of each of these acts might have had a bearing on their

13

admissibility under state law (see People v. Phillips, 41 Cal. 3d 29, 72 (1985)),

14

Petitioner fails to credibly explain how the legal implications of those acts – namely,

15

the elements of any resulting crimes – would have any bearing on the jury’s “moral and

16

normative process” of weighing all the factors to determine Petitioner’s fate. Carter,

17

30 Cal. 4th at 1220.

18

Further, Petitioner’s case presents a strong example of why California trial

19

courts have discretion on whether to instruct on the elements of the prior criminal acts.

20

Davenport, 41 Cal. 3d at 281. For example, it was not clear from the evidence whether

21

or how much Petitioner penetrated Valerie T. when he assaulted her. Petitioner might

22

well have been prejudiced by the trial court instructing on the elements of rape as to

23

Valerie T., and focusing the jury on the specifics of that violent attack to determine

24

whether there was adequate penetration. The omission of the elements of the crimes

25

presented in aggravation was arguably favorable to Petitioner. Henderson, 431 U.S.

26

at 155 (instructional error does not rise to a constitutional level unless it “so infected

27

the entire trial that the resulting conviction violates due process” and an omission is

28

less likely to be prejudicial than a misstatement of the law.”).
193

1

Lastly, Petitioner argues that it was particularly harmful not to provide the

2

elements of these crimes to the jury since the trial court instructed them that “[b]efore

3

you may consider any of such criminal acts as an aggravating circumstance in this case,

4

you must first be satisfied beyond a reasonable doubt that the defendant did in fact

5

commit such acts.” (41RT at 5268). The Court concludes there was no reasonable

6

likelihood that any alleged ambiguity in this instruction changed the jury’s verdict or

7

caused the jury to apply the instruction in an unconstitutional manner. McGuire, 502

8

U.S. at 72; Boyde v. California, 494 U.S. at 380.

9

In denying this instructional error claim on direct appeal, the California Supreme

10

Court concluded that there was “convincingꞏevidence of criminal activity properly

11

admitted under section 190, subdivision (b). There is no indication that an instruction

12

on the specific crimes and elements would have changed the jury’s assessment of the

13

evidence or would have affected the outcome of the trial.” People v. Hart, 20 Cal. 4th

14

at 652. The state court’s reasoning and conclusion were not objectively unreasonable

15

under AEDPA.

16

Claim 29 is DENIED.

17

Z.

18

Instructional Error: Mention of Governor’s Power to Commute
Sentences in Penalty Phase (Claim 30)

19

Petitioner takes issue with the way the trial court answered a question posed by

20

a juror during the penalty phase. The court’s answer touched on the power of

21

California’s governor to commute a death sentence. Petitioner argues that by raising

22

the possibility of commutation, the trial court lowered the stakes in the minds of jurors,

23

making it impermissibly easier to impose the death penalty. (SAP at 338-42; Traverse

24

at 243-56.)

25

1.

Factual Background

26

During the penalty phase of trial, a juror submitted a note to the judge. The note

27

asked two questions, the first of which is relevant to Claim 30: “Does life in prison

28
194

1

without the possibility of parole mean that [Petitioner] will never get out under any

2

circumstances?” (41RT at 5160.)

3
4

After conferring with both attorneys and considering a proposed instruction from
defense counsel, the court addressed the jury as follows:

5

That question causes the Court a great deal of concern and it’s caused

6

other courts a great deal of concern, and the reason why, it has an element

7

of speculation in it, it shows that people are worrying about what’s going

8

to happen after the decision in this particular case.

9

It really is inappropriate for the – for jurors or for me to rely or to

10

even think about that kind of material, because I don’t know what’s going

11

to happen because it’s speculation, number one, and, secondly, to the

12

extent that people are worrying about someone else doing something,

13

they may take their present job less seriously.

14

Let me just say, the law does have a provision in the California

15

Constitution that the Governor does have the power to commute both

16

sentences, both the death sentence and the life without possibility of

17

parole sentence to something less than that, if the Governor sees fit.

18

Now, I’ve been in the criminal justice system for 13 years and I’ve

19

never seen the commutation power used. Given the way things are now,

20

I can’t imagine in this particular case that power applying.

21

I think if you approach this case from any other perspective other

22

than death means death or life without possibility of parole means exactly

23

that, you would be deluding yourself. I think you’ve got to resign

24

yourself that the two choices that you’re going to make here are the two

25

sentences that are going to be carried out in this particular case.

26
27
28

Is everybody clear as to what my feelings are? And I think for you
to speculate [on] anything else would be inappropriate.
(41RT at 5161-62.)
195

1
2

On direct appeal, the California Supreme Court rejected Petitioner’s challenges
to the instruction. The state’s high court found that, in view of its prior decisions:

3

we believe that once a juror inquired as to the actual meaning of a

4

sentence of life without possibility of parole, the trial court didꞏnot err in

5

explaining that although the Governor has the power to commute both a

6

sentence of death and a sentence of life without possibility of parole, it

7

would be inappropriate for the jury to approach the case from any other

8

perspective other than death means death and life without possibility of

9

parole means exactly that. (Citations and quotation marks omitted.)

10

Further, although the trial court’s comments would have been more

11

complete and fully accurate had they noted that, in the case of a

12

“twice-convicted” felon such as defendant, (footnote omitted) the

13

Governor may not grant clemency without the favorable recommendation

14

of four or more justices of this court, we do not believe that this omission

15

rendered the trial court’s comments so incomplete or misleading as to be

16

constitutionally deficient under the federal constitutional standard

17

established in [California v. Ramos, 463 U.S. at 1010-12] or that the

18

omission, even if error, was prejudicial under [Chapman v. California,

19

386 U.S. 18, 24 (1967)]. (Footnote omitted.)

20

The crucial point and overall thrust of the trial court’s comments

21

was to inform the jurors that any speculation on the part of a juror that life

22

without the possibility of parole meant anything other than precisely that

23

would be inappropriate, and thus the comments properly informed the

24

jurors that they were not to consider the commutation power at all in

25

arriving at their sentencing determination. In light of this message, the

26

circumstance that the trial court’s comments did not explain the existence

27

of a limitation on the Governor’s commutation power is insignificant.

28

The comments were sufficient to advise the jurors not to consider the
196

1

speculative possibility of commutation. The specific details of the

2

commutation process (that the jurors were not to consider) bore no

3

relevance to the jury’s task. Under these circumstances, we conclude

4

there is no reasonable possibility that the incompleteness of the trial

5

court’s comments affected the result.

6
7

People v. Hart, 20 Cal. 4th at 656-57.
2.

Analysis

8

“[A] capital sentencing jury’s consideration of the Governor’s power to

9

commute a life sentence is not prohibited by the Federal Constitution, . . . .” California

10

v. Ramos, 463 U.S. at 1010. Bringing to the jury’s attention the possibility that

11

someone may be returned to society allows the jury to include future dangerousness

12

in its capital sentencing decision, a factor that the Constitution allows. Id. at 1001-03;

13

see also Jurek, 428 U.S. at 275-76 (“[A]ny sentencing authority must predict a

14

convicted person’s probable future conduct when it engages in the process of

15

determining what punishment to impose. . . . What is essential is that the jury have

16

before it all possible relevant information about the individual defendant whose fate

17

it must determine.”).

18

Petitioner, however, does not merely take issue with the fact that the trial court

19

mentioned the governor’s commutation power. Petitioner more specifically claims the

20

court erroneously told the jury that a life sentence may be commuted “if the Governor

21

sees fit,” leaving jurors with an inflated view of the governor’s actual power.

22

Petitioner was convicted of multiple felonies at trial, and the California Constitution

23

provides that “[t]he Governor may not grant a pardon or commutation to a person twice

24

convicted of a felony except on recommendation of the Supreme Court, 4 judges

25

concurring.” Cal. Const. art. 5, § 8. In addition to the requirement that four justices

26

concur in the decision, there are different procedural hurdles for prisoners with

27

multiple felonies, such as a requirement that they apply for commutation directly to the

28

governor, and that the Board of Parole Hearings investigates and makes a
197

1

recommendation to the governor. Coleman v. Calderon, 210 F.3d 1047, 1050 (9th Cir.

2

2000) (citing Cal. Penal Code §§ 4802, 4813). In Petitioner’s view, by omitting the

3

additional information about the commutation power, the trial court “diminished the

4

jury’s sense of responsibility for the sentencing determination” and misled them to

5

believe that if they did not impose the death penalty, Petitioner could be released “by

6

the singular feat of the Governor.” (SAP at 340-41 (citation omitted).)

7

Petitioner’s claim fails under AEDPA. The most analogous Supreme Court case

8

Petitioner cites is Caldwell v. Mississippi, 472 U.S. 320, 329 (1985). In that case, the

9

Supreme Court found a constitutional violation where a prosecutor led the jury to

10

believe that the ultimate responsibility for determining the appropriateness of a death

11

sentence rested with an appellate court’s later review of the case. Id. at 323, 328-29.

12

That is precisely the opposite of what happened here. In this case, a juror raised the

13

issue of whether Petitioner could ever be released if the jury imposed life without

14

parole. In response, the trial judge expressed “a great deal of concern” that the juror

15

would be speculating about such an “inappropriate” matter. The judge then briefly

16

acknowledged the governor’s commutation power, but added that the court had “never

17

seen the commutation power used.” The court then went so far as to tell the jury he

18

could not “imagine in this particular case that power applying,” and that jurors “would

19

be deluding” themselves if they thought their sentence would not be carried out.

