Ernest DeWayne Jones v. Robert K. Wong

Filing 100

REPLY Brief Re: Application of 28 USC 2254(d) filed by Petitioner Ernest DeWayne Jones. (Plunkett, Cliona)

1
2
3
4
5
6
7
8
9

Michael Laurence (Bar No. 121854)
Barbara Saavedra (Bar No. 191628)
Cliona Plunkett (Bar No. 256648)
HABEAS CORPUS RESOURCE CENTER
303 Second Street, Suite 400 South
San Francisco, California 94107
Telephone: [phone]
Facsimile: [phone]
E-mail:
[e-mail]
Attorneys for Petitioner ERNEST DEWAYNE JONES
UNITED STATES DISTRICT COURT

10
11
12
13

FOR THE CENTRAL DISTRICT OF CALIFORNIA
ERNEST DEWAYNE JONES,
Petitioner,

16
17

DEATH PENALTY CASE

v.

14
15

Case No. CV-09-2158-CJC

KEVIN CHAPPELL, Warden of
California State Prison at San
Quentin,
Respondent.

PETITIONER’S REPLY BRIEF
REGARDING THE APPLICATION
OF 28 U.S.C. § 2254(D)

18
19
20
21
22
23
24
25
26
27
28
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

TABLE OF CONTENTS

2

Table of Authorities ................................................................................................. xii 

3

I. 

Introduction ....................................................................................................... 1 

4

II. 

The Legal Framework for Deciding Whether the State Court
Denial of Mr. Jones’s Claims Satisfies 2254(d) Exceptions. ............................ 1 

5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

A.  Discerning the Basis for the State Court’s Summary Denial
Must Be Guided by Applicable State Law and Procedures. ...................... 2 
1.  The State Court Evaluates a Prima Facie Showing for Facial
Sufficiency. ............................................................................................ 4 
2.  The State Court Expressly Indicates Any Deficiencies in
Pleading and Proof by Citation. ............................................................ 5 
3.  The State Court Does Not Make Factual Findings or
Credibility Determinations Without Holding an Evidentiary
Hearing. ................................................................................................. 6 
4.  The State Court May Not Summarily Deny Allegations on
the Basis of Issues the Petitioner Has Not Had a Chance to
Address. ................................................................................................. 8 
B.  This Court Has a Constitutional Duty to Independently Review
the Merits of Mr. Jones’s Claims Notwithstanding 28 U.S.C.
Section 2254(d). ....................................................................................... 11 
C.  Respondent Concedes That Mr. Jones Set out the Proper Legal
Framework for Assessing Whether His Prima Facie Showing
for Relief Satisfies Section 2254(d)(1)..................................................... 14 
D.  Respondent’s Assumption That Section 2254(d)(2) Cannot Be
Satisfied by Summary Denial Is Without Merit. ...................................... 16 
III.  There Are No Valid State Procedural Rules That Bar This Court
From Reviewing Mr. Jones’s Claims for Relief. ............................................ 17 
A.  General Principles Governing the Validity of State Procedural
Rules ......................................................................................................... 18 

27
28

i
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

B.  The Seaton and Dixon Rules Are Not Adequate to Preclude
Federal Habeas Review. ........................................................................... 19 
1.  The Seaton and Dixon Rules, as Applied in Capital Cases,
Fail to Serve a Legitimate State Interest. ............................................ 19 
2.  The Seaton Rule Was Not Firmly Established and Regularly
Followed at the Relevant Time in This Case....................................... 26 
3.  The Dixon Rule Was Not Firmly Established and Regularly
Followed at the Relevant Time in This Case....................................... 27 
C.  The Contemporaneous Objection Rule Is Not Adequate or
Independent and Does Not Preclude Federal Review .............................. 29 
IV.  Mr. Jones’s Claims Satisfy 28 U.S.C. Section 2254(d) .................................. 33 
A.  Claim One: Mr. Jones Received Ineffective Assistance of
Counsel During the Guilt Phase of His Trial............................................ 33 
1.  There Is No Reasonable Basis for the State Court Ruling
That Mr. Jones Failed to Make a Prima Facie Showing for
Relief. .................................................................................................. 35 
a.  Mr. Jones Made a Prima Facie Showing That Trial
Counsel Was Ineffective for Failing to Investigate and
Adequately Present a Mental State Defense. ................................ 35 
1)  Trial counsel decided to rely exclusively on Mr.
Jones’s testimony for the mental state defense
without conducting a reasonable investigation. .................... 36 
2)  Trial counsel did not retain, adequately prepare, or
present any mental expert to testify in support of
the mental state defense. ....................................................... 41 
3)  Trial counsel’s failure to investigate and present
expert and lay witness testimony to support a
mental state defense was prejudicial. .................................... 45 
b.  Mr. Jones Made a Prima Facie Showing That Trial
Counsel Was Ineffective for Failing to Investigate and
Adequately Defend Against the Rape Charges. ............................ 51 
ii
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

c.  Mr. Jones Made a Prima Facie Showing That Trial
Counsel Was Ineffective for Failing to Investigate and
Defend Against a Prior Conviction. .............................................. 53 
d.  Mr. Jones Was Prejudiced by the Cumulative Effect of
Trial Counsel’s Errors. .................................................................. 56 
2.  Section 2254(d) Is Satisfied by the State Court’s Summary
Denial of Mr. Jones’s Adequately Pled Claim That Trial
Counsel Was Ineffective During the Guilt Phase of Trial. .................. 57 
B.  Claim Two: Mr. Jones Was Deprived of His Right to ConflictFree Representation. ................................................................................. 59 
C.  Claim Three: The State Withheld Material Exculpatory
Evidence. .................................................................................................. 68 
1.  There Is No Reasonable Basis for the State Court Ruling
That Mr. Jones Failed to Make a Prima Facie Showing for
Relief. .................................................................................................. 69 
a.  Mr. Jones Made a Prima Facie Showing That the
Prosecutor Unlawfully Withheld the 1984 Emergency
Room Report. ................................................................................ 69 
1)  The California Supreme Court could not
reasonably reject the claim based on the
inadmissibility of the record. ................................................ 70 
2)  The California Supreme Court could not
reasonably reject the claim based on a theory that
Mr. Jones had personal knowledge of the record.................. 76 
3)  The California Supreme Court could not
reasonably reject the claim based on a theory that
Mr. Jones was not prejudiced by suppression of the
Report. ................................................................................... 77 
b.  Mr. Jones Made a Prima Facie Showing That the
Prosecutor Unlawfully Withheld the Los Angeles
County Jail Medical Records. ....................................................... 82 

28

iii
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

1)  The California Supreme Court could not
reasonably reject the claim based on a theory that
prosecution was not obligated to disclose the
medical records. .................................................................... 83 
2)  The California Supreme Court could not
reasonably reject the claim based on a theory that
Mr. Jones could have discovered the medical
records. .................................................................................. 86 
3)  The California Supreme Court could not
reasonably reject the claim based on a theory that
Mr. Jones failed to produce sufficient
documentation of his claim. .................................................. 87 
c.  Mr. Jones Made a Prima Facie Showing That the
Prosecutor’s Unlawful Withholding of Exculpatory
Material Cumulatively Deprived Him of a Fair Trial. .................. 87 
2.  Section 2254(d) Is Satisfied by the State Court’s Summary
Denial of Mr. Jones’s Adequately Pled Claim That the State
Withheld Material Exculpatory Evidence. .......................................... 88 
D.  Claim Four: Mr. Jones’s Due Process Rights Were Violated
Because No Hearing Was Held to Determine His Competence
and He Was Incompetent to Stand Trial. .................................................. 89 
1.  There Is No Reasonable Basis for the State Court Ruling
That Mr. Jones Failed to Make a Prima Facie Showing for
Relief on His Procedural and Substantive Competence to
Stand Trial Claims. .............................................................................. 90 
a.  The Trial Court Violated Mr. Jones’s Due Process
Rights by Failing to Conduct a Competency Hearing. ................. 90 
b.  Mr. Jones Was Incompetent to Stand Trial. .................................. 95 
1)  The California Supreme Court could not
reasonably reject the claim based on Mr. Jones’s
testimony during the guilt phase or his interactions
with the court......................................................................... 98 

28

iv
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17

2)  The California Supreme Court could not
reasonably reject the claim based on a theory that
Mr. Jones’s diagnosed mental illness alone did not
make him incompetent. .......................................................100 
3)  The California Supreme Court could not
reasonably reject the claim based on Mr. Jones’s
history of disturbed behavior, history of suicidal
ideation or his attempted suicide prior to the
homicide, individually not supporting a finding of
incompetence.......................................................................103 
c.  Section 2254(d) Is Satisfied by the State Court’s
Summary Denial of Mr. Jones’s Adequately Pled Claim
That His Due Process Rights Were Violated Because No
Hearing Was Held to Determine His Competence and
He Was Incompetent to Stand Trial. ...........................................104 
2.  There Is No Reasonable Basis for the State Court Ruling
That Mr. Jones Failed to Make a Prima Facie Showing for
Relief on His Ineffective Assistance of Counsel Claim. ...................107 
a.  Trial Counsel Unreasonably and Prejudicially Failed to
Investigate and Declare a Doubt as to Mr. Jones’s
Competence to Stand Trial. .........................................................107 

18

b.  Section 2254 Does Not Bar Relief on This Claim. ..................... 113 

19

a)  Section 2254(d)(1) is satisfied. ..................................... 113 

20

b)  Section 2254(d)(2) is satisfied. ..................................... 114 

21
22
23
24
25
26

E.  Claim Five: Mr. Jones’s Constitutional Rights Were Violated
When the State Inappropriately and Involuntarily Medicated
Him. ........................................................................................................ 115 
1.  There Is No Reasonable Basis for the State Court Ruling
That Mr. Jones Failed to Make a Prima Facie Showing for
Relief on His Inappropriate and Involuntary Medication
Claim. ................................................................................................ 116 

27
28

v
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

a.  Mr. Jones Made a Prima Facie Showing That His
Federal Constitutional Rights Were Violated When the
State Inappropriately and Involuntarily Medicated Him. ........... 119 
b.  Respondent’s Proffered Rationales for the California
Supreme Court’s Decision Are Unavailing.................................120 
1)  The California Supreme Court could not
reasonably reject the claim based on a theory that
Mr. Jones voluntarily took the medication or
consented to the inappropriate medication regimen. .......... 120 
2)  The California Supreme Court could not
reasonably reject the claim that Mr. Jones was not
prejudiced by his appearance and demeanor as
observed by the jury. ...........................................................122 
3)  The California Supreme Court could not
reasonably reject the claim based on a theory that
the medications did not adversely affected his
ability to understand the proceedings or assist in
his defense. ..........................................................................123 
2.  Section 2254(d) Is Satisfied by the State Court’s Summary
Denial of Mr. Jones’s Adequately Pled Claim That His
Constitutional Rights Were Violated When the State
Inappropriately and Involuntarily Medicated Him. ..........................124 
F.  Claim Six: Mr. Jones’s Constitutional Rights Were Violated by
the Conduct and Rulings of Former Judge George Trammell. ..............125 
G.  Claim Seven: The Trial Court Violated Mr. Jones’s Rights to a
Fair Trial by Precluding Inquiry Into Prospective Jurors Biases. .......... 126 
H.  Claim Eight: The Trial Court Violated Mr. Jones’s Rights to a
Fair and Impartial Jury When It Unreasonably Denied Cause
Challenges. .............................................................................................127 
I.  Claim Nine: Mr. Jones’s Federal Constitutional Rights Were
Violated When He Was Held to Answer and Convicted of
Crimes for Which There Was Insufficient Evidence. .............................129 

28

vi
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1
2
3
4
5
6

J.  Claim Ten: Mr. Jones’s Constitutional Rights Were Violated by
the Introduction of Propensity Evidence During the Guilt
Phase. ......................................................................................................131 
K.  Claim Eleven: Mr. Jones Was Deprived of the Right to Present
a Defense When the Trial Court Refused to Permit Him to
Testify About His Mental Health History. ..............................................133 

7

1.  Mr. Jones Established His Entitlement to Relief in the
California Supreme Court. ................................................................133 

8

2.  The State Court Decision. .................................................................138 

9

3.  Section 2254 Does Not Bar Relief on This Claim. ...........................139 

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

a.  Section 2254(d)(1) Is Satisfied. ..................................................141 
b.  Section 2254(d)(2) Is Satisfied. ..................................................143 
L.  Claim Twelve: The Guilt Phase Instructions Were Inaccurate,
Incomplete, and Conflicting, in Violation of Mr. Jones
Constitutional Rights. .............................................................................147 
M.  Claim Thirteen: Unreliable DNA Evidence Unconstitutionally
Affected the Jury’s Verdicts. ...................................................................149 
N.  Claim Fourteen: Mr. Jones Federal Constitutional Rights Were
Violated by the Prosecutor’s Presentation of False Testimony
and Misleading and Prejudicial Arguments to the Jury. .........................151 
1.  There Is No Reasonable Basis for the State Court Ruling
That Mr. Jones Failed to Make a Prima Facie Showing for
Relief. ................................................................................................152 
a.  Mr. Jones Made a Prima Facie Showing That the
Prosecutor Knowingly Presented False Testimony to the
Jury. .............................................................................................153 
1)  The testimony presented to the jury regarding
injuries to the victim’s wrist was false. ...............................153 
2)  The prosecutor knew the testimony was false. ...................155 
3)  The false testimony was material. .......................................155 
vii
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

4)  Mr. Jones’s claim is not procedurally barred. .....................157 

2

5)  The California Supreme Court could not have
reasonably rejected Mr. Jones’s false testimony
claim based on a theory that the witness “forgot” to
include it in his report. ........................................................157 

3
4
5
7

b.  Mr. Jones Made a Prima Facie Showing That the
Prosecutor Committed Misconduct in His Summation
to the Jury. ...................................................................................158 

8

1)  Improper argument regarding the vaginal wound. .............. 158 

9

2)  Mr. Jones’s claim is not procedurally barred. .....................160 

6

10
11
12
13
14

3)  The California Supreme Court could not
reasonably have rejected this claim based on a
theory that no juror would have believed the rape
charge was based on penetration with a knife. ...................160 
4)  Failure to take advantage of psychiatric treatment. ............161 

17

5)  The California Supreme Court could not
reasonably have rejected this claim based on a
theory that the misconduct did not influence the
jury’s penalty verdict. .......................................................... 164 

18

2.  Section 2254(d) Is Satisfied. .............................................................167 

19

O.  Claim Fifteen: Mr. Jones’s Constitutional Rights Were Violated
by the Prosecution’s Failure to Provide Notice of Aggravators
and the Introduction of Irrelevant and Highly Prejudicial
Testimony in the Penalty Phase. .............................................................169 

15
16

20
21
22
23
24
25
26
27
28

P.  Claim Sixteen: Mr. Jones Received Ineffective Assistance of
Counsel During the Penalty Phase of His Trial. .....................................171 
1.  There Is No Reasonable Basis for the State Court Ruling
That Mr. Jones Failed to Make a Prima Facie Showing for
Relief. ................................................................................................172 
a.  Mr. Jones Made a Prima Facie Showing That Trial
Counsel Failed to Conduct a Reasonable Investigation. ............ 172 
viii
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1
2
3
4
5
6
7
8
9
10
11
12
13
14

b.  Mr. Jones Made a Prima Facie Showing That Trial
Counsel Failed to Adequately Prepare and Present
Expert Testimony. .......................................................................175 
c.  Mr. Jones Made a Prima Facie Showing That Trial
Counsel Was Ineffective for Failing to Investigate,
Develop, and Present Compelling Mitigation Through
Expert and Lay Witness Testimony.............................................179 
2.  Section 2254(d) Is Satisfied by the State Court’s Summary
Denial of Mr. Jones’s Adequately Pled Claim That Trial
Counsel Was Ineffective During the Penalty Phase of Trial. ............ 184 
Q.  Claim Seventeen: The Trial Court Violated Mr. Jones’s
Constitutional Rights When It Precluded Mr. Jones From
Introducing Mitigating Evidence............................................................186 
1.  Mr. Jones Established His Entitlement to Relief in the
California Supreme Court. ................................................................186 
2.  The State Court Decision. .................................................................190 

15

3.  Section 2254 Does Not Bar Relief on This Claim. ...........................190 

16

R.  Claims Eighteen and Nineteen: Mr. Jones Was Denied His
Right to an Impartial Jury and a Fair Trial. ............................................191 

17
18
19
20
21
22
23
24
25
26

1.  There Is No Reasonable Basis for the State Court Ruling
That Mr. Jones Failed to Make a Prima Facie Showing for
Relief. ................................................................................................193 
a.  Mr. Jones Made a Prima Facie Showing That Jurors
Improperly Prejudged the Case and Prematurely
Discussed Penalty........................................................................193 
b.  Mr. Jones Made a Prima Facie Showing That Jurors
Were Improperly and Prejudicially Exposed to Extrinsic
Evidence ......................................................................................198 
1)  Victim’s daughters’ outbursts ..............................................199 

27

2)  Biblical teachings. ...............................................................201 

28

3)  Mr. Jones’s mental functioning. ..........................................207 
ix
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

c.  Mr. Jones Made a Prima Facie Showing That Jurors
Improperly Believed That Mr. Jones Would Not Be
Executed. .....................................................................................210 
d.  Mr. Jones Made a Prima Facie Showing That a Juror
Slept During the Defense’s Penalty Phase Presentation. ............ 213 
2.  Section 2254(d) Is Satisfied by the State Court’s Summary
Denial of Mr. Jones’s Adequately Pled Claim That He Was
Denied His Right to an Impartial Jury and Fair Trial. ......................215 
S.  Claim Twenty: Mr. Jones’s Constitutional Rights Were
Violated by the Introduction of Irrelevant and Inflammatory
Photographs. ...........................................................................................216 
T.  Claim Twenty-One: The Jury Received Inadequate and
Insufficient Penalty Phase Instructions. .................................................218 
1.  Mr. Jones’s Claim Is Not Procedurally Defaulted. ............................ 219 
2.  Mr. Jones Established His Entitlement to Relief in the State
Court, and Section 2254(d) Does Not Preclude Relief. ....................220 
a.  The Jury Was Misinformed That Mitigation Had to Be
Related to the Crime. ..................................................................220 
b.  The Trial Court Failed to Prohibit the Consideration of
Mitigating Factors as Aggravation..............................................224 
U.  Claim Twenty-Two: Mr. Jones Was Deprived of His Right to a
Jury Determination of Facts Necessary to Sentence Him to
Death. ......................................................................................................227 
V.  Claim Twenty-Three: Mr. Jones Is Ineligible for the Death
Penalty. ...................................................................................................231 
1.  There Is No Reasonable Basis for the State Court Ruling
That Mr. Jones Failed to Make a Prima Facie Showing for
Relief. ................................................................................................232 
a.  Mr. Jones Made a Prima Facie Showing That He Is
Intellectually Disabled. ...............................................................232 

28

x
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

b.  Mr. Jones Made a Prima Facie Showing That He
Suffers From Other Mental Impairments That Diminish
His Culpability. ...........................................................................236 

2
3

2.  Section 2254(d) Is Satisfied by the State Court’s Summary
Denial of Mr. Jones’s Adequately Pled Claim That He Is
Ineligible for the Death Penalty. ........................................................237 

4
5
6

W.  Claim Twenty-Four: California’s Death Penalty Statute Does
Not Fulfill the Constitutional Mandate to Narrow the Class of
Death-Eligible Defendants. ....................................................................238 

7
8

X.  Claim Twenty-Five: Unconstitutional Discrimination Affected
the Charging and Prosecution of Mr. Jones. ........................................... 244 

9
10

Y.  Claim Twenty-Six: International Law Bars the Execution of
Mentally Disordered Individuals Such as Mr. Jones. .............................246 

11
12

Z.  Claim Twenty-Seven: Mr. Jones’s Constitutional Rights Would
Be Violated by Execution Following a Long Period of
Confinement Under a Sentence of Death. ..............................................251 

13
14

AA.  Claim Twenty-Eight: Mr. Jones Received Ineffective
Assistance of Counsel on Appeal. ..........................................................255 

15
16

BB. Claim Twenty-Nine: The State Court Failed to Create and
Preserve an Adequate and Reliable Record of the Proceedings
That Resulted in Mr. Jones’s Convictions and Death Sentence. ............ 259 

17
18
19

CC. Claim Thirty: Considered Cumulatively, the Constitutional
Errors in Mr. Jones’s Case Require the Granting of Relief. ...................263 

20
21

V. 

Conclusion ....................................................................................................265 

22
23
24
25
26
27
28

xi
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

TABLE OF AUTHORITIES

2
3

...................................................................................................... Page(s)

4

Cases

5

Abdul-Kabir v. Quarterman, 550 U.S 233, 127 S. Ct. 1654, 167 L. Ed.
2d 585 (2007) ....................................................................................................222

6
7
8

Ake v. Oklahoma, 470 U.S. 68, 105 S. Ct. 1087, 84 L. Ed. 2d. 53
(1985) ............................................................................................................18, 45

9

Ali v. Hickman, 571 F.3d 902 (9th Cir. 2009) ......................................................... 68

10

Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d
435 (2000) .................................................................................................227, 230

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

Arave v. Creech, 507 U.S. 463, 113 S. Ct. 1534, 123 L. Ed. 2d 188
(1993) ................................................................................................................241
Ayala v. Ayers, 2008 WL 1787317 (S.D. Cal. Apr. 16, 2008) ................................ 28
Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 84 S. Ct. 923,
11 L. Ed. 2d 804 (1964) ....................................................................................247
Banks v. Dretke, 540 U.S. 668, 124 S. Ct. 1256, 157 L. Ed. 2d 1166
(2004) ................................................................................................................262
Baze v. Rees, 553 U.S. 35, 128 S. Ct. 1520, 170 L. Ed. 2d 420 (2008) ................253
Beam Distilling Co. v. Georgia, 501 U.S. 529, 111 S. Ct. 2439, 115 L.
Ed. 2d 481 (1991) .......................................................................................15, 140
Bean v. Calderon, 163 F.3d 1073 (9th Cir. 1998) .................................................177
Beard v. Kindler, 558 U.S. 53, 130 S. Ct. 612, 175 L. Ed. 2d 417
(2009))......................................................................................................... passim
Bennett v. Mueller, 322 F.3d 573 (9th Cir. 2003)..............................................18, 28

26

Benson v. Terhune, 304 F.3d 874 (9th Cir. 2002) .........................................118, 121

27

Bergerco, U.S.A. v. Shipping Corp. of India, Ltd., 896 F.2d 1210 (9th
Cir. 1990) ..........................................................................................................260

28

xii
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

Bloom v. Calderon, 132 F.3d 1267 (9th Cir. 1997) .........................................45, 173

2

Blumberg v. Garcia, 687 F. Supp. 2d 1074 (C.D. Cal. 2010) ...............................155

3
4
5
6
7
8

Bouchillon v. Collins, 907 F.2d 589 (5th Cir. 1990) .............................................109
Boumediene v. Bush, 553 U.S. 723, 128 S. Ct. 2229, 171 L. Ed. 2d 41
(2008) .................................................................................................................. 13
Boyde v. California, 494 U.S. 370, 110 S. Ct. 1190, 108 L. Ed. 2d 316
(1990) ................................................................................................................222

9

Bracy v. Gramley, 520 U.S. 899, 117 S. Ct. 1793, 138 L. Ed. 2d 97
(1997) ................................................................................................................125

10

Bradley v. Duncan, 315 F.3d 1091 (9th Cir. 2002) ...............................................142

11
12
13
14
15
16

Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215
(1963) .......................................................................................................... passim
Brecht v. Abrahamson, 507 U.S. 619, 113 S. Ct. 1710, 123 L. Ed. 2d
353 (1993) .............................................................................................1, 198, 203
Brewer v. Quarterman, 550 U.S. 286, 127 S. Ct. 1706, 167 L. Ed. 2d
622 (2007) .........................................................................................................222

17

Briceno v. Scribner, 555 F.3d 1069 (9th Cir. 2009) ..............................................130

18

Brown v. Borg, 951 F.2d 1011 (9th Cir. 1991) ................................................80, 156

19

Brown v. Craven, 424 F.2d 1166 (9th Cir. 1970) .................................................... 64

20
21
22

Brown v. Sternes, 304 F.3d 677 (7th Cir. 2002) ....................................................108
Browning v. Trammell, 717 F.3d 1092 (10th Cir. 2013) ......................................... 88

23

Brumley v. Wingard, 269 F.3d 629 (6th Cir. 2001) ...............................................240

24

Buckley v. Valeo, 424 U.S. 1, 96 S. Ct. 612, 46 L. Ed. 2d 659 (1976) .................... 11

25
26

Burger v. Kemp, 483 U.S. 776, 107 S. Ct. 3114, 97 L. Ed. 2d 638
(1987) ................................................................................................................182

27

Burt v. Uchtman, 422 F.3d 557 (7th Cir. 2005) .....................................................108

28

xiii
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

Burton v. Cate, 913 F. Supp. 2d 822 (N.D. Cal. 2012) .........................................105

2
3

by Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d
335 (2002) ................................................................................................... passim

4

Calderon v. U.S. Dist. Court (Hayes), 103 F.3d 72 (9th Cir. 1996) ........................ 27

5

Caldwell v. Mississippi, 472 U.S. 320, 105 S. Ct. 2633, 86 L. Ed. 2d
231 (1985) .................................................................................................189, 211

6
7
8
9
10

Caliendo v. Warden of California Men’s Colony, 365 F.3d 691 (9th
Cir. 2004) ..........................................................................................................216
California v. Brown, 479 U.S. 538, 107 S. Ct. 837, 93 L. Ed. 2d 934
(1987) ................................................................................................................224

11

Canaan v. Abdelnour (1985) 40 Cal. 3d 703 ........................................................... 31

12

Carey v. Musladin, 549 U.S. 70, 127 S. Ct. 649, 166 L. Ed. 2d 482
(2006) ................................................................................................................142

13
14

Caro v. Woodford, 280 F.3d 1247 (9th Cir. 2002) ................................................177

15

Carpenter v. Ayers, 548 F. Supp. 2d 736 (N.D. Cal. 2008)..................................... 28

16

In re Carrera, No. S141324 (Cal. Jan. 13, 2010) .................................................... 21

17
18
19

Carrera v. Ayers, 2008 WL 681842 (E.D. Cal. Mar. 13, 2008) .............................. 21
Carriger v. Stewart, 132 F.3d 463 (9th Cir. 1997) (en banc) ............................71, 84

20

Carter v. Giurbino, 385 F.3d 1194 (9th Cir. 2004) .........................................20, 130

21

Cauthern v. Colson, 736 F.3d 465 (6th Cir. 2013) ................................................183

22

Chambers v. Mississippi, 410 U.S. 284, 93 S. Ct 1038, 35 L. Ed. 2d
297 (1973) ................................................................................................... passim

23
24
25

Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705
(1967) ........................................................................................................134, 140

26

Chavez v. United States, 656 F.2d 512 (9th Cir 1981) ....................................94, 104

27

Chessman v. Teets, 354 U.S. 156, 77 S. Ct. 1127, 1 L. Ed. 2d 1253
(1957) ................................................................................................................260

28

xiv
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1
2

City of Boerne v. Flores, 521 U.S. 507, 117 S. Ct. 2157, 138 L. Ed. 2d
624 (1997) .....................................................................................................11, 32

3

Clabourne v. Lewis, 64 F.3d 1373 (9th Cir. 1995) ................................................177

4

In re Clark, 5 Cal. 4th 750, 21 Cal. Rptr. 2d 509 (1993)......................................... 24

5

Clark v. Allen, 331 U.S. 503, 67 S. Ct. 1431, 91 L. Ed. 1633 (1947) ...................247

6
7
8
9
10
11
12
13

Claudio v. Scully, 982 F.2d 798 (2d Cir. 1992) .....................................................257
CNA Casualty of Cal. v. Seaboard Sur. Co., 176 Cal. App. 3d 598,
222 Cal. Rptr. 276 (1986) ................................................................................... 31
Coker v. Georgia, 433 U.S. 584, 97 S. Ct. 2861, 53 L. Ed. 2d 982
(1977) ................................................................................................................254
Coleman v. Thompson, 501 U.S. 722, 111 S. Ct. 2546, 115 L. Ed. 2d
640 (1991) ........................................................................................................... 18

14

Commonwealth of Northern Mariana Islands v. Bowie, 243 F.3d 1109
(9th Cir. 2001)...................................................................................................155

15

Cone v. Bell, 556 U.S. 449, 129 S. Ct. 1769, 173 L. Ed. 2d 701 (2009) ...........20, 80

16

Cooper v. Aaron, 358 U.S. 1, 78 S. Ct. 1401, 3 L. Ed. 2d 5 (1958) ........................ 11

17
18
19
20
21
22

Cooper v. Calderon, 255 F.3d 1104 (9th Cir. 2001) ............................................... 28
Cooper v. Oklahoma, 517 U.S. 348, 116 S. Ct. 1373, 134 L. Ed. 2d
498 (1996) ........................................................................................................... 89
Corsetti v. McGrath, C 03-084 SI (PR), 2004 WL 724951 (N.D. Cal.
Mar. 26, 2004)...................................................................................................102

23

Crane v. Kentucky, 476 U.S. 683, 106 S. Ct. 2142, 90 L. Ed. 2d 636
(1986) ........................................................................................................136, 142

24

Cross v. Sisto, 676 F.3d 1172 (9th Cir. 2012) ........................................................... 5

25
26
27

Cudjo v. Ayers, 698 F.3d 752 (9th Cir. 2012) ................................................134, 143
Cullen v. Pinholster, __ U.S. __, 131 S. Ct. 1388, 179 L. Ed. 2d 557
(2011) .......................................................................................................... passim

28

xv
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1
2

Cunningham v. California, 549 U.S. 270, 127 S. Ct. 856, 166 L. Ed.
2d 856 (2007) ....................................................................................................229

3

Daniels v. Woodford, 428 F.3d 1181 (9th Cir. 2005) ...................................... passim

4

Darbin v. Nourse, 664 F.2d 1109 (9th Cir. 1981) .................................................127

5
6

Darden v. Wainwright, 477 U.S. 168, 106 S. Ct. 2464, 91 L. Ed. 2d
144 (1986) .........................................................................................153, 167, 183

7

Davis v. Wechsler, 263 U.S. 22, 44 S. Ct. 13, 68 L. Ed. 143 (1923) ............... passim