20

(41RT at 5161-62.) Contrary to the constitutional problem presented in Caldwell, the

21

trial court here adamantly advised Petitioner’s jury that the ultimate responsibility for

22

determining the appropriateness of a death sentence rested with them alone – to the

23

point of saying they were delusional if they thought otherwise. Consequently, the

24

conclusion of the California Supreme Court was not contrary to, or an unreasonable

25

application of, any governing clearly established Federal law. 28 U.S.C. § 2254(d).

26

Petitioner relies primarily on Coleman, the Ninth Circuit case cited above. In

27

that case, the trial court gave California’s now-defunct standard “Briggs instruction”

28

at the close of the penalty phase. That instruction, pursuant to California law,
198

1

deliberately informed the jury of the governor’s power to commute a life sentence. See

2

People v. Ramos, 30 Cal. 3d 553, 590 (1982).29/ The defendant in Coleman had two

3

prior felony convictions, and the court’s Briggs instruction did not include the

4

information discussed above regarding limitations on the commutation power as it

5

concerned prisoners with multiple felonies. Coleman, 210 F.3d at 1050. Further, in

6

Coleman, the trial court instructed the jury without further explanation that they “may

7

not speculate as to if or when a governor would commute the sentence to a lesser one

8

which includes the possibility of parole.”30/ Id. The Ninth Circuit concluded, “Not

9

only was the instruction misleading, it was constitutionally infirm because it

10

discouraged the jury from giving due weight to Coleman’s mitigating evidence.” Id.

11

The court also found that, as phrased, the instruction invited the jury to assume that the

12

case would automatically be put before the governor. Id. Ultimately, the court found

13

“the jury was diverted from its task by having its attention focused on the Governor’s

14

ill-defined commutation power rather than the mitigation evidence introduced during

15
16
29/

The United States Supreme Court upheld the Briggs instruction under the federal
Constitution, California v. Ramos, 463 U.S. at 1013, but the California Supreme Court
18
subsequently ruled that the instruction violated the state’s constitution and it was
19 discontinued before Petitioner’s trial. See People v. Ramos, 37 Cal. 3d 136, 159 (1984).
17

20
21
22
23
24
25
26
27
28

30/

The full text of the instruction given in Coleman read as follows: “You are
instructed that under the State Constitution, a Governor is empowered to grant a
reprieve, pardon or commutation of a sentence following conviction of the crime. [¶]
Under this power, a Governor may in the future commute or modify a sentence of life
imprisonment without the possibility of parole to a lesser sentence that would include
the possibility of parole. [¶] So that you will have no misunderstandings relating to a
sentence of life without the possibility of parole, you have been informed generally as
to the Governor’s commutation modification power. You are now instructed, however,
that the matter of a Governor’s commutation power is not to be considered by you in
determining the punishment for this defendant. [¶] You may not speculate as to if or
when a governor would commute the sentence to a lesser one which includes the
possibility of parole.” Coleman, 210 F.3d at 1050.
199

1

the penalty phase.” Id. at 1050-51. The court also went on to find that the instructional

2

error was not harmless. Id. at 1051.

3

Petitioner’s reliance on Coleman is not successful here. First, Coleman is

4

obviously not “clearly established Federal law” as determined by the Supreme Court.

5

28 U.S.C. § 2254(d); Van Patten, 552 U.S. at 126. Second, even assuming that

6

Coleman controlled here, the same facts discussed above materially distinguish

7

Petitioner’s case from Coleman. The Briggs instruction given in Coleman was

8

specifically intended to draw attention to the governor’s commutation power. See

9

People v. Ramos, 30 Cal. 3d at 590. The instruction was given as a matter of course,

10

unprompted by curiosity on the part of any jurors. To the extent that instruction was

11

incomplete as it concerned defendants with multiple felonies, the Ninth Circuit

12

concluded on several occasions that the Briggs instruction affirmatively and

13

inappropriately invited jurors to consider erroneous information. See Coleman, 210

14

F.3d at 1050-51; McLain v. Calderon, 134 F.3d 1383, 1386 (9th Cir. 1998); Hamilton

15

v. Vasquez, 17 F.3d 1149, 1162 (9th Cir. 1994). Here, to the contrary, no Briggs

16

instruction was given, and no instructions were intended to inform jurors about the

17

governor’s commutation power. It was a juror who raised the issue, and the trial court

18

made efforts to provide an answer without drawing attention to the issue. The court

19

acknowledged the governor’s commutation power, but strongly advised jurors not to

20

speculate about it, and even told them quite frankly that commutation was highly

21

unlikely in Petitioner’s case. The California Supreme Court – the same court that

22

found the Briggs instruction misleading and unconstitutional – concluded here that,

23

under the circumstances, the court’s omission of additional information about limits

24

on the commutation power did not “render[] the trial court’s comments so incomplete

25

or misleading as to be constitutionally deficient . . . .” In light of the stark contrast

26

between the Briggs instruction and the trial judge’s advisement here, the conclusion

27

of the California Supreme Court was well within reason under AEDPA. Richter, 562

28

U.S. at 101; LeBlanc, 137 S. Ct. at 1728.
200

1

The Court also disagrees with Petitioner’s argument that accuracy was the

2

lynchpin of the Briggs instruction’s constitutionality in California v. Ramos. (Traverse

3

at 246.) The Supreme Court upheld the Briggs instruction as constitutional because

4

it did “not preclude individualized sentencing determinations or consideration of

5

mitigating factors, nor [did] it impermissibly inject an element too speculative for the

6

jury’s deliberation.” California v. Ramos, 463 U.S. at 1013. The admonition at issue

7

was valid for the same reasons. The speculative element here was raised in a juror’s

8

question. The trial court’s response specifically sought to eliminate, not impermissibly

9

inject, that speculative element from the jury’s deliberation. Id.; see also Caldwell, 472

10

U.S. at 329 (the capital “sentencing process should facilitate the responsible and

11

reliable exercise of sentencing discretion.”).

12
13

The California Supreme Court’s denial of Petitioner’s instructional error claim
involving the governor’s commutation power was reasonable under AEDPA.

14

Claim 30 is DENIED.

15

AA. Trial Court’s Review of Probation Report (Claim 31)

16

Petitioner takes issue with the fact that the trial judge reviewed his probation

17

report before denying his motion to modify the death sentence. He claims that the

18

California Supreme Court’s denial of relief on this issue on state habeas review was

19

unreasonable under Booth v. Maryland, 482 U.S. 496, 508-09 (1987). (SAP at 342-45;

20

Traverse at 257-59.)

21

1.

Factual and Legal Background

22

The Eighth Amendment prohibits a capital sentencing jury from considering “a

23

victim’s family members’ characterizations and opinions about the crime, the

24

defendant, and the appropriate sentence . . . .” Bosse v. Oklahoma, ___ U.S. ___, 137

25

S. Ct. 1, 1-2 (2016) (per curiam). Such evidence is considered “irrelevant to a capital

26

sentencing decision,” and “its admission creates a constitutionally unacceptable risk

27

that the jury may impose the death penalty in an arbitrary and capricious manner.”

28
201

1

Booth v. Maryland, 482 U.S. 496, 503 (1987), overruled in part by Payne v. Tennessee,

2

501 U.S. 808, 828-30, 830 n.2 (1991).

3

Pursuant to California statute, Petitioner’s death sentence triggered an automatic

4

motion to modify that verdict. Cal. Penal Code § 190.4(e); People v. Landry, 2 Cal.

5

5th 52, 123 (2016) (“Every death verdict triggers an automatic application for

6

modification of the sentence.”) (citation omitted). In ruling on such a motion, the trial

7

court “reweighs the evidence, considers the aggravating and mitigating circumstances,

8

and determines whether, in its independent judgment, the weight of the evidence

9

supports the jury’s verdict.” People v. Mungia, 44 Cal. 4th 1101, 1139 (2008). The

10

court must articulate the reasons for its findings to assure meaningful appellate review.

11

Id.; Cal. Penal Code § 190.4(e).

12

The California Supreme Court has also held that in ruling on such a motion, “the

13

trial court may only rely on evidence that was before the jury,” and therefore, “the

14

better procedure is to rule on the application for modification before reading the

15

probation report.” People v. Williams, 40 Cal. 4th 287, 337 (2006) (citation omitted).

16

However, under state law, “reading the probation report before ruling on the section

17

190.4 motion is not prejudicial error when nothing in the record suggests the court

18

considered or relied on the probation report . . . when ruling on the application for

19

modification.” Id. (citation omitted).

20

Petitioner’s probation report was not admitted into evidence for the jury’s

21

consideration. However, at the start of the hearing on Petitioner’s automatic motion

22

to modify his death sentence, the trial court perfunctorily stated that it reviewed

23

Petitioner’s written motion and his probation report. (42RT at 5292.) The court did

24

not discuss the contents of the report or mention the report again until sentencing.

25
26

The probation report contained a section entitled “victim information,” which
included the following passage:

27

William Harper, the father of the deceased victim, Diane Harper,

28

was contacted and made the following comments concerning this matter.
202

1

He said that he wished to compliment [] Deputy District Attorney

2

Zellerbach and the law enforcement officers involved in the prosecution

3

of this case. He said that they did their jobs well and justice was served

4

by the jury’s verdict, with which he totally agrees. He said that William

5

Hart deserves to be put to death for what he did to his daughter, Amy

6

Ryan and the other women he has victimized throughout the years. He

7

said that the prosecution of this case has been extremely difficult for

8

everyone concerned and that he is glad it is over. Mr. Harper commented

9

that he was present in Court [every day] during the trial, with the

10

exception of the days where the jury was required to view pictures of his

11

daughter. He said that he would be present on the day of sentencing. He

12

hopes that the judge will not commute the defendant’s sentence or in any

13

way modify the penalty fixed by the jury for the murder of his daughter.