8

Davis v. Woodford, 384 F.3d 628 (9th Cir. 2004) .................................................197

9
10
11

De Kaplany v. Enomoto, 540 F.2d 975 (9th Cir. 1976) (en banc) ........................... 92
Deere v. Woodford, 339 F.3d 1084 (9th Cir. 2003) .......................................100, 101

12

Delgado v. Lewis, 223 F.3d 976 (9th Cir. 2000) ...................................................257

13

Dennis v. Brown, 361 F. Supp. 2d 1124 (N.D. Cal. 2005) ...................................... 28

14

In re Dixon, 41 Cal. 2d 756, 264 P.2d 513 (1953) .......................................... passim

15
16
17

Dobbs v. Zant, 506 U.S. 357, 113 S. Ct. 835, 122 L. Ed. 2d 103
(1993) ................................................................................................................260

18

Douglas v. California, 372 U.S. 353, 83 S. Ct. 814, 9 L. Ed. 2d 811
(1963) ................................................................................................................256

19

Douglas v. Woodford, 316 F.3d 1079 (9th Cir. 2003) ...........................................112

20

Dretke v. Haley, 541 U.S. 386, 124 S. Ct. 1847, 158 L. Ed. 2d 659
(2004) .................................................................................................................. 19

21
22
23

Drope v. Missouri, 420 U.S. 162, 95 S. Ct. 896, 43 L. Ed. 2d 103
(1975) .......................................................................................................... passim

24

Duncan v. Ornoski, 528 F.3d 1222 (9th Cir. 2008) ................................................. 53

25
26

Dusky v. United States, 362 U.S. 402, 80 S. Ct. 788, 4 L. Ed. 2d 824
(1960) ............................................................................................95, 98, 104, 106

27

Dyer v. Calderon, 151 F.3d 970 (9th Cir.1998) (en banc) ....................................192

28

xvi
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

Earp v. Ornoski, 431 F.3d 1158 (9th Cir. 2005)...................................................... 17

2

Eddings v. Oklahoma, 455 U.S. 104, 102 S. Ct. 869, 71 L. Ed. 2d 1
(1982) ................................................................................................167, 186, 191

3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19

Edwards v. Carpenter, 529 U.S. 446, 120 S. Ct. 1587, 146 L. Ed. 2d
518 (2000) ...................................................................................................19, 182
Elledge v. Florida, 525 U.S. 944, 119 S. Ct. 366, 142 L. Ed. 2d 303
(1998) ................................................................................................................255
Espinosa v. Florida, 505 U.S. 1079, 112 S. Ct. 2926, 120 L. Ed. 2d
854 (1992) .........................................................................................................225
Estelle v. McGuire, 502 U.S. 62, 112 S. Ct. 475, 116 L. Ed. 2d 385
(1991) ................................................................................................132, 148, 151
Estrella v. Ollison, 668 F.3d 593 (9th Cir. 2011) ..................................................231
Fanaro v. Pineda, No. 2:10-CV-1002, 2012 WL 1854313 (S.D. Oh.
May 21, 2012) ...................................................................................205, 210, 212
Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562
(1975) ................................................................................................................133
Farina v. Sec’y, 536 Fed. Appx 966 (11th Cir. 2013) ...........................................258
Felder v. Casey, 487 U.S. 131, 108 S. Ct. 2302, 101 L. Ed. 2d 123
(1988) ..........................................................................................................23, 165

20

Felker v. Turpin, 518 U.S. 651, 116 S. Ct. 2333, 135 L. Ed. 2d 827
(1996) .................................................................................................................. 13

21

Ferndandez v. Roe, 286 F.3d 1073 (9th Cir. 2002) ................................................. 67

22
23
24

Ferrier v. Duckworth, 902 F.2d 545 (7th Cir. 1990) .............................................217
In re Fields, 51 Cal. 3d 1063, 275 Cal. Rptr. 384 (1990) ..................................6, 205

25

Fields v. Calderon, 125 F.3d 757 (9th Cir. 1997) ................................................... 27

26

Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980)............................................ 247

27

Ford v. Wainwright, 477 U.S. 399, 106 S. Ct. 2595, 91 L. Ed. 2d 335
(1986) ................................................................................................................235

28

xvii
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1
2

Foster v. Florida, 537 U.S. 990, 123 S. Ct. 470, 154 L. Ed. 2d 359
(2002) ................................................................................................................255

3

Franklin v. McCaughtry, 398 F.3d 955 (7th Cir. 2004) ........................................126

4

Frantz v. Hazey, 533 F.3d 724 (9th Cir. 2008) ................................................ passim

5

Frye v. United States, 293 F. 1013-14 (D.C. Cir. 1923) ................................149, 226

6
7
8
9
10
11
12
13
14
15
16
17
18

Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346
(1972) ........................................................................................................241, 254
Gade v. Nat’l Solid Wastes Mgmt. Assn., 505 U.S. 88, 112 S. Ct.
2374, 120 L. Ed. 2d 73 (1992) ............................................................................ 23
Gamez v. Curry, No. C 09-1229 PJH PR, 2010 WL 330210 (N.D. Cal.
Jan. 20, 2010) ........................................................................................................ 6
Gardner v. Florida, 430 U.S. 349, 97 S. Ct. 1197, 51 L. Ed. 2d 393
(1977) .......................................................................................................... passim
Garrus v. Secretary of Pennsylvania Dept. of Corrections, 694 F.3d
394 (3d Cir. 2012) .............................................................................................231
Gibson v. Berryhill, 411 U.S. 564, 93 S. Ct. 1689, 36 L. Ed. 2d 488
(1973) ................................................................................................................195
Goldstein v. Harris, 82 F. App’x 592 (9th Cir. 2003) ...........................................168

19

Gomez v. Ahitow, 29 F.3d 1128 (7th Cir. 1994) ....................................................217

20

Gonzalez v. Wong, 667 F.3d 965 (9th Cir. 2011) ..................................................164

21

Goodman v. Bertrand, 467 F.3d 1022 (7th Cir. 2006) ..........................143, 241, 253

22

Gray v. Greer, 800 F.2d 644 (7th Cir. 1985) .........................................................257

23
24
25
26
27

Green v. Georgia, 442 U.S. 95, 99 S. Ct. 2150, 60 L. Ed. 2d 738
(1979) ................................................................................................................137
Green v. White, 232 F.3d 671 (9th Cir. 2000) .......................................................194
Greene v. Lambert, 288 F.3d 1081 (9th Cir. 2002) ...............................................142

28

xviii
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1
2
3
4

Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859
(1976) ........................................................................................................242, 253
Gruter v. Bollinger, 539 U.S. 306, 123 S. Ct. 2325, 156 L. Ed. 2d 304
(2003) ................................................................................................................248

5

Hale v. Morgan, 22 Cal. 3d 388, 149 Cal. Rptr. 375 (1978) ................................... 31

6

In re Hall, 30 Cal. 3d 408, 637 P.2d 690 (1981) .........................................37, 40, 45

7
8

Hall v. Director of Corrections, 343 F.3d 976 (9th Cir. 2003) (per
curiam) ..............................................................................................................152

9

In re Hamilton, 1999 WL 311708 (Cal. 1999) ........................................................ 24

10

Hardy v. United States (1964) 375 U.S. 277 .........................................................259

11
12

Harrington v. Richter, __ U.S. __, 131 S. Ct. 770, 178 L. Ed. 2d 624
(2011) .......................................................................................................... passim

13

In re Harris, 5 Cal. 4th 813, 21 Cal. Rptr. 2d 373 (1993) ...............................27, 219

14
15

Harris v. Reed, 489 U.S. 255, 109 S. Ct. 1038, 103 L. Ed. 2d 308
(1989) .................................................................................................................. 25

16

Harrison v. McBride, 428 F.3d 652 (7th Cir. 2005) ..............................................126

17
18
19
20
21
22

Hasson v. Ford Motor Co., 32 Cal. 3d 388, 185 Cal. Rptr. 654 (1982) ................213
In re Hawthorne, 35 Cal. 4th 40, 24 Cal. Rptr. 3d 189 (2005)..............................231
Haywood v. Drown, 556 U.S. 729, 129 S. Ct. 2108, 173 L. Ed. 2d 920
(2009) ............................................................................................................23, 25
Hein v. Sullivan, 601 F.3d 897 (9th Cir. 2010)......................................................153

23

Hendricks v. Calderon, 70 F.3d 1032 (9th Cir. 1995) ............................................. 44

24

Henry v. Mississippi, 379 U.S. 443, 85 S. Ct. 564, 13 L. Ed. 2d 408
(1965) .................................................................................................................. 20

25
26

Hernandez v. Martel, 824 F. Supp. 2d 1025 (C.D. Cal. 2011) ..............................166

27

Hibbler v. Benedetti, 693 F.3d 1140 (9th Cir. 2012) ............................................... 17

28

xix
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1
2

Hicks v. Oklahoma, 447 U.S. 343, 100 S. Ct. 2227, 65 L. Ed. 2d 175
(1980) .................................................................................................................. 67

3

Hill v. Roe, 321 F.3d 787 (9th Cir. 2003) ................................................................ 20

4

Hillsborough Cnty. v. Automated Med. Lab., 471 U.S. 707, 105 S. Ct.
2371, 85 L. Ed. 2d 714 (1985) ............................................................................ 23

5
6
7

Hitchcock v. Dugger, 481 U.S. 393, 107 S. Ct. 1821, 95 L. Ed. 2d 347
(1987) ................................................................................................................186

8

Hoffman v. Arave, 236 F.3d 523 (9th Cir. 2001) ..................................................... 50

9

Hollis v. Davis, 941 F.2d 1471 (11th Cir. 1991) ...................................................246

10
11

Hoover v. Ronwin, 466 U.S. 558, 104 S. Ct. 1989, 80 L. Ed. 2d 590
(1984) .................................................................................................................... 5

12

Hudson v. Rushen, 686 F.2d 826 (9th Cir. 1982) ..............................................64, 66

13

Hull v. Kyler 190 F.3d 88 (3rd Cir. 1999) .............................................................112

14
15
16
17
18
19
20
21
22
23
24
25

Hurles v. Ryan, 650 F.3d 1301, 1312 (9th Cir. 2011) ...................................124, 262
Hurles v. Ryan, 706 F.3d 1021 (9th Cir. 2013) ............................................... passim
INS v. Chadha, 462 U.S. 919, 103 S. Ct. 2764, 77 L. Ed. 2d 317
(1983) .................................................................................................................. 11
Insyxiengmay v. Morgan, 403 F.3d 657 (9th Cir. 2005).......................................... 18
Irvin v. Dowd, 366 U.S. 717, 81 S. Ct. 1639, 6 L. Ed. 2d 751 (1961)
.................................................................................................. 126, 192, 194, 210
Jackson v. Brown, 513 F.3d 1057 (9th Cir. 2008) .................................................152
Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560
(1979) ................................................................................................................130
Jammal v. Van de Kamp, 926 F.2d 918 (9th Cir.1991) .........................................171

26

Jeffries v. Wood, 114 F.3d 1484 (9th Cir. 1997) ...................................................209

27

Jennings v. Woodford, 290 F.3d 1006 (9th Cir. 2002) ......................................39, 51

28

xx
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1
2

Johnson v. Bredesen, 558 U.S. 1067, 130 S. Ct. 541, 175 L. Ed. 2d
552 (2009) .........................................................................................................255

3

Johnson v. Mitchell, 585 F.3d 923 (6th Cir. 2009) ................................................184

4

Johnson v. Williams, 133 S. Ct. 1088, 185 L. Ed. 2d 105 (2013) .........................139

5

Jones v. Kemp, 706 F. Supp. 1534 (N.D. Ga. 1989) ......................................202, 209

6
7
8

Jones v. United States, 526 U.S. 227, 119 S. Ct. 1215, 143 L. Ed. 2d
311 (1999) .........................................................................................................227

9

Jordan v. Massachusetts, 225 U.S. 167, 32 S. Ct. 651, 56 L. Ed. 1038
(1912) ........................................................................................................192, 213

10

Juan H. v. Allen, 408 F.3d 1262 (9th Cir. 2005) ...................................................130

11
12
13
14
15
16
17

Jurek v. Texas, 428 U.S. 262, 96 S. Ct. 2950, 49 L. Ed. 2d 929 (1976)................243
Karis v. Calderon, 283 F.3d 1117 (9th Cir. 2002) .................................................. 51
Kennedy v. Lockyer, 379 F.3d 1040 (9th Cir. 2004) ..............................................106
Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 94 S. Ct. 1879, 40 L.
Ed. 2d 315 (1974) ............................................................................................... 23
In re Khonsavanh S., 67 Cal. App. 4th 532, 79 Cal. Rptr. 2d 80 (1998) ................. 31

18

Kim v. Villalobos, 799 F.2d 1317 (9th Cir. 1986) ..................................................... 6

19

Knight v. Florida, 528 U.S. 990, 120 S. Ct. 459, 145 L. Ed. 2d 370
(1999) ................................................................................................................255

20
21
22
23
24
25
26
27

Kyles v. Whitley, 514 U.S. 419, 115 S. Ct. 1555, 131 L. Ed. 2d 490
(1995) ............................................................................................................84, 88
Lackey v. Texas, 514 U.S. 1045, 115 S. Ct. 1421, 131 L. Ed. 2d 304
(1995) ................................................................................................................253
Lafler v. Cooper, __ U.S. __, 132 S. Ct. 1376, 182 L. Ed. 2d 398
(2012) ..........................................................................................................58, 185
Lawrence v. Texas, 539 U.S. 558, 123 S. Ct. 2472, 156 L. Ed. 2d 508
(2003) ................................................................................................................248

28

xxi
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

Leavitt v. Arave, 383 F.3d 809 (9th Cir. 2004) ......................................................132

2

Lee v. Kemna, 534 U.S. 362, 122 S. Ct. 877, 151 L. Ed. 2d 820 (2002) ................. 20

3
4
5

Lee v. Lewis, 27 Fed. App’x 774 (9th Cir. 2001) ..................................................168
Lindh v. Murphy, 96 F.3d 856 (7th Cir. 1996) (en banc) ........................................ 12

6

In re Lindley, 29 Cal. 2d 709, 177 P.2d 918 (1947) ........................................20, 130

7

Lockett v. Ohio, 438 U.S. 586, 98 S. Ct. 2954, 57 L. Ed. 2d 973
(1978) .......................................................................................................... passim

8
9
10
11
12
13
14
15
16
17
18
19

Lockhart v. Fretwell, 506 U.S. 364, 113 S. Ct. 838, 122 L. Ed. 2d 180
(1993) ..........................................................................................................58, 185
Lopez v. Schriro, 491 F.3d 1029 (9th Cir. 2007) ..................................................... 39
Lor v. Felker, No. CIV S-08-2985 GEB, 2012 WL 1604519 (E.D. Cal.
May 7, 2012) .............................................................................................144, 146
Lord v. Wood, 184 F.3d 1083 (9th Cir. 1999) ......................................................... 53
Lowenfield v. Phelps, 484 U.S. 231, 108 S. Ct. 546, 98 L. Ed. 2d 568
(1988) ........................................................................................................189, 243
Mach v. Stewart, 137 F.3d 630 (9th Cir. 1997) .....................................................209
Mann v. Oklahoma, 488 U.S. 877, 109 S. Ct. 193, 102 L. Ed. 2d 163
(1988) ................................................................................................................218

20

Marbury v. Madison, 5 U.S. 137, 2 L. Ed. 60 (1803) .............................................. 11

21

Marino v. Vasquez, 812 F.2d 499 (9th Cir. 1987) .................................................211

22

In re Marlow, No. S178102 (Cal. May 22, 2013) ................................................... 21

23

In re Marquez, 1 Cal. 4th 584, 822 P.2d 435 (1992) ...............................37, 173, 206

24
25
26

Martinez v. Ryan, ___ U.S. ___, 132 S. Ct. 1309, 182 L. Ed. 2d 272
(2012) ..........................................................................................................19, 256
Maxwell v. Roe, 606 F.3d 561 (9th Cir. 2010).................................................95, 104

27
28

xxii
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1
2

Mayfield v. Calderon, No. CV 94-6001, 1997 WL 778685 (C.D. Cal.
Oct. 27, 1997) ...................................................................................................243

3

Mayfield v. Woodford, 270 F.3d 915 (9th Cir. 2001) ............................................243

4

McCleskey v. Kemp, 481 U.S. 279, 107 S. Ct. 1756, 95 L. Ed. 2d 262
(1987) ................................................................................................................245

5
6
7

McDonough Power Equip v. Greenwood, 464 U.S. 548, 104 S. Ct.
845, 78 L. Ed. 2d 663 (1984) ............................................................................192

8

McKinney v. Rees, 993 F.2d 1378 (9th Cir. 1993).................................................132

9

McMurty v. Ryan, 539 F.3d 1112 (9th Cir. 2008) .....................................92, 95, 103

10

McNair v. Campbell, 416 F.3d 1291 (11th Cir. 2005) ..........................................202

11
12
13
14

McQuillion v. Duncan, 306 F.3d 895 (9th Cir. 2002) ...........................................142
In re Medley, 134 U.S. 160, 10 S. Ct. 384, 33 L. Ed. 835 (1890) .........................254
Miles v. Stainer, 108 F.3d 1109 (9th Cir. 1997) ..............................................95, 101

15

Milke v. Ryan, 711 F.3d 998 (9th Cir. 2013) .....................................................77, 88

16

Miller v. Pate, 386 U.S. 1, 87 S. Ct. 785, 17 L. Ed. 2d 690 (1967)...............156, 159

17

Miller-El v. Cockrell, 537 U.S. 322, 123 S. Ct. 1029, 154 L. Ed. 2d
931 (2003) ........................................................................................................... 68

18
19
20

Mills v. Maryland, 486 U.S. 367, 108 S. Ct. 1860, 100 L. Ed. 2d 384
(1988) ................................................................................................................222

21

In re Miranda, 43 Cal. 4th 541, 76 Cal. Rptr. 3d 172 (2008)................................206

22
23

Missouri v. Holland, 252 U.S. 416, 40 S. Ct. 382, 64 L. Ed. 641
(1920) ................................................................................................................247

24

Monarrez v. Alameda, 2005 WL 2333462 (C.D. Cal. Sept. 22, 2005) ................... 28

25

Mooney v. Holohan, 294 U.S. 103, 55 S. Ct. 40, 79 L. Ed. 791 (1935) ................152

26
27
28

Moore v. United States, 464 F.2d 663 (9th Cir. 1972) ............................................ 92
Moran v. Godinez, 57 F.3d 690 (9th Cir.1994) .....................................................101
xxiii
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

Moran v. Godinez, 972 F.2d 263 (9th Cir. 1992) ............................................95, 106

2

Morgan v. Illinois, 504 U.S. 719 (1992) ................................................................127

3
4
5
6
7
8
9
10
11
12
13
14
15
16
17

Morris v. Ylst, 447 F.3d 735 (9th Cir. 2006) .........................................................155
Mosley v. Atchison, 689 F.3d 838 (7th Cir. 2012) ...................................58, 114, 185
Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 70 S. Ct.
652, 94 L. Ed. 865 (1950) ................................................................................... 10
In re Murchison, 349 U.S. 133, 75 S. Ct. 623, 99 L. Ed. 942 (1955)....................125
Napue v. Illinois, 360 U.S. 264, 79 S. Ct. 1173, 3 L. Ed. 2d 1217
(1959) ................................................................................................152, 155, 167
Neder v. United States, 527 U.S. 1, 119 S. Ct. 1827, 144 L. Ed. 2d 35
(1999) ................................................................................................................195
Newman v. Harrington, 726 F.3d 921 (7th Cir. 2013) ....................................89, 108
Nunes v. Mueller, 350 F.3d 1045 (9th Cir. 2003) ....................................4, 8, 15, 147
Nutmeg Sec., Ltd. v. McGladrey & Pullen, 92 Cal. App. 4th 1435, 112
Cal. Rptr. 2d 657 (2001) ....................................................................................... 5
Odle v. Woodford, 238 F.3d 1084 (9th Cir. 2001) .....................................91, 98, 106

18

Ohio v. Roberts, 448 U.S. 56 (1980) .....................................................................240

19

Oliver v. Quarterman, 541 F.3d 329 (5th Cir. 2008) ............................................202

20
21

Ornelas v. United States, 517 U.S. 690, 116 S. Ct. 1657, 134 L. Ed. 2d
911 (1996) ........................................................................................................... 13

22

Oyler v. Boles, 368 U.S. 448, 82 S. Ct. 501, 7 L. Ed. 2d 446 (1962) ....................245

23

Panetti v. Quarterman, 551 U.S. 930, 127 S. Ct. 2842, 168 L. Ed. 2d
662 (2007) ................................................................................ 124, 142, 261, 264

24
25
26

The Paquete Habana, 175 U.S. 677, 20 S. Ct. 290, 44 L. Ed. 320
(1900) ................................................................................................................247

27

Paradis v. Arave, 240 F.3d 1169 (9th Cir. 2001) .................................................... 72

28

xxiv
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1
2
3
4

Parker v. Dugger, 498 U.S. 308, 111 S. Ct. 731, 112 L. Ed. 2d 812
(1991) ........................................................................................................256, 260
Parker v. Gladden, 385 U.S. 363, 87 S. Ct. 468, 17 L. Ed. 2d 420
(1966) ................................................................................................195, 199, 210

5

Parle v. Runnels, 505 F.3d 922 (9th Cir. 2007) .....................................................263

6

Pate v. Robinson (1966) 383 U.S. 375, 86 S. Ct. 836, 15 L. Ed. 2d 815
...............................................................................................................92, 94, 104

7
8

Patterson v. Gomez, 223 F.3d 959 (9th Cir. 2000) ................................................136

9

Patterson v. McLean Credit Union, 491 U.S. 164 (1989) ....................................... 14

10

Paulino v. Harrison, 542 F.3d 692 (9th Cir. 2008) ...............................................142

11
12
13

Penry v. Johnson, 532 U.S. 782, 121 S. Ct. 1910, 150 L. Ed. 2d 9
(2001) ..........................................................................................................67, 222

14

Penry v. Lynaugh, 492 U.S. 302, 109 S. Ct. 2934, 106 L. Ed. 2d 256
(1989) .......................................................................................................... passim

15

People v. Alexander, 49 Cal. 4th 846, 235 P.3d 873 (2010) ................................... 74

16

People v. Andrews, 49 Cal. 3d 200, 260 Cal. Rptr. 583 (1989).............................219

17
18
19
20
21
22

People v. Bacigalupo, 6 Cal. 4th 457, 24 Cal. Rptr. 2d 808 (1993) ......................239
People v. Beames, 40 Cal. 4th 907, 55 Cal. Rptr. 3d 865 (2007) ..........................239
People v. Belmares, 106 Cal. App. 4th 19, 130 Cal. Rptr. 2d 400
(2003) .................................................................................................................. 32
People v. Black, 41 Cal. 4th 799, 62 Cal. Rptr. 3d 569 (2007) ............................... 30

23

People v. Bolden, 29 Cal. 4th 515, 127 Cal. Rptr. 2d 802 (2002) .........................240

24

People v. Boyd, 38 Cal. 3d, 215 Cal. Rptr. 1 (1985) .............................................166

25

People v. Bryden, 63 Cal. App. 4th 159, 73 Cal. Rptr. 2d 554 (1998) .................... 31

26
27
28

People v. Campos, 32 Cal. App. 4th 304, 38 Cal. Rptr. 2d 113 (1995) .................. 75
People v. Castaldia, 51 Cal. 2d 569, 335 P.2d 104 (1959) ...................................207
xxv
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

People v. Castaneda, 51 Cal. 4th 1292, 127 Cal. Rptr. 3d 200 (2011) .................219

2

People v. Chavez, 26 Cal. 3d 334, 161 Cal. Rptr. 762 (1980) ................................. 32

3
4
5

People v. Cox, 53 Cal. 3d 618, 280 Cal. Rptr. 692 (1991) ...................................... 30
People v. Crittenden, 9 Cal. 4th 83, 36 Cal. Rptr. 2d 474 (1994) .........................240

6

People v. Daniels, 52 Cal. 3d 815, 277 Cal. Rptr. 122 (1991) ..............................201

7

People v. Danks, 32 Cal. 4th 269, 82 P.2d 1249 (2004) ........................................204

8

People v. De Santiago, 71 Cal. 2d 18, 76 Cal. Rptr. 809 (1969) ............................. 32

9

People v. Doolin, 45 Cal. 4th 390, 87 Cal. Rptr. 3d 209 (2009) ............................. 15

10
11
12

People v. Duvall, 9 Cal. 4th 464, 37 Cal. Rptr. 2d 259 (1995)........................ passim
People v. Flores, 68 Cal. 2d 563, 68 Cal. Rptr. 161 (1968) .................................... 32

13

People v. Frye, 18 Cal. 4th 894, 77 Cal. Rptr. 2d 25 (1998) .................................226

14

People v. Fudge, 7 Cal. 4th 1075 (1994) .......................................................140, 142

15

People v. Gonzalez, 51 Cal. 3d 1179, 800 P.2d 1159 (1990) ..................85, 164, 167

16
17
18
19

People v. Gurule, 28 Cal. 4th 557, 51 P.3d 224 (2002)........................................... 73
People v. Hall, 41 Cal. 3d 826, 226 Cal. Rptr. 112 (1986) ...................................139
People v. Hernandez, 22 Cal. 4th 512, 93 Cal. Rptr. 2d 509 (2000) .....................136

20

People v. Hill, 17 Cal. 4th 800, 72 Cal. Rptr. 2d 656 (1998) .................................. 30

21

People v. Holmes, 54 Cal. 2d 442, 5 Cal. Rptr. 871 (1960) .................................... 32

22

People v. Hord, 15 Cal. App. 4th 711, 19 Cal. Rptr. 55 (1993) ............................207

23
24
25

People v. Hutchinson, 71 Cal. 2d 342, 78 Cal. Rptr. 196 (1969) ..........................207
People v. Jennings, 50 Cal. 4th 616, 114 Cal. Rptr. 3d 133 (2010) .......................239

26

People v. Johnson, 5 Cal. App. 3d 851, 85 Cal. Rptr. 485 (1970) .......................... 33

27

People v. Jones, 29 Cal. 4th 1229, 131 Cal. Rptr. 2d 468 (2003) ................... passim

28

xxvi
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

People v. Karis, 46 Cal. 3d 612, 250 Cal. Rptr. 659 (1988) ...................................... 4

2

People v. Kelly, 1 Cal. 4th 495, 3 Cal. Rptr. 2d 677 (1992) .................................... 51

3
4
5

People v. Kelly, 17 Cal. 3d 24 (1976) ....................................................................149
People v. Kipp, 26 Cal. 4th 1100, 113 Cal. Rptr. 2d 27 (2001) .............................240

6

People v. Kitchens, 46 Cal. 2d 260, 294 P.2d 17 (1956) ......................................... 32

7

People v. Ledesma, 43 Cal. 3d 171, 729 P.2d 839 (1987) .................................37, 53

8

People v. Lewis, 43 Cal. 4th 415, 181 P.3d 947 (2008)........................................... 84

9

People v. Lopez, 56 Cal. 4th 1028, 301 P.3d 1177 (2013) ...................................... 73

10
11
12

People v. Malone, 12 Cal. 4th 935, 50 Cal. Rptr. 2d 281 (1996) ..........................210
People v. Malone, 47 Cal. 3d 1, 252 Cal. Rptr. 525 (1988) .................................... 30

13

People v. Marsden, 2 Cal. 3d 118, 84 Cal. Rptr. 156 (1970) .......................... passim

14

People v. Medina, 11 Cal. 4th 694, 906 P.2d 2 (1995) ..................................102, 106

15

People v. Mendoza, 24 Cal. 4th 130, 99 Cal. Rptr. 2d 485 (2000) ........................240

16
17
18
19
20
21

People v. Mills, 81 Cal. App. 3d 171, 146 Cal. Rptr. 411 (1978) ........................... 32
People v. Mincey, 2 Cal. 4th 408, 827 P.2d 388, 6 Cal. Rptr. 2d 822
(1992) ........................................................................................................140, 204
People v. Moore, 5 Cal. App. 3d 486, 85 Cal. Rptr. 194 (1970) ............................. 74
People v. Morrison, 34 Cal. 4th 698, 101 P.3d 568 (2004) ..................................... 84

22

People v. Najera, 138 Cal. App. 4th 212, 41 Cal. Rptr. 3d 244 (2006) .................. 31

23

People v. Nakahara, 30 Cal. 4th 705, 68 P.3d 1190 (2003) .................................... 85

24

People v. Norwood, 26 Cal. App. 3d 148, 103 Cal. Rptr. 7 (1972) ......................... 31

25

People v. Ochoa, 165 Cal. App. 3d 885, 212 Cal. Rptr. 4 (1985) .........................246

26
27
28

People v. Perkins, 109 Cal. App. 4th 1562, 1 Cal. Rptr. 3d 271 (2003) ................. 31
People v. Pierce, 24 Cal. 3d 199, 155 Cal. Rptr. 657 (1979) ................................207
xxvii
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

People v. Randle, 8 Cal. App. 4th 1023, 10 Cal. Rptr. 2d 804 (1992) .................... 73

2

People v. Robinson, 62 Cal. 2d 889, 44 Cal. Rptr. 762 (1965) ............................... 33

3
4
5

People v. Rodrigues, 8 Cal. 4th 1060, 36 Cal. Rptr. 2d 235 (1994) ......................105
People v. Romero, 8 Cal. 4th 728, 35 Cal. Rptr. 2d 270 (1994) ...................... passim

6

People v. Ross, 198 Cal. App. 2d 723, 18 Cal. Rptr. 307 (1961) ............................ 31

7

People v. Santamaria, 229 Cal. App. 3d 269, 280 Cal. Rptr. 43 (1991) ................. 32

8

People v. Saunders, 5 Cal. 4th 580, 20 Cal. Rptr. 2d 638 (1993) .....................26, 32

9

People v. Seaton, 26 Cal. 4th 598, 110 Cal. Rptr. 2d 441 (2001) .........................229

10
11
12

People v. Silva, 45 Cal. 3d 604, 247 Cal. Rptr. 573 (1988)..................................... 30
People v. Smith, 103 Cal. 563, 37 P. 516 (1894) ..................................................... 31

13

People v. Smith, 24 Cal. 4th 849, 102 Cal. Rptr. 2d 731 (2001) .......................30, 72