14
15

(3CT at 659-60.)
In denying Petitioner’s motion to modify the verdict, the trial court thoroughly

16

set forth the factors forming the basis of its decision.

Specifically, the court

17

considered: (1) the evidence presented in both phases of trial; (2) the aggravating and

18

mitigating circumstances set forth in California Penal Code section 190.3; and (3)

19

decisional law of the California Supreme Court “expanding the types of mitigating

20

evidence that should be considered in determining the appropriate penalty.” (42RT at

21

5297.) The court then found that the jury’s verdicts on all counts and special

22

circumstance allegations were supported by the weight of the evidence. (42RT at

23

5297-99.)

24

Next, the court expressly denied the arguments made in Petitioner’s written

25

motion to modify the verdict, finding that the prosecution’s penalty-phase evidence

26

was properly admitted. (42RT at 5299-300.) The trial court then individually

27

discussed each of the enumerated statutory aggravating and mitigating circumstances,

28

and applied each to the facts of the case. (42RT at 5300-07.) In doing so, the court
203

1

recited the details of Petitioner’s crimes against Diane Harper and Amy Ryan, and

2

concluded that “most things being relative, the Court finds the circumstances of this

3

case to be far more aggravating than would even be expected in a case as serious as a

4

capital case.” (42RT at 5301.) The court further found that all of the prior crimes

5

presented in the penalty phase were proven beyond a reasonable doubt, and that they

6

evidenced “a long and disturbing history of sexually assaulting defenseless women.”

7

(42RT at 5301-03.) The trial court was also “satisfied beyond a reasonable doubt” that

8

Petitioner killed his eleven-year-old niece, Shelah McMahan, and the court discussed

9

the evidence of guilt in detail. (42RT at 5303-05.) The court described Petitioner’s

10

conduct in the killing of his niece as “extremely aggravating” and “the stuff of which

11

nightmares are made.” (42RT at 5305.)

12

Ultimately, the trial court found beyond a reasonable doubt that “the aggravating

13

circumstances were substantial in comparison with the . . . mitigating circumstances,

14

. . . .” (42RT at 5307.) The court noted that it “would find this to be true even without

15

any evidence relating to the murder of Shelah McMahan.” (42RT at 5307-08.) The

16

court denied the motion to reduce the death verdict and formally imposed sentence.

17

(42RT at 5308-09.)

18

2.

Analysis

19

The Court finds that Claim 31 is not cognizable on federal habeas review. 28

20

U.S.C. § 2254(a); McGuire, 502 U.S. at 67-68. Petitioner fails to point to clearly

21

established Federal law prohibiting the trial court from reviewing the material at issue.

22

Petitioner attempts to analogize the facts at issue with the Supreme Court’s Eighth

23

Amendment jurisprudence under Booth, which prohibits capital juries from considering

24

various victim and family impact information. Booth, 482 U.S. at 503. But, there are

25

marked, obvious differences here: this matter involves a judge’s post-verdict

26

consideration of whether to modify a sentence already decided by a jury. The

27

objectionable statement by the victim’s father was not admitted into evidence as an

28
204

1

aggravating factor, it simply appeared in a probation report that the judge reviewed at

2

the post-trial hearing.

3

Moreover, under state law, the judge had a statutory duty to articulate the

4

circumstances he relied on in denying Petitioner’s application. As set forth above, the

5

trial judge did just that, making a thorough record discussing the aggravating and

6

mitigating factors that went into his denial of the motion. The court independently

7

reviewed the evidence that was before the jury, and discussed in detail the facts of the

8

capital crimes. Notably, in the twelve pages of the trial transcript in which the court

9

set forth its reasoning, the probation report was never mentioned. (42RT at 5297-

10

5308.) The court also did not discuss any of the contents of that report in making its

11

ruling. The fact that the court made no mention of the probation report or the victim’s

12

father’s statements while setting forth its findings further supports the already solid

13

conclusion that the information played no factor.

14

In any event, Petitioner’s task here is to articulate a violation of clearly

15

established Federal law. He has failed to do so. McGuire, 502 U.S. at 67-68. Claim

16

31 is not cognizable and is DENIED.

17

BB. Death Penalty Improperly Imposed Because it Was Repealed By

18

California’s Three Strikes Statute (Claim 32)

19

Petitioner argues that California’s death penalty statute was repealed in 1994

20

when California passed its “Three Strikes” law. Petitioner theorizes that the language

21

of the Three Strikes law is all-encompassing, so it applies to Petitioner’s crimes and

22

supersedes the death penalty scheme. (SAP at 345-46 (“The [Three Strikes] statutory

23

scheme by its own terms applies to all felony cases ‘notwithstanding any other law.’”);

24

Traverse at 259.) Petitioner asserts that the United States Constitution prohibits his

25

sentence under a repealed statute. (Id.); see also Bell v. Maryland, 378 U.S. 226, 231

26

n.2 (1964).

27
28
205

1

On Petitioner’s direct appeal, the California Supreme Court denied Petitioner’s

2

contention by referring to prior cases in which that court held the Three Strikes law did

3

not repeal the death penalty. People v. Hart, 20 Cal. 4th at 658.

4

Claim 32 is also not cognizable on federal habeas review.

Petitioner’s

5

constitutional claim – that his rights were violated when he was sentenced under a

6

repealed statute – places the cart before the horse. The first determination is whether

7

the death penalty scheme in California was, in fact, repealed by another intervening

8

state law. That is purely an issue of statutory construction. As discussed multiple

9

times already in this Order, the United States Supreme Court has “repeatedly held that

10

a state court’s interpretation of state law, including one announced on direct appeal of

11

the challenged conviction, binds a federal court sitting in habeas corpus.” Richey, 546

12

U.S. at 76; McGuire, 502 U.S. at 67-68 (“[I]t is not the province of a federal habeas

13

court to reexamine state-court determinations on state-law questions.”).

14

Here, the California Supreme Court clearly differs with Petitioner on this crucial

15

point of state law. People v. Hart, 20 Cal. 4th at 658; People v. Alvarez, 14 Cal. 4th

16

155, 246-47 (1996); People v. Samayoa, 15 Cal. 4th 795, 861-62 (1997); see also

17

People v. Lucero, 23 Cal. 4th 692, 738-39 (2000). This Court will not second-guess

18

the state court’s conclusion on an issue of state law. Richey, 546 U.S. at 76; McGuire,

19

502 U.S. at 67-68.

20

Claim 32 is not cognizable, and is therefore DENIED.

21

CC. Unconstitutional Sentencing Scheme (Claim 33)

22

Petitioner makes several arguments challenging the constitutionality of

23

California’s death penalty statute and jury instructions authorized by it. The California

24

Supreme Court denied these claims on habeas review without comment. This Court

25

touches on these patently meritless contentions only briefly, below.

26

1.

Failure To Narrow Death-Eligible Defendants/Vagueness

27

Petitioner argues that California’s death penalty statute violates the Eighth

28

Amendment and due process. He claims the law is too broad and vague because it fails
206

1

to narrow the class of death-eligible defendants, and the death penalty is therefore

2

imposed arbitrarily. In a similar argument, he claims that the statute’s aggravating

3

factors are so vague that prosecutors are essentially left with unfettered discretion to

4

use numerous unrelated facts in aggravation. (SAP at 347-51; Traverse at 259-61.)

5

Petitioner is unable to show that the California Supreme Court’s denial of these

6

claims was contrary to, or an unreasonable application of, clearly established Federal

7

law. The United States Supreme Court has held that a state’s capital sentencing

8

scheme must “genuinely narrow the class of persons eligible for the death penalty and

9

must reasonably justify the imposition of a more severe sentence on the defendant

10

compared to others found guilty of murder.” Lowenfield v. Phelps, 484 U.S. 231, 244

11

(1988) (citation omitted). “This narrowing requirement is usually met when the trier

12

of fact finds at least one statutorily defined eligibility factor at either the guilt or

13

penalty phase.” Brown v. Sanders, 546 U.S. 212, 216 (2006). The jury certainly did

14

that here; Petitioner fails to show that the constitutional “narrowing requirement” was

15

not fulfilled.

16

Further, Petitioner fails to cite any clearly established law that would render

17

California’s death penalty statute unconstitutional on the vagueness arguments made

18

here. This is “not surprising” because the related Supreme Court authority that does

19

exist runs contrary to Petitioner’s assertions. Cf. Moses, 555 F.3d at 761; see also

20

Brown, 546 U.S. at 223-24; Belmontes, 549 U.S. at 13; Kansas v. Marsh, 548 U.S. 163,

21

177 (2006); Tuilaepa, 512 U.S. at 975-80; Boyde v. California, 494 U.S. at 377.

22

Notably, the Supreme Court made clear in Tuilaepa that “vagueness review is quite

23

deferential,” and “a factor is not unconstitutional if it has some common-sense core of

24

meaning . . . that criminal juries should be capable of understanding.” Tuilaepa, 512

25

U.S. at 973 (citation and internal quotation marks omitted). Petitioner has not pointed

26

to any failure of “common-sense core of meaning” in the statutory scheme at issue.

27

His constitutional challenges based on the alleged failure to narrow the class of death-

28

eligible defendants and vagueness do not survive AEDPA review.
207

1

2.

Failure to Require Written Findings

2

Petitioner contends that his death verdict violated the Eighth and Fourteenth

3

Amendments because it is essentially unreviewable. He reasons that without a written

4

statement by the jury indicating which aggravating factors informed its penalty verdict,

5

there is no way to review that verdict meaningfully. (SAP at 351-52.)

6

Petitioner’s claim is again not supported by any clearly established Supreme

7

Court precedent. Further, while the Supreme Court has not squarely addressed the

8

issue, the Ninth Circuit and the California Supreme Court have ruled contrary to

9

Petitioner’s position. See Williams v. Calderon, 52 F.3d at 1484-85 (California’s death

10

penalty statute “need not require written jury findings in order to be constitutional.”)

11

(citation omitted); see also People v. Powell, 5 Cal. 5th 921, 1003 (2018) (“The jury

12

need not make written findings regarding the existence of aggravating factors.”); see

13

also Clemons, 494 U.S. at 750 (“Nor are we impressed with the claim that without

14

written jury findings concerning mitigating circumstances, appellate courts cannot

15

perform their proper role.”).

16

The California Supreme Court’s denial of Petitioner’s claim based on the failure

17

of the jury to provide written reasons for imposing the death penalty was not contrary

18

to, or an unreasonable application of, clearly established Federal law. 28 U.S.C. §

19

2254(d); Van Patten, 552 U.S. at 125-26.

20

3.

Unfettered Prosecutorial Discretion

21

Petitioner alleges that California’s death penalty statute arms prosecutors with

22

excessive authority for choosing which cases and crimes are death-eligible. Petitioner

23

argus that federal law requires “principled decision-making” in prosecutions and the

24

avoidance of “arbitrary and wanton” discretion for juries. (SAP at 352.) Petitioner

25

makes no allegation that either of these principles are, empirically, being violated by

26

California prosecutors. He only claims that the allegedly open-ended authority enjoyed

27

by prosecutors creates a risk that these principles will be violated. As Petitioner has

28

not alleged a violation of clearly established Federal law, this portion of his challenge
208

1

to California’s death penalty statute summarily fails under AEDPA. 28 U.S.C. §

2

2254(d).

3
4

4.

Failure to Require Jury to Find Aggravating Circumstances
True Unanimously and Beyond a Reasonable Doubt

5

Petitioner argues that the penalty-phase jury instructions authorized under

6

California’s death penalty statute were inadequate in such a way that they steered the

7

jury improperly toward choosing the penalty of death. Specifically, he complains that

8

the instructions should have admonished the jury that they must unanimously agree on

9

the truth of the aggravating circumstances, and that they must find those circumstances

10

true beyond a reasonable doubt. (SAP at 353-54.)

11

The Court denies this claim primarily for the reasons already discussed in

12

addressing Claim 27, above. The penalty-phase instructions clearly and adequately

13

admonished the jury of its responsibility, and did so in accordance with the

14

Constitution. Among those instructions, Petitioner’s jury was given a unanimity

15

instruction. (41RT at 5270 (“In order to make a determination as to penalty, all 12

16

jurors must agree.”).) Further, “the Sixth Amendment does not require that a jury

17

specify the aggravating factors that permit the imposition of capital punishment.”

18

Clemons, 494 U.S. at 746. Petitioner fails to show that the instructions as given were

19

constitutionally inadequate. Spisak, 558 U.S. at 148; Boyde v. California, 494 U.S. at

20

386; id. at 377; Van Patten, 552 U.S. at 125-26.

21

Petitioner is also unable to establish that the instructions as given so infected the

22

entire trial that the resulting conviction violated due process. Cupp, 414 U.S. at 147.

23

In light of other material factors such as the powerful evidence of guilt, Petitioner’s

24

proposed jury instructions would not have brought about a different result or changed

25

the proceedings. Petitioner has not established a constitutional violation. Cupp, 414

26

U.S. at 147; McNeil, 541 U.S. at 437; Henderson, 431 U.S. at 155.

27
28
209

1

Petitioner’s challenge to the constitutionality of California’s death penalty

2

statute, including its application in his case, is unsupported by clearly established

3

Supreme Court precedent. 28 U.S.C. § 2254(d). Claim 33 is DENIED.

4

DD. Eighth Amendment Claim Based on Disproportionality (Claim 34)

5

The Supreme Court has held, concerning “the imposition of capital punishment

6

for the crime of murder,” that “when a life has been taken deliberately by the offender,

7

we cannot say that the punishment is invariably disproportionate to the crime. It is an

8

extreme sanction, suitable to the most extreme of crimes.” Gregg, 428 U.S. at 187

9

(footnote omitted).

10

Petitioner claims his death sentence is unconstitutionally disproportionate based

11

upon his particular circumstances. (SAP at 354-56; Traverse at 261-62.) But, the

12

circumstances to which he refers are merely rehashes of prior arguments. He argues

13

that his mental deficits and Amy Ryan’s alleged participation in the murder diminished

14

his culpability and rendered his extreme punishment cruel and unusual. Petitioner is

15

essentially basing an Eighth Amendment cruel and unusual punishment claim on the

16

crime he feels he should have been convicted of, not the one he was actually convicted

17

of. Petitioner points to no Supreme Court cases establishing that his sentence is

18

disproportionate to the crime here. Gregg, 428 U.S. at 187. To the extent Petitioner’s

19

mention of mental deficits is meant to suggest that his execution would violate the

20

Eighth Amendment, the Court directs him to its ripeness analysis of Claim 41. Any

21

claim Petitioner wishes to raise based on his mental state or fitness at the time of

22

execution should be brought at the appropriate time.

23
24
25
26

Petitioner has shown no violation of clearly established Federal law based on his
Eighth Amendment claim. Claim 34 is DENIED.
EE. Death Sentence Is Based on Inaccurate and Unreliable Evidence
(Claim 35)

27

In Claim 35, Petitioner largely repeats allegations already addressed in this

28

Order. The Court will not address those individual issues again. The crux of
210

1

Petitioner’s argument seems to be that his penalty was based upon “materially

2

inaccurate” evidence that falls short of the “heightened reliability” required from

3

capital cases. In short, he claims that the cumulative effect of several alleged errors left

4

the jury with a skewed picture of the facts. (SAP at 356-58; Traverse at 262-63.)

5

Petitioner fails to distinguish Claim 35 from his cumulative error claims, which the

6

Court addresses in the appropriate section of this Order. This claim otherwise does not

7

articulate any independent, cognizable ground for relief. Claim 35 is DENIED.

8

FF.

Improper Use of Unitary Jury (Claim 36)

9

Petitioner argues that he was deprived of the right to an impartial jury and a

10

reliable verdict because “the same jury that had only a few days earlier found him

11

guilty of murder and rape” sentenced him to death. (SAP at 358-60; Traverse at 263.)

12

Petitioner’s claim patently fails under AEDPA. There is no clearly established Federal

13

law prohibiting a unitary jury in death penalty cases, and the only Supreme Court cases

14

to (generally) address the issue have ruled unfavorably to Petitioner’s arguments. See

15

Lockhart v. McCree, 476 U.S. 162, 175-76 (1986) (a state has a legitimate interest “in

16

obtaining a single jury that can properly and impartially apply the law to the facts of

17

the case at both the guilt and sentencing phases of a capital trial.”); Gregg, 428 U.S.

18

at 158 (opinion of Stewart, Powell, and Stevens, JJ.) (upholding Georgia capital

19

sentencing scheme requiring unitary jury in capital cases). Petitioner has offered no

20

legal authority explaining why McCree is no longer valid Supreme Court precedent.

21

Claim 36 is DENIED.

22

GG. Lethal Injection Protocol Is Cruel and Unusual (Claim 37)

23

Petitioner alleges that California’s administration of the death penalty by lethal

24

injection violates the Eighth Amendment. (SAP at 360-64.) However, Petitioner

25

acknowledges in the Traverse that this claim is unripe because “California presently

26

does not have a lethal injection protocol.” In lieu of immediate habeas relief, Petitioner

27

“reserves the right to brief this claim in light of the new protocol if it goes into effect.”

28

(Traverse at 264.) The Court agrees that Claim 37 is unripe.
211

1

Courts have invalidated California’s previous lethal injection protocols. See

2

Payton v. Cullen, 658 F.3d 890, 893 (9th Cir. 2011); see also Sims v. Dep’t of

3

Corrections and Rehabilitation, 216 Cal. App. 4th 1059, 1084 (2013); Morales v. Cal.

4

Dep’t of Corrs. & Rehab., 168 Cal. App. 4th 729 (2008).

5

California enacted a new lethal injection protocol in 2018 following California’s

6

adoption of Proposition 66, The Death Penalty Reform and Savings Act of 2016

7

approved by the voters on November 8, 2016. See Lewis v. Davis, No. CV 03-6775-

8

LJO-SAB, 2018 WL 4024811, at *167 (E.D. Cal. Aug. 20, 2018) (citing Cal. Code

9

Regs. tit. 15 § 3349.1(i) (2018)). However, the constitutionality of the new protocol

10

“is the subject of ongoing litigation in the Northern District of California and a stay

11

upon execution of defendants therein is in effect pending conclusion of the litigation.”

12

Id. (citing Morales v. Kernan, No. 06-CV-0219 RS, 2017 WL 8785130, at *3 (N.D.

13

Cal. Dec. 4, 2017).

14

Because the method that might be used in Petitioner’s case cannot presently be

15

determined, the claim is not ripe. This claim must therefore be denied without

16

prejudice to it being renewed at the appropriate time. See Payton v. Cullen, 658 F.3d

17

at 893. Respondent may assert his arguments in response then, too.