14

People v. Snow, 30 Cal. 4th 43, 132 Cal. Rptr. 2d 271 (2003) ..............................230

15

People v. Stankewitz, 32 Cal. 3d 80, 184 Cal. Rptr. 611 (1982) ...........................105

16
17
18
19

People v. Taylor, 47 Cal. 4th 850, 220 P.3d 872 (2010) .......................................105
People v. Taylor, 52 Cal. 3d 719, 276 Cal. Rptr. 391 (1990) ................................229
People v. Truer, 168 Cal. App. 3d 437, 214 Cal. Rptr. 869 (1985) ........................ 31

20

People v. Vera, 15 Cal. 4th 269, 62 Cal. Rptr. 2d 754 (1997) ...........................30, 32

21

People v. Wash, 6 Cal. 4th 215, 24 Cal. Rptr. 2d 421 (1993)................................204

22

People v. Watson, 46 Cal. 2d 818, 299 P.2d 243 (1956) .......................................140

23
24
25

People v. Webb, 143 Cal. App. 2d 402, 300 P.2d 130 (1956) ................................. 49
People v. Whitt, 51 Cal. 3d 620, 274 Cal. Rptr.252 (1990) ...................................239

26

People v. Williams, 17 Cal. 4th 148, 69 Cal. Rptr. 2d 917 (1998) .......................... 29

27

People v. Williams, 187 Cal. App. 2d 355, 9 Cal. Rptr. 722 (1960) ....................... 74

28

xxviii
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

People v. Williams, 21 Cal. 4th 335, 87 Cal. Rptr. 2d 412 (1999) .......................... 30

2

People v. Williams, 40 Cal. 4th 287, 148 P.3d 47 (2006) ......................................204

3
4
5

People v. Williams, 44 Cal. 3d 1127, 751 P.2d 901 (1988) ..................................... 85
Peoples v. Lafler, 734 F.3d 503 (6th Cir. 2013) ...................................................... 58

6

Perez v. Rosario, 459 F.3d 943 (9th Cir. 2006) .....................................................147

7

Peters v. Kiff, 407 U.S. 493, 92 S. Ct. 2163, 33 L. Ed. 2d 83 (1972)....................213

8

Plumlee v. Del Papa, 465 F.3d 910 (9th Cir. 2005) ................................................ 64

9

Plummer v. Jackson, 491 F. App’x 671 (6th Cir. 2012) ........................205, 210, 212

10
11
12
13
14
15

Porter v. McCollum, 558 U.S. 30, 130 S. Ct. 447, 175 L. Ed. 2d 398
(2009) .......................................................................................................... passim
Protsman v. Pliler, 318 F. Supp. 2d 1004 (S.D. Cal. 2004) .................................... 29
Pulley v. Harris, 465 U.S. 37, 104 S. Ct. 871, 79 L. Ed. 2d 29 (1984) .................239
Raley v. Ylst, 470 F.3d 792 (9th Cir. 2006) ............................................................. 86

16

Reagan v. Norris, 279 F.3d 651 (8th Cir. 2002) ....................................................257

17

Remmer v. United States, 347 U.S. 227, 74 S. Ct. 450, 98 L. Ed. 654
(1954) .......................................................................................................... passim

18
19
20
21
22
23
24
25
26
27
28

Riggins v. Nevada, 504 U.S. 127, 112 S. Ct. 1810, 118 L. Ed. 2d 479
(1992) .......................................................................................................... passim
Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556
(2002) .......................................................................................................... passim
Rivera v. Quarterman, 505 F.3d 349 (5th Cir. 2007) ............................................237
Riverisland Cold Storage, Inc. v. Fresno-Madera Prod. Credit Ass’n,
55 Cal. 4th 1169, 151 Cal. Rptr. 3d 93 (2013) ................................................... 15
In re Robbins, 18 Cal. 4th 770, 77 Cal. Rptr. 2d 153 (1998) .................................. 24
Rock v. Arkansas, 483 U.S. 44, 107 S. Ct. 2704, 97 L. Ed. 2d 37
(1987) .......................................................................................................... passim
xxix
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

Rodriguez v. Scribner, 2008 WL 1365785 (E.D. Cal. Apr. 9, 2008) ...................... 28

2

Rompilla v. Beard, 545 U.S. 374, 125 S. Ct. 2456, 162 L. Ed. 2d 360
(2005) .......................................................................................................... passim

3
4
5
6
7

Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1
(2005) ........................................................................................................248, 254
Rosales-Lopez v. United States, 451 U.S. 182, 101 S. Ct. 1629, 68 L.
Ed. 2d 22 (1981) ...............................................................................................126

8

In re Rosencrantz, 29 Cal. 4th 616, 128 Cal. Rptr. 2d 104 (2002) ............................ 6

9

Rowland v. Chappell, 902 F. Supp. 2d 1296 (N.D. Cal. 2012) .............................247

10

Sanchez v. Ryan, 392 F. Supp. 2d 1136 (C.D. Cal. 2005) ....................................... 29

11
12
13
14
15
16
17
18
19

Sandoval v. Calderon, 241 F.3d 765 (9th Cir. 2000) ............................................202
Schell v. Witek, 218 F.3d 1017 (9th Cir. 2000)................................................ passim
Scheuer v. Rhodes, 416 U.S. 232, 94 S. Ct. 1683, 40 L. Ed. 2d 90
(1974) .................................................................................................................... 5
Schmier v. Supreme Court, 78 Cal. App. 4th 703, 93 Cal. Rptr. 2d 580
(2000) ....................................................................................................15, 58, 185
In re Scott, 29 Cal. 4th 783, 129 Cal. Rptr. 2d 605 (2003) ....................................206
In re Seaton, 34 Cal. 4th 193, 17 Cal. Rptr. 3d 633 (2004) ............................. passim

20

Seidel v. Merkle, 146 F.3d 750 (9th Cir. 1998) ....................................................... 40

21

Sell v. United States, 539 U.S. 166, 123 S. Ct. 2174, 156 L. Ed. 2d
197 (2003) .........................................................................................117, 119, 124

22
23

In re Serrano, 10 Cal. 4th 447, 41 Cal. Rptr. 2d 695 (1995) ...............................7, 50

24

In re Sheena K., 40 Cal. 4th 875, 55 Cal. Rptr. 3d 716 (2007) .........................30, 32

25

In re Shipp, 62 Cal. 2d 547, 43 Cal. Rptr. 3 (1965) ................................................. 33

26
27
28

Shortt v. Roe, 342 F. App’x 331 (9th Cir. 2009) ...................................................168
Silva v. Brown, 416 F.3d 972 (9th Cir. 2005) .......................................................... 80
xxx
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

Simmons v. Beard, 590 F.3d 223 (3rd Cir. 2009) .................................................... 88

2
3

Simmons v. South Carolina, 512 U.S. 154, 114 S. Ct. 2187, 129 L. Ed.
2d 133 (1994) ....................................................................................187, 189, 191

4

Sivak v. Hardison, 658 F.3d 898 (9th Cir. 2011) ...................................................220

5
6

Skipper v. South Carolina, 476 U.S. 1, 106 S. Ct. 1669, 90 L. Ed. 2d 1
(1986) ................................................................................................187, 189, 191

7

In re Smith, 3 Cal. 3d 192 (1970)...........................................................................257

8

Smith v. Baldwin, 510 F.3d 1127 (9th Cir. 2007) (en banc) .................................... 72

9
10
11
12
13
14
15
16
17

Smith v. Moore, 137 F.3d 808 (4th Cir. 1998) .......................................................118
Smith v. Phillips, 455 U.S. 209, 102 S. Ct. 940, 71 L. Ed. 2d 78 (1982) ........ passim
Smith v. Robbins, 528 U.S. 259, 120 S. Ct. 746, 145 L. Ed. 2d 756
(2000) ................................................................................................................256
Smith v. Texas, 543 U.S. 37, 125 S. Ct. 400, L. Ed. 2d 303 (2004) ......................221
Sola Elec. Co. v. Jefferson Elec. Co., 317 U.S. 173, 63 S. Ct. 172, 87
L. Ed. 165 (1942) ................................................................................................ 23
In re Stankewitz, 40 Cal. 3d 391, 220 Cal. Rptr. 382 (1985) .................................206

18

Stanley v. Cullen, 633 F.3d 852 (9th Cir. 2011) ............................................108, 112

19
20

Stichting Pensioenfonds ABP v. Countrywide Fin. Corp., 802 F. Supp.
2d 1125 (C.D. Cal. 2011) ..............................................................16, 59, 186, 238

21

Stouffer v. Trammell, 738 F.3d 1205 (10th Cir. 2013) ..........................................193

22

Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984) ................................................................................................... passim

23
24
25

Stringer v. Black, 503 U.S. 222, 112 S. Ct. 1130, 117 L. Ed. 2d 367
(1992) ................................................................................................................163

26

Sturgis v. Goldsmith, 796 F.2d 1103 (9th Cir. 1986) ............................................102

27

In re Swain, 34 Cal. 2d 300, 209 P.2d 793 (1949) ..............................................6, 87

28

xxxi
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

Tak Sun Tan v. Runnels, 413 F.3d 1101 (9th Cir. 2005) .......................................153

2

Tanner v. United States, 483 U.S. 107, 107 S. Ct. 2739, 97 L. Ed. 2d
90 (1987) ..................................................................................................... passim

3
4
5

Taylor v. Kentucky, 436 U.S. 478, 98 S. Ct. 1930, 56 L. Ed. 2d 468
(1978) ................................................................................................................199

6

Taylor v. Maddox, 366 F.3d 992 (9th Cir. 2004) ...............................17, 68, 144, 197

7

Taylor v. Workman, 554 F.3d 879 (10th Cir. 2009) ..............................................240

8

Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L .Ed. 2d. 334
(1989) ................................................................................................116, 169, 253

9
10
11
12
13

In re Teledyne Def. Contracting Derivative Litig., 849 F. Supp. 1369
(C.D. Cal. 1993) ............................................................................16, 59, 186, 238
Tennard v. Dretke, 542 U.S. 274, 124 S. Ct. 2562, 159 L. Ed. 2d 384
(2004) ........................................................................................................191, 221

14

Thompson v. Bell, 580 F.3d 423 (6th Cir. 2009) ...................................................119

15

Thompson v. McNeil, 556 U.S. 1114, 129 S. Ct. 1299 (2009) ..............................255

16

Torres v. Prunty, 223 F.3d 1103 (9th Cir. 2000) .........................................92, 95, 99

17
18
19
20
21
22
23
24
25
26
27

In re (Troy Lee) Jones, 13 Cal. 4th 552, 917 P.2d 1175 (1996) ........................37, 56
Tuilaepa v. California, 512 U.S. 967, 114 S. Ct. 2630, 129 L. Ed. 2d
750 (1994) .................................................................................................226, 239
Tumey v. State of Ohio, 273 U.S. 510, 47 S. Ct. 437 (1927) .................................125
United States v. Agurs, 427 U.S. 97, 96 S. Ct. 2392, 49 L. Ed. 2d 342
(1976) ........................................................................................................152, 156
United States v. Aichele, 941 F.2d 761 (9th Cir. 1991) ........................................... 77
United States v. Armstrong, 517 U.S. 456, 116 S. Ct. 1480, 134 L. Ed.
2d 687 (1996) ....................................................................................................245
United States v. Bagley, 473 U.S. 667, 105 S. Ct. 3375, 87 L. Ed. 2d
481 (1985). .......................................................................................................... 81

28

xxxii
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1
2

United States v. Bailey, 444 U.S. 394, 100 S. Ct. 624, 62 L. Ed. 2d
575 (1980) .........................................................................................................146

3

United States v. Barrett, 703 F.2d 1076 (9th Cir. 1982) .......................................213

4

United States v. Bracy, 67 F.3d 1421 (9th Cir. 1995) ............................................. 77

5

United States v. Croft, 124 F.3d 1109 (9th Cir. 1997)...........................................157

6
7
8

United States v. Dupuy, 760 F.2d 1492 (9th Cir. 1985) .......................................... 77
United States v. Howard, 381 F.3d 873 (9th Cir. 2004) ................................109, 112

9

United States v. Howell, 231 F.3d 615 (9th Cir. 2000) ........................................... 77

10

United States v. Ives, 574 F.2d 1002 (9th Cir. 1978)............................................... 93

11

United States v. Moore, 159 F.3d 1154 (9th Cir. 1998) .......................................... 64

12
13
14
15

United States v. Nguyen, 262 F.3d 998 (9th Cir. 2001) ........................................... 64
United States v. Olsen, 704 F.3d 1172 (9th Cir. 2013) ............................................ 71
United States v. Price, 566 F.3d 900 (9th Cir. 2009) .............................................. 72

16

United States v. Resko, 3 F.3d 684 (3d Cir. 1993) .................................................194

17

United States v. Reyes, 577 F.3d 1069 (9th Cir. 2009) ..........................................163

18

United States v. Saadeh, 61 F.3d 510 (7th Cir. 1995) ...........................................158

19
20
21

United States v. Udechukwu, 11 F.3d 1101 (1st Cir. 1993)...................................163
United States v. Watson, 171 F .3d 695, 699 (D.C. Cir. 1999) .............................159

22

United States v. Wilson (4th Cir. 1990) 901 F.2d 378,380 ...................................... 83

23

United States v. Workcuff, 422 F.2d 700 (D.C. Cir. 1970) ....................................260

24

Uttecht v. Brown, 551 U.S. 1, 127 S. Ct. 2218, 167 L. Ed. 2d 1014
(2007) ................................................................................................................127

25
26
27

Viereck v. United States, 318 U.S. 236, 63 S. Ct. 561, 87 L. Ed. 734
(1943) ................................................................................................................160

28

xxxiii
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16

Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252,
97 S. Ct. 555, 50 L. Ed. 2d 450 (1977) .............................................................245
Wainwright v. Witt, 469 U.S. 412, 105 S. Ct. 844, 83 L. Ed. 2d 841
(1985) ................................................................................................................128
Walker v. Martin, ___ U.S. ___, 131 S. Ct. 1120, 179 L. Ed. 2d 62
(2011) ......................................................................................................18, 20, 25
Walton v. Arizona, 497 U.S. 639, 110 S. Ct. 3047, 111 L. Ed. 2d 571
(1990) ................................................................................................................242
In re Waltreus, 62 Cal. 2d 218, 397 P.2d 1001 (1965) ............................................ 20
Washington v. Harper, 494 U.S. 210, 110 S. Ct. 1028, 108 L. Ed. 2d
178 (1990) .........................................................................................117, 119, 121
Washington v. Texas, 388 U.S. 14, 87 S. Ct. 1920, 18 L. Ed. 2d 1019
(1967) ................................................................................................................134
Watts v. Yates, 387 F. App’x 772 (9th Cir. 2010) .................................................105
Wayte v. United States, 470 U.S. 598, 105 S. Ct. 1524, 84 L. Ed. 2d
547 (1985) .........................................................................................................245

17

Weeks v. Angelone, 528 U.S. 225, 120 S. Ct. 727, 145 L. Ed. 2d 727
(2000) ................................................................................................................222

18

Wells v. Maass, 28 F.3d 1005 (9th Cir. 1994) ......................................................... 18

19
20

Wiggins v. Smith, 539 U.S. 510, 123 S. Ct. 2527, 156 L. Ed. 2d 471
(2003) .......................................................................................................... passim

21

Wilkerson v. Utah, 99 U.S. 130, 25 L. Ed. 345 (1879) ..........................................253

22
23
24
25
26
27
28

Williams v. Taylor, 529 U.S. 362, 120 S. Ct. 1495, 146 L. Ed. 2d 389
(2000) .......................................................................................................... passim
Williams v. Woodford, 396 F.3d 1059 (9th Cir. 2005) ..........................................246
Wilson v. Knowles, 638 F.3d 1213 (9th Cir. 2011)................................................231
Wood v. Georgia, 450 U.S. 261, 101 S. Ct. 1097, 67 L. Ed. 2d 220
(1981) .................................................................................................................. 63
xxxiv
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1
2
3
4
5
6
7

Woodson v. North Carolina, 428 U.S. 280, 96 S. Ct. 2978, 49 L. Ed.
2d 944 (1976) ....................................................................................163, 167, 189
Wright v. West, 505 U.S. 277, 112 S. Ct. 2482, 120 L. Ed. 2d 225
(1992) .................................................................................................................. 12
Zant v. Stephens, 462 U.S. 862, 103 S. Ct. 2733, 77 L. Ed. 2d 235
(1983) ................................................................................................167, 189, 224
Zschernig v. Miller, 389 U.S. 429, 88 S. Ct. 664, 19 L. Ed. 2d 683
(1968) ................................................................................................................247

8
9
10

Constitutional Provisions
U.S. Const., art. I. ..................................................................................................... 13

11

U.S. Const., art. III. .................................................................................................. 11

12

U.S. Const., art. VI. ................................................................................................246

13
14
15
16
17

Statutes
28 U.S.C. § 2254 .............................................................................................. passim
Cal. Civil. Code § 56.10 ........................................................................................... 85
Cal. Evid. Code § 352 ............................................................................................ 131

18

Cal. Evid. Code § 353 .............................................................................................. 32

19

Cal. Evid. Code § 402 ............................................................................................ 150

20

Cal. Evid. Code § 791(b) ......................................................................................... 72

21
22
23

Cal. Evid. Code § 800 .............................................................................................. 49
Cal. Evid. Code § 804(d) ......................................................................................... 75

24

Cal. Evid. Code § 1101(b) .....................................................................................131

25

Cal. Evid. Code § 1150 ..........................................................................................206

26

Cal. Evid. Code § 1271 ............................................................................................74

27

Cal. Evid. Code § 1500 ..........................................................................................207

28

xxxv
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

Cal. Penal Code § 28 ........................................................................................49, 136

2

Cal. Penal Code § 190.3 ................................................................ 166, 221, 226, 228

3
4
5

Cal. Penal Code § 1367 ..........................................................................................106
Cal. Penal Code § 1376 ..................................................................................105, 232

6

Other Authorities

7

Amnesty Int’l, Death Penalty Facts 3 (May 2012) ...............................................249

8

ECOSOC, Implementation of Safeguards Guaranteeing the Protection
of the Rights of Those Facing the Death Penalty, ECOSOC Res.
1989/64, U.N. Doc. E/1989/91 (May 24, 1989) ...............................................249

9
10
11
12
13
14
15
16
17
18
19

Europe, Abolition of the Death Penalty in Council of Europe Observer
States, Resolution 1253 (June 25, 2001) ..........................................................250
Guidelines for the Appointment and Performance of Defense Counsel
in Death Penalty Cases (1989) ................................................................... passim
Guidelines for the Appointment and Performance of Defense Counsel
in Death Penalty Cases (2003) ................................................................... passim
National Research Council, DNA Technology in Forensic Science
(1992) ................................................................................................................151
Restatement (Third) Of Foreign Relations Law Of The United States §
111 (1987) .........................................................................................................247

20
21
22
23
24
25
26
27
28

xxxvi
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

I. INTRODUCTION

2

Pursuant to this Court’s Order of January 9, 2014, Mr. Jones submits this

3

brief on the application of 28 U.S.C. section 2254(d) to the claims in his habeas

4

corpus petition. Order Granting Petitioner’s Third Ex Parte Application for an

5

Extension of Time to File A Reply Brief, ECF No. 99. As set forth in previous

6

briefing in the Court and this Reply Brief, Mr. Jones is entitled to merits review of

7

each of the claims contained in the Petition for Writ of Habeas Corpus. See ECF

8

Nos. 62, 68, 71, 74, & 84.

9

II. THE LEGAL FRAMEWORK FOR DECIDING WHETHER

10

THE STATE COURT DENIAL OF MR. JONES’S CLAIMS

11

SATISFIES 2254(D) EXCEPTIONS. 1

12

This Court’s merits review of Mr. Jones’s constitutional claims, following

13

their summary denial by the California Supreme Court, is not barred by 28 U.S.C.

14

section 2254(d) if the state decision either (1) is contrary to or an unreasonable

15

application of clearly established Federal law, or (2) resulted in a decision that was

16

based on an unreasonable determination of the facts. 28 U.S.C. § 2254(d). The

17

state court issued an opinion in Mr. Jones’s direct appeal that addressed some

18
19
20
21
22
23
24
25
26
27
28

1

As discussed throughout this Reply, the determination whether the state
court decision comes within 2254(d) exceptions entails an examination of the
facial sufficiency of Mr. Jones’s prima facie showing and the applicable law
before the state court at the time it summarily denied Mr. Jones’s claims. This
preliminary inquiry is substantially distinct from a proceeding in which Mr. Jones
has an opportunity to conduct discovery and further develop the factual basis for
his claims for relief and engage in full, formal merits briefing – a process that has
not yet occurred in any court. Thus, although respondent’s Opposition raises
numerous issues that may affect this Court’s ability to grant relief, apart from 28
U.S.C. section 2254(d), including Brecht v. Abrahamson, 507 U.S. 619, 113 S. Ct.
1710, 123 L. Ed. 2d 353 (1993) – the applicable prejudice standard governing this
Court’s review of certain claims – such issues are not relevant and therefore not
addressed in this Reply.
1
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

aspects of the claims Mr. Jones has presented to this Court, People v. Jones, 29 Cal.

2

4th 1229, 1254-55, 131 Cal. Rptr. 2d 468 (2003), and the general application of

3

section 2254(d) to that opinion is set out in section IV, infra. The primary state

4

court decision this Court must evaluate under section 2254(d), however, is the

5

summary denial of Mr. Jones state habeas claims for relief.2

6

A.

Discerning the Basis for the State Court’s Summary Denial Must Be

7

Guided by Applicable State Law and Procedures.

8

In Mr. Jones’s Opening 2254(d) Brief on Evidentiary Hearing Claims, filed

9

Dec. 10, 2012 (Doc. 84) (“Opening Br.”), and in the sections that follow, Mr. Jones

10

establishes that “there was no reasonable basis” for the state court to summarily

11

deny the claims of constitutional error Mr. Jones presented in his state habeas

12

petitions, and thus no bar to this Court’s merits review of those claims. Harrington

13

v. Richter, __ U.S. __, 131 S. Ct. 770, 784, 178 L. Ed. 2d 624 (2011); see also 28

14

U.S.C. § 2254(d). Because the state court provided no explanation for its summary

15

denial, this Court must assess the reasonableness of the state court’s legal or factual

16

conclusions by determining “what arguments or theories supported, or could have

17

supported, the state court’s decision.” Id. at 786. This review is based on an

18

examination of the state court decision “at the time it was made,” and on what the

19

state court “knew and did,” or, in this case, what the state court knew and could

20

have done. Cullen v. Pinholster, __ U.S. __, 131 S. Ct. 1388, 1398-99, 179 L. Ed.

21

2d 557 (2011); see also Frantz v. Hazey, 533 F.3d 724, 737 (9th Cir. 2008) (ruling

22

that review under section 2254(d) demands that federal courts “determine the rule

23

that actually governed the state court’s analysis”) (emphasis in original).

24
25
26
27
28

2

Order Denying Case No. S110791, filed Mar. 11, 2009, Notice of Lodging,
filed Apr. 6, 2010, ECF No. 29 (“NOL”) at C.7.; Order Denying Case No.
159235, filed Mar. 11, 2009, NOL at D.6. Throughout this brief, these state court
orders are referred to as the state court’s “summary denial.”
2
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

This Court’s review of the state court decision therefore must be based on

2

“the record in existence” at the time the state court decision was made, Pinholster,

3

131 S. Ct. at 1398, which in California, includes the allegations in the state habeas

4

petition, the supporting exhibits, and the trial record, id. at 1403 n.12.3 Review

5

also must be constrained by the state law and procedures governing the state court

6

decision. As the Ninth Circuit has explained,

7

to evaluate analysis a state court did not conduct is inconsistent with

8

AEDPA deference. Such an approach would require us to ignore

9

rather than respect the state court’s analysis, and it would effectively

10

require us to defer to states in their role as respondents in habeas

11

actions rather than as independent adjudicators. Such a presumption

12

in favor of a state party is distinct in both purpose and effect from

13

respect afforded to state courts.

14

Frantz, 533 F.3d at 738 (ruling that “if we were to defer to some hypothetical

15

alternative rationale when the state court’s actual reasoning evidences a §

16

2254(d)(1) error, we would distort the purpose of AEDPA”) (emphasis in original).

17

Given these requirements, the starting point for assessing the state court

18

decision is an understanding of how state law and procedures affect what the state

19

court could have done, and could not have done, in summarily denying Mr. Jones’s

20
21
22
23
24
25
26
27
28

3

All of the legal bases, factual allegations, and materials in support of Mr.
Jones’s claims before this Court have been exhausted in the California Supreme
Court. See Answer to Petition for Writ of Habeas Corpus, filed April 6, 2010
(Doc. 28) at 2 n.3 (noting that “Respondent is not asserting that any claims in the
instant federal Petition are unexhausted”); Response to Application to Defer
Informal Briefing on Petition for Writ of Habeas Corpus, filed Mar. 25, 2010, In
re Jones, California Supreme Court Case No. S180926 (stating “respondent has
examined the federal petition and has determined that all claims therein appear to
be exhausted. . . . Respondent will therefore be filing an answer to the federal
petition and will not be asserting that any claims are unexhausted.”).
3
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

claims. “Under California law, the California Supreme Court’s summary denial of

2

a habeas petition on the merits reflects that court’s determination that the claims

3

made in the petition do not state a prima facie case entitling the petitioner to

4

relief.” Pinholster, 131 S. Ct. at 1403 n.12 (internal quotation omitted). State law

5

and procedures that dictate whether a prima facie showing successfully has been

6

made are therefore central to evaluating whether there is any reasonable basis for

7

the state court’s summary denial. The following sections discuss this state law

8

framework in greater detail and provide the basis for Mr. Jones’s showing in

9

section IV, infra, that summary denial of his claims satisfies section 2254(d).

10
11

1. The State Court Evaluates a Prima Facie Showing for Facial
Sufficiency.

12

Under California law, the petition for a writ of habeas corpus serves a

13

“limited function.” People v. Romero, 8 Cal. 4th 728, 743, 35 Cal. Rptr. 2d 270

14

(1994). A state habeas petitioner has the burden “initially to plead sufficient

15

grounds for relief, and then later to prove them.” People v. Duvall, 9 Cal. 4th 464,

16

474, 37 Cal. Rptr. 2d 259 (1995) (emphasis in original). To make a prima facie

17

showing that he is entitled to relief, Mr. Jones was obligated to “state fully and

18

with particularity the facts on which relief is sought” and provide “reasonably

19

available” documentary support for his allegations. Duvall, 9 Cal. 4th at 474.

20

Conclusory allegations are those “made without any explanation of the basis for

21

the allegations” and do not warrant relief. People v. Karis, 46 Cal. 3d 612, 656,

22

250 Cal. Rptr. 659 (1988).

23

In evaluating whether a prima facie showing has been made, the state court

24

determines “whether, assuming the petition’s factual allegations are true, the

25

petitioner would be entitled to relief.” Duvall, 9 Cal. 4th at 474-75; see also

26

Pinholster, 131 S. Ct. at 1403 n.12 (recognizing that a California state court

27

“generally assumes the allegations in the petition to be true, but does not accept

28

wholly conclusory allegations.”); Nunes v. Mueller, 350 F.3d 1045, 1054 (9th Cir.
4
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

2003) (ruling state court evaluating a prima facie showing purports to take claims

2

“at face value” and evaluate claims “for sufficiency alone”).

3

The determination whether a habeas petitioner has stated a prima facie case

4

for relief is therefore one of facial sufficiency, a standard analogous to a demurrer

5

in a state civil action. Romero, 8 Cal. 4th at 742 n.9; see also Nutmeg Sec., Ltd. v.

6

McGladrey & Pullen, 92 Cal. App. 4th 1435, 1441, 112 Cal. Rptr. 2d 657 (2001)

7

(ruling that a demurrer may not be sustained without leave to amend if, “liberally

8

construed, it states a cause of action under any conceivable theory”).4 When “a

9

habeas corpus petition is sufficient on its face (that is, the petition states a prima

10

facie case on a claim that is not procedurally barred), the court is obligated by

11

statute to issue a writ of habeas corpus” or an order to show cause. Romero, 8 Cal.

12

4th at 737-38.

13

2. The State Court Expressly Indicates Any Deficiencies in Pleading

14

and Proof by Citation.

15

A state court denial of allegations as vague or conclusory is not a merits

16

ruling, but a pleading deficiency. See, e.g., Cross v. Sisto, 676 F.3d 1172, 1177 (9th

17

Cir. 2012) (ruling that California state court denial for lack of particularity is made

18
19
20
21
22
23
24
25
26
27
28

4

The state standard is similar to the federal standard applicable to a motion
to dismiss brought pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure. “[A] federal court may not dismiss a complaint for failure to state a
claim unless it appears beyond doubt, even when the complaint is liberally
construed, that the plaintiff can prove no set of facts which would entitle him to
relief. The allegations of the complaint must be taken as true for purposes of a
decision on the pleadings.” Hoover v. Ronwin, 466 U.S. 558, 587, 104 S. Ct.
1989, 80 L. Ed. 2d 590 (1984); see also Scheuer v. Rhodes, 416 U.S. 232, 236, 94
S. Ct. 1683, 40 L. Ed. 2d 90 (1974) (“When a federal court reviews the
sufficiency of a complaint, before the reception of any evidence either by affidavit
or admissions, its task is necessarily a limited one. The issue is not whether a
plaintiff will ultimately prevail but whether the claimant is entitled to offer
evidence to support the claims”).
5
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

without prejudice to re-plead). The California Supreme Court expressly indicates

2

when denial of a petition is made on this basis by citing to In re Swain, 34 Cal. 2d

3

300, 303-04, 209 P.2d 793 (1949). See Kim v. Villalobos, 799 F.2d 1317, 1319 (9th

4

Cir. 1986) (“Swain is cited by the California Supreme Court to indicate that claims

5

have not been alleged with sufficient particularity. That deficiency, when it exists,

6

can be cured in a renewed petition.”). Similarly, when the state court denies

7

allegations because of a lack of supporting documentation, it must so indicate in its

8

order and afford the petitioner an opportunity to cure the defect. See Gamez v.

9

Curry, No. C 09-1229 PJH PR, 2010 WL 330210, *2 (N.D. Cal. Jan. 20, 2010) (“If

10

a petition is dismissed for failure to state the facts with particularity – that is, with a

11

cite to Duvall or Swain – the petitioner may file a new petition curing the defect;”

12

there is “no reason the result should be any different when the defect in the state

13

petition was failure to attach documents.”).