18

Claim 37 is DISMISSED WITHOUT PREJUDICE.

19

HH. Unconstitutional Imposition of the Death Penalty without a

20

Legitimate Governmental Purpose or Adequate Due Process

21

Protections (Claim 38)

22

In Claim 38, Petitioner makes broad and conclusory constitutional allegations.

23

His principal theme is that California’s death penalty statute violates due process and

24

the Eighth Amendment because it is arbitrarily applied, fails to adequately protect

25

innocent people, and because the death penalty is antiquated (SAP at 364-69; Traverse

26

at 264-65). See Moore v. Texas, ___ U.S. ___, 137 S. Ct. 1039, 1048 (2017) (in

27

assessing whether a punishment is cruel and unusual under the Eighth Amendment,

28

courts consider “the evolving standards of decency that mark the progress of a
212

1

maturing society.”) (citation omitted).

The California Supreme Court denied

2

Petitioner’s analogous claim on state habeas review.

3

Perhaps an indication of “evolving standards,” capital punishment has recently

4

been the subject of greater scrutiny nationwide, not the least of which in California.

5

See People v. Potts, 6 Cal. 5th 1012, 1062-67 (2019) (Liu, J., concurring) (criticizing

6

California’s death penalty scheme and discussing California Governor Newsom’s

7

executive order placing a moratorium on capital punishment). However, Petitioner’s

8

claim is governed by clearly-established Supreme Court precedent. Petitioner has

9

pointed to no Supreme Court case invalidating the death penalty in California on any

10

of the constitutional bases mentioned in Claim 38. Van Patten, 552 U.S. at 125-26.

11

And, as already discussed in Claim 33, above, the Supreme Court has entertained and

12

rejected similar constitutional challenges to California’s death penalty statute. Because

13

Petitioner’s allegations patently fail under AEDPA, Claim 38 is DENIED.

14
15

I I.

Denial of Meaningful Appellate Review/IAC of Appellate and Habeas
Counsel (Claim 40)

16

Claim 40 is presented in three-parts. First, Petitioner argues that delays in his

17

appellate review process denied various constitutional rights. Second, he makes a

18

conclusory and generalized allegation of ineffective assistance of appellate counsel.

19

Third, he argues that the state habeas proceedings were constitutionally deficient to

20

protect his rights. (SAP at 371-73; Traverse at 269-70.)

21

Petitioner’s allegations were reasonably rejected by the California Supreme

22

Court on state habeas review. It is true that the U.S. Supreme Court “has repeatedly

23

emphasized that meaningful appellate review of death sentences promotes reliability

24

and consistency.” Campbell v. Ohio, ___ U.S. ___, 138 S. Ct. 1059, 1060 (2018)

25

(Sotomayor, J., respecting the denial of certiorari) (quoting Clemons, 494 U.S. at 749);

26

see also Parker v. Dugger, 498 U.S. 308, 321 (1991). However, Petitioner makes only

27

general allegations here that do not adequately support his assertions. As to his first

28

allegation, he had no clearly established constitutional right to a speedy appeal. Hayes
213

1

v. Ayers, 632 F.3d 500, 523 (9th Cir. 2011). As for the remaining allegations,

2

Petitioner’s conclusory statements alleging flawed post-conviction proceedings and

3

deficient appellate counsel fail to articulate a constitutional claim for relief. See

4

Blackledge v. Allison,431 U.S. 63, 74, 76 n.7 (1977) (“[C]onclusory allegations

5

unsupported by specifics [are] subject to summary dismissal, as are contentions that

6

in the face of the record are wholly incredible,” and a federal habeas petition “is

7

expected to state facts that point to a real possibility of constitutional error”) (internal

8

quotation marks omitted).

9

For the foregoing reasons, Claim 40 is DENIED.

10

JJ.

Mental Incompetency at Time of Execution (Claim 41)

11

Petitioner alleges that he is mentally incompetent to be executed, a claim brought

12

under Ford, 477 U.S. at 410 (“The Eighth Amendment prohibits the State from

13

inflicting the penalty of death upon a prisoner who is insane.”). (SAP at 373-74;

14

Traverse at 271.) However, as both parties agree, with no execution date set or

15

currently in sight, the claim is not yet ripe. Stewart v. Martinez-Villareal, 523 U.S.

16

637, 644-45 (1998); Panetti v. Quarterman, 551 U.S. 930, 943 (2007) (“Ford-based

17

incompetency claims, as a general matter, are not ripe until after the time has run to file

18

a first federal habeas petition.”). Since Petitioner’s execution is “not imminent and

19

therefore his competency to be executed [cannot] be determined at [this] time,”

20

dismissal means that Petitioner “does not receive an adjudication of his claim.”

21

Martinez-Villareal, 523 U.S. at 644-45. As a result, under express Supreme Court

22

precedent, Petitioner may raise the claim in this Court again when it is ripe. Id.

23

Further, dismissing Claim 41 as premature would appear to benefit Petitioner,

24

or at least not be detrimental to his claim. See Panetti, 551 U.S. at 943 (concluding

25

that forcing petitioners to file Ford claims prematurely could be detrimental to those

26

with no early sign of mental illness, and finding that “[a]ll prisoners are at risk of

27

deteriorations in their mental state.”). For now, Petitioner’s claim can only be

28

supported with current medical records and speculation about the future. See id.
214

1

(characterizing premature Ford claims as “unripe and, often, factually unsupported.”)

2

(parenthesis omitted). Petitioner should raise this claim at the appropriate time.

3
4

On the ground of unripeness, Claim 41 is DISMISSED WITHOUT
PREJUDICE.

5

KK. IAC Claims (Claim 6)

6

Petitioner raises twenty-three IAC subclaims alleging deficient performance by

7

both his guilt-phase and penalty-phase attorneys. The Court addresses the merits of

8

these subclaims below. As most of the subclaims fail for the same reasons, the Court

9

finds it unnecessary to address them all separately.

10

1.

Legal Standard

11

A Sixth Amendment IAC claim has two components. “First, the defendant must

12

show that counsel’s performance was deficient.” This requires showing that counsel

13

made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the

14

defendant by the Sixth Amendment.” Strickland v. Washington, 466 U.S. 668, 687

15

(1984). Significantly, because “[i]t is all too tempting for a defendant to second-guess

16

counsel’s assistance after conviction or adverse sentence, and it is all too easy for a

17

court, examining counsel’s defense after it has proved unsuccessful, to conclude that

18

a particular act or omission of counsel was unreasonable,” judicial scrutiny of an

19

attorney’s performance “must be highly deferential.” Id. at 689.

20

There are, . . . “countless ways to provide effective assistance in

21

any given case. Even the best criminal defense attorneys would not

22

defend a particular client in the same way.” (Citation omitted.) Rare are

23

the situations in which the “wide latitude counsel must have in making

24

tactical decisions” will be limited to any one technique or approach.

25

(Citation omitted.)

26

Richter, 562 U.S. at 106 (quoting Strickland, 466 U.S. at 689).

27

A reviewing court “must indulge a strong presumption that counsel’s conduct

28

falls within the wide range of reasonable professional assistance; that is, the defendant
215

1

must overcome the presumption that, under the circumstances, the challenged action

2

might be considered sound trial strategy.” Strickland, 466 U.S. at 689 (internal

3

quotation marks and citation omitted). Federal courts are required not merely to give

4

trial counsel the benefit of the doubt, but to affirmatively entertain the range of

5

possible reasons for counsel having proceeded as they did. Pinholster, 563 U.S. at

6

196. Notably, when formulating a defense strategy, “sometimes is better to try to cast

7

pervasive suspicion of doubt than to strive to prove a certainty that exonerates.”

8

Richter, 562 U.S. at 109.

9

In the context of investigating possible defenses, a lawyer is under a duty to

10

make reasonable investigations. Strickland, 466 U.S. at 691. For example, the lawyer

11

has a duty to investigate the defendant’s “most important defense.” Bragg v. Galaza,

12

242 F.3d 1082, 1088 (9th Cir. 2001) (quoting Sanders v. Ratelle, 21 F.3d 1446, 1457

13

(9th Cir. 1994)). An attorney must also adequately “investigate and introduce into

14

evidence records that demonstrate factual innocence, or that raise sufficient doubt on

15

that question to undermine confidence in the verdict.” Id. (quoting Hart v. Gomez, 174

16

F.3d 1067, 1070 (9th Cir. 1999)).

17

However, the duty to investigate and prepare a defense is not limitless. Id.;

18

Hendricks v. Calderon, 70 F.3d 1032, 1040 (9th Cir. 1995). A lawyer must also be

19

capable of making “a reasonable decision that makes particular investigations

20

unnecessary.” Strickland, 466 U.S. at 691. Thus, an attorney may avoid activities that

21

appear “distractive from more important duties.” Richter, 562 U.S. at 107. The lawyer

22

is “entitled to formulate a strategy that [is] reasonable at the time and to balance limited

23

resources in accord with effective trial tactics and strategies.” Id. An attorney also

24

“need not pursue an investigation that would be fruitless, much less one that might be

25

harmful to the defense.” Id. at 108 (citing Strickland, 466 U.S. at 691); Bragg, 242

26

F.3d at 1088 (a defense attorney is not required to interview every conceivable

27

witness). “There is a strong presumption that counsel’s attention to certain issues to

28

the exclusion of others reflects trial tactics rather than sheer neglect.” Richter, 562
216

1

U.S. at 109 (citation and internal quotation marks omitted); see also Strickland, 466

2

U.S. at 691 (to determine the reasonableness of a decision not to investigate, the court

3

must apply “a heavy measure of deference to counsel’s judgments.”).