14

3. The State Court Does Not Make Factual Findings or Credibility

15

Determinations Without Holding an Evidentiary Hearing.

16

As Mr. Jones previously has detailed, unless an order to show cause issues

17

there is no opportunity to present evidence in support of allegations in the petition,5

18

access court processes for factual development, and obtain a reasoned resolution of

19

issues. See Petitioner’s Supplemental Brief on the Effect of Cullen v. Pinholster on

20

the Court’s Power to Grant an Evidentiary Hearing, filed July 18, 2011 (Doc. 68)

21
22
23
24
25
26
27
28

5

The exhibits to the state petition are not evidence; their sole purpose is to
support or supplement the allegations in the petition. See In re Rosencrantz, 29
Cal. 4th 616, 675, 128 Cal. Rptr. 2d 104 (2002) (explaining that the “various
exhibits that may accompany the petition, return, and traverse do not constitute
evidence, but rather supplement the allegations to the extent they are incorporated
by reference”); cf. In re Fields, 51 Cal. 3d 1063, 1070 n.2, 275 Cal. Rptr. 384
(1990) (ruling that “[d]eclarations attached to the petition and traverse may be
incorporated into the allegations, or simply serve to persuade the court of the bona
fides of the allegations”).
6
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

(“Supp. Br. on Pinholster”) at 14-15. An order to show cause “both sets into

2

motion the process by which the issues are framed for judicial determination and

3

affords the petitioner the opportunity to present additional evidence in support of

4

the truth of the allegations in the petition.” In re Serrano, 10 Cal. 4th 447, 456, 41

5

Cal. Rptr. 2d 695 (1995) (internal citation omitted).

6

Initiating a proceeding with an order to show cause and completing formal

7

briefing are the procedural precursors to the state court determining whether the

8

petitioner’s entitlement to relief hinges on the resolution of factual disputes. See,

9

e.g., Romero, 8 Cal. 4th at 739-40; Duvall, 9 Cal. 4th at 478-79. The order to show

10

cause “is an intermediate but nonetheless vital step in the process of determining

11

whether the court should grant the affirmative relief that the petitioner has

12

requested. The function of the writ or order is to institute a proceeding in which

13

issues of fact are to be framed and decided.” Romero, 8 Cal. 4th at 740 (internal

14

quotation omitted). Only after an order to show cause has issued, and “factual and

15

legal issues are joined for review” in formal briefing – through the return and

16

traverse – does the state court determine whether there are “disputed factual

17

questions as to matters outside the trial record.” Duvall, 9 Cal. 4th at 478; see also

18

Romero, 8 Cal. 4th at 739 (ruling that “once the issues have been joined” through

19

the return and traverse, “the court must determine whether an evidentiary hearing

20

is needed”).

21

If the state court identifies factual disputes or credibility concerns after

22

conducting these proceedings, it must hold an evidentiary hearing to resolve them.

23

See, e.g., Duvall, 9 Cal. 4th at 486 (holding that even when the respondent’s return

24

was deficient, apparent factual disputes required evidentiary hearing prior to

25

resolution of issues); In re Serrano, 10 Cal. 4th at 455-56 (holding that “although

26

the court may properly accept the petitioner’s allegations as true in the absence of

27

an evidentiary hearing when [there is no dispute], with limited exception, the court

28

should not reject the petitioner’s undisputed factual allegations on credibility
7
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

grounds without first conducting an evidentiary hearing”) (emphasis in original).6

2

4. The State Court May Not Summarily Deny Allegations on the Basis

3

of Issues the Petitioner Has Not Had a Chance to Address.

4

In contrast to the formal proceedings that are necessary to identify and

5

resolve legal and factual issues about the petitioner’s entitlement to relief, the

6

informal response merely performs a “screening function,” analogous to demurrer,

7

in which the respondent “may demonstrate, by citation to legal authority and by

8

submission of factual materials, that the claims asserted in the habeas corpus

9

petition may lack merit and that the court therefore may reject them summarily.”

10

Romero, 8 Cal. 4th at 742 & n.9. The informal response may not “serve as a

11

substitute for the formal return and traverse,” because it “is not a pleading, does not

12

frame or join issues, and does not establish a ‘cause’ in which the court may grant

13

relief.” Romero, 8 Cal. 4th at 741.

14
15

If the issues raised by the informal response do not justify summary denial,
the state court must issue an order to show cause. State law provides that,

16

If the petitioner successfully controverts the factual materials

17

submitted with the informal response, or if for any other reasons the

18

informal response does not persuade the court that the petitioner’s

19

claims are lacking in merit, then the court must proceed to the next

20

stage by issuing an order to show cause or . . . writ of habeas corpus.

21

Romero, 8 Cal. 4th at 742. The California Supreme Court has made it clear that

22

state courts may not summarily deny a petition for reasons other than those

23

contained in the informal response, holding not only that a state court must issue an

24
25
26
27
28

6

See also Nunes, 350 F.3d at 1056 (holding state court decision satisfied
2254(d)(2) because it “made factual findings (that is, it drew inferences against
Nunes where equally valid inferences could have been made in his favor, and it
made credibility determinations) when it rather claimed to be determining prima
facie sufficiency”).
8
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

order to show cause if the informal response is not persuasive on summary denial,

2

but also that “[d]eficiencies in the informal response do not provide a justification

3

for short-cutting this procedural step.” Romero, 8 Cal. 4th at 742.

4

This limitation on the allowable bases for summary denial flows from the

5

recognition that a petitioner must be allowed to address challenges to the facial

6

sufficiency of his allegations. Indeed, state procedures specifically were altered to

7

protect this opportunity. Observing that a practice had developed among some

8

state courts of soliciting an informal response without allowing the petitioner an

9

opportunity to respond to it, the California Supreme Court “remarked that denial of

10

a petition based on factual assertions in an informal response might violate due

11

process if the petitioner was afforded no opportunity to challenge the assertions.”

12

Romero, 8 Cal. 4th at 741. Accordingly, state rules were amended to authorize an

13

informal response only when the petitioner was served with the informal response

14

and given an opportunity to reply. Id.; cf. Cal. R. Ct. 8.516(b)(1) (when ruling on

15

appellate petitions for review, “[t]he Supreme Court may decide any issues that are

16

raised or fairly included in the petition or answer”); Cal. R. Ct. 8.516(b)(2)

17

(providing that “[t]he court may decide an issue that is neither raised nor fairly

18

included in the petition or answer if the case presents the issue and the court has

19

given the parties reasonable notice and opportunity to brief and argue it”).7

20
21
22
23
24
25
26
27
28

7

In recognition of this principle, when the California Supreme Court intends
to consider legal theories or facts not briefed by the parties its practice is to order
supplemental briefing. See, e.g., People v. Edwards, No. S073316, Order (Cal.
Dec. 19, 2012), available at http://appellatecases.courtinfo.ca.gov/search
/case/dockets.cfm?dist=0&doc_id=1805048&doc_no=S073316; In re Reno, No.
S124660, Order (Cal. May 2, 2012), available at http://appellatecases.
courtinfo.ca.gov/search/case/dockets.cfm?dist=0&doc_id=1856339&doc_no=S12
4660; People v. Dungo, No. S176886, Order (Cal. June 20, 2012), available at
http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=0&doc_
id=1922094&doc_no=S176886; id., Order (Cal. July 13, 2011); In re Martinez,
No. S141480, Order (Cal. June 18, 2008), available at http://appellatecases.
9
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

continued…
Case No. CV-09-2158-CJC

1

These limitations and procedures also are consistent with the well-

2

established principle that the adversarial process can function effectively only

3

when both parties have notice and an opportunity to be heard. See, e.g., Gardner v.

4

Florida, 430 U.S. 349, 362, 97 S. Ct. 1197, 51 L. Ed. 2d 393 (1977) (holding that

5

“petitioner was denied due process of law when the death sentence was imposed, at

6

least in part, on the basis of information which he had no opportunity to deny or

7

explain”); Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.

8

Ct. 652, 657, 94 L. Ed. 865 (1950) (holding a “fundamental requisite of due

9

process of law is the opportunity to be heard,” which “has little reality or worth

10

unless one is informed that the matter is pending and can choose for himself

11

whether to appear or default, acquiesce or contest”).

12

Throughout the Opposition to Petitioner’s Opening 2254(d) Brief on

13

Evidentiary Hearing Claims, filed June 14, 2013 (Doc. 91) (“Opp.”), respondent

14

repeats some of the factual and legal arguments that were contained in the Informal

15

Response in this case but also raises numerous additional factual and legal

16

assertions in support of summary denial that never were presented to the state

17

court. In keeping with state procedures that prohibit summary denial on the basis

18

of issues not addressed by the petitioner, and the requirement of examining the

19

state court decision “at the time it was made,” and on the basis of what the state

20

court “knew and did,” Pinholster, 131 S. Ct. at 1398-99, these new contentions

21

must be rejected.

22
23
24
25
26
27
28

courtinfo.ca.gov/search/case/dockets.cfm?dist=0&doc_id=1873158&doc_no=S14
1480; In re Freeman, No. S122590, Order (Cal. Feb. 14, 2006), available at http://
appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=0&doc_
id=1854269&doc_no=S122590.
10
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

B.

This Court Has a Constitutional Duty to Independently Review the

2

Merits of Mr. Jones’s Claims Notwithstanding 28 U.S.C. Section

3

2254(d).

4

The Constitution separates the governmental powers into three defined

5

categories – legislative, executive, and judicial – in order to “assure, as nearly as

6

possible, that each branch of government [will] confine itself to its assigned

7

responsibility.” INS v. Chadha, 462 U.S. 919, 951, 103 S. Ct. 2764, 77 L. Ed. 2d

8

317 (1983). This “doctrine of separation of powers . . . is at the heart of our

9

Constitution.” Buckley v. Valeo, 424 U.S. 1, 119, 96 S. Ct. 612, 46 L. Ed. 2d 659

10

(1976). Article III of the Constitution therefore vests the “judicial Power of the

11

United States” in the Supreme Court and inferior federal courts and “extend[s]” the

12

“judicial Power” to “all Cases, in Law and Equity, arising under [the] Constitution

13

[and] the Laws of the United States.” U.S. Const. art. III, §§ 1, 2.

14
15

Under this constitutional authority, it is the fundamental responsibility of the
Judicial Branch to interpret the Constitution and maintain its supremacy:

16

It is emphatically the province and duty of the judicial department to

17

say what the law is. Those who apply the rule to particular cases,

18

must of necessity expound and interpret that rule . . . This is of the

19

very essence of judicial duty.

20

Marbury v. Madison, 5 U.S. 137, 177-78, 2 L. Ed. 60 (1803); Cooper v. Aaron, 358

21

U.S. 1, 18, 78 S. Ct. 1401, 3 L. Ed. 2d 5 (1958) (affirming the “basic principle that

22

the federal judiciary is supreme in the exposition of the law of the Constitution,

23

and that principle has ever since been respected . . . as a permanent and

24

indispensable feature of our constitutional system”).

25

Although Congress has the power to grant or withdraw Article III courts’

26

jurisdiction to decide cases arising under the Constitution, U.S. Const. art. III, § 2,

27

it may not encroach upon the Judicial Branch’s power to interpret and maintain the

28

supremacy of the Constitution. See City of Boerne v. Flores, 521 U.S. 507, 536,
11
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

117 S. Ct. 2157, 138 L. Ed. 2d 624 (1997) (declaring that “[w]hen the Court has

2

interpreted the Constitution, it has acted within the province of the Judicial Branch,

3

which embraces the duty to say what the law is” and that any contrary expectations

4

from the legislative branch “must be disappointed.”); Lindh v. Murphy, 96 F.3d

5

856, 872 (7th Cir. 1996) (en banc) (ruling that “Once the judicial power is brought

6

to bear by the presentation of a justiciable case or controversy within a statutory

7

grant of jurisdiction, the federal courts’ independent interpretive authority cannot

8

constitutionally be impaired.”), rev’d on other grounds, 521 U.S. 320 (1997).

9

These principles apply to this Court’s assessment of whether section 2254(d)

10

is a bar to its review of the merits of Mr. Jones’s claims. See, e.g., Wright v. West,

11

505 U.S. 277, 305, 112 S. Ct. 2482, 120 L. Ed. 2d 225 (1992) (O’Connor, J.,

12

concurring) (“We have always held that the federal courts, even on habeas, have an

13

independent obligation to say what the law is.”).

14

limitations imposed by section 2254(d), Justice Stevens, who authored the opinion

15

for the Supreme Court in Williams v. Taylor, 529 U.S. 362, 120 S. Ct. 1495, 146 L.

16

Ed. 2d 389 (2000), and writing for four members of the Court, recognized the

17

critical role that the Judiciary has in interpreting the Constitution:

Indeed, in evaluating the

18

If, after carefully weighing all the reasons for accepting a state

19

court’s judgment, a federal court is convinced that a prisoner’s

20

custody – or, as in this case, his sentence of death – violates the

21

Constitution, that independent judgment should prevail. Otherwise

22

the federal “law as determined by the Supreme Court of the United

23

States” might be applied by the federal courts one way in Virginia

24

and another way in California.

25

interest in ensuring that federal courts interpret federal law in a

26

uniform we are convinced that Congress did not intend the statute to

27

produce such a result.

28

In light of the well-recognized

Williams, 529 U.S. at 389-90; see also Lindh, 96 F.3d at 872 (“Congress lacks
12
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

power to revise the meaning of the Constitution or to require federal judges to

2

‘defer’ to the interpretations reached by state courts.”).8

3

Although Justice O’Connor’s concurring opinion in Williams accepted the

4

possibility that in some circumstances under section 2254(d)(1) a state court’s

5

incorrect ruling on federal law might stand, it also recognized that in many cases it

6

will be difficult to distinguish when those circumstances appropriately occur.

7

Williams, 529 U.S. at 408 (O’Connor, J., concurring) (ruling that the definition of a

8

“unreasonable application” does not reach “extension of legal principle”

9

circumstances and that the two are difficult to distinguish). Given this Court’s

10

constitutional duty to “say what the law is,” and particularly given the limitations

11

and ambiguity expressed in Williams regarding this obligation, this Court must

12

independently review the merits of Mr. Jones’s claims of constitutional error. This

13

approach reinforces the notion that Article III courts’ primary functions are to

14

enforce the supremacy of federal law and to maintain a “unitary system of law.”

15

Ornelas v. United States, 517 U.S. 690, 697, 116 S. Ct. 1657, 134 L. Ed. 2d 911

16

(1996) (holding that independent review of mixed questions is “necessary if

17
18
19
20
21
22
23
24
25
26
27
28

8

In addition to constitutional protection of judicial authority to rule on
federal law, the Suspension Clause of the Constitution safeguards the writ of
habeas corpus in its modern form. U.S. Const., Art. I, § 9, cl. 2; Felker v. Turpin,
518 U.S. 651, 663-64, 116 S. Ct. 2333, 135 L. Ed. 2d 827 (1996). The Supreme
Court interprets the Suspension Clause to guarantee a prisoner in postconviction
proceedings one adequate and effective opportunity to demonstrate the illegality
of his detention, including a “full and fair opportunity to develop the factual
predicate of his claim.” Boumediene v. Bush, 553 U.S. 723, 729, 128 S. Ct. 2229,
171 L. Ed. 2d 41 (2008). As Mr. Jones has detailed in prior briefing, and
incorporates here in full, because the California state process fails to provide a
forum for the full and fair factual development of his constitutional claims, he is
entitled to de novo review in this Court to avoid an unconstitutional suspension of
the writ. See Supp. Br. on Pinholster at 17-23.
13
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

appellate courts are to maintain control of, and to clarify, the legal principles”).9

2

C.

Respondent Concedes That Mr. Jones Set out the Proper Legal

3

Framework for Assessing Whether His Prima Facie Showing for Relief

4

Satisfies Section 2254(d)(1).

5

Respondent’s Opposition focuses almost exclusively on proposing possible

6

bases for the state court’s summary denial and nowhere contests Mr. Jones’s legal

7

framework for assessing whether the state court’s summary denial of his prima

8

facie showing for relief in the state habeas corpus proceedings satisfies section

9

2254(d)(1). In his Opening Brief, Mr. Jones argued that the California Supreme

10

Court’s refusal to hear Mr. Jones’s adequately pled claims of constitutional error is

11

contrary to clearly established federal law that prohibits state courts from creating

12

“unreasonable obstacles” to the resolution of federal constitutional claims that are

13

“plainly and reasonably made.” Davis v. Wechsler, 263 U.S. 22, 24-25, 44 S. Ct.

14

13, 14, 68 L. Ed. 143 (1923); see also Opening Br. at 7-11. More specifically,

15

given Mr. Jones’s extensive factual allegations and supporting materials in the state

16

habeas corpus proceedings–which the state court was obligated to accept as true–

17

the state court’s ruling that Mr. Jones failed to make any prima facie showing of

18

entitlement to relief, and refusal to initiate proceedings to take evidence and assess

19
20
21
22
23
24
25
26
27

9

The application of similar principles dictates that this Court may not be
bound by a limitation in its review to clearly established federal law “as
determined by the Supreme Court.” 28 U.S.C. § 2254(d)(1). Such a limitation
deprives federal circuit courts’ decisions of their precedential effect and runs afoul
of the doctrine of separation of powers. As the Supreme Court has observed, “it is
indisputable that stare decisis is a basic self-governing principle within the
Judicial Branch, which is entrusted with the sensitive and difficult task of
fashioning and preserving a jurisprudential system that is not based upon ‘an
arbitrary discretion.’” Patterson v. McLean Credit Union, 491 U.S. 164 (1989)
(quoting The Federalist, No. 78 at 490 (H. Lodge ed. 1888) (A. Hamilton)).

28
14
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

his claims, constitutes an unreasonable application of the federal constitutional law

2

applicable to those claims. “With the state court having purported to evaluate

3

[state habeas] claims for sufficiency alone,” its rejection of a sufficiently pled

4

claim of constitutional error constitutes an unreasonable application of federal law

5

that satisfies section 2254(d)(1). Nunes, 350 F.3d at 1054-55 (holding state court

6

summary denial of ineffective assistance of counsel claim an unreasonable

7

application of federal law; because petitioner established a facially sufficient

8

violation under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 2066, 80

9

L. Ed. 2d 674 (1984), the state court ruling unreasonably appears to demand more).

10

Mr. Jones also argued throughout his Opening Brief that the existence of

11

state court precedent that is contrary to clearly established federal law and that

12

could have resolved Mr. Jones’s claims also satisfies section 2254(d)(1). The only

13

way in which the state court may correct its previous, published misapplications of

14

federal law is to issue a published opinion. As the United States Supreme Court

15

has explained, “Courts are as a general matter in the business of applying settled

16

principles and precedents of law to the disputes that come to bar,” and the state

17

court is presumed to apply already decided legal principles and precedents when

18

ruling. Beam Distilling Co. v. Georgia, 501 U.S. 529, 534, 111 S. Ct. 2439, 115 L.

19

Ed. 2d 481 (1991). When the state court corrects its previous misapplication of the

20

law by announcing a new rule of law or modifying an existing rule, state rules

21

demand that the state court issue a published opinion. See Schmier v. Supreme

22

Court, 78 Cal. App. 4th 703, 710–11, 93 Cal. Rptr. 2d 580 (2000). Indeed, there

23

are numerous examples of the state court following this practice.

24

Riverisland Cold Storage, Inc. v. Fresno-Madera Prod. Credit Ass’n, 55 Cal. 4th

25

1169, 151 Cal. Rptr. 3d 93 (2013) (overruling exception to the parol evidence rule

26

because it conflicted with the law of the majority of jurisdictions); People v.

27

Doolin, 45 Cal. 4th 390, 87 Cal. Rptr. 3d 209 (2009) (attempting to harmonize state

28

and federal standards for evaluating conflict-of-interest claims and disapproving of
15
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

See, e.g.,

Case No. CV-09-2158-CJC

1

earlier California cases to the extent that they may be read to hold that the state

2

conflict-of-interest standard differs from the federal standard).

3

By failing to address these arguments in the Opposition, respondent

4

concedes that this legal framework should guide this Court’s inquiry, and that the

5

Court may rule in favor of Mr. Jones on those bases. As this Court has ruled,

6

“failure to respond in an opposition brief to an argument put forward in an opening

7

brief constitutes waiver or abandonment in regard to the uncontested issue.”

8

Stichting Pensioenfonds ABP v. Countrywide Fin. Corp., 802 F. Supp. 2d 1125,

9

1132 (C.D. Cal. 2011) (holding issue waived upon failure to address it in opposing

10

papers and citing Local Rule 7-9); see also In re Teledyne Def. Contracting

11

Derivative Litig., 849 F. Supp. 1369, 1373 (C.D. Cal. 1993) (ruling that “failure to

12

respond to an argument may be deemed consent to ruling against the non-opposing

13

party, see Local Rule 7.9”); United States District Court, Central District of

14

California, Local Civil Rules, L.R. 7-9 Opposing Papers (requiring opposing paper

15

to “contain a statement of all the reasons in opposition”) (emphasis added).

16

Accordingly, respondent has consented to a ruling in favor of Mr. Jones on his

17

arguments that summary denial of a prima facie showing for relief in the state

18

habeas corpus proceedings satisfies section 2254(d)(1).

19

D.

Respondent’s Assumption That Section 2254(d)(2) Cannot Be Satisfied

20

by Summary Denial Is Without Merit.

21

In the Opposition respondent states, without citation to any authority, “It is

22

generally not possible to conclude that a state court made ‘an unreasonable

23

determination of the facts’ when it denies a claim without explaining the basis for

24

its denial. As most of Petitioner’s claims were summarily denied by the California

25

Supreme Court on habeas corpus, § 2254(d)(2) is generally not applicable.” Opp.

26

at 3 n.3. This argument ignores Ninth Circuit authority regarding the application of

27

section 2254(d)(2) to summary denials, which holds that when the factual basis for

28

a claim of constitutional error “was adequately proffered to the state court, [a
16
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

petitioner] is entitled to an evidentiary hearing if he has not previously received a

2

full and fair opportunity to develop the facts of his claim and he presents a

3

‘colorable claim’ for relief.’” Earp v. Ornoski, 431 F.3d 1158, 1169 (9th Cir.

4

2005).

5

The Ninth Circuit has described the proper inquiry for allegations that the

6

state court’s failure to hold an evidentiary hearing was unreasonable under section

7

2254(d)(2), holding that a federal court “may first consider whether a similarly

8

situated district court would have been required to hold an evidentiary hearing,”

9

but the ultimate question “is whether an appellate court would be unreasonable in

10

holding that an evidentiary hearing was not necessary in light of the state court

11

record.” Hibbler v. Benedetti, 693 F.3d 1140, 1148 (9th Cir. 2012), cert. denied, __

12

U.S. __, 133 S. Ct. 1262, 185 L. Ed. 2d 204 (2013); see also Taylor v. Maddox, 366

13

F.3d 992, 1000 (9th Cir. 2004) (holding that state court ruling satisfies 2254(d)(2)

14

when “the state court should have made a finding of fact but neglected to do so”)

15

(citing Wiggins, 539 U.S. 529).

16
17

III. THERE ARE NO VALID STATE PROCEDURAL RULES

18

THAT BAR THIS COURT FROM REVIEWING MR. JONES’S

19

CLAIMS FOR RELIEF.

20
21
22
23
24
25
26
27

Throughout its Opposition, respondent argues that portions or all of a
number of Mr. Jones’s claims are procedurally defaulted, because the California
Supreme Court rejected those claims, at least in part, on procedural grounds.
Although Mr. Jones presents some specific arguments in the following sections of
this brief concerning the inapplicability of procedural defaults asserted as to the
individual claims, below are universal grounds establishing that the procedural
rules the state court cited are not adequate and/or independent, and therefore may
not preclude federal review.

28
17
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

A.

General Principles Governing the Validity of State Procedural Rules

2

A state court’s rejection of a federal claim on a state procedural law ground

3

bars federal habeas review only if that procedural rule is independent of federal

4

law and adequate to preclude consideration of the issue. See, e.g., Coleman v.

5

Thompson, 501 U.S. 722, 730-35, 111 S. Ct. 2546, 115 L. Ed. 2d 640 (1991). A

6

procedural rule is independent if application of the bar is not dependent on an

7

antecedent ruling on federal law. See, e.g., Ake v. Oklahoma, 470 U.S. 68, 75, 105

8

S. Ct. 1087, 84 L. Ed. 2d. 53 (1985). “To qualify as an ‘adequate’ procedural

9

ground, a state rule must be ‘firmly established and regularly followed.’” Walker v.

10

Martin, ___ U.S. ___, 131 S. Ct. 1120, 1127, 179 L. Ed. 2d 62 (2011) (quoting

11

Beard v. Kindler, 558 U.S. 53, 60, 130 S. Ct. 612, 175 L. Ed. 2d 417 (2009)); see

12

also Wells v. Maass, 28 F.3d 1005, 1010 (9th Cir. 1994) (“In order to constitute

13

adequate and independent grounds sufficient to support a finding of procedural

14

default, a state rule must be clear, consistently applied, and well-established at the

15

time of the petitioner’s purported default.”) (citations omitted). A “discretionary

16

rule can be ‘firmly established’ and ‘regularly followed’—even if the appropriate

17

exercise of discretion may permit consideration of a federal claim in some cases

18

but not others.” Kindler, 558 U.S. at 60-61.

19

“The question whether a state procedural ruling is adequate is itself a

20

question of federal law.” Kindler, 558 U.S. at 60 (citing Lee v. Kemna, 534 U.S.

21

362, 375, 122 S. Ct. 877, 151 L. Ed. 2d 820 (2002)). The respondent has the initial

22

burden of pleading an adequate and independent procedural bar as an affirmative

23

defense. See Insyxiengmay v. Morgan, 403 F.3d 657, 665-66 (9th Cir. 2005);

24

Bennett v. Mueller, 322 F.3d 573, 585 (9th Cir. 2003). The burden then shifts to

25

the petitioner to place that defense in issue. See Bennett, 322 F.3d at 586. The

26

petitioner can meet this burden with factual allegations and citations to case

27

authority that demonstrate inadequacy of the state procedure. Bennett, 322 F.3d at

28

586. The burden shifts back to the respondent to prove the bar is applicable.
18
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

Bennett, 322 F.3d at 586. “Thus, it is the law of this circuit that the ultimate burden

2

is on the state, not the petitioner, to show that a procedural state bar was clear,

3

consistently applied, and well-established at the time the party contesting its use

4

failed to comply with the rule in question.” Insyxiengmay, 403 F.3d at 666 (citing

5

Bennett, 322 F.3d at 583).

6

Even if the state procedural rule is found to be independent and adequate, a

7

petitioner overcomes the procedural bar by showing (1) cause for the default and

8

prejudice as a result of the alleged violation of federal law or (2) that failure to

9

consider the claims will result in a fundamental miscarriage of justice. See, e.g.,

10

Coleman, 501 U.S. at 749-50. Ineffective assistance of trial, appellate, and habeas

11

counsel each have been recognized to provide sufficient cause to excuse a

12

procedural default. See, e.g., Dretke v. Haley, 541 U.S. 386, 394, 124 S. Ct. 1847,

13

158 L. Ed. 2d 659 (2004) (trial counsel’s failure to object to constitutional violation

14

may provide cause to excuse procedural default); Edwards v. Carpenter, 529 U.S.

15

446, 451, 120 S. Ct. 1587, 146 L. Ed. 2d 518 (2000) (counsel’s ineffectiveness in

16

failing to preserve a claim for review in state court may constitute sufficient cause

17

to excuse default); Martinez v. Ryan, ___ U.S. ___, 132 S. Ct. 1309, 1317, 182 L.

18

Ed. 2d 272 (2012) (“an attorney’s errors during an appeal on direct review may

19

provide cause to excuse procedural default”); id. at 1315 (“inadequate assistance of

20

counsel at initial-review collateral proceedings may establish cause for a prisoner’s

21

procedural default of a claim of ineffective assistance at trial”).
In the sections that follow, Mr. Jones places the adequacy and/or

22
23

independence of each of the affirmative defenses in issue.

24

B.

The Seaton and Dixon Rules Are Not Adequate to Preclude Federal

25

Habeas Review.

26

1. The Seaton and Dixon Rules, as Applied in Capital Cases, Fail to

27
28

Serve a Legitimate State Interest.
In its summary denial of the State Habeas Petition, the California Supreme
19
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

Court cited procedural bars under In re Waltreus, 62 Cal. 2d 218, 225, 397 P.2d

2

1001 (1965),10 In re Dixon, 41 Cal. 2d 756, 759, 264 P.2d 513 (1953), In re

3

Seaton, 34 Cal. 4th 193, 17 Cal. Rptr. 3d 633 (2004), and In re Lindley, 29 Cal. 2d

4

709, 723, 177 P.2d 918 (1947) as to portions or the entirety of certain claims for

5

relief. Order Denying Case No. S110791, filed Mar. 11, 2009, Notice of Lodging,

6

filed Apr. 6, 2010, ECF No. 29 (“NOL”) at C.7.

7

The United States Supreme Court recently reiterated that “federal courts

8

must carefully examine state procedural requirements to ensure that they do not

9

operate to discriminate against claims of federal rights.” Martin, 131 S. Ct. at

10

1130. It is “settle[d]” that “a litigant’s procedural defaults in state proceedings do

11

not prevent vindication of his federal rights unless the State’s insistence on

12

compliance with its procedural rule serves a legitimate state interest.” Henry v.

13

Mississippi, 379 U.S. 443, 447, 85 S. Ct. 564, 13 L. Ed. 2d 408 (1965). Even a

14

state procedural rule that is “unassailable in most instances” can in unusual

15

situations “disserve any perceivable interest” and thus be inadequate to bar federal

16

habeas review. Lee, 534 U.S. at 379-80. Here, the Seaton and Dixon rules were

17

purportedly designed to protect legitimate state interests. But, as noted above, the

18

question of whether those rules actually do advance these interests so as to

19

preclude federal habeas review of federal claims is a separate question, one for the

20

federal courts alone. See Kindler, 558 U.S. at 60; Cone v. Bell, 556 U.S. 449, 465-

21

66, 129 S. Ct. 1769, 173 L. Ed. 2d 701 (2009) (“We have recognized that the

22

adequacy of state procedural bars to the assertion of federal questions is not within

23

the State’s prerogative finally to decide; rather, adequacy is itself a federal

24
25
26
27
28

10

The state court’s reliance on the rule in Waltreus (i.e., an error raised and
decided on direct appeal ordinarily cannot be raised anew in state habeas corpus)
does not preclude federal habeas corpus review of the barred claim. See, e.g., Hill
v. Roe, 321 F.3d 787, 789 (9th Cir. 2003); Carter v. Giurbino, 385 F.3d 1194, 1198
(9th Cir. 2004).
20
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

question.”) (quotation marks and citations omitted).