4

It is difficult to establish ineffective assistance based on the failure to investigate

5

“when counsel’s overall performance indicates active and capable advocacy.” Richter,

6

562 U.S. at 111; see also Bragg, 242 F.3d at 1088 (citing Eggleston v. United States,

7

798 F.2d 374, 376 (9th Cir.1986)) (“When the record clearly shows that the lawyer was

8

well-informed, and the defendant fails to state what additional information would be

9

gained by the discovery she or he now claims was necessary, an ineffective assistance

10

claim fails.”).

11

“Second, the defendant must show that the deficient performance prejudiced the

12

defense. This requires demonstrating that counsel’s errors were so serious as to

13

deprive the defendant of a fair trial, a trial whose result is reliable.” Strickland, 466

14

U.S. at 687. Specifically, a petitioner must “affirmatively prove prejudice,” and “[i]t

15

is not enough for the defendant to show that the errors had some conceivable effect on

16

the outcome of the proceeding.” Id. at 693. Instead, the petitioner “must show that

17

there is a reasonable probability that, but for counsel’s unprofessional errors, the result

18

of the proceeding would have been different. A reasonable probability is a probability

19

sufficient to undermine confidence in the outcome." Id. at 694.

20

Additionally, “[u]nless a defendant makes both showings, it cannot be said that

21

the conviction or death sentence resulted from a breakdown in the adversary process

22

that renders the result unreliable.” Id. at 687. Therefore, “a court need not determine

23

whether counsel’s performance was deficient before examining the prejudice,” and

24

“[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of

25

sufficient prejudice, which we expect will often be so, that course should be followed.”

26

Id. at 697.

27

Finally, while “[s]urmounting Strickland’s high bar” alone “is never an easy

28

task,” the additional task of “[e]stablishing that a state court’s application of Strickland
217

1

was unreasonable under § 2254(d) is all the more difficult.” Richter, 562 U.S. at 105

2

(citations omitted). Both standards are “highly deferential,” so “when the two apply

3

in tandem, review is ‘doubly’ so . . . .” Id. (citing Knowles v. Mirzayance, 556 U.S.

4

111, 123 (2009)). Specifically, “[w]hen § 2254(d) applies, the question is not whether

5

counsel’s actions were reasonable. The question is whether there is any reasonable

6

argument that counsel satisfied Strickland’s deferential standard.” Id. “The Strickland

7

standard is a general one, so the range of reasonable application is substantial.” Id.

8

“Reliance on ‘the harsh light of hindsight’ to cast doubt on a trial that took place now

9

more than 15 years ago is precisely what Strickland and AEDPA seek to prevent.” Id.

10
11

at 107 (citations omitted).
2.

Background Facts

12

In denying Petitioner’s IAC claims on direct appeal, the California Supreme

13

Court made notable findings about the defense attorneys’ options and possible

14

strategies, consistent with this Court’s conclusions about the strength of the

15

prosecution’s evidence. For example, as to the guilt phase, the court noted that, “in

16

view of the physical evidence that linked defendant to the crimes, and the extended

17

period of time during which Amy had an opportunity to observe defendant on the day

18

the crimes were committed,” defense counsel reasonably avoided challenging a pretrial

19

lineup consistent with an “overall trial strategy not to challenge defendant’s presence

20

at the crime scene, but instead to claim that the killing of Diane did not constitute first

21

degree murder.” People v. Hart, 20 Cal. 4th at 625. The state court further found that:

22

trial counsel was confronted with overwhelming evidence that defendant

23

killed Diane in the course of a sexual assault, and the manner of killing

24

(repeated powerful blows to the back of the head with a rock), combined

25

with defendant’s statement to Amy that “your friend was an asshole, she

26

called me a few names, and I think she’s dead,” strongly suggested that

27

he acted with the intent to kill. In view of these circumstances, trial

28

counsel could have had a reasonable tactical basis for deciding to forego
218

1

the presentation of a mental state defense in favor of a defense

2

challenging the prosecution’s forensic evidence. Counsel’s strategy

3

conceivably could have persuaded the jury to acquit defendant of the

4

charge that he raped Diane and to convict him only of second degree

5

murder.

6

Id. at 627-28.

7

Subsequently, the California Supreme Court again found that:

8

the overwhelming nature of the evidence against defendant left counsel

9

with little opportunity to mount a persuasive summation. The surviving

10

victim had testified in graphic detail regarding defendant’s involvement

11

in the charged offenses. Defendant’s fingerprint was found on a beer

12

bottle recovered from the remote crime scene. Other physical and

13

circumstantial evidence linked defendant to the crimes. In view of the

14

evidence presented against defendant, trial counsel reasonably could have

15

concluded that challenging the evidence more vigorously in his argument

16

risked alienating the jury and perhaps lessening his odds of success at the

17

penalty phase.

18

culpability – but to a lesser extent than that urged by the prosecution, in

19

an effort to spare his client from a penalty phase – was not a tactical

20

choice that could not be satisfactorily explained.

21

Counsel’s decision to acknowledge defendant’s

Id. at 631-32 (citations omitted).

22

As to Petitioner’s penalty-phase lawyer, the California Supreme Court found:

23

defense counsel at the penalty phase vigorously cross-examined key

24

prosecution witnesses, sought to cast doubt on the case against defendant

25

involving Shelah, and presented a thorough case in mitigation. During

26

the penalty phase, defendant expressed his high regard for defense

27

counsel, informing the court: “As for phase two, I am totally pleased with

28

both my counsel.”
219

1

Id. at 633-34.

2

The California Supreme Court additionally found that:

3

although trial counsel did not present the mental health defense that

4

defendant now contends was necessary, counsel did present considerable

5

evidence that sought to portray defendant as a victim of numerous

6

unfortunate circumstances. For example, the defense presented evidence

7

of defendant’s childhood head injury, his father’s alcoholism and

8

detachment from the family, and defendant’s first wife’s extramarital

9

affair and his ensuing use of drugs. Although such matters did not

10

comprise a “mental health” defense based upon the testimony of various

11

mental health experts, they did provide the jury with the opportunity to

12

consider certain factors in mitigation – without exposing the jury to

13

potentially damaging rebuttal evidence regarding defendant’s mental

14

health. In view of defendant’s lengthy history of behaving violently

15

toward women, and the interest of the defense in portraying defendant as

16

favorably as possible, we cannot say on this record that there could not be

17

a reasonable tactical basis for trial counsel’s decision to rely solely upon

18

mitigating evidence that showed defendant to be the victim of numerous

19

unfortunate circumstances, in an effort to generate sympathy, and perhaps

20

leniency, from the jury at the penalty phase.

21
22
23

Id. at 637-38.
3.

Analysis
a.

Alleged Pretrial Deficiencies by Barnett

24

This Court’s task is to determine whether any theory under Strickland could

25

have supported the state court’s denial of relief. Richter, 562 U.S. at 102. Petitioner’s

26

first IAC subclaim faults his guilt-phase trial attorney for failing to adequately prepare

27

the case. Petitioner’s primary complaints are that the lawyer failed to meet with him

28
220

1

often enough or investigate important leads for a complete defense. (SAP at 58-68;

2

Traverse at 43-45, 50-53.)

3

The California Supreme Court denied this subclaim on direct appeal, finding it

4

“unpersuasive, because the record before us does not disclose that trial counsel lacked

5

a tactical basis” for his actions or inactions, and “counsel’s performance was not of the

6

sort for which there could be no satisfactory explanation.” People v. Hart, 20 Cal. 4th

7

at 627. After addressing a number of specific claims pertaining to counsel’s trial

8

performance, the court more generally concluded that “the record on appeal does not

9

support defendant’s claim that his counsel performed deficiently in preparing or

10

presenting a defense.” Id. at 628. The state court’s decision was consistent with

11

Strickland. 28 U.S.C. § 2254(d).

12

The record in this case shows that Petitioner received the representation required

13

by the Sixth Amendment at the pretrial stage.

14

investigations and efforts to put together a strategy for trial. Strickland, 466 U.S. at

15

691. Petitioner highlights Barnett’s failure to personally meet with him often enough

16

or devote more time to his mental state and depression. Petitioner’s generalized attacks

17

on his attorney’s efforts in this regard fail to overcome the “strong presumption” that

18

the lawyer’s conduct fell within the wide range of reasonable professional assistance.

19

Id. at 689. Petitioner also fails to convincingly establish how any of Barnett’s alleged

20

failings to spend more time with him affected the outcome of the trial. Id. at 693-94.

21

Petitioner also contends that Barnett failed to make key investigations. More

22

specifically, Petitioner complains that Barnett failed to create a meaningful

23

investigation plan, failed to hire competent investigators, and failed to interview

24

enough witnesses. (SAP at 60-68.) Petitioner also claims the defense should have

25

proffered other cellmates to rebut Gresham’s penalty-phase testimony about his

26

confession to killing his niece. He also theorizes that more witnesses who knew and

27

spoke to the victims would have undermined Amy Ryan’s credibility. Petitioner, in

28

fact, places emphasis throughout his papers on his attorney’s failures to attack Amy
221

His lawyer made competent

1

Ryan’s credibility at trial.

2

reasonable, strategy of choosing not to attack the young victim who lived to tell the

3

horrors she endured in great detail. It was, at the very least, reasonable for the

4

California Supreme Court to assume Barnett avoided raising conspiracy theories about

5

Petitioner and his rape victim as a matter of sound trial strategy. Strickland, 466 U.S.