Careful analysis of that

2

question compels the conclusion that the manner in which the California Supreme

3

Court has invoked its procedural rules dating back to 2000 in capital habeas cases

4

has rendered those rules inadequate to preclude federal habeas review of federal

5

claims, and any preclusion of federal habeas corpus review based on such

6

procedural defaults would violate the Constitution.

7

Since January 1, 2000, the California Supreme Court has invoked procedural

8

bars to dispose of ripe, cognizable claims in some 267 capital habeas petitions, and

9

as to every claim procedurally defaulted in 262 of those petitions, that court also

10

ruled that the defaulted claim lacked merit. See Exhibit A, attached to this brief.11

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

11

The only exceptions are In re Reno, No. S124660 (Cal. Aug. 30, 2012), and
five cases decided since that decision. In Reno, an order to show cause was
issued in that case so that the California Supreme Court could refine its successor
petition rules. Unlike in 262 other cases since January 1, 2000, the California
Supreme Court declined to reach the merits of some of the claims in the petition.
The court subsequently has adopted this practice in four additional cases: In re
Anderson, No. S134525 (Cal. May 15, 2013); In re Marlow, No. S178102 (Cal.
May 22, 2013); In re Alfaro, No. S170966 (Cal. June 12, 2013); and In re Wilson,
No. S161435 (Cal. Dec. 11, 2013). Notably, all of these cases were decided
several years after the Court denied Mr. Jones’s petition citing procedural
defaults, and all of the cases have involved successor petitions.
In In re Carrera, No. S141324 (Cal. Jan. 13, 2010), a case not counted by
petitioner, the California Supreme Court denied a single-claim habeas petition on
the sole basis of a procedural default, with no mention of the merits. Mr. Carrera
had filed his petition on February 23, 2006, when he was under sentence of death
and had a capital habeas petition pending in federal district court. See Carrera v.
Brown, No. 1:90-cv-00478-AWI (E.D. Cal.). On March 13, 2008, however – after
the filing of Carrera’s state habeas petition but before the California Supreme
Court ruled on it – the federal court granted Carrera habeas relief as to the special
circumstance that had made him death eligible, see Carrera v. Ayers, 2008 WL
681842 (E.D. Cal. Mar. 13, 2008), and the Warden did not appeal. Thus, by the
time Carrera’s state habeas petition was denied by the California Supreme Court,
Mr. Carrera was no longer subject to a death judgment, and the California
21
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

continued…
Case No. CV-09-2158-CJC

1

This practice stands in stark contrast to the California Supreme Court’s practice in

2

non-capital habeas cases, where a procedural default routinely results in the

3

forfeiture of merits review.

4

The California court’s practice of uniformly considering and rejecting the

5

merits of procedurally barred claims in capital cases significantly limits, if it does

6

not undermine entirely, any state interests that the court says it is seeking to

7

advance. As the data in Exhibit A shows, procedurally defaulted claims received

8

the same merits review by the California Supreme Court that they would have

9

gotten in the absence of the defaults. No state interests could be advanced by

10

imposing procedural defaults under circumstances such as these, in which, for all

11

but six capital habeas petitioners in California since January 2000, any procedural

12

shortcomings in their state habeas petitions produced no adverse consequences

13

with respect to merits review of their claims.

14

The only conceivable way in which a state interest arguably could be

15

advanced by the California Supreme Court’s systematic pattern of also rejecting

16

the merits of claims it has found to be procedurally barred is that this practice at

17

least has the effect, if not the stated purpose, of precluding federal habeas review of

18

the merits of the petitioner’s federal claims. It could be argued that by precluding

19

federal habeas review through the invocation of procedural defaults, the state court

20

is promoting finality of the death judgment, shortening the time to execution of the

21

state court judgment, and lessening the ultimate burden on the State to defend the

22

judgment. But neither this effect nor this method of advancing the State’s interests

23

is a legitimate one. Congress has expressly given individuals convicted of state

24

crimes in violation of the Constitution a right to have their convictions reviewed in

25

federal habeas corpus proceedings, 28 U.S.C. § 2254, and under the Supremacy

26
27
28

Supreme Court’s denial order followed the court’s usual pattern of not reaching
the merits when defaulting claims in non-capital habeas cases.
22
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

Clause, states are forbidden from using local procedures to negate that right. See,

2

e.g., Haywood v. Drown, 556 U.S. 729, 736, 129 S. Ct. 2108, 173 L. Ed. 2d 920

3

(2009) (“although States retain substantial leeway to establish the contours of their

4

judicial systems, they lack authority to nullify a federal right or cause of action

5

they believe is inconsistent with their local policies”).

6

It is long and well established that “under the Supremacy Clause, . . . ‘any

7

state law, however clearly within a State’s acknowledged power, which interferes

8

with or is contrary to federal law, must yield.’” Gade v. Nat’l Solid Wastes Mgmt.

9

Assn., 505 U.S. 88, 108, 112 S. Ct. 2374, 120 L. Ed. 2d 73 (1992) (quoting Felder

10

v. Casey, 487 U.S. 131, 138, 108 S. Ct. 2302, 2306, 101 L. Ed. 2d 123 (1988)

11

(further internal quotation marks and citations omitted). A state law “interferes

12

with” federal law when it “‘stands as an obstacle to the accomplishment and

13

execution of the full purposes and objectives of Congress.’” Hillsborough Cnty. v.

14

Automated Med. Lab., 471 U.S. 707, 713, 105 S. Ct. 2371, 85 L. Ed. 2d 714 (1985)

15

(quoting Hines v. Davidowitz, 312 U.S. 52, 67, 61 S. Ct. 399, 85 L. Ed. 581

16

(1941)). “[W]hen state law touches upon the area of federal statutes enacted

17

pursuant to constitutional authority, it is ‘familiar doctrine’ that the federal policy

18

‘may not be set at naught, or its benefits denied’ by the state law,” and “[t]his is

19

true, of course, even if the state law is enacted in the exercise of otherwise

20

undoubted state power.” Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 479-80,

21

94 S. Ct. 1879, 40 L. Ed. 2d 315 (1974) (quoting Sola Elec. Co. v. Jefferson Elec.

22

Co., 317 U.S. 173, 176, 63 S. Ct. 172, 173, 87 L. Ed. 165 (1942)).

23

Given that no legitimate state interest is actually advanced by the California

24

Supreme Court’s practice of giving full merits review to defaulted claims raised in

25

capital habeas petitions, and given, moreover, that the court is fully aware of the

26
27
28
23
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

effect its default rulings can have on federal habeas claims,12 the most reasonable

2

inference is that the court’s true purpose in imposing defaults on top of merits

3

review is to foreclose federal habeas review.13 Such a purpose obviously runs

4

afoul of the Supremacy Clause, which prohibits a state from unilaterally negating

5

Congress’s decision to make federal habeas corpus review available to state

6

prisoners with federal constitutional claims.

7

Moreover, any disavowal by the California Supreme Court of an express

8

purpose to preclude federal review of capital habeas corpus claims by denying

9

those claims both on the merits and for procedural deficiencies is irrelevant to the

10

question of whether the Supremacy Clause has been violated. It does not matter

11

whether negating a federal right is the purpose of a state procedure or merely the

12

effect; the Supremacy Clause is violated in either instance. The United States

13

Supreme Court long ago rejected the “‘aberrational doctrine . . . that state law may

14

frustrate the operation of federal law as long as the state legislature in passing its

15

law had some purpose in mind other than one of frustration.’” Gade, 505 U.S. at

16

105-06 (quoting Perez v. Campbell, 402 U.S. 637, 651-52, 91 S. Ct. 1704, 29 L.

17

Ed. 2d 233 (1971)). “In assessing the impact of a state law on the federal scheme,

18

we have refused to rely solely on the [enacting body’s] professed purpose and have

19

looked as well to the effects of the law.” Gade, 505 U.S. at 105. Thus, “‘any state

20

[law] which frustrates the full effectiveness of federal law is rendered invalid by

21
22
23
24
25
26
27
28

12

See, e.g., In re Robbins, 18 Cal. 4th 770, 814 n.34, 77 Cal. Rptr. 2d 153
(1998) (citing Harris v. Reed, 489 U.S. 255, 264 n.10, 109 S. Ct. 1038, 103 L. Ed.
2d 308 (1989)); In re Hamilton, 1999 WL 311708, at *1 (Cal. 1999); In re
Anderson, 1996 WL 14022, at *1 (Cal. 1996).
13

See In re Clark, 5 Cal. 4th 750, 802, 21 Cal. Rptr. 2d 509 (1993) (Mosk, J.,
concurring and dissenting) (“at least one of the majority’s purposes [in attempting
to clarify its procedural rules is] to prevent federal courts from reviewing federal
constitutional claims, especially in capital cases”).
24
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

the Supremacy Clause.’” Id. at 106 (quoting Perez, 402 U.S. at 652). As the

2

Supreme Court noted in Walker v. Martin, “a state procedural ground would be

3

inadequate if the challenger shows a ‘purpose or pattern to evade constitutional

4

guarantees.’” 131 S. Ct. at 1131 (emphasis added) (quoting Kindler, 558 U.S. at

5

65 (Kennedy, J., concurring).

6

Because the California Supreme Court virtually never refuses to address the

7

merits of claims when it finds defaults in capital habeas cases, the defaults do not

8

further any legitimate state interest.

9

accomplish, though, is to preclude the federal habeas review that Congress has

What the defaults would effectively

10

expressly authorized state prisoners to receive.

This result–whether it is the

11

unarticulated purpose of the court’s practice or is merely the effect of that practice–

12

plainly “interferes with” federal habeas law and “stands as an obstacle to the

13

accomplishment and execution of the full purposes and objectives of Congress” in

14

enacting 28 U.S.C. section 2254. The defaults thus serve to “nullify” and “negate”

15

the federal right to federal habeas review of unconstitutional state judgments. The

16

Supremacy Clause forbids states from implementing procedural rules that have this

17

effect.

18

prevent federal review of habeas claims in this Court.14

Consequently, California’s Seaton and Dixon rules are inadequate to

19

Mr. Jones recognizes that ordinarily a federal court will honor a state

20

procedural default that has been used as an alternative ground for denying a

21

constitutional claim that is also rejected on the merits. See, e.g., Harris v. Reed,

22

489 U.S. 255, 264 n.10, 109 S. Ct. 1038, 103 L. Ed. 2d 308 (1989). This approach

23
24
25
26
27
28

14

It thus does not matter, for Supremacy Clause purposes, that the California
Supreme Court treats state claims in capital petitions the same as federal claims.
“Ensuring equality of treatment is . . . the beginning, not the end, of the
Supremacy Clause analysis.” Haywood, 556 U.S. at 739. “A [state law] rule
cannot be used as a device to undermine federal law, no matter how evenhanded it
may appear.” Id.
25
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

makes sense in individual cases because it honors the state’s “interests in finality,

2

federalism, and comity.” Id. But where the state court invariably denies the merits

3

of the claims it defaults, it has not promoted any interest in finality or expedience

4

(because it has given the claim the full review to which the claim would be entitled

5

in state court even without the default), and it has flipped the comity and

6

federalism issues around backwards: the defaults preclude the federal court from

7

implementing the federal interests in allowing petitioners to obtain federal habeas

8

review of their constitutional claims. If federalism and comity require federal

9

courts to honor case-by-case state court decisions to invoke alternative grounds for

10

disposing of a habeas claim, then federalism and comity also require the states not

11

to deploy alternative grounds so as to nullify federal interests. Or, more precisely

12

put for present purposes, federal courts should not, and constitutionally cannot,

13

honor state defaults that produce that result.

14
15

2. The Seaton Rule Was Not Firmly Established and Regularly
Followed at the Relevant Time in This Case.

16

Respondent raises two distinct rules in arguing that the absence of an

17

objection at trial resulted in a procedural default. The first rule bars consideration

18

of arguments on direct appeal where trial counsel failed to make a necessary

19

objection (commonly called the “contemporaneous objection rule,” which is

20

addressed further below). See, e.g., People v. Saunders, 5 Cal. 4th 580, 589-90, 20

21

Cal. Rptr. 2d 638 (1993). The second rule precludes petitioners from raising

22

unobjected to instances of constitutional error for the first time in a state habeas

23

petition unless the facts underlying the claim were not reasonably available at the

24

time of trial. In re Seaton, 34 Cal. 4th 193, 17 Cal. Rptr. 3d 633 (2004). Because

25

the Seaton rule was not in existence at the time of Mr. Jones’s trial, it is not

26

adequate to preclude federal review of his claims.

27

Mr. Jones’s trial ended in 1995, long before the California Supreme Court

28

issued an order to show cause in the Seaton case to resolve whether or not a
26
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

constitutional claim that was barred from consideration on direct appeal due to the

2

absence of a timely objection by trial counsel could be raised for the first time in a

3

state habeas petition.15 It was not until 2004 that the California Supreme Court

4

ruled for the first time that such a claim could not be considered on habeas review.

5

Seaton, 34 Cal. 4th 193. Because Mr. Jones’s trial occurred many years before the

6

California Supreme Court announced this procedural rule, it is not an adequate rule

7

that precludes federal habeas review.

8

To qualify as an “adequate” procedural ground, a state rule must be “firmly

9

established and regularly followed,” Kindler, 558 U.S. at 60, “at the time the claim

10

should have been raised.” Calderon v. U.S. Dist. Court (Hayes), 103 F.3d 72, 75

11

(9th Cir. 1996). Because the Seaton rule did not exist at the time that trial counsel

12

could have complied with it, it is not adequate to bar federal review of the claims

13

found by the state court to be in violation of the rule.

14

3. The Dixon Rule Was Not Firmly Established and Regularly

15

Followed at the Relevant Time in This Case.

16

The Dixon rule is a discretionary rule under California law. Subject to

17

exceptions, the rule “generally prohibits raising an issue in a postappeal habeas

18

corpus petition when that issue was not, but could have been, raised on appeal.” In

19

re Harris, 5 Cal. 4th 813, 824 n.3, 21 Cal. Rptr. 2d 373 (1993); Dixon, 41 Cal. 2d

20

at 759. The “relevant point of reference” for assessing the adequacy of the Dixon

21

rule is the date on which Mr. Jones should have raised the issues in his direct

22

appeal. Fields v. Calderon, 125 F.3d 757, 760-61 (9th Cir. 1997) (“Because the

23

Dixon rule precludes collateral review of a claim that could have been brought on

24

direct appeal, the procedural default, though announced by the California Supreme

25
26
27
28

15

The order to show cause in In re Seaton, No. S067491, was issued on
October 24, 2001.
See http://appellatecases.courtinfo.ca.gov/search/case/
dockets.cfm?dist=0&doc_id=1799228&doc_no=S067491.
27
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

Court when the habeas petition is denied, technically occurs at the moment the

2

direct appeal did not include those claims that should have been included for

3

review.”). Appellant’s Opening Brief in Mr. Jones’s automatic appeal was filed on

4

June 19, 2001.

5

The Ninth Circuit Court of Appeals “has held that Dixon was not firmly

6

established and consistently applied at least prior to 1993,” Cooper v. Calderon,

7

255 F.3d 1104, 1111 (9th Cir. 2001) (citing Fields, 125 F.3d at 765), and has not

8

opined further on its adequacy.

9

decisions that in the years after 1993, the Dixon bar remained inadequate.

10

Carpenter v. Ayers, 548 F. Supp. 2d 736, 756-57 (N.D. Cal. 2008) (finding that

11

respondent could not show Dixon was adequate as of November 1996); Dennis v.

12

Brown, 361 F. Supp. 2d 1124, 1125, 1135 (N.D. Cal. 2005) (same; 1995 appeal).

13

Recently, in Carter v. Chappell, 2013 WL 1120657, at *39 (S.D. Cal. Mar. 18,

14

2013) (July 2, 1999 direct appeal), the district court found that, “[b]ased on

15

Petitioner’s allegations and case citations, as well as the prior decision from this

16

district finding the state court’s application of the Dixon rule inadequate during the

17

relevant time period,” the petitioner met his interim burden on inadequacy under

18

Bennett and respondent did not satisfy the ultimate burden. See also Ayala v.

19

Ayers, 2008 WL 1787317, at *4-7 (S.D. Cal. Apr. 16, 2008) (finding Dixon rule

20

inadequate at the time of the direct appeal in 1997); Rodriguez v. Scribner, 2008

21

WL 1365785, *1, *12-13 (E.D. Cal. Apr. 9, 2008) (non-capital case; state failed to

22

meet burden under Bennett to show Dixon bar was adequate as of 2002-03 appeal);

23

Monarrez v. Alameda, 2005 WL 2333462, *4-6 (C.D. Cal. Sept. 22, 2005) (non-

24

capital case; state failed to meet burden of showing Dixon bar consistently applied

25

as of January 2000 filing of direct appeal brief). In meeting his interim burden

26

under Bennett, Mr. Jones incorporates and relies on the data and facts submitted by

27

these petitioners as described in the published opinions and unpublished orders, as

28

well as the factual determinations made by the district courts.
28

Two district courts have found in published

Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

Respondent’s reliance on Sanchez v. Ryan, 392 F. Supp. 2d 1136, 1138-39

2

(C.D. Cal. 2005), and Protsman v. Pliler, 318 F. Supp. 2d 1004, 1008-09 (S.D. Cal.

3

2004), as support for the alleged adequacy of the Dixon bar is unavailing. Opp. at

4

49. In Sanchez, the petitioner did nothing to satisfy his interim burden under

5

Bennett. Sanchez, 392 F. Supp. 2d at 1139 (“Petitioner offers nothing in response

6

to respondent’s allegation, much less any specific factual allegations demonstrating

7

inconsistent application of the Dixon rule. Because he has not placed the adequacy

8

of the Dixon rule in issue, his federal claim is defaulted.”) Similarly, in Protsman,

9

the respondent prevailed–and the district court found the Dixon bar adequate–

10

because petitioner made no effort to meet his burden under step two of Bennett.

11

Protsman, 318 F. Supp. 2d at 1014.
For the foregoing reasons, none of the Dixon bars in Mr. Jones’s case is

12
13

entitled to enforcement in these proceedings.

14

C.

The Contemporaneous Objection Rule Is Not Adequate or Independent

15

and Does Not Preclude Federal Review

16

Respondent raises trial counsel’s failure to object and the state court’s

17

subsequent finding that claims of error were not properly preserved for appellate

18

review as a bar to federal habeas review. See, e.g., Opp. at 79-81, 94-95, 112-13.

19

California’s contemporaneous objection rule regarding non-evidentiary

20

issues is summarized in People v. Williams, 17 Cal. 4th 148, 161 n.6, 69 Cal. Rptr.

21

2d 917 (1998):

22

An appellate court is generally not prohibited from reaching a

23

question that has not been preserved for review by a party. (E.g.,

24

Canaan v. Abdelnour (1985) 40 Cal. 3d 703, 722, fn. 17; see, e.g.,

25

People v. Berryman (1993) 6 Cal. 4th 1048, 1072-1076 [passing on a

26

claim of prosecutorial misconduct that was not preserved for

27

review]; People v. Ashmus (1991) 54 Cal. 3d 932, 975-976.) Indeed,

28

it has the authority to do so. (See, e.g., Canaan v. Abdelnour, supra,
29
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

40 Cal. 3d at p. 722, fn. 17.) True, it is in fact barred when the issue

2

involves the admission (Evid. Code, § 353) or exclusion (id., § 354)

3

of evidence. Such, of course, is not the case here. Therefore, it is

4

free to act in the matter. (See, e.g., Canaan v. Abdelnour, supra, 40

5

Cal. 3d at p. 722, fn. 17.) Whether or not it should do so is entrusted

6

to its discretion. (Ibid.)

7

Id. (emphasis added).

8

California appellate courts have discretion to reach unpreserved non-

9

evidentiary issues for a number of reasons, or no reason at all. See, e.g., People v.

10

Black, 41 Cal. 4th 799, 810-12, 62 Cal. Rptr. 3d 569 (2007) (trial counsel could not

11

have foreseen change in law); In re Sheena K., 40 Cal. 4th 875, 881 & n.2, 55 Cal.

12

Rptr. 3d 716 (2007) (failure to challenge facially unconstitutional probation

13

condition in the trial court did not forfeit the claim on appeal); People v. Smith, 24

14

Cal. 4th 849, 852, 102 Cal. Rptr. 2d 731 (2001) (challenge to sentence imposed in

15

excess of jurisdiction or unauthorized sentence); People v. Williams, 21 Cal. 4th

16

335, 341, 87 Cal. Rptr. 2d 412 (1999) (expired statute of limitations shown on face

17

of charging document may be raised at any time); People v. Hill, 17 Cal. 4th 800,

18

820, 72 Cal. Rptr. 2d 656 (1998) (prosecutorial misconduct where court had

19

already overruled similar objection, making further objections futile); People v.

20

Vera, 15 Cal. 4th 269, 276-77, 62 Cal. Rptr. 2d 754 (1997) (where certain

21

fundamental, constitutional rights are involved, lack of objection does not result in

22

forfeiture); People v. Cox, 53 Cal. 3d 618, 682, 280 Cal. Rptr. 692 (1991) (counsel

23

failed to object to alleged prosecutorial misconduct; timely admonition would have

24

cured the defect, therefore defendant waived the objection; “To forestall any later

25

charge of ineffective assistance of counsel, we will nevertheless address the

26

substance of defendant’s contentions”); People v. Malone, 47 Cal. 3d 1, 38, 252

27

Cal. Rptr. 525 (1988) (addressing prosecutorial misconduct issue with no

28

explanation for why court addresses the issue despite failure to object); People v.
30
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

Silva, 45 Cal. 3d 604, 638, 247 Cal. Rptr. 573 (1988) (same); Canaan v. Abdelnour,

2

40 Cal. 3d 703, 722 n.17, 221 Cal. Rptr. 468 (1985) (constitutional issue was not

3

raised at trial, but it was “but one aspect of the larger constitutional question”

4

raised on appeal); People v. Smith, 103 Cal. 563, 566, 37 P. 516 (1894) (charging

5

instrument failed to state an offense, a defense “which went to the very essence of

6

the cause of action,” and may be raised at any time); People v. Perkins, 109 Cal.

7

App. 4th 1562, 1567, 1 Cal. Rptr. 3d 271 (2003) (prejudicial judicial misconduct

8

not curable by admonition); People v. Bryden, 63 Cal. App. 4th 159, 182, 73 Cal.

9

Rptr. 2d 554 (1998) (misconduct material to the verdict in a closely balanced case);

10

In re Khonsavanh S., 67 Cal. App. 4th 532, 536-37, 79 Cal. Rptr. 2d 80 (1998)

11

(lack of opportunity to object when counsel blind-sided by unexpected ruling);

12

CNA Casualty of Cal. v. Seaboard Sur. Co., 176 Cal. App. 3d 598, 618, 222 Cal.

13

Rptr. 276 (1986) (court may consider previously unraised matter affecting “public

14

interest or the due administration of justice”); Hale v. Morgan, 22 Cal. 3d 388, 394,

15

149 Cal. Rptr. 375 (1978) (review permitted where pure question of law involved);

16

People v. Truer, 168 Cal. App. 3d 437, 441, 214 Cal. Rptr. 869 (1985) (same);

17

People v. Norwood, 26 Cal. App. 3d 148, 153, 103 Cal. Rptr. 7 (1972) (issue

18

reviewable absent objection to avoid a subsequent habeas corpus issue raising the

19

same point); People v. Ross, 198 Cal. App. 2d 723, 730, 18 Cal. Rptr. 307 (1961)

20

(“The fact that counsel has not presented the specific point upon which this

21

decision turns cannot deter us from seeing that justice is done”); People v. Najera,

22

138 Cal. App. 4th 212, 224, 41 Cal. Rptr. 3d 244 (2006) (ordinarily, defendant

23

must object to prosecutorial misconduct and request and admonition, but is

24

excused from doing so if either would have been futile).

25

Thus, the “rule” regarding non-evidentiary errors is not a rule at all. It is so

26

riddled with exceptions as to be swallowed by them. The rule, if there is a rule, is

27

that an appellate court may reach unpreserved errors.

28

In addition, a defendant may raise for the first time on appeal a claim
31
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

asserting the deprivation of certain fundamental, constitutional rights. See Vera, 15

2

Cal. 4th at 276-77; People v. Holmes, 54 Cal. 2d 442, 443-44, 5 Cal. Rptr. 871

3

(1960) (constitutional right to jury trial); Saunders, 5 Cal. 4th at 589-92 (plea of

4

once in jeopardy). Appellate courts “typically have engaged in discretionary

5

review only when a forfeited claim involves an important issue of constitutional

6

law or a substantial right.” Sheena K., 40 Cal. 4th at 887 n.7 (citations omitted).

7

Accord People v. Belmares, 106 Cal. App. 4th 19, 27, 130 Cal. Rptr. 2d 400 (2003),

8

overruled on other grounds in People v. Reed, 38 Cal. 4th 1224, 45 Cal. Rptr. 3d

9

353 (2006) (defendant could assert for the first time on appeal the portion of his

10

argument that claimed that an instruction had impinged on his constitutional right

11

to have the jury determine a certain fact); People v. Santamaria, 229 Cal. App. 3d

12

269, 279, n.7, 280 Cal. Rptr. 43 (1991) (errors of great “magnitude” are cognizable

13

on appeal in absence of objection); People v. Mills, 81 Cal. App. 3d 171, 176, 146

14

Cal. Rptr. 411 (1978) (“The Evidence Code section 353 requirement of timely and

15

specific objection before appellate review is available . . . ‘is, of course, subject to

16

the constitutional requirement that a judgment must be reversed if an error has

17

resulted in a denial of due process of law’”). As such, the contemporaneous

18

objection rule is not independent of federal law in that it is interwoven with federal

19

constitutional principles.

20

Any delineation of which evidentiary issues may be considered on appeal in

21

the absence of an objection, and which will not, is quite unclear under California

22

Supreme Court precedent. “Special circumstances” appear to exist that will excuse

23

non-compliance with the contemporaneous objection rule. See, e.g., People v.

24

Flores, 68 Cal. 2d 563, 567, 68 Cal. Rptr. 161 (1968) (noting absence of special

25

circumstances); People v. De Santiago, 71 Cal. 2d 18, 23, 76 Cal. Rptr. 809 (1969)

26

(overruling Flores in part, noting exception to contemporaneous objection rule

27

where counsel could not have anticipated unforeseen changes in the law); People v.

28

Chavez, 26 Cal. 3d 334, 350 n.5, 161 Cal. Rptr. 762 (1980) (same); People v.
32
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

Kitchens, 46 Cal. 2d 260, 262, 294 P.2d 17 (1956) (same); People v. Johnson, 5

2

Cal. App. 3d 851, 863, 85 Cal. Rptr. 485 (1970) (referring to existence of special

3

circumstance exception); People v. Robinson, 62 Cal. 2d 889, 894, 44 Cal. Rptr.

4

762 (1965) (referring to “certain circumstances not present here.”); see also In re

5

Shipp, 62 Cal. 2d 547, 552, 43 Cal. Rptr. 3 (1965); Dixon, 41 Cal. 2d at 759

6

(mentioning “special circumstances” in context of habeas corpus litigation but

7

without clarifying what those circumstances might be). California case law does

8

not clarify or list the “special circumstances” that excuse the lack of an objection.

9

Thus, while it is clear that certain circumstances undermine the contemporaneous

10

objection rule, it seems impossible to tell what they are, or to what extent they

11

impinge on the rule.

12

Accordingly, the contemporaneous objection rule was not regularly or

13

consistently applied or defined at the time of Mr. Jones’s trial, and it should not

14

operate to preclude this Court from reviewing the merits of claims for which the

15

state court applied this procedural bar. See Carter, 2013 WL 1120657, at *41

16

(finding that petitioner met his interim burden of demonstrating inconsistent

17

application of the contemporaneous objection rule, and that respondent did not

18

meet the ultimate burden of proving the adequacy of the procedural bar).

19

IV. MR. JONES’S CLAIMS SATISFY 28 U.S.C. SECTION

20

2254(D)

21

A.

Claim One: Mr. Jones Received Ineffective Assistance of Counsel

22

During the Guilt Phase of His Trial.

23

Mr. Jones satisfied state pleading requirements by presenting this claim in

24

state court with sufficient detail and supporting factual material to establish a prima

25

facie showing that he was entitled to relief. See, e.g., Duvall, 9 Cal. 4th at 474.

26

Among other things, Mr. Jones demonstrated that trial counsel unreasonably failed

27

to investigate and present evidence in support of the sole defense during the guilt

28

phase – that Mr. Jones lacked the specific intent necessary for a capital conviction
33
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

due to his mental health problems and substance use before the crime – and that

2

this failing was prejudicial. Mr. Jones also demonstrated that trial counsel was

3

ineffective for failing to investigate and present evidence to support his theory that

4

Mr. Jones did not have pre-mortem sexual contact with the Mrs. Miller – a defense

5

to rape charges that provided the basis for first-degree murder and a special

6

circumstance that made Mr. Jones eligible for the death penalty. Mr. Jones’s state

7

pleading further established that trial counsel provided ineffective assistance by

8

failing to investigate a prior conviction and reasonably defend against it.

9

Individually and cumulatively, these and other violations of Mr. Jones’s right to the

10

effective assistance of counsel entitled Mr. Jones to relief.

11

This claim was not procedurally defaulted, and respondent did not present

12

factual materials or legal argument in state court to establish that Mr. Jones’s prima

13

facie showing should not be taken as true or that it otherwise lacked merit. Under

14

these circumstances, the state court was required to issue an order to show cause

15

and allow Mr. Jones access to state processes to develop and present evidence to

16

prove his claim. See, e.g. Duvall, 9 Cal. 4th at 475; Romero, 8 Cal. 4th at 742. By

17

instead summarily denying Mr. Jones’s claim, the California Supreme Court’s

18

decision satisfies section 2254(d) as set forth in Mr. Jones’s prior briefing and in

19

the sections that follow.

20

In this Court, respondent does not reasonably contend that Mr. Jones failed

21

to present a prima facie case to the state court. Indeed, respondent concedes that

22

the state court’s summary denial of Mr. Jones’s prima facie case for relief, as set

23

forth in Mr. Jones’s Opening Brief, satisfies section 2254(d). See section II.C.,

24

supra. Respondent instead asserts that, at the initial pleading stage of the state

25

habeas process, the state court properly rejected this claim by making a variety of

26

determinations about trial counsel’s actions and omissions, tactical decisions, and

27

the weight, credibility, and impact of evidence that should have been presented

28

during the guilt phase of Mr. Jones’s trial but was not. Opp. at 3-36. These
34
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

contentions defy clearly established federal law, state court procedures, and the

2

record before the state court and must be rejected. Respondent has not provided

3

any legal or factual basis–in the state court or this Court–upon which the state

4

court reasonably could have rejected Mr. Jones’s showing that trial counsel was

5

ineffective during the guilt phase of trial.

6

1. There Is No Reasonable Basis for the State Court Ruling That Mr.

7

Jones Failed to Make a Prima Facie Showing for Relief.

8

a. Mr. Jones Made a Prima Facie Showing That Trial Counsel Was

9

Ineffective for Failing to Investigate and Adequately Present a

10

Mental State Defense.

11

Mr. Jones’s allegations and supporting factual material in state court

12

established that although trial counsel recognized “that Mr. Jones’s obvious mental

13

illness had to be the crux of the defense,” Ex. 12 at 107, he was constitutionally

14

ineffective because he did not investigate this defense and failed to present expert

15

and lay witness testimony to support it. See, e.g., State Pet. at 92-158; Inf. Reply at

16

86-103; Opening Br. at 16-27. Instead, trial counsel decided to base the mental

17

state defense solely on Mr. Jones’s testimony about his mental health problems,

18

and presented the one expert he retained who could have testified about Mr. Jones’s

19

mental state, Claudewell Thomas, M.D., only during the penalty phase. Ex. 12 at

20

107; Ex. 150 at 2731. Because trial counsel did not offer any expert testimony to

21

support the mental state defense during the guilt phase, the trial court severely

22

curtailed Mr. Jones’s testimony on this topic. In the words of trial counsel, “The

23

ruling gutted my only defense to the charge of capital murder,” and prevented trial

24

counsel from presenting evidence that Mr. Jones was unable to form the requisite

25

intent for the first-degree felony murder. Ex. 12 at 109-10.

26

Respondent asserts that the state court’s summary denial of this aspect of Mr.

27

Jones’s claim was reasonable because trial counsel “may have had several valid

28

tactical reasons” for not presenting expert testimony from Dr. Thomas to support a
35
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

mental state defense during the guilt phase of trial. Opp. at 5. Respondent states

2

that the state court also reasonably could determine that this aspect of the claim

3

was “conclusory” because declarations by trial counsel did not more fully explain

4

his reasons for not presenting testimony by Dr. Thomas during the guilt phase.

5

Opp. at 6. These contentions, and the others offered by respondent, are without

6

merit.

7

1) Trial counsel decided to rely exclusively on Mr. Jones’s

8

testimony for the mental state defense without conducting a

9

reasonable investigation.

10

Trial counsel’s “strategic choices made after less than complete

11

investigation” are reasonable only to the extent that limitations on investigation are

12

reasonable. Strickland v. Washington, 466 U.S. 668, 690, 104 S. Ct. 2052, 2066,

13

80 L. Ed. 2d 674 (1984). Furthermore, when “assessing the reasonableness of an

14

attorney’s investigation . . . a court must consider not only the quantum of evidence

15

already known to counsel, but also whether the known evidence would lead a

16

reasonable attorney to investigate further.” Wiggins v. Smith, 539 U.S. 510, 527,

17

123 S. Ct. 2527, 2538, 156 L. Ed. 2d 471 (2003). Before a state court may defer to

18

alleged tactical decisions made by trial counsel, it therefore must have conducted

19

an assessment of whether trial counsel’s investigation “demonstrated reasonable

20

professional judgment” and not have “merely assumed that the investigation was

21

adequate.” Wiggins, 539 U.S. at 527.

22

Respondent has never contested Mr. Jones’s allegations that counsel was

23

obligated to investigate the mental state defense and failed to do so. See Inf. Resp.

24

at 14-15; Opp. at 5-10. Indeed, it is well established that at the time of Mr. Jones’s

25

trial, trial counsel had a duty to fully investigate Mr. Jones’s mental state defense

26
27
28
36
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

before deciding how to present it.16 See, e.g., Rompilla v. Beard, 545 U.S. 374,

2

385, 125 S. Ct. 2456, 2464, 162 L. Ed. 2d 360 (2005) (holding trial counsel in

3

1988 case had a duty to “make all reasonable efforts” to learn about key

4

prosecution evidence and rebut it); Williams v. Taylor, 529 U.S. 362, 396, 120 S.

5

Ct. 1495, 1514, 146 L. Ed. 2d 389 (2000) (recognizing trial counsel in 1986 case

6

had an “obligation to conduct a thorough investigation of the defendant’s

7

background); In re (Troy Lee) Jones, 13 Cal. 4th 552, 566, 917 P.2d 1175 (1996)

8

(holding “reasonably competent counsel would have investigated thoroughly all

9

the evidence” relevant to petitioner’s involvement in the crime); In re Marquez, 1

10

Cal. 4th 584, 602, 822 P.2d 435 (1992) (holding that “before counsel undertakes to

11

act, or not to act,” counsel must make an informed decision “founded upon

12

adequate investigation and preparation”); People v. Ledesma, 43 Cal. 3d 171, 222,

13

729 P.2d 839 (1987) (holding that trial counsel is obligated to investigate “all

14

defenses of fact and of law that may be available to the defendant”); In re Hall, 30

15

Cal. 3d 408, 427, 637 P.2d 690 (1981) (holding trial counsel is obligated to conduct

16

investigation of other available witnesses before deciding to rely on client

17

testimony); see also America Bar Association, Guidelines for the Appointment and

18

Performance of Counsel in Death Penalty Cases (1989) (“ABA Guidelines”),

19

Guidelines 11.4.1.3.A, 11.4.1.3.B.

20

Mr. Jones demonstrated that contrary to this prevailing professional

21

standard, trial counsel did not investigate the mental state defense before deciding

22

to rely exclusively on Mr. Jones’s testimony. The investigation that trial counsel

23

did conduct into Mr. Jones’s background was delegated to the defense paralegal

24

and was for the penalty phase rather than the mental state defense at the guilt

25
26
27
28

16

The state court ruled on Mr. Jones’s petition in March of 2009. See
Supreme Court Order, In re Ernest DeWayne Jones, Case No. S110791, filed Mar.
11, 2009.
37
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

phase. Ex. 12 at 105-06; Ex. 19 at 203-05. The investigator assigned to the case

2

periodically made contact with potential penalty phase witnesses, but this was

3

limited to locating them and determining if they were willing to be interviewed.

4

Ex. 12 at 105-06; Ex. 19 at 204.

5

responsible for serving subpoenas, researching publicity on the case, interviewing

6

witnesses related to the robbery/burglary charges, and investigating forensic issues.

7

Ex. 105-06; Ex. 19 at 203.

8

interviews with potential penalty phase witnesses and for determining what, if any,

9

follow up was necessary with those witnesses. Ex. 12 at 105-06; Ex. 19 at 203.

Other than this task, the investigator was

The paralegal was responsible for conducting

10

The paralegal did not know what guilt defenses trial counsel planned to

11

present, did not perform any tasks in preparation for the guilt phase, and trial

12

counsel did not provide her any direction regarding the scope, purpose, or content

13

of the interviews she conducted with family members. Ex. 19 at 203-05. Trial

14

counsel did not think that he legally was required to present evidence other than

15

Mr. Jones’s testimony to establish a mental state defense, and did not consider

16

using lay witness testimony to describe Mr. Jones’s background and previous

17

instances of dissociation. Ex. 12 at 107-08. Furthermore, although the interviews

18

the paralegal conducted with family members were not conducted as part of guilt

19

phase preparations, even those interviews “were limited in scope and detail,” and

20

“failed to elucidate the problems [in Mr. Jones’s home environment] in much detail

21

or discuss Mr. Jones with much specificity.” Ex. 154 at 2750. Trial counsel

22

confirmed that no one on the defense team interviewed extended family members,

23

neighbors, and other witnesses who provided background information for the

24

mental state defense in the state habeas petition, and stated that he did not have a

25
26
27
28
38
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

strategic reason for failing to do so. Ex. 150 at 2733-34.17

2

Trial counsel’s failure to investigate and decision to rely instead on Mr.

3

Jones’s testimony were all the more unreasonable because trial counsel had been

4

informed by the expert he retained to evaluate Mr. Jones that “Mr. Jones was

5

gravely mentally ill,” and “was not mentally fit to testify on his own behalf.” Ex.

6

154 at 2752.

7

Taken as true, as required under state law, Mr. Jones’s allegations made a

8

prima facie showing that trial counsel was objectively unreasonable when he

9

decided to rely solely on Mr. Jones’s testimony to establish a mental state defense

10

without conducting a reasonable investigation into Mr. Jones’s background. See,

11

e.g., Wiggins, 539 U.S. at 529 (holding that trial counsel was ineffective for failing

12

to conduct an adequate investigation before deciding not to introduce additional

13

evidence); Porter v. McCollum, 558 U.S. 30, 40, 130 S. Ct. 447, 453, 175 L. Ed. 2d

14

398 (2009) (holding counsel ineffective when he “ignored pertinent avenues for

15

investigation of which he should have been aware” prior to petitioner’s 1988 trial);

16

Daniels v. Woodford, 428 F.3d 1181, 1206 (9th Cir. 2005) (noting that the circuit

17

court has “repeatedly held that defense counsel in a murder trial was ineffective

18

where there was some evidence of the defendant’s mental illness in the record, but

19

counsel failed to investigate it as a basis for a mental defense to first degree

20

murder”); Lopez v. Schriro, 491 F.3d 1029, 1041 (9th Cir. 2007) (holding facial

21

claim of failure to investigate established by showing of improper delegation to a

22

subordinate); Jennings v. Woodford, 290 F.3d 1006, 1016 (9th Cir. 2002) (holding

23

trial counsel ineffective for failing to investigate mental health and drug-related

24

issues “more thoroughly” in order to defend against capital murder “for which

25
26
27
28

17

For a summary of the background information that was available to trial
counsel had he conducted a reasonable investigation, see the Opening Brief at
pages 66 to 75.
39
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

raising a reasonable doubt as to intent could be crucial”); Seidel v. Merkle, 146 F.3d

2

750, 755 (9th Cir. 1998) (holding that counsel performed deficiently at 1991 trial

3

where he was on notice of client’s mental illness but did not investigate mental

4

state defense); In re Hall, 30 Cal. 3d at 427 (holding trial counsel ineffective for

5

failing to present evidence to support client’s testimony during guilt phase, because

6

“petitioner’s credibility was obviously suspect ab initio”).18

7

Respondent’s contention that the state court reasonably could deny Mr.

8

Jones’s claim because of trial counsel’s possible tactical decisions is not supported

9

by federal law or state court procedures. Clearly established federal law requires a

10

state court to assess whether trial counsel’s decisions were based upon reasonable

11

investigations. Wiggins, 539 U.S. at 527. Because respondent never contested Mr.

12

Jones’s allegations that trial counsel’s investigation was unreasonable, Inf. Resp. at

13

14-15, respondent’s contentions about trial counsel’s possible tactical decisions

14

would not have provided a legal basis for the state court to reject Mr. Jones’s claim.

15

See, e.g., Wiggins, 539 U.S. at 528 (holding state court’s deference to counsel’s

16

alleged strategic decision, despite the fact that it was based on an unreasonable

17

investigation, was objectively unreasonable under section 2254(d)). Furthermore,

18

as discussed in the following section, the tactical decision that respondent asserts

19

could have supported the state court’s summary denial–that trial counsel may have

20

decided not to present Dr. Thomas’s testimony during the guilt phase because it

21

would have elicited damaging evidence, Opp. at 6–is nothing more than

22

speculation by respondent that plainly is refuted by the post-conviction record

23

before the state court. At most, respondent’s effort to attribute tactical reasons to

24
25
26
27
28

18

Mr. Jones also made a prima facie showing that trial counsel was
objectively unreasonable for failing to investigate and present testimony from lay
witnesses to support a mental state defense. See, e.g., State Pet. at 93-152, 16062; Opening Br. at 22-23.
40
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

trial counsel’s failure to investigate and present evidence in support of the mental

2

state defense merely created factual disputes about the reasonableness of trial

3

counsel’s investigation, and the strategy, if any, behind his decisions–neither of

4

which could have been resolved by the state court without issuing an order to show

5

cause. Duvall, 9 Cal. 4th at 475; Romero, 8 Cal. 4th at 742.

6

2) Trial counsel did not retain, adequately prepare, or present

7

any mental expert to testify in support of the mental state

8

defense.

9

Mr. Jones’s allegations and supporting factual material established that trial

10

counsel believed that expert testimony about Mr. Jones’s mental state “was critical

11

to the jury’s understanding of the crime,” Ex. 150 at 2731, and that trial counsel

12

wanted to have two mental health experts testify at trial, Ex. 150 at 2732. In spite

13

of these views, trial counsel did not retain any mental health expert until very close

14

to the start of trial, at which point he retained Dr. Thomas. State Pet. at 152-58;

15

Inf. Reply at 97-101. Dr. Thomas did not have sufficient time to complete his

16

evaluation of Mr. Jones before the completion of the guilt phase, however, Inf.

17

Reply at 99, and trial counsel did not have a second mental health expert ready or

18

available to testify during the guilt phase, Ex. 150 at 2732. Trial counsel stated

19

that “I had no strategic reason for failing to have a second mental health expert

20

ready to testify in the guilt phase.” Ex. 150 at 2732. Once the trial court ruled that

21

mental state evidence from Mr. Jones would be severely curtailed without

22

accompanying expert testimony, trial counsel did not attempt to seek a

23

continuance, present Dr. Thomas’s incomplete assessment, or employ another

24

mental health expert to support what trial counsel viewed as Mr. Jones’s “critical

25

testimony,” even though trial counsel correctly predicted that the prosecution

26

successfully would use the absence of a defense expert to argue that Mr. Jones’s

27
28
41
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

mental state defense was fabricated. Ex. 12 at 110.19

2

Mr. Jones alleged that trial counsel was ineffective for failing to adequately

3

investigate, prepare, and present Dr. Thomas’s or another mental health expert’s

4

testimony in support of the mental state defense. State Pet. at 92-158; Inf. Reply at

5

86-103. Mr. Jones’s allegations and supporting factual material established that,

6

after he was retained by trial counsel, Dr. Thomas requested information related to

7

Mr. Jones’s “medical, mental health, educational, and other social history.” Ex.

8

154 at 2750; see also Ex. 12 at 108 (trial counsel confirming that Dr. Thomas

9

requested background material for his evaluation of Mr. Jones). In spite of this

10

request, trial counsel provided Dr. Thomas with meager information about Mr.

11

Jones’s upbringing and background and did not give him readily available and

12

relevant school, medical, social service, court, or military records. Ex. 154 at

13

2750. Dr. Thomas also advised counsel that additional testing was necessary to

14

adequately evaluate Mr. Jones, but trial counsel failed to ensure that such testing

15

was conducted in accordance with prevailing standards. Ex. 12 at 108.

16

Mr. Jones alleged that trial counsel also was ineffective for failing to retain

17

and utilize the results of a qualified neuropsychological examination in support of

18

the mental state defense. State Pet. at 156-57; Inf. Reply at 197-99. Trial counsel

19

stated that he believed it was necessary to investigate the possibility that Mr. Jones

20

suffered from brain damage. Ex. 150 at 2731. Trial counsel also explained that

21
22
23
24
25
26
27
28

19

Respondent contends that the state court reasonably could have rejected
this claim as conclusory because trial counsel’s declarations did not specifically
explain why trial counsel did not call Dr. Thomas to testify during the guilt phase.
Opp. at 6. If the state court had deemed this aspect of Mr. Jones’s claim
conclusory, however, its procedures dictate that Mr. Jones would have been given
notice of this pleading defect and an opportunity to correct it. See section II.A.2.,
supra. The absence of any such indication from the state court forecloses this
possibility, as does preceding discussion of trial counsel’s statements and Mr.
Jones’s other detailed showings.
42
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

although he retained a neuropsychologist, the neuropsychologist did not conduct

2

the testing trial counsel requested and the work the neuropsychologist did perform

3

was factually inaccurate and therefore not likely to be reliable. Ex. 150 at 2732.

4

Trial counsel stated that he did not have a strategic reason for failing to retain

5

another neuropsychologist, and simply ran out of time because trial was starting.

6

Ex. 150 at 2732-33.

7

In state court, respondent contended that “there was a plausible tactical

8

reason” why trial counsel did not call Dr. Thomas to testify during the guilt phase

9

of trial, speculating that the prosecution could elicit damaging information about

10

Mr. Jones’s prior assault of Kim Jackson and his prior statements about having

11

consensual sex with Mrs. Miller.

12

contention before this Court. Opp. at 6. As discussed in the prior section, trial

13

counsel could not have made a reasonable tactical decision about whether to

14

present testimony from Dr. Thomas or another mental expert during the guilt phase

15

without conducting a reasonable investigation into the potential evidence available

16

to support a mental state defense. See, e.g., Wiggins, 539 U.S. at 527. In light of

17

Mr. Jones’s showing that trial counsel did not retain Dr. Thomas or any other

18

expert in time to present expert testimony during the guilt phase, respondent’s

19

assertion that trial counsel nonetheless strategically forfeited this testimony is

20

plainly unfounded and could not have provided a basis for rejecting this claim.

21

Moreover, trial counsel stated that his plan during the guilt phase was to have Mr.

22

Jones testify about the Kim Jackson incident; trial counsel wanted Mr. Jones to

23

testify about his psychological history and dissociative states pertaining to “his past

24

two prior crimes, [which] all occurred long before 1992.” Ex. 12 at 109. Trial

25

counsel’s statement that he did not have a strategic reason for not having a second

26

mental health expert available to testify during the guilt phase, Ex. 150 at 2732,

27

further precludes respondent’s speculative and factually incorrect tactical

28

justification. Any tactical reasoning offered by respondent at most presented a
43

Inf. Resp. at 15.

Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Respondent repeats that

Case No. CV-09-2158-CJC

1

factual dispute about trial counsel’s actions that could not be considered by the

2

state court, without issuing an order to show cause. Duvall, 9 Cal. 4th at 475;

3

Romero, 8 Cal. 4th at 742.

4

Respondent also asserts before this Court that the state court reasonably

5

could have concluded that trial counsel did not have a duty to investigate and

6

provide Dr. Thomas with adequate background material for his assessment of Mr.

7

Jones. Opp. at 9. Respondent cites to Hendricks v. Calderon, 70 F.3d 1032, 1038-

8

39 (9th Cir. 1995), for the proposition that trial counsel does not have a duty to

9

acquire sufficient background information to assist their experts absent a request.

10

Opp. at 9. This argument would not have provided a legal basis for the state court

11

to reject Mr. Jones’s claim, however, because respondent did not raise it in the state

12

court. See section II.A.4., supra. At any rate, Mr. Jones’s factual allegations

13

establish that Dr. Thomas did request such material, Ex. 12 at 108; Ex. 154 at 2750,

14

and respondent did not provide the state court with any reason why those

15

allegations should not be accepted as true, Duvall, 9 Cal. 4th at 475; Romero, 8

16

Cal. 4th at 742.20

17

Taken as true, Mr. Jones’s allegations made a prima facie showing that trial

18

counsel’s failure to present any expert testimony to support Mr. Jones’s mental

19

state defense during the guilt phase of trial was objectively unreasonable. See, e.g.,

20

Daniels, 428 F.3d at 1207 (holding trial counsel was ineffective for failing to

21
22
23
24
25
26
27
28

20

Similarly, respondent asserts that the state court could have rejected Mr.
Jones’s claims because trial counsel did not have a duty to seek another expert to
conduct neuropsychological testing. Opp. at 8-9 (citing cases for the proposition
that trial counsel need not continue to seek expert assistance to find a more
helpful opinion). This does not provide a basis for rejecting Mr. Jones’s claims,
because Mr. Jones’s factual allegations established that trial counsel was
dissatisfied with the neuropsychologist for failing to complete a competent
evaluation of Mr. Jones, yet trial counsel nonetheless failed to seek out a qualified
expert to conduct a competent evaluation. Ex. 150 at 2732-33.
44
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

present evidence of Daniels’s mental illness or brain damage in guilt phase mental

2

state defense); Bloom v. Calderon, 132 F.3d 1267, 1278 (9th Cir. 1997) (holding

3

trial counsel ineffective for failing to adequately prepare and present expert

4

testimony to support mental state defense; “[e]ven the third-year law student

5

[assisting counsel] knew the defense needed a psychiatric expert witness”); In re

6

Hall, 30 Cal. 3d at 427 (holding trial counsel ineffective for failing to present

7

evidence to support client’s testimony during guilt phase); cf. Ake v. Oklahoma,

8

470 U.S. 68, 81, 105 S. Ct. 1087, 1095, 84 L. Ed. 2d 53 (1985) (holding assistance

9

of a mental health expert may be “crucial to the defendant’s ability to marshal his

10

defense;” “[b]y organizing a defendant’s mental history, examination results and

11

behavior, and other information, interpreting it in light of their expertise, and then

12

laying out their investigative and analytic process to the jury, the psychiatrists for

13

each party enable the jury to make its most accurate determination of the truth on

14

the issue before them”).

15

3) Trial counsel’s failure to investigate and present expert and

16

lay witness testimony to support a mental state defense was

17

prejudicial.

18

Mr. Jones’s allegations and supporting factual material established that there

19

was a wealth of information crucial to a mental state defense that could have been

20

provided to qualified mental health experts and presented through lay witness

21

testimony to make a compelling defense.21 Among other things, a reasonable

22

investigation would have revealed that Mr. Jones exhibited symptoms of severe

23

mental impairment throughout his childhood, including auditory and visual

24

hallucinations, paranoid tendencies and irrational fears, heightened anxieties,

25
26
27
28

21

In addition to the description of this information that follows, see the
Opening Brief at pages 66 to 75 for a more complete summary of relevant
background information presented to the state court.
45
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

constant and terrifying nightmares, and dissociative episodes. State Pet. at 129-34.

2

Dissociative episodes continued and worsened through Mr. Jones’s teenage years,

3

and he also began to suffer from deepening depression and to display increasingly

4

bizarre behavior. State Pet. at 141-46. After an incident in which Mr. Jones

5

assaulted Kim Jackson, a family friend, during a trance-like state, he was

6

distraught and initially wanted to be admitted for psychiatric treatment but turned

7

himself into the police instead. State Pet. at 146-47. Auditory hallucinations

8

continued to trouble Mr. Jones, and precipitated another blackout and assault of his

9

girlfriend’s mother Doretha Harris. Following this episode, Mr. Jones asked Mrs.

10

Harris to kill him. State Pet. at 147. After his release from prison for assaulting

11

Mrs. Harris, and in the time leading up to Mrs. Miller’s death, Mr. Jones’s mental

12

condition was markedly deteriorating. He was severely depressed and suicidal,

13

could not hold down a job, began talking to himself and taping his phone

14

conversations, and continued to have dissociative episodes in which his behavior

15

was bizarre. State Pet. at 147-50.

16

A reasonable investigation would have provided compelling insight into and

17

corroboration for Mr. Jones’s mental deterioration. Among other things, adequate

18

investigation of Mr. Jones’s background would have revealed that he was sexually

19

abused by his mother and experienced persistent, terrifying trauma and other

20

abuses throughout his life. State Pet. at 107-11. In addition to sexual abuse, Mr.

21

Jones suffered regular, severe physical abuse from both of his parents and other

22

adult relatives, and routinely witnessed terrifying violence between his parents.

23

State Pet. at 108-17. Sex and sexual infidelities provoked much of the physical

24

violence between Mr. Jones’s parents, and their increasingly debilitating

25

alcoholism exacerbated the frequency and violence of their attacks on each other.

26

State Pet. at 117-26. In addition to the trauma and other mental health problems,

27

Mr. Jones struggled with significant cognitive impairments. He scored in the range

28

of intellectual disability at the end of the first grade and entered Educably Mentally
46
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

Retarded classes, and was placed in Special Education classes throughout his

2

turbulent and unstable time in school. State Pet. at 135-41. Dysfunction between

3

Mr. Jones’s parents that left Mr. Jones and his siblings without adequate food,

4

clothing, or a stable home further undermined his functioning. State Pet. at 126.

5

Chronic danger and violence as well as rioting in Mr. Jones’s community, and the

6

murder of his older brother were tipping points in Mr. Jones’s life that accelerated

7

his mental decline. State Pet. at 120-23.

8

Qualified mental health experts could have provided significant insight into

9

Mr. Jones’s mental functioning had they been given the results of a reasonable

10

investigation and adequate time to prepare. Mr. Jones submitted a declaration from

11

Dr. Thomas, who, after reviewing information developed for the state habeas

12

proceedings, stated:

13

All of this material was critical to explain the full effect that Mr.

14

Jones’s life experiences, especially his cruelly dysfunctional family

15

dynamics, had on his behavior and functioning. Mr. Jones’s multiple

16

impairments affected his judgment and his actions throughout his

17

life, and had particularly insidious effects on his behavior and

18

thought processes on the evening of the incident.

19

backdrop of domestic, sexualized violence, and in particular the

20

demonization of his mother by his father, Mr. Jones’s childhood

21

memory of his mother in bed at a moment of great stress with Mrs.

22

Miller makes even more sense to me, and I would have done a much

23

better job conveying that connection to the jury.

24

Against this

Ex. 154 at 2761.22

25
26
27
28

22

In Mr. Jones’s factual allegations, Dr. Thomas also explained that trial
counsel’s decision to have Mr. Jones testify about having a flashback of his
mother in a sexually provocative image
47
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

continued…
Case No. CV-09-2158-CJC

1

In addition to demonstrating the effect additional information would have

2

had on Dr. Thomas’s evaluation and testimony, Mr. Jones submitted the declaration

3

of another mental health expert, Zakee Matthews, M.D., who conducted a

4

comprehensive evaluation of Mr. Jones to identify the psychiatric, psychological,

5

and developmental impact on Mr. Jones of his family history, social and

6

educational environment, and life experiences. Ex. 178 at 3090. Based on his

7

independent evaluation, Dr. Matthews concluded that Mr. Jones’s mental condition

8

at the time of the crimes was severely diminished and that he was not able to form

9

an intent to kill or rape Mrs. Miller. Ex. 178 at 3156-57. Mr. Jones also submitted

10

the declaration of Natasha Khazanov, Ph.D., a clinical psychologist who

11

specializes in neuropsychological assessment. Ex. 175 at 3057. Dr. Khazanov

12

conducted a comprehensive neuropsychological examination of Mr. Jones and

13

concluded that he suffered from significant brain damage that contributed

14

substantially and adversely to his behavior and functioning for most of his life, and

15

certainly prior to his arrest in August 1992. Ex. 175 at 3060-76.

16

In the state court, respondent asserted that Mr. Jones was not prejudiced by

17

trial counsel’s failure to investigate and develop lay witness testimony to support

18

the mental state defense. Inf. Resp. at 15. Respondent argued that the trial court

19

would have excluded lay witness testimony because there was no mental health

20

expert explain it. Inf. Resp. at 15. Respondent also stated that trial counsel’s

21
22
23
24
25
26
27
28

did Mr. Jones a great disservice. Without the benefit of a mental
health expert’s explanation of his recollections and his mental state,
the jury had no context within which to understand that testimony.
The reason for the flashback, its historical origins, and its nexus to
the incident all were crucial aspects of a life story that [Mr. Jones]
was not equipped to tell. With no corroboration and not context, Mr.
Jones’s clipped memory of a flashback would make little sense to the
jury.
Ex. 154 at 2753.
48
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

failure to call Dr. Thomas during the guilt phase was not prejudicial because the

2

prosecutor would have elicited damaging evidence from Dr. Thomas that Mr. Jones

3

initially claimed to have consensual sex with Mrs. Miller and had assaulted Ms.

4

Jackson. Inf. Resp. at 15.

5

Respondent’s contention that the trial court would have excluded lay witness

6

testimony without a foundational expert witness only highlights the prejudice to

7

Mr. Jones from trial counsel’s failure to retain a mental health expert for the guilt

8

phase of the trial and does not provide a basis for rejecting Mr. Jones’s claim.

9

Furthermore, the trial court’s ruling to exclude testimony about Mr. Jones’s mental

10

state was the result of trial counsel’s failure to prepare for the defense and make an

11

adequate proffer to the court. As the California Supreme Court pointed out, trial

12

counsel’s proposed testimony about Mr. Jones’s background, “was jumbled deep

13

inside an extraordinary grab bag of a proffer that included such disparate

14

allegations as that defendant ‘attended many schools’ and that ‘Aunt Jackie shot

15

herself to death.’”

16

(2003). Competent counsel would have conducted a reasonable investigation into

17

Mr. Jones’s background, and would have been prepared to make a coherent proffer

18

about the extent and relevance of Mr. Jones’s history of mental disturbance, and

19

mental condition shortly before the crime, and lay witness testimony on those

20

topics was admissible under state law. See, e.g., Cal. Penal Code § 28; Cal. Evid.

21

Code § 800; People v. Webb, 143 Cal. App. 2d 402, 412, 300 P.2d 130, 137 (1956)

22

(ruling lay witness testimony admissible on specific intent).