6

at 687; Richter, 562 U.S. at 105. As to all of these complaints about the defense

7

attorneys, they amount to quintessential examples of the “all too tempting” resort “to

8

second-guess[ing] counsel’s assistance after conviction or adverse sentence.”

9

Strickland, 466 U.S. at 687; Richter, 562 U.S. at 105. The subclaim fails.

10

b.

These arguments ignore the obvious, and patently

IAC Subclaims Based on Rejected Arguments

11

Petitioner raises multiple IAC claims that hinge on the underlying merits of other

12

claims raised in his SAP. In other words, he argues that several errors, to the extent

13

they were not the fault of the trial court, resulted from his lawyers’ failure to properly

14

present the issue. Specifically, Petitioner contends that his attorneys: (1) failed to

15

conduct more thorough voir dire to root out juror bias; (2) failed to fully investigate

16

and present evidence to impeach Amy Ryan’s testimony; (3) failed to make a

17

competent motion to change venue; (4) failed to object to the expert testimony of Dr.

18

Hunter; (5) failed to adequately investigate, rebut, and mitigate the penalty-phase

19

testimony of jailhouse informant Randall Gresham; (6) failed to object to shackling;

20

(7) failed to object to the alleged prosecutorial misconduct; and (8) failed to move to

21

exclude all penalty-phase evidence of the Shelah McMahan homicide.

22

In light of this Court’s extensive analysis above rejecting the underlying

23

foundation of these IAC claims, the Court finds that the California Supreme Court

24

reasonably denied these related IAC claims. Petitioner’s lawyers made reasonable

25

decisions to the extent they elected not to pursue meritless, futile issues. Gonzalez v.

26

Knowles, 515 F.3d 1006, 1017 (9th Cir. 2008) (a defense attorney “cannot be deemed

27

ineffective for failing to raise [a] meritless claim.”); Rupe v. Wood, 93 F.3d 1434, 1445

28

(9th Cir. 1996) (an attorney’s “failure to take a futile action can never be deficient
222

1

performance.”). Moreover, for the same reasons as their counterpart claims, even

2

assuming deficient performance, these IAC issues did not change the outcome of

3

Petitioner’s trial. Strickland, 466 U.S. at 693-94.

4

c.

Failure to Challenge Prosecution’s Scientific Evidence

5

Petitioner also complains that his lawyers performed deficiently in failing to

6

adequately test and investigate the prosecution’s scientific evidence and expert

7

testimony during both phases of trial. He places emphasis on the electrophoresis

8

testing done on blood and seminal fluid. The California Supreme Court denied this

9

claim in part as follows:

10

James Hall, the prosecution’s criminalist, testified that a stain

11

found on Amy’s slip tested positive for both blood and seminal fluid,

12

although neither substance could be typed using electrophoresis. Thus,

13

the testimony did not establish whether it was defendant who deposited

14

the stain. . . . .

15

[The] record on appeal fails to disclose that trial counsel lacked a

16

tactical basis for declining to challenge the electrophoresis evidence, and

17

counsel’s decision was not one for which there could be no satisfactory

18

explanation. Although the criminalist testified that the contributor of the

19

stain might have been a nonsecretor (as was defendant), the criminalist

20

also testified that the inability to type the stain could have been due to the

21

insufficient strength of the stain, or due to degradation attributable to the

22

passage of time. Thus, as noted, the evidence did not identify defendant

23

as the contributor.

24

concluded that the evidence was not particularly prejudicial, and on that

25

basis reasonably could have made a tactical decision not to challenge the

26

admissibility of this evidence, or the reliability of the electrophoresis

27

testing. During cross-examination, trial counsel exploited the weakness

28

of this evidence, asking questions that emphasized its inconclusive nature.

Trial counsel therefore reasonably may have

223

1

Defendant’s assertion of ineffective assistance of counsel based

2

upon trial counsel’s failure to request a Kelly-Frye hearing similarly is

3

unpersuasive. Again, the record before us fails to disclose that trial

4

counsel lacked a tactical basis for declining to request such a hearing, nor

5

was counsel’s decision to refrain from doing so one for which there could

6

be no satisfactory explanation.

7

electrophoretic typing of dried bloodstains had gained general acceptance

8

in the scientific community. Trial counsel was under no obligation to

9

interpose a meritless challenge to a generally accepted scientific

10

technique. We therefore reject defendant’s contention that trial counsel

11

performed deficiently regarding this issue, and find no basis for his

12

related contention that counsel’s performance deprived defendant of his

13

constitutional rights.

14
15

At the time of defendant’s trial,

People v. Hart, 20 Cal. 4th at 628-29 (citations omitted).
The state court also concluded:

16

At the penalty phase, the prosecution introduced evidence of

17

electrophoretic testing of dried blood that had been found on handcuffs

18

recovered from a shed located behind defendant’s residence. . . . The

19

blood was similar in type to Shelah’s. The prosecution also introduced

20

evidence related to electrophoretic testing of a semen stain found on

21

Shelah’s sweatpants; on cross-examination, the prosecution’s expert

22

acknowledged that no conclusion could be drawn as to typing the semen

23

donor, or as to the age of the stain.

24

Defendant contends that, at the time of his trial, there was

25

considerable debate regarding the admissibility of electrophoretic

26

evidence, . . . . Defendant contends that trial counsel’s failure to object

27

to the admission of the electrophoretic evidence, and counsel’s failure to

28
224

1

request a foundational hearing pursuant to Evidence Code section 402,

2

constituted ineffective assistance of counsel.

3

Defendant’s position is unpersuasive, because the record on appeal

4

fails to reflect that trial counsel lacked a tactical basis for declining to

5

challenge the electrophoresis evidence or request a foundational hearing,

6

and counsel’s decisions regarding those matters were not ones for which

7

there could be no satisfactory explanation.

8

[Moreover], . . . , we held that admission of electrophoresis testing

9

was generally accepted in the scientific community in 1987 – a date prior

10

to its introduction at the penalty phase in defendant’s trial. Defense

11

counsel was not required to mount a meritless challenge to the acceptance

12

of such evidence.

13

Id. at 634-35 (citations omitted).

14

The state court decision was not contrary to, or an unreasonable application of,

15

Strickland. Notably, Petitioner’s allegations as to every scientific aspect of the

16

prosecution’s case – electrophoresis testing, the autopsy, gynecology, blood spatter

17

evidence – only speculate as to whether his lawyers would have garnered a competent

18

scientific rebuttal. He merely hypothesizes that more effort on the part of the lawyers

19

would have led to favorable evidence.

20

demonstrating a “reasonable probability” that outcome-altering evidence would have

21

emerged from further investigation. Strickland, 466 U.S. at 694; Richter, 562 U.S. at

22

111; Bragg, 242 F.3d at 1088. Additionally, considering how damning the evidence

23

was implicating Petitioner in both the guilt-phase and penalty-phase crimes, there was

24

certainly a reasonable strategy to the extent Petitioner’s attorneys focused their efforts

25

on more priority arguments. Strickland, 466 U.S. at 689; Pinholster, 563 U.S. at 196.

26

Petitioner has not established an unreasonable application of Strickland here.

27

d.

That does not meet the standard of

Failure to Object to Dr. Rath’s Testimony

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225

1

Petitioner argues that his lawyers failed to mount an admissibility challenge to

2

“binge rapist” testimony offered by Dr. Craig Rath. The California Supreme Court

3

denied this claim based on the following findings of fact and conclusions of law:

4

The prosecution called Dr. Craig Rath, a licensed clinical

5

psychologist at Patton State Hospital, to testify as an expert witness

6

regarding two principal matters: (1) memory repression by someone who

7

has experienced a traumatic event, and (2) an emotional “about-face” and

8

showing of remorse on the part of someone who has just committed a

9

sexual assault. Rath’s testimony apparently was intended to assist the

10

jury in understanding certain aspects of Amy’s testimony.

On

11

cross-examination, Rath acknowledged that he was unfamiliar with

12

defendant or the surviving victim, not having interviewed either

13

individual.

14

On appeal, defendant contends that trial counsel performed

15

deficiently in failing to challenge Rath’s qualifications or competence to

16

testify as an expert regarding the matters about which he testified,

17

particularly his testimony concerning the common conduct of “binge

18

rapists.” Defendant’s claim cannot be sustained on appeal. The record

19

on appeal fails to disclose that trial counsel lacked a tactical basis for

20

declining to challenge Dr. Rath’s qualifications or competence to testify

21

as an expert, and counsel’s decision to refrain from doing so was not one

22

for which there could be no satisfactory explanation. At the time of

23

defendant’s trial, Rath had performed more than 2,000 court-directed

24

psychological evaluations and had testified “a couple of hundred times in

25

nine counties in California and four other states,” and there is no

26

indication in the record that he did not have expertise with regard to the

27

matters to which he testified. Thus, on the record before us, we perceive

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226

1

no deficiency on counsel’s part in failing to challenge Dr. Rath’s

2

qualifications.

3

People v. Hart, 20 Cal. 4th at 629-30 (citations omitted).

4

Again, the state court decision was not contrary to, or an unreasonable

5

application of, Strickland. As above, Petitioner fails on two crucial fronts. He

6

speculates that his lawyers could have mustered any viable argument to disqualify Dr.