People v. Jones, 29 Cal. 4th 1229, 1252-53, 64 P.3d 762

23

Respondent’s contentions also ignore Mr. Jones’s allegations that trial

24

counsel also was ineffective for failing to conduct an adequate investigation and

25

provide information from lay witnesses to Dr. Thomas after he requested it, or to

26

other experts, in order to receive a competent expert assessment. See, e.g., State

27

Pet. at 157; Ex. 154 at 2750. The state court never allowed Mr. Jones to present

28

any evidence to demonstrate the expert testimony or lay witness accounts that
49
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

could have been presented if trial counsel reasonably had prepared for the mental

2

state defense. Respondent did not provide any factual material to support his

3

argument in the Informal Response, and the state court never received or

4

considered any evidence about the allegedly damaging testimony that respondent

5

contends would have outweighed expert testimony or other additional support for

6

the mental state defense. The state court therefore had no basis upon which to

7

evaluate the weight and credibility of evidence going to the question of prejudice

8

and could not have rejected the claim on that basis. See, e.g., Hoffman v. Arave,

9

236 F.3d 523, 536 (9th Cir. 2001) (ruling that “[w]ithout the benefit of an

10

evidentiary hearing, it is impossible to evaluate the strength of Hoffman’s defense

11

at trial” or “conclude as a matter of law that there is no reasonable possibility that

12

offering expert testimony and a thorough history of Hoffman’s educational,

13

medical, and psychological problems at the time of the murder” might have

14

affected the jury’s determination); In re Serrano, 10 Cal. 4th 447, 456, 895 P.2d

15

936 (1995) (ruling that a court may not reject post-conviction claims on credibility

16

grounds in the absence of an evidentiary hearing).

17

Taken as true, Mr. Jones’s allegations and supporting factual material

18

established that he was prejudiced by trial counsel’s deficient performance. The

19

prosecutor’s closing argument during the guilt phase focused on the absence of

20

expert testimony to support Mr. Jones’s mental state defense. 27 RT 3969-72.

21

Even with extremely limited evidence about Mr. Jones’s mental state, and

22

undisputed evidence that he was the perpetrator, the jury deliberated for four days

23

before reaching a guilty verdict. 2 CT 247-48, 251, 377. The jury’s question about

24

the intent instructions indicated that it was grappling with this issue. 27 RT 4013.

25

Mr. Jones demonstrated that a qualified mental health professional adequately

26

prepared with the results of a reasonable investigation into Mr. Jones’s background,

27

and lay witness testimony to provide accounts about Mr. Jones’s background and

28

functioning, would have made a difference in the jury’s determination. See, e.g.,
50
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

Daniels, 428 F.3d at 1205 (holding ineffective assistance prejudicial at guilt phase;

2

had counsel undertaken a thorough investigation of Mr. Daniels’s mental state, the

3

jury would have heard evidence that he suffered from a mental disorder at the time

4

he committed the murders); Jennings, 290 F.3d at 1019 (concluding counsel’s

5

failure to investigate and present mental state defense was prejudicial where

6

evidence of guilt was overwhelming, yet the jury deliberated for two days); Karis

7

v. Calderon, 283 F.3d 1117, 1140 (9th Cir. 2002) (holding trial counsel ineffective

8

for failing to present evidence, finding it “noteworthy” that even with the weak

9

evidence that was presented, the jury was out for three days before rendering its

10

verdict).

11

b. Mr. Jones Made a Prima Facie Showing That Trial Counsel Was

12

Ineffective for Failing to Investigate and Adequately Defend

13

Against the Rape Charges.

14

Mr. Jones’s allegations and supporting factual material in state court

15

established that trial counsel initially moved to strike the rape special circumstance

16

on the basis that postmortem sexual contact did not legally establish a crime of

17

rape. II Supp. 1 CT 83; see also People v. Kelly, 1 Cal. 4th 495, 524, 526, 3 Cal.

18

Rptr. 2d 677 (1992). Mr. Jones further alleged that in spite of identifying this

19

central defense to the crime, trial counsel unreasonably failed to investigate or raise

20

it at trial. State Pet. at 84-88; Inf. Reply at 76-80. In support of this claim, Mr.

21

Jones presented a declaration from a forensic pathologist who evaluated the

22

autopsy report and other evidence.

23

determined that available medical evidence demonstrated that it was as likely that

24

sexual intercourse occurred after death as before, and that postmortem sexual

25

intercourse was more consistent with the circumstantial evidence, such as the

26

arrangement of Mrs. Miller’s clothing. Ex. 177 at 3086. The absence of bruising

See generally Ex. 177.

The pathologist

27
28
51
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

or other marks around the binding on Mrs. Miller’s wrists and ankles indicated that

2

she was not struggling at the time she was bound. Ex. 177 at 3086.23 The physical

3

impossibility of sexual intercourse occurring while Mrs. Miller’s ankles were

4

bound, Inf. Reply at 78-79, further supported Mr. Jones’s allegations that trial

5

counsel could have established a reasonable doubt whether sexual contact and

6

binding occurred after Mrs. Miller’s death. Mr. Jones established that presenting

7

evidence of postmortem sexual contact would have been in keeping with trial

8

counsel’s mental state defense, and trial counsel would have presented the evidence

9

as part of the guilt phase defense if he had obtained it. Ex. 181 at 3161. These

10

allegations therefore established that trial counsel was unreasonable to concede the

11

rape charge.

12

In state court respondent suggested that trial counsel may have determined

13

that such a defense was not viable. Inf. Resp. at 11. Respondent also asserted that

14

the prior assault of Mrs. Harris created a strong inference to support the

15

prosecution’s rape charge and that Mr. Jones’s allegations failed to show that a

16

defense based on evidence of postmortem sexual contact would have been believed

17

by the jury. Inf. Resp. at 12-13. Respondent’s speculation about trial counsel’s

18

thinking may not serve as a basis for rejecting the claim, particularly when Mr.

19

Jones established that trial counsel would have presented the defense. Ex. 181 at

20

3161.

21

evidence–e.g., that Mrs. Miller’s nightgown was pulled up for a different reason

22

and that the absence of bruising may have been due to softer binding materials–did

23

not provide a basis for the state court to determine that Mr. Jones’s allegations

Furthermore, respondent’s alternate interpretations of the physical

24
25
26
27
28

23

Mr. Jones’s allegations also established that testimony by a prosecution
expert, that there was bruising around Mrs. Miller’s left wrist, was not supported
by the original autopsy report, which clearly documented a finding of no bruising,
and that trial counsel therefore also was ineffective for failing to present expert
testimony to rebut this false testimony. Inf. Reply at 80-81.
52
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

should not be taken as true. At most these were factual disputes that could not

2

have been resolved by the state court without issuing an order to show cause.

3

Duvall, 9 Cal. 4th at 475; Romero, 8 Cal. 4th at 742.

4

Taken as true, Mr. Jones’s allegations and supporting factual materials made

5

a prima facie showing that trial counsel’s failure to present evidence of postmortem

6

sexual contact was prejudicial. The prosecutor’s closing argument during the guilt

7

phase emphasized that trial counsel conceded that a rape occurred. 26 RT 3927-28;

8

27 RT 3963; see also Ex. 138 at 2690. Even with extremely limited evidence about

9

Mr. Jones’s mental state, and undisputed evidence that he was the perpetrator, the

10

jury deliberated for four days before reaching a guilty verdict. 2 CT 247-48, 251,

11

377. Evidence of postmortem sexual contact would have supported the defense

12

and made a difference in the jury’s determination. See, e.g., Duncan v. Ornoski,

13

528 F.3d 1222, 1236 (9th Cir. 2008) (holding that counsel had a duty to seek

14

expert’s advice given the “central role” that “potentially exculpatory” evidence

15

could have played in the defense at 1986 trial); Schell v. Witek, 218 F.3d 1017,

16

1028-29 (9th Cir. 2000) (holding that counsel was ineffective for failing to present

17

expert testimony to refute key evidence on which the prosecution relied); Lord v.

18

Wood, 184 F.3d 1083, 1096 (9th Cir. 1999) (holding trial counsel’s omission of

19

“potentially exculpatory evidence” prejudicial); Ledesma, 43 Cal. 3d at 222

20

(holding trial counsel ineffective for failing to investigate defenses in spite of

21

confession and stating, “Criminal defense attorneys have a duty to investigate

22

carefully all defenses of fact and of law that may be available to the defendant”).

23

c. Mr. Jones Made a Prima Facie Showing That Trial Counsel Was

24

Ineffective for Failing to Investigate and Defend Against a Prior

25

Conviction.

26

Mr. Jones’s allegations and supporting factual materials established that trial

27

counsel unreasonably withdrew his opposition to the admission of Mr. Jones’s

28

1986 conviction for the rape of Mrs. Harris during the guilt phase of his trial and
53
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

was unprepared to address it once it was introduced. State Pet. at 55-65, 158-59;

2

Inf. Reply at 26-51, 105-06. Although the prosecution sought to introduce the

3

prior crime to establish identity and intent to commit rape, by the time trial counsel

4

withdrew his opposition, he had decided to concede both issues. Opening Br. at

5

31-32. Mr. Jones demonstrated that trial counsel’s actions were unnecessary in

6

light of the evidence and unreasonable, in part because trial counsel had not

7

conducted investigation into the prior crime and was unprepared to counter it. See,

8

e.g., State Pet. at 55-61; Inf. Reply at 30-40.

9

As detailed in section IV.A.1.a.1, supra, investigation on the case was

10

conducted by an investigator and paralegal. Mr. Jones’s showing in the state court

11

established that the paralegal did not conduct any interviews in preparation for the

12

guilt phase of trial and the investigator’s tasks were limited and did not include

13

investigation of the Harris prior. Ex. 19 at 203-05. Ex. 12 at 105-06. Trial counsel

14

did not consider using lay witness testimony to describe Mr. Jones’s background

15

and previous instances of dissociation, such as the Harris crime. Ex. 12 at 107-08.

16

In response to the prosecution’s introduction of the prior crime, trial counsel

17

conducted minimal cross-examination of Mrs. Harris and presented Mr. Jones’s

18

direct testimony to confirm the incident. Opening Br. at 32-33.

19

Mr. Jones’s allegations and factual materials also established that the failure

20

to exclude the Harris prior or effectively demonstrate that it was in keeping with

21

Mr. Jones’s mental deterioration and impairment, was highly prejudicial. See, e.g.,

22

Ex. 23 at 239 (describing the emotional impact of Mrs. Harris’s testimony); 1 RT

23

688 (trial court acknowledging, “there’s no question the prejudicial effect [of the

24

Harris prior] is quite high.”). Among other things, Mr. Jones demonstrated that if

25

trial counsel had been adequately prepared, he could have presented evidence that

26

Mr. Jones’s mental health had been deteriorating prior to the Harris crime, he was

27

essentially homeless, and he was in a trance-like state and hearing voices when he

28

entered her residence. Inf. Reply at 105-06; see also section IV.A.1.a.3, supra.
54
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

Following the incident, law enforcement officials documented Mr. Jones’s

2

symptoms of dissociation and their belief that Mr. Jones was mentally ill; one

3

official recommended that Mr. Jones be committed to a private mental health care

4

facility. Ex. 87; Ex. 104 at 2180.

5

In the state court, respondent contended that trial counsel made a reasonable

6

strategic decision to withdraw his objection to the Harris prior. Inf. Resp. at 16.

7

Respondent did not respond to Mr. Jones’s allegations that trial counsel failed to

8

investigate and unreasonably was not prepared to mitigate the prior crime once it

9

was introduced. Instead, respondent asserted that Mr. Jones’s allegations were

10

conclusory and that he failed to specify what course of action trial counsel should

11

have followed. Inf. Resp. at 16. In this Court, respondent repeated the assertion

12

that Mr. Jones’s claim was conclusory. Opp. at 22.24 Respondent’s additional

13

contentions before this Court, that the state court could have reasonably decided

14

that trial counsel had other tactical reasons for conceding the prior crime or that the

15

prior crime was not prejudicial, would not have provided a legal basis for the state

16

court to reject Mr. Jones’s claim because respondent did not raise them in the state

17

court. See section II.A.4., supra. Any proffered tactical decision by trial counsel,

18

in light of Mr. Jones’s showing that trial counsel failed to investigate the prior

19

crime, could not have provided a basis for the state court to reject the claim. See,

20

e.g., Wiggins, 539 U.S. at 527 (holding state court deference to tactical decisions is

21

unreasonable without assessment of whether trial counsel’s failure to investigate

22

“demonstrated reasonable professional judgment”).

23

Taken as true, Mr. Jones’s allegations and supporting factual materials made

24
25
26
27
28

24

As previously described, if the state court had deemed this aspect of Mr.
Jones’s claim conclusory, its procedures dictate that Mr. Jones would have been
given notice of this pleading defect and an opportunity to correct it. See section
II.A.2., supra.
55
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

a prima facie showing that trial counsel was objectively unreasonable when he

2

decided to face the Harris prior in the guilt phase of trial without conducting an

3

investigation into the circumstances of the crime and that this deficient

4

performance was prejudicial. See, e.g., Rompilla, 545 U.S. at 386 (holding trial

5

counsel ineffective for failing to investigate prior conviction; without such

6

investigation trial counsel “could have had no hope of knowing” whether there

7

were “circumstances extenuating the behavior described by the victim” of the prior

8

crime); In re Jones, 13 Cal. 4th 552, 581-82, 54 Cal. Rptr. 2d 52 (1996) (holding

9

trial counsel ineffective for allowing introduction of his client’s involvement in an

10

unrelated felony at 1980s trial); 1989 ABA Guidelines 11.4.1(D)(2)(B), (D)(2)(C),

11

& (D)(3)(B) (identifying obligation to investigate client’s prior crimes, client’s

12

mental state, and lay witnesses with mitigating information).

13
14

d. Mr. Jones Was Prejudiced by the Cumulative Effect of Trial
Counsel’s Errors.

15

In addition to the aspects of trial counsel’s performance detailed above and

16

in Mr. Jones’s Opening Brief on Claim One, Mr. Jones made a prima facie showing

17

in state court that trial counsel was ineffective for failing to challenge the

18

admissibility of DNA evidence in Mr. Jones’s trial, State Pet. at 72-84, Inf. Reply

19

at 65-75; enter a plea of not guilty by reason of insanity, State Pet. at 162-63, Inf.

20

Reply at 111-14; advise Mr. Jones of the ramifications of testifying, State Pet. at

21

159-60, Inf. Reply at 108-11; conduct constitutionally adequate voir dire, State Pet.

22

at 67-70, Inf. Reply at 55-59; impeach prosecution witness Pamela Miller, State

23

Pet. at 90-91, Inf. Reply at 85-86; request necessary jury instructions, State Pet. at

24

164, Inf. Reply at 115-19; and object to prejudicial prosecutorial misconduct, State

25

Pet. at 164-66, Inf. Reply at 119-27.

26

In ruling on an ineffectiveness claim, courts must consider the

27

totality of the evidence before the judge or jury. Some of the factual

28

findings will have been unaffected by the errors, and factual findings
56
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

that were affected will have been affected in different ways. . . .

2

Moreover, a verdict or conclusion only weakly supported by the

3

record is more likely to have been affected by errors than one with

4

overwhelming record support.

5

Strickland v. Washington, 466 U.S. at 695-96. The state court therefore was

6

obligated to evaluate the effect of all of trial counsel’s errors by considering the

7

totality of evidence in the trial and habeas proceedings. Mr. Jones also established

8

a prima facie case for relief according to this assessment.

9

undisputed that Mr. Jones was the perpetrator, the jury deliberated for four days

10

before reaching a guilty verdict. 2 CT 247-48, 251, 377. In addition to the evident

11

prejudicial effect of trial counsel’s errors on the outcome of the guilt phase, the

12

jury’s determination was more likely to have been affected by those errors because

13

of the weak evidence before them to convict Mr. Jones of capital murder.

Although it was

14

2. Section 2254(d) Is Satisfied by the State Court’s Summary Denial of

15

Mr. Jones’s Adequately Pled Claim That Trial Counsel Was

16

Ineffective During the Guilt Phase of Trial.

17

In his Opening Brief, Mr. Jones detailed the ways in which the state court’s

18

summary denial of Mr. Jones’s prima facie showing of ineffective assistance of

19

counsel during the guilt phase satisfies section 2254(d). Opening Br. at 5-13, 37-

20

43. As a general matter, the California Supreme Court’s refusal to hear Mr. Jones’s

21

adequately pled claims of constitutional error is contrary to clearly established

22

federal law that prohibits state courts from creating “unreasonable obstacles” to the

23

resolution of federal constitutional claims that are “plainly and reasonably made.”

24

Davis v. Wechsler, 263 U.S. 22, 24-25, 44 S. Ct. 13, 14, 68 L. Ed. 143 (1923); see

25

also Opening Br. at 7-11. Specifically, in light of Mr. Jones’s extensive factual

26

allegations and supporting materials in the state court–which the state court was

27

obligated to accept as true–the state court’s ruling that Mr. Jones failed to make any

28

prima facie showing of entitlement to relief, and refusal to initiate proceedings to
57
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

take evidence and assess the claim, constitutes an unreasonable application of

2

Strickland. See, e.g., Wiggins, 539 U.S. at 527 (holding state court application of

3

Strickland unreasonable under section 2254(d)(1) for failing to assess factual

4

elements of the claim); Peoples v. Lafler, 734 F.3d 503, 513-14 (6th Cir. 2013)

5

(holding state court ruling satisfied section 2254(d)(1) for unreasonably failing to

6

consider “all the circumstances” of the guilt phase evidence in rejecting claim of

7

ineffective assistance of counsel); Mosley v. Atchison, 689 F.3d 838, 848 (7th Cir.

8

2012) (holding state court summary ruling on limited record was unreasonable

9

application of Strickland).

10

Although the California Supreme Court summarily denied Mr. Jones’s claim

11

without issuing a reasoned opinion, its precedent provides a framework for

12

adjudicating prejudice in ineffective assistance of counsel claims that is contrary to

13

clearly established federal law. Opening Br. at 40-42. Among other things, the

14

California Supreme Court relies on an additional prejudice requirement derived

15

from Lockhart v. Fretwell, 506 U.S. 364, 113 S. Ct. 838, 122 L. Ed. 2d 180 (1993),

16

an approach that repeatedly has been rejected. See, e.g., Williams v. Taylor, 529

17

U.S. at 393; Lafler v. Cooper, __ U.S. __, 132 S. Ct. 1376, 1386, 182 L. Ed. 2d 398

18

(2012).25 Finally, because an evidentiary hearing is usually required to adjudicate

19

ineffectiveness claims, the California Supreme Court’s rejection of a prima facie

20

ineffectiveness claim without fact-finding also may be considered an unreasonable

21

determination of the facts under § 2254(d)(2). See, e.g., Hurles v. Ryan, 706 F.3d

22
23
24
25
26
27
28

25

Under state law, issuance of an order to show cause and a reasoned opinion
to correct erroneous state law applications of federal law are necessary to remedy
this erroneous precedent. See, e.g., Romero, 8 Cal. 4th at 740 (holding issuance of
an order to show cause is the means by which issues are joined and decided; an
OSC triggers the state constitutional requirement that the cause be resolved “in
writing with reasons stated”); Schmier v. Supreme Court, 78 Cal. App. 4th 703,
710 (2000) (the publication of written opinions is the manner in which this Court
determines “the evolution and scope of this state’s decisional law”).
58
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

1021, 1038 (9th Cir. 2013) (explaining that the Ninth Circuit has “held repeatedly

2

that where a state court makes factual findings without an evidentiary hearing or

3

other opportunity for the petitioner to present evidence the fact-finding process

4

itself is deficient and not entitled to deference.”).

5

Respondent’s failure to respond to these arguments constitutes consent to a

6

ruling in favor of Mr. Jones on these bases. Stichting, 802 F. Supp. 2d at 1132; In

7

re Teledyne, 849 F. Supp. at 1373; Local Civil Rules, L.R. 7-9. Given Mr. Jones’s

8

showing before the state court, he is entitled to an evidentiary hearing in this Court

9

in which he has an opportunity, for the first time, to develop and present evidence

10

to prove his claim and obtain relief.

11

B.

Claim Two: Mr. Jones Was Deprived of His Right to Conflict-Free

12

Representation.

13

In state court, Mr. Jones established that his convictions and sentence of

14

death were unconstitutionally obtained because an irreconcilable conflict arose

15

with his court-appointed counsel. App. Opening Br. at 96-108; App. Reply Br. at

16

33-39. Although the trial court and trial counsel were aware that Mr. Jones and

17

trial counsel had been unable to communicate effectively from the onset of the

18

case, neither took any action to inquire into the extent of the conflict until Mr.

19

Jones formally raised the issue on April 14, 1993. Without conducting an adequate

20

inquiry, the trial court perfunctorily dismissed Mr. Jones’s request for the

21

appointment of new counsel. Because an irreconcilable conflict did in fact exist,

22

which led counsel to render deficient performance that prejudiced Mr. Jones at

23

trial, he was denied the right to a fair trial, due process, the effective assistance of

24

counsel, and reliable guilt and penalty phase verdicts.

25

In the months leading up to the hearing at which he moved the court for new

26

counsel pursuant to People v. Marsden, 2 Cal. 3d 118, 84 Cal. Rptr. 156 (1970),

27

Mr. Jones unequivocally expressed to the trial court deeply-rooted problems with

28

trial counsel.

The record reveals a severe disruption in the attorney-client
59

Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

relationship from the outset of the criminal proceedings to the extent that no

2

effective attorney-client relationship was ever formed. In a court appearance on

3

January 25, 1993, approximately three months prior to the Marsden hearing, Mr.

4

Jones expressed his distrust of trial counsel to the court, indicating ongoing and

5

potentially fatal problems with the attorney-client relationship:

6

Mr. Manaster: . . . There are some pretrial matters that have to be

7

disposed of. And I think the ruling on the 995 might be helpful -

8

The Defendant: Leave me alone. Leave me alone.

9

The Court: All right. You waive time for trial, Sir, Monday, February

10

The Defendant: I said no.

11

Mr. Wojdak: Has the defendant been arraigned? I have copies of the

12

information here. But I thought we arraigned him last time.

13

The Court: He was arraigned in my absence on the 24th.

14

Mr. Wojdak: Does the Court have an information?

15

The Court: Yes, I do.

16

Mr. Wojdak: All right. That’s what I had thought.

17

The Court: All right. I'll try once more. Mr. Jones, do you waive

18

time for trial until -

19

The Defendant: No.

20

The Court: All right.

21

February 22nd, if that’s satisfactory with you, Mr. Manaster?

22

I'm going to set this matter for pretrial

1 RT 6.

23

This dialogue made clear that Mr. Jones was not able to communicate with

24

his counsel, and that the judge was unconcerned about this obvious breakdown in

25

the attorney-client relationship. His protests were ignored by both his counsel and

26

the court.

27

At the pretrial conference on April 14, 1993, Mr. Jones again refused to

28

waive time and made a demand to be heard on the conflict issue. Mr. Jones
60
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

declared a conflict of interest between himself and trial counsel and attempted to

2

inform the court of his concerns. 1 RT 18. Mr. Jones told the judge that he was

3

unable to communicate with his attorney, and that the two were “[getting] into it”

4

at the jail. 1 RT 18. Mr. Jones further informed the court that the officers at the

5

county jail could verify the arguments between the two of them. 1 RT 18.

6

Mr. Jones stated that his attorney had not been visiting him to keep him

7

informed of case developments nor had trial counsel visited him prior to the

8

preliminary hearing. 1 RT 19. He further explained that trial counsel had refused

9

to address a long list of his concerns. 1 RT 19. Mr. Jones went further to arrange

10

for the presence of another attorney who was willing to accept the appointment as

11

replacement counsel. 1 RT 19.

12

These grievances would be sufficient to trigger a proper hearing in the most

13

basic of criminal cases, and especially in a potentially capital case. Instead, the trial

14

court arbitrarily dismissed Mr. Jones’s concerns, stating merely that “He’s not a

15

mouthpiece. He’s your attorney.” 1 RT at 19-20. Given the court’s unwilling to

16

permit Mr. Jones the opportunity to state his grievances, trial counsel was forced to

17

suggest to the court that Mr. Jones was making a Marsden motion and that it was

18

inappropriate for the prosecutor to be present. 1 RT 20. Once trial counsel’s

19

request triggered a Marsden hearing, at a minimum the court was required to make

20

appropriate inquiries of Mr. Jones so that it could determine the nature of, and

21

resolve, the conflict of interest.

22

What actually occurred fell far short of a constitutionally adequate inquiry to

23

ensure Mr. Jones was receiving effective representation. The judge began by

24

asking, “What else is wrong with Mr. Manaster’s representation . . . ?” 1 RT 21.

25

Mr. Jones started to explain that counsel made a statement to him about his guilt

26

and innocence, and “hinted around to me taking a 15 to life deal.” 1 RT 21. The

27

judge interrupted immediately, berating Mr. Jones for getting “mad at him because

28

he’s the messenger” of the plea offer, and then refused to allow Mr. Jones to
61
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

explain further. 1 RT 21.

2

Trial counsel then explained to the court his position on Mr. Jones’s

3

concerns. Counsel first explained that, in fact, no plea bargain had been offered; he

4

merely attempted to discuss a range of sentencing options with Mr. Jones. 1 RT

5

22. Trial counsel explained that he had visited Mr. Jones, and continued the

6

preliminary hearing in order to do so. 1 RT 22. Counsel expressed his opinion that

7

he saw no reason why he could not continue to represent Mr. Jones despite their

8

prior disagreements. 1 RT 23.

9

After this exchange, the trial court “most emphatically denied” the Marsden

10

motion. 1 RT 23. The sealed transcript of the hearing consists of eighty-one lines

11

of dialogue: only five and one half of these lines were spoken by Mr. Jones. 1 RT

12

21-23. After the motion was denied, Mr. Jones repeatedly informed the judge that

13

he absolutely could not communicate with his lawyer. The judge ignored his

14

protests, and again denied him the opportunity to explain the nature of the conflict

15

and how that conflict was adversely affecting trial counsel’s representation. 1 RT

16

23-24.26

17

As a result of the trial court’s failure to conduct an adequate inquiry, and

18

indeed depriving Mr. Jones of the opportunity to speak, the court failed to ascertain

19

the nature and extent of the conflict between counsel and Mr. Jones. Although Mr.

20

Jones was not permitted to present his concerns and grievances, regarding his

21

attorney’s representation, in any meaningful sense that would have allowed the

22
23
24
25
26
27
28

26

The judge continued to be dismissive of Mr. Jones’s concerns following the
denial of the Marsden motion. In another display of the court’s willful disregard
with respect to the existence of a conflict between petitioner and trial counsel, the
judge commented, “I can’t get a rational time waiver from defendant, who
appears to be not too happy this morning . . .” 1 RT 26. The judge then added:
“Mr. Jones, you are in a spot. I don’t want to hear any more talk from you this
morning. You want to rap next time, we’ll do a little bit of rapping. We’re not
rapping anymore this morning. I'm cool, you be cool.” 1 RT at 27.
62
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

court to evaluate the merits of the conflict, the breakdown of the attorney-client

2

relationship was acute and irreconcilable. As a result, trial counsel labored under a

3

conflict of interest that severely and adversely prejudiced Mr. Jones because it

4

prevented trial counsel from presenting adequately investigated guilt and penalty

5

defenses at trial.

6

Mr. Jones’s representations to the court, that his attorney was visiting

7

infrequently and was not engaging with him about his case, are confirmed by trial

8

counsel. During his representation, trial counsel admits he not only retained his

9

full felony caseload, but was assigned new cases up until the time he announced

10

ready for trial. Ex. 150 at 2730. Trial counsel unreasonably failed to adequately

11

investigate Mr. Jones’s case before deciding upon a trial defense. See Claim One,

12

supra.

13

compelling penalty phase evidence. See infra Claim Sixteen.

Similarly, trial counsel unreasonably failed to investigate and present

14

Soon after the Marsden hearing, the trial court knew, or reasonably should

15

have known, that Mr. Jones might not be competent. 1 RT 14 (court agreed to

16

appoint mental health experts to determine Mr. Jones’s competence); 1 RT 26-27

17

(court noted Mr. Jones’s irrational behavior). In light of their knowledge of Mr.

18

Jones’s compromised functioning, the trial court and trial counsel had a duty to

19

ensure that he was afforded the necessary accommodations to ensure that his Sixth

20

Amendment right to counsel was fully protected. Instead, the trial court’s failed to

21

give Mr. Jones an adequate opportunity to raise his concerns regarding trial

22

counsel’s competence, diligence, and their deteriorating working relationship and

23

replace counsel, in light of the irreconcilable breakdown in the attorney-client

24

relationship and trial counsel’s apparent conflicting interests.

25

The Sixth Amendment’s right to counsel includes that the defendant has the

26

right for substitute counsel should an irreconcilable conflict arise between him and

27

his assigned counsel, as representation by a counsel so burdened by conflict

28

deprives a criminal defendant of effective representation.
63

See, e.g., Wood v.

Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

Georgia, 450 U.S. 261, 273-74, 101 S. Ct. 1097, 67 L. Ed. 2d 220 (1981); Schell v.

2

Witek, 218 F.3d 1017, 1023 (9th Cir. 2000); Brown v. Craven, 424 F.2d 1166, 1170

3

(9th Cir. 1970). Clearly established federal law requires that, in order to safeguard

4

this right, the defendant be given an adequate opportunity to explain his reasons for

5

desiring a substitution of counsel prior to the trial court ruling on the request. See,

6

e.g., Wood, 450 U.S. at 273 (trial court must hold “a hearing” to determine if the

7

defendant can show that there has been a breakdown in the attorney-client

8

relationship before ruling on the motion); Hudson v. Rushen, 686 F.2d 826, 829

9

(9th Cir. 1982) (“In evaluating a trial court’s denial of a motion for new counsel,

10

we consider a number of factors, including . . . the adequacy of the court’s inquiry

11

into the defendant’s complaint . . .”); Schell, 218 F.3d at 1024-25 (holding that state

12

trial court’s failure to inquire into defendant’s reasons for requesting substitute

13

counsel constituted a violation of clearly established federal law, such that federal

14

habeas corpus relief may lie); cf. Plumlee v. Del Papa, 465 F.3d 910, 919-20 (9th

15

Cir. 2005) (collecting other-circuit cases and holding that it is clearly established

16

federal law that a defendant is entitled to new counsel where there has been a

17

breakdown in the attorney-client relationship). This requirement inheres to the

18

standard employed by the California Supreme Court, as well.

19

Marsden, 2 Cal. 3d at 123-24; Hudson, 686 F.2d at 829.

See People v.

20

The trial court’s inquiry is constitutionally infirm when the court does not

21

inquire as to “what the defendant’s defense was, that trial counsel had consulted

22

sufficiently with the defendant, that trial counsel was prepared, and that his advice

23

to the defendant . . . was not aberrational.” Hudson, 686 F.2d at 829 (citing

24

Marsden, 2 Cal. 3d at 123). The trial court conducts this inquiry by questioning

25

the attorney or defendant “privately and in depth” and by examining available

26

witnesses. Daniels v. Woodford, 428 F.3d 1181, 1200 (9th Cir. 2005) (citing United

27

States v. Nguyen, 262 F.3d 998, 1004 (9th Cir. 2001), and United States v. Moore,

28

159 F.3d 1154, 1160 (9th Cir. 1998)). Plainly, a constitutionally adequate inquiry
64
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

necessarily requires consideration of facts not in the record or that would not be

2

apparent to the trial judge simply from observing the defendant and his counsel

3

during court proceedings. See, e.g., Daniels, 428 F.3d at 1200 (finding trial court’s

4

inquiry inadequate where the trial court did not call any witnesses on the issue, did

5

not provide the defendant an opportunity to detail his grievances, and did not

6

question the defendant or his attorney individually after the assertion of conflict

7

was raised); Schell, 218 F.3d at 1027-28 (remanding the case for evidentiary

8

hearings on the nature and extent of the alleged conflict and whether the asserted

9

conflict deprived the defendant of his Sixth Amendment rights, where the state

10

court’s fact finding about defendant’s reasons for propounding a Marsden motion

11

were inadequate); see also Marsden, 2 Cal. 3d at 123-24 (“‘[w]hen inadequate

12

representation is alleged, the critical factual inquiry ordinarily relates to matters

13

outside the trial record: whether the defendant had a defense which was not

14

presented; whether trial counsel consulted sufficiently with the accused, and

15

adequately investigated the facts and the law; whether the omissions charged to

16

trial counsel resulted from inadequate preparation rather than from unwise choice

17

of tactics and strategy.’”) (quoting Brubaker v. Dickson, 310 F.2d 30, 32 (9th Cir.

18

1962)).

19

As set forth on direct appeal, the trial court made none of the inquiries

20

required under federal or state law. He asked minimal questions of Mr. Jones or his

21

attorney and, on the few occasions when they were able to provide the court with

22

information about the attorney-client relationship, the court interrupted with his

23

own suppositions about that relationship based on his observation of other cases.

24

See 1 RT 21; App. Opening Br. at 106-07. He asked no questions about the

25

“defense[s] [trial counsel had] not presented” nor “whether trial counsel had

26

consulted sufficiently with the accused.” See Marsden, 2 Cal. 3d at 123; App.

27

Opening Br. at 97-100. Although Mr. Jones informed the trial court that his

28

counsel had not followed up on investigative leads Mr. Jones had provided, 1 RT
65
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

18, the trial court did not even follow up on that information and inquire “whether

2

trial counsel . . . adequately investigated the facts and the law” and “whether the

3

omissions charged to trial counsel resulted from inadequate preparation rather than

4

from unwise choice of tactics and strategy.” See Marsden, 2 Cal. 3d at 123-24;

5

App. Opening Br. at 97-100. The trial court asked only a few questions of Mr.

6

Jones and his counsel and never called any witnesses concerning Mr. Jones’s

7

allegations. See Daniels, 428 F.3d at 1200. Most importantly, aside from how

8

truncated and brief the trial court’s inquiry was, it reflected no effort to learn the

9

facts necessary to the resolution of Mr. Jones’s motion, which is the gravamen of a

10

constitutionally sound inquiry. See Hudson, 686 F.2d at 829; Schell, 218 F.3d at

11

1024-25; Marsden, 2 Cal. 3d at 123-24.

12

The California Supreme Court unreasonably ignored these clearly

13

established requirements when considering the trial court’s decision on direct

14

appeal. Instead of reviewing the adequacy of the trial court’s inquiry into Mr.

15

Jones’s request for substitute counsel, as required by federal and state law, the

16

court skipped this step of analysis entirely and held that the trial court was “entitled

17

to accept counsel’s explanation” for his choices while representing Mr. Jones,

18

People v. Jones, 29 Cal. 4th 1229, 1245, 131 Cal. Rptr. 2d 468 (2003), and that the

19

reasons that Mr. Jones was able to put into the record for wanting substitute

20

counsel were inadequate under the law. Id. at 1246. By failing to conduct an

21

essential step of its analysis – assessing whether the trial court had allowed Mr.

22

Jones or other witnesses to describe all of the facts that indicated that an

23

irreconcilable conflict between counsel and Mr. Jones had arisen – the California

24

Supreme Court employed a method of resolving Mr. Jones’s direct appeal claim

25

that was contrary to clearly established federal law. See, e.g., Daniels, 428 F.3d at

26

1200; Schell, 218 F.3d at 1027-28; Hudson, 686 F.2d at 829. As such, this Court

27

must, under section 2254(d)(1), review Mr. Jones’s claim de novo. See Williams

28

(Terry) v. Taylor, 529 U.S. 362, 405-06, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000)
66
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

(holding a state court decision is “contrary to” clearly established federal law if the

2

state court “applies a rule that contradicts the governing [federal] law”); Penry v.

3

Johnson, 532 U.S. 782, 792, 121 S. Ct. 1910, 150 L. Ed. 2d 9 (2001) (same);

4

Ferndandez v. Roe, 286 F.3d 1073, 1077 (9th Cir. 2002) (reviewing habeas

5

petitioner’s claims de novo because the state court relied on case law employing a

6

standard different from the federal constitutional rule and holding “where the . . .

7

court has applied the wrong legal standard, AEDPA’s rule of deference does not

8

apply”).

9

The California Supreme Court’s decision further violated clearly established

10

federal law because it reflected a procedure for adjudicating Marsden claims that

11

deviates, materially and without notice to Mr. Jones, from the announced state

12

procedures. As described above, Marsden requires a detailed inquiry into facts

13

outside of the trial record and outside of the trial court’s observations during

14

proceedings, including the nature of the defendant’s relationship with counsel,

15

what investigation and strategic choices counsel has undertaken, and what possible

16

defenses counsel has foregone and why. See Marsden, 2 Cal. 3d at 123-24. At the

17

time of his trial and his direct appeal, Mr. Jones had an expectation that the trial

18

court would consider his motion using this announced rule and that the California

19

Supreme Court would review the trial court in light of this rule; this expectation

20

was guaranteed by Mr. Jones’s federal due process rights as set forth by the United

21

States Supreme Court. See Hicks v. Oklahoma, 447 U.S. 343, 346-47, 100 S. Ct.

22

2227, 65 L. Ed. 2d 175 (1980) (holding that “[t]he defendant . . . has a substantial

23

and legitimate expectation that he will be deprived of his liberty only” in

24

accordance with due process of law, as defined by the state’s own announced

25

procedures in conducting criminal trials). Thus, by failing to adhere to California’s

26

established procedural requirements for adjudication of a Marsden motion, the

27

California Supreme Court acted contrary to clearly established federal law and,

28

pursuant to section 2254(d)(1), Mr. Jones is entitled to de novo review of this
67
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

claim.

2

Finally, the California Supreme Court’s decision reflects an unreasonable

3

determination of the facts in light of the record before it, further entitling Mr. Jones

4

to de novo review under section 2254(d). A state court decision is unreasonable

5

within the meaning of section 2254(d)(2) if the state court ignored facts that were

6

relevant and necessary to the resolution of the claim.

7

Cockrell, 537 U.S. 322, 347, 123 S. Ct. 1029, 154 L. Ed. 2d 931 (2003); Taylor v.

8

Maddox, 366 F.3d 992 1001 (9th Cir. 2004); Ali v. Hickman, 571 F.3d 902, 921

9

(9th Cir. 2009). As detailed, neither the trial court nor the California Supreme

10

Court considered the panoply of facts nor made the requisite fact-finding necessary

11

for resolution of Mr. Jones’s claim. Where, as here, the petitioner has been given

12

no opportunity to develop the factual record necessary to support his claim, and the

13

state court relies on that failure as a reason for denying him relief, see Jones, 29

14

Cal. 4th at 1246, this Court may not defer to those factual findings but instead

15

allow Mr. Jones the opportunity to prove the merits of his claim. See Schell, 218

16

F.3d at 1027-28.

17

C.

See, e.g., Miller-El v.

Claim Three: The State Withheld Material Exculpatory Evidence.

18

Mr. Jones satisfied state pleading requirements by presenting his claim that

19

the prosecutor unlawfully withheld exculpatory evidence in state court with

20

sufficient detail and supporting factual material to establish a prima facie showing

21

that he was entitled to relief. See, e.g., Duvall, 9 Cal. 4th at 474. In the state court,

22

Mr. Jones demonstrated that the prosecution suppressed material, exculpatory

23

evidence during his trial in violation of Brady v. Maryland, 373 U.S. 83, 87, 83 S.

24

Ct. 1194, 10 L. Ed. 2d 215 (1963), that would have supported Mr. Jones’s guilt and

25

penalty phase defenses concerning his long-standing history of mental illness.

26

Specifically, the prosecutor did not disclose (1) a 1984 emergency room report

27

documenting Mr. Jones’s history of memory loss; and (2) jail medical records

28

detailing when and the reasons why medical personnel prescribed powerful,
68
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

antipsychotic medication to Mr. Jones following his arrest. State Pet. at 365-66;

2

Inf. Reply at 232-33; Supplemental Allegations in Support of Petition for Writ of

3

Habeas Corpus, NOL at D.1. (“Supp. Pet.”) at 5-10; Reply to the Informal

4

Response, NOL at D.5. (“Supp. Reply”) at 9-16. As a result of withholding this

5

information, the prosecution was permitted to disparage Mr. Jones’s defenses by

6

falsely asserting that Mr. Jones lied about having a mental illness to invent a

7

“psychiatric defense” and avoid responsibility for the crimes. See, e.g., 26 RT

8

3905-06; 27 RT 3969, 3971-72; 31 RT 4645, 4652-53.

9

This claim was not procedurally defaulted, and respondent did not present

10

factual materials or legal argument in state court to establish that Mr. Jones’s prima

11

facie showing should not be taken as true or that it otherwise lacked merit. Under

12

these circumstances, the state court was required to issue an order to show cause

13

and allow Mr. Jones access to state processes to develop and present evidence to

14

prove his claim. See, e.g. Duvall, 9 Cal. 4th at 475; Romero, 8 Cal. 4th at 742. By

15

instead summarily denying Mr. Jones’s claim, the California Supreme Court’s

16

decision satisfies section 2254(d) as set forth in Mr. Jones’s prior briefing and in

17

the sections that follow.

18

1. There Is No Reasonable Basis for the State Court Ruling That Mr.

19

Jones Failed to Make a Prima Facie Showing for Relief.

20

a. Mr. Jones Made a Prima Facie Showing That the Prosecutor

21

Unlawfully Withheld the 1984 Emergency Room Report.

22

During post-conviction discovery, counsel for Mr. Jones discovered the 1984

23

emergency room report in a prosecution’s file labeled “privileged.” Supp. Pet. at 7

24

(“At the August 20, 2004 hearing on the Discovery Motion, the deputy district

25

attorney representing the state informed counsel that during counsel’s review of the

26

District Attorney’s file of Mr. Jones’s case some documents had erroneously been

27

labeled privileged, thus preventing counsel from reviewing them. She [thereafter]

28

disclosed the erroneously labeled documents to counsel.”).
69
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

The report was
Case No. CV-09-2158-CJC

1

prepared after police officers witnessed Mr. Jones exhibiting psychiatric symptoms

2

while they arrested him for the sexual assault of Kim Jackson. Ex. 179. Dr. Storm

3

examined Mr. Jones shortly after his arrest, noting that he had a two-year history of

4

transient memory loss and diagnosing him as suffering from “transient lapse

5

memory.” Ex. 180.

6

Mr. Jones established a prima facie showing that the failure to disclose the

7

report violated his federal constitutional rights. The report was favorable because

8

it fully supported Mr. Jones’s guilt phase defense that he lacked the requisite

9

mental state to convict him of first-degree murder and to find true the special

10

circumstance and provided compelling mitigating evidence. Opening Br. at 45-46.

11

The report unquestionably was withheld by the prosecution, and indeed the

12

prosecutor ensured that it would not be inadvertently disclosed by inaccurately

13

labeling the report as “privileged.” Opening Br. at 46-47, 48 n.19. Finally, the

14

report was material because it provided independent support for Mr. Jones’s

15

testimony, buttressed the testimony of Claudewell Thomas, M.D., and would have

16

prompted trial counsel to conduct a thorough investigation of Mr. Jones’s long-

17

standing mental impairments. Opening Br. at 47-50.27

18

1) The California Supreme Court could not reasonably reject

19

the claim based on the inadmissibility of the record.

20

Respondent argues that the California Supreme Court may have rejected the

21
22
23
24
25
26
27
28

27

In state court, respondent contended that Mr. Jones failed to state a prima
facie case for relief because he failed to plead sufficient facts; in particular,
respondent argued that Mr. Jones failed to produce a declaration from the doctor
who prepared the report or any other documentation supporting the reliability of
the report. Informal Response to Petition for Writ of Habeas Corpus, NOL at D4
(“Supp. Inf. Resp.”) at 5. Respondent wisely abandoned that argument before this
Court. The absence of any such indication from the state court forecloses the
argument that it rejected the claim based on any purported lack of documentation.
See section II.A.2., supra.
70
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

claim because the report contained inadmissible evidence and, therefore, was not

2

material. Opp. at 41. In support of this proposition, respondent asserts that it

3

“appears that the doctor’s notation regarding Petitioner’s history of transient

4

memory loss was based on Petitioner’s own statements to the doctor.” Opp. at 41.

5

The bases for Dr. Strom’s conclusions about Mr. Jones’s medical history require a

6

factual determination, one that the California Supreme Court was unable to make

7

prior to the issuance of an order to show cause. See section II.A.3, supra.

8

Respondent incorrectly asserts that the California Supreme Court reasonably

9

could have determined that the report was non-material because it contained

10

inadmissible hearsay.28

11

touchstone for whether it is material for Brady purposes. See, e.g., Carriger v.

12

Stewart, 132 F.3d 463, 481 (9th Cir. 1997) (en banc) (“The evidence revealed in

13

Dunbar’s file need not have been independently admissible to have been

14

material.”). Thus, withheld evidence that may otherwise be inadmissible may be

15

material under traditional exceptions to the hearsay rule. See, e.g., United States v.

16

Olsen, 704 F.3d 1172, 1184 (9th Cir. 2013) (“‘Evidence can be “used to impeach” a

17

witness even if the evidence is not itself admissible, even to impeach’—a written

18

statement, for instance, that contradicts a witness’s testimony but is inadmissible as

19

hearsay could still be used as a prior inconsistent statement to cross-examine the

The admissibility of the document is not the sole

20
21
22
23
24
25
26
27
28

28

Respondent focuses this argument solely on the statement in the “History
and Physical Examination” section report that Mr. Jones had a two year history of
“transient memory loss.”
Ex. 180.
The separate “Diagnosis” section
unquestionably was completed by Dr. Storm and represents his medical opinion
following his examination of Mr. Jones. Dr. Strom examined Mr. Jones for the
purpose of securing evidence to be used by the police, at which time he made a
diagnosis, based on his first-hand observation of Mr. Jones’s condition, that Mr.
Jones suffered from transient memory lapse. Ex. 180.
71
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

witness.”) (quoting Paradis v. Arave, 240 F.3d 1169, 1179 (9th Cir. 2001)).29 In

2

addition, inadmissible evidence that could have led to the discovery of admissible

3

evidence also may qualify as material under Brady. See, e.g., United States v.

4

Price, 566 F.3d 900, 911 (9th Cir. 2009); Paradis, 240 F.3d at 1178-79.

5

The statements in the Report would have been admissible pursuant to three

6

well-established evidentiary theories. First, Mr. Jones’s statements that he suffered

7

from transitory memory loss for a two-year period prior to the 1984 examination

8

and that he experienced such a condition during the Kim Jackson crime were

9

admissible as prior consistent statements. See, e.g., Cal. Evid. Code § 791(b) (prior

10

consistent statements are admissible when an “express or implied charge has been

11

made that his testimony at the hearing is recently fabricated or is influenced by bias

12

or other improper motive, and the statement was made before the bias, motive for

13

fabrication, or other improper motive is alleged to have arisen”).

14

consistently has permitted the admission of prior consistent statements in criminal

This rule

15
16
17
18
19
20
21
22
23
24
25
26
27
28

29

The case cited by respondent, Smith v. Baldwin, 510 F.3d 1127, 1148 (9th
Cir. 2007) (en banc), is inapplicable in this situation. In Smith, the court
addressed whether the state’s failure to disclose inconclusive results of a
polygraph administered to Mr. Smith’s co-defendant constituted “sufficient cause
and prejudice to excuse the procedural default resulting from Smith’s failure to
exhaust his state remedies.” Id. at 1130. Mr. Smith asserted that his no-contest
plea was induced by his mistaken belief that the co-defendant has passed the
polygraph examination. Id. at 1139. The court concluded that the polygraph
examination results were not material given the circumstances of the case: “[I]t is
not reasonably probable that the immediate disclosure of the polygraph results
would have influenced Smith’s decision to plead no contest rather than proceed to
trial because Smith ‘could have made no mention of them either during argument
or while questioning witnesses’ or at any other point in the trial.” Id. at 1148
(quoting Wood v. Bartholomew, 516 U.S. 1, 6, 116 S. Ct. 7, 133, L. Ed. 2d 1
(1995)). Given that Mr. Smith made no showing how his plea decision would
have been different had the state disclosed the results or how he would have been
able to use those results at his trial, he sustained no prejudice. Id.
72
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

proceedings. See, e.g., People v. Lopez, 56 Cal. 4th 1028, 1066-68, 301 P.3d 1177

2

(2013) (holding capital murder victim’s diary entry stating that defendant stabbed

3

and kidnapped her, and victim’s similar statement to a teacher, were admissible

4

under the prior consistent statement hearsay exception); People v. Gurule, 28 Cal.

5

4th 557, 620-21, 51 P.3d 224 (2002) (holding testimony of interrogating officer

6

recounting prior consistent statements of capital murder defendant’s accomplice

7

admissible to rebut defense claim of recent fabrication); People v. Randle, 8 Cal.

8

App. 4th 1023, 1037-38, 10 Cal. Rptr. 2d 804 (1992) (holding prior consistent

9

statement is admissible over hearsay objection if statement is offered after evidence

10

of statement made by witness that was inconsistent with witness’ testimony, or

11

express or implied charge has been made that witness testimony is recently

12

fabricated or influenced by bias or other improper motive).

13

The precondition in Evidence Code section 791(b) was satisfied as the

14

prosecutor insinuated that Mr. Jones fabricated his testimony. During the guilt

15

phase, Mr. Jones testified that he blacked out during the capital crime and awoke to

16

find Mrs. Miller’s dead body. 22 RT 3335-37. When trial counsel began to ask

17

Mr. Jones about psychiatric treatment, the prosecutor objected, asserting that there

18

was no evidence that “he had a psychiatric problem.”

19

prosecutor continued, insinuating that Mr. Jones was fabricating his defense

20

because “it makes sense that now when he commits this crime, it’s because of a

21

psychiatric problem.” 22 RT 3354. During cross-examination, the prosecutor

22

berated Mr. Jones for failing to recall the events during the crime. 23 RT 3482-85.

23

In particular, the prosecutor questioned Mr. Jones’s inability to remember killing

26 RT 3349.30

The

24
25
26
27
28

30

Despite possessing the withheld Report, the prosecutor further insinuated
that no such diagnoses existed: “If, in fact, it was diagnosed by somebody seeing
him and there was a diagnostic study done which seems to suggest that there was
a psychiatric problem or at least a question as to whether there was or not as to
how much psychiatric care he got.” 22 RT 3349.
73
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

Mrs. Miller. 23 RT 3482-85; see also 23 RT 3495-96. Had trial counsel possessed

2

the withheld Report, he would have introduced it to rebut the prosecutor’s

3

insinuations that Mr. Jones had fabricated the defense to escape liability for the

4

capital crime. Ex. 181 at 3162 (“Given the nature of the information contained in

5

the Beverly Hills Medical Center emergency room record, I would have used it at

6

Mr. Jones’s trial. This medical record is strong evidence, which would have

7

supported my guilt phase defense that Mr. Jones was unable to form the requisite

8

intent to commit a felony murder or to commit any of· the charged special

9

circumstances.”).31

10

Second, even assuming that Mr. Jones’s statements contained in the “History

11

and Physical Examination” section of the report that he had a two-year history of

12

“transient memory loss” was objectionable, the remaining portions of the Report

13

were admissible. The Report was a writing made in the regular course of business

14

at or near the time of Ms. Jackson’s assault, and as such qualified as an exception

15

to the hearsay rule. Cal. Evid. Code § 1271; People v. Moore, 5 Cal. App. 3d 486,

16

492-93, 85 Cal. Rptr. 194 (1970) (“It is well established that hospital records are

17

business records and as such are admissible if properly authenticated. The records

18

here were admissible to show that defendant had in fact been committed to the

19
20
21
22
23
24
25
26
27
28

31

Respondent cites to two cases that did not address the admissibility of the
Mr. Jones’s statements under Evidence Code section 791(b). People v. Williams,
187 Cal. App. 2d 355, 365, 9 Cal. Rptr. 722 (1960), was decided prior to the
adoption of the California Evidence Code on May 18, 1965, effective January 1,
1967. Cal. Evid. Code. In People v. Alexander, 49 Cal. 4th 846, 867, 235 P.3d
873 (2010), the defendant argued that he was prejudiced in presenting a defense
because destroyed optometrist records could have proved that he had not worn
prescription glasses prior to 1981 or 1982. The Court held that “Defendant has
not explained how the records otherwise could have led to admissible evidence on
the issue” and cited general rules regard the admissibility of hearsay evidence.
Thus, the Court was not presented with an issue of whether Evidence Code
section 791(b) permitted the admissibility of the records.
74
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

mental institutions and, further, to show the fact that he had been diagnosed while

2

there as mentally ill.”) (citations omitted).

3

admissible to show law enforcement personnel transported Mr. Jones for

4

emergency medical care following his assault on Ms. Jackson, and that Dr. Strom

5

examined him for a complaint of memory loss. Thus, Dr. Storm’s conclusions

6

about Mr. Jones’s then-current transient memory loss are admissible under any

7

circumstances. See, e.g., Moore, 5 Cal. App. 3d at 493 (hospital records were

8

admissible to establish that doctors had committed defendant upon a diagnosis that

9

he was mentally ill).

At a minimum, the Record was

10

Third, Dr. Thomas could have relied upon the entire Report in reaching his

11

conclusions regarding Mr. Jones’s mental state at the time of the crime and as

12

mitigation.32 See, e.g., Cal. Evid. Code § 804(d); People v. Campos, 32 Cal. App.

13

4th 304, 307-08, 38 Cal. Rptr. 2d 113, 114 (1995) (“Psychiatrists, like other expert

14

witnesses, are entitled to rely upon reliable hearsay, including the statements of the

15

patient and other treating professionals, in forming their opinion concerning a

16

patient’s mental state.”); see also Supp. Reply at 16. Trial counsel presented

17

evidence, through Dr. Thomas, that Mr. Jones suffered from a major psychiatric

18

disorder. 30 RT 4413-14. In forming his opinion, regarding Mr. Jones’s mental

19

condition, Dr. Thomas had relied on reports of Dr. Maloney and Dr. Vicary

20

prepared in 1985. 30 RT 4417. Based on those reports, Dr. Thomas described Mr.

21

Jones’s mental illness as a progressive disorder getting worse over time. 30 RT

22

4418. Dr. Thomas also could have relied on the emergency room report, which

23

was independent evidence of Mr. Jones’s dissociative disorder dating back to at

24

least 1982, as further evidence of the progressive nature of his illness. In addition,

25

the report would have supported Dr. Thomas’s testimony that it was possible for

26
27
28

32

As counsel notes in his declaration, he would have provided the Report to
Dr. Thomas. Ex. 181 at 3162.
75
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

Mr. Jones not to remember assaulting and killing Mrs. Miller (30 RT 4459), and

2

that Mr. Jones had experienced this type of event on at least three occasions. 30

3

RT 4467.

4

Moreover, the Report would have played an important role in uncovering

5

admissible evidence, aiding witness preparation, and corroborating testimony. The

6

Report would have alerted trial counsel to the need to investigate Mr. Jones’s

7

history of dissociation, interview Dr. Strom, and to explore presenting Dr. Strom as

8

a witness at Mr. Jones’s trial. Supp. Pet. at 9-10; Supp. Reply at 9-10. Mr. Jones

9

also furnished a declaration from trial counsel detailing how he would have used

10

the Report at trial to support his guilt phase and penalty phase defenses. See Ex.

11

181 at 3163 (counsel would have used the Report to show that Mr. Jones was

12

unable to form the requisite intent for felony murder and the charged special

13

circumstances); Ex. 181at 3163 (counsel would have used it support his lingering

14

doubt and general mental health defenses in the penalty phase).33

15

2) The California Supreme Court could not reasonably reject

16

the claim based on a theory that Mr. Jones had personal

17

knowledge of the record.

18

Respondent argues, for the first time in federal court, that the state had no

19

duty to disclose the Report because Mr. Jones’s memory loss was within his own

20

personal knowledge. Opp. at 42. As the argument was not before the California

21

Supreme Court, it could not have been the basis for its decision. See section

22

II.A.4., supra.

23

California Supreme Court could not reasonably have relied upon it in rejecting the

24

claim because – although Mr. Jones knew about his history of transient memory

Moreover, even had respondent timely raised the issue, the

25
26
27
28

33

The manner by which trial counsel would have used the withheld report
required a factual inquiry that the state court did not, and could not, conduct under
its controlling law.
76
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

loss, and indeed testified about it – Mr. Jones was unaware that a report existed to

2

substantiate his testimony. Supp. Pet. at 2, 10; Ex. 181 at 3161. In determining

3

whether evidence has been suppressed under Brady, the inquiry is whether a

4

defendant “has enough information to be able to ascertain the supposed Brady

5

material on his own.” If so, there is no Brady violation. United States v. Aichele,

6

941 F.2d 761, 764 (9th Cir. 1991); see also United States v. Bracy, 67 F.3d 1421,

7

1428-29 (9th Cir. 1995) (holding criminal history was not suppressed because the

8

government “disclos[ed] ... all the information necessary for the defendants to

9

discover the alleged Brady material”); United States v. Dupuy, 760 F.2d 1492, 1501

10

n.5 (9th Cir. 1985).

On the other hand, where an individual does not have

11

sufficient information to find the material with reasonable diligence, “the state’s

12

failure to produce the evidence is considered suppression.” Milke v. Ryan, 711 F.3d

13

998, 1017-18 (9th Cir. 2013); see also United States v. Howell, 231 F.3d 615, 625

14

(9th Cir. 2000) (“[t]he availability of particular statements through the defendant

15

himself does not negate the government’s duty to disclose. . . . [defendants] cannot

16

always remember all of the relevant facts or realize the legal importance of certain

17

occurrences”). As there is no evidence whatsoever that Mr. Jones or his counsel

18

were aware of the withheld emergency room report, his prima facie case may not

19

have been rejected on that basis.

20

3) The California Supreme Court could not reasonably reject

21

the claim based on a theory that Mr. Jones was not

22

prejudiced by suppression of the Report.

23

Respondent cursorily argues that “the California Supreme Court reasonably

24

could have determined that Petitioner was not prejudiced by the prosecution’s

25

alleged failure to disclose the report.” Opp. at 42. In support of this assertion,

26

respondent relies on the previously addressed argument that “the statements in the

27

report were inadmissible” and a conclusion that “they would have not affected the

28

jury’s verdict or the outcome of the trial.” Id. As noted above, respondent is
77
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

incorrect on both points.

2

The Report would have demonstrated that, in the past, Mr. Jones had

3

experienced blackouts, which would have corroborated his testimony during the

4

guilt phase regarding his dissociative episode during the encounter with Mrs.

5

Miller. The Report also would have supported trial counsel’s argument to the jury

6

that Mr. Jones’s inability to recall events was a symptom of his mental illness that

7

prevented him from forming the specific intent for the felony murder-rape. 26 RT

8

3927-28. As such, the Report would have undermined the prosecution’s theory

9

that Mr. Jones formed the specific intent for the charged crimes and the special

10

circumstance, and contradicted his argument that there was no other reasonable

11

explanation of the evidence.

12

prosecutor was permitted to urge the jury to reject the evidence that Mr. Jones had

13

a mental disorder because it came from Mr. Jones’s uncorroborated testimony. 26

14

RT 3905; 27 RT 3972. The prosecutor then argued that Mr. Jones’s “story has been

15

concocted” in order to obtain a lesser offense and avoid responsibility for the acts

16

against Mrs. Miller. 26 RT 3906. The lack of corroborating evidence regarding

17

Mr. Jones’s mental state was a factor in a number of the jurors’ minds during guilt

18

phase deliberations. See, e.g., Ex. 140 at 2694 (“I needed to hear evidence that

19

corroborated [Mr. Jones’s] account, but I never did.”); Ex. 138 at at 2689-90 (“Mr.

20

Jones testified that he did not remember committing the crimes . . . apart from [Mr.

21

Jones’s] testimony, we never heard any explanation of what could have

22

happened.”). During deliberations, the jury submitted a question to the judge on

23

the issue of specific intent, an issue with which they clearly struggled.34 1 CT 249;

24

27 RT 4013.

25

27 RT 3969.

By withholding the Report, the

The Report would have been equally important in the jury’s penalty

26
27
28

34

The jury deliberated for four days. 1 CT 247-48, 251; 2 CT 377.
78

Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

determination.

2

evidence, including Mr. Jones’s assault on Kim Jackson. On cross-examination,

3

Ms. Jackson testified that she had requested Mr. Jones get psychiatric treatment as

4

a condition of his probation. 28 RT 4195-96; 30 RT 4414. Although Mr. Jones

5

attended Kedren Community Mental Health Center, where he had been referred to

6

by the probation department following his conviction for assaulting Ms. Jackson,

7

the prosecutor argued that Mr. Jones did not have “mental problems” and that he

8

went along with treatment at Kedren “to get a reduced sentence.” 31 RT 4640.

9

The prosecution was permitted to make such insinuations only by withholding the

10

In the penalty phase, the prosecution introduced aggravating

Report.

11

During the penalty phase, Dr. Thomas testified that Mr. Jones suffered from

12

a dissociative disorder, and at the time of the crime, he dissociated and was

13

unaware of and unable to control his actions. 30 RT 4435. Dr. Thomas opined that

14

Mr. Jones’s dissociation during the encounter with Mrs. Miller was consistent with

15

his dissociation during the Jackson and Harris assaults. 30 RT