7

Rath’s testimony. Strickland, 466 U.S. at 694. Additionally, he fails to explain how

8

this evidence was so important or persuasive in the grand scheme of the trial that a

9

reasonably competent attorney should have expended time and resources on it. Id. at

10

689; Pinholster, 563 U.S. at 196. Petitioner has again not established an unreasonable

11

application of Strickland.

12

e.

Failure to Present an Adequate Mitigating Case

13

Petitioner raises additional claims targeting his lawyers’ performance in the

14

penalty phase. He argues that they failed to present aspects of his social history, retain

15

mental health experts to testify, or mount an adequate third-party culpability defense

16

as to the murder of his niece. The California Supreme Court reasonably denied these

17

IAC allegations.

18

As stated above, a defense lawyer is “entitled to formulate a strategy that [is]

19

reasonable at the time and to balance limited resources in accord with effective trial

20

tactics and strategies.” Richter, 562 U.S. at 107-08. A defense lawyer “need not

21

pursue an investigation that would be fruitless, much less one that might be harmful

22

to the defense.” Id. Moreover, Petitioner’s attorneys were entitled to a strong

23

presumption that they made rational choices based on what defense theories they

24

decided would be most likely to persuade the jury. Richter, 562 U.S. at 109 (counsel

25

is entitled to a strong presumption that his or her attention to certain issues to the

26

exclusion of others reflects trial tactics); Strickland, 466 U.S. at 691 (the court must

27

apply “a heavy measure of deference to counsel’s judgments.”). For reasons already

28

discussed in detail – in particular the powerful penalty-phase evidence in aggravation
227

1

– Petitioner fails to show that his lawyers had any non-frivolous action to take that

2

would have changed the outcome of the penalty phase of his trial. Gonzalez, 515 F.3d

3

at 1017; Rupe, 93 F.3d at 1445 (9th Cir. 1996). Petitioner’s claim is another example

4

of the “all too tempting” resort “to second-guess[ing] counsel’s assistance after

5

conviction or adverse sentence.” Strickland, 466 U.S. at 687; Richter, 562 U.S. at 105.

6

Petitioner’s arguments are also based largely on speculation as to what evidence

7

additional witness interviews would have garnered. See Djerf v. Ryan, 931 F.3d 870,

8

883 (9th Cir. 2019) (no Strickland prejudice where the prosecution’s aggravating

9

evidence was strong and it was unclear whether additional defense investigation would

10
11

have led to an expert diagnosis of mental illness).
This subclaim also fails.

12

f.

Claims That Patently Fail Strickland Prejudice

13

The remaining IAC subclaims – that Petitioner’s lawyers failed to ensure his

14

presence at all critical stages of trial, failed to move to have the prosecutor recused,

15

failed to challenge an unfair pretrial lineup, failed to request a different jury for the

16

penalty phase, failed to cooperate with each other, failed to adequately challenge the

17

special circumstance allegations based on lack of intent, came to court intoxicated and

18

completely abandoned their role as advocates – plainly fail Strickland’s prejudice

19

prong. For reasons already discussed regarding the strength of the prosecution’s

20

evidence, none of these claims, even assuming deficient performance, establish a

21

reasonable probability of a different result. Strickland, 466 U.S. at 694. Thus, these

22

assertions fail to “affirmatively prove prejudice.” Id. at 693 (“It is not enough for the

23

defendant to show that the errors had some conceivable effect on the outcome of the

24

proceeding.”)

25

The California Supreme Court’s denial of Petitioner’s IAC claims was not

26

contrary to, or an unreasonable application of, clearly established United States

27

Supreme Court precedent. 28 U.S.C. § 2254(d). Claim 6 is DENIED.

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LL. Defense Investigator’s Conflict of Interest (Claim 13)
228

1

Petitioner’s next claim is both factually and legally speculative. He raises IAC

2

and a conflict-of-interest claim based on his concerns about the background of an

3

investigator hired by the defense. The investigator at issue, Carl Smith, was previously

4

employed as the chief deputy coroner in the Riverside County Coroner’s Office.

5

Petitioner points to Smith’s prior convictions of perjury and conspiracy to obstruct

6

justice based on acts that occurred while he was employed by the coroner. Petitioner

7

argues that Smith was on probation in that case at the time of Petitioner’s trial, and

8

“needed the Riverside District Attorney’s approval for dismissal of the charges against

9

him.” From that, Petitioner concludes that Smith was “beholden to the county

10

prosecutor’s office” and made sub-par investigative efforts on Petitioner’s case due to

11

the investigator’s divided loyalties. Aside from generally referring to the investigative

12

inadequacies Petitioner alleged in his related IAC claim in Claim 6, he emphasizes that

13

Smith could not have thoroughly investigated the work and character of his former

14

colleagues in the county coroner’s office. (SAP at 240-47; Traverse at 168-71.)

15

The California Supreme Court’s summary denial of Petitioner’s claim was not

16

objectively unreasonable under AEDPA. The Court has already addressed and rejected

17

Petitioner’s IAC claims based on allegedly inadequate investigations. Petitioner’s

18

renewed attempt to restate these claims by assigning the assumed conflicts of an

19

investigator to the attorney who hired him is not supported by clearly established

20

Federal law. It was the lawyer who owed Petitioner a Sixth Amendment duty to

21

adequate and conflict-free representation. It was also the lawyer who was responsible

22

for the mistakes of those he hired. Setting aside Petitioner’s unsupported cynicism –

23

he argues that Smith likely acted as a double agent for the district attorney’s office,

24

sabotaging defense cases and helping his former colleagues in the county coroner’s

25

office cover up their misdeeds – he fails to show that any part of this alleged

26

conspiracy affected the performance of his trial attorney or actually inhibited the

27

defense case in a material way. See Rowland, 876 F.3d at 1191 (to demonstrate a Sixth

28

Amendment violation based on a conflict of interest, “a defendant who raised no
229

1

objection at trial must demonstrate that an actual conflict of interest adversely affected

2

his lawyer’s performance.”) (emphasis added, citation omitted); id. (establishing an

3

“actual conflict” requires more than showing “a mere theoretical division of

4

loyalties.”); Strickland, 466 U.S. at 693 (a petitioner must “affirmatively prove

5

prejudice,” and “[i]t is not enough for the defendant to show that the errors had some

6

conceivable effect on the outcome of the proceeding.”).

7

Claim 13 is DENIED.

8

MM. Cumulative Error (Claims 21 and 39)

9

Petitioner argues that the cumulative effect of all the alleged guilt-phase (Claim

10

21) and penalty-phase (Claim 39) errors – including his IAC claims – violated the

11

Constitution. (SAP at 295-96, 369-71; Traverse at 265-68.) The Supreme Court has

12

never expressly held that either cumulative error or cumulative Strickland prejudice are

13

bases on which habeas relief may be granted. Consequently, Petitioner cannot show

14

a violation of clearly established Federal law, and these claims fail. 28 U.S.C. §

15

2254(d); Van Patten, 552 U.S. at 126.

16

Ninth Circuit courts have held that the “cumulative effect of multiple errors can

17

violate due process even where no single error rises to the level of a constitutional

18

violation or would independently warrant reversal.” Ybarra v. McDaniel, 656 F.3d

19

984, 1001 (9th Cir. 2011) (quoting Parle v. Runnels, 505 F.3d 922, 927 (9th Cir.

20

2007)); see also Harris v. Wood, 64 F.3d 1432, 1438-39 (9th Cir. 1995) (applying the

21

same principal to the “cumulative prejudice” of several IAC claims).

22

cumulative effect exists where there is a “unique symmetry” of otherwise harmless

23

errors that “amplify each other in relation to a key contested issue in the case” and

24

render the proceeding “fundamentally unfair.” Ybarra, 656 F.3d at 1001 (citations

25

omitted). But, when there is no single constitutional error, there is “nothing to

26

accumulate to a level of a constitutional violation.” Mancuso v. Olivarez, 292 F.3d

27

939, 957 (9th Cir. 2002). Since the Court finds that none of Petitioner’s claims

28
230

Such a

1

amounts to constitutional error, Petitioner’s cumulative error claim would fail under

2

this Circuit’s precedent, as well.

3

Regardless, in the absence of clearly established Federal law articulating

4

cumulative error or cumulative Strickland prejudice as bases for habeas relief, both

5

claims fail under AEDPA. See Lopez v. Smith, 574 U.S. at 2 (AEDPA prohibits circuit

6

courts from relying on their own precedent to conclude that a particular constitutional

7

principle is clearly established); see also Dodson v. Stephens, 611 F. App’x. 168, 179

8

n.3 (5th Cir. 2015) (discussing circuit split of authority as to whether Strickland calls

9

for a cumulative prejudice analysis) (cited pursuant to Fed. R. App. P. 32.1(a) and 5th

10

Cir. R. 28.7).

11
12

Claims 21 and 39 are DENIED.
VI.

CONCLUSION

13

The Court finds that Claims 37 and 41 are not yet ripe for review. The Court

14

dismisses those claims without prejudice so that Petitioner may raise them at the

15

appropriate time. As to all other claims raised in the SAP, Petitioner has not cleared

16

“AEDPA’s high bar for habeas relief.” LeBlanc, 137 S. Ct. at 1729; see also Richter,

17

562 U.S. at 102 (“It bears repeating that even a strong case for relief does not mean the

18

state court’s contrary conclusion was unreasonable. (Citation omitted.) If this standard

19

is difficult to meet, that is because it was meant to be.”). Those claims are denied and

20

dismissed with prejudice.

21
22

IT IS SO ORDERED.
Dated: August 5, 2020

DALE S. FISCHER
UNITED STATES DISTRICT JUDGE

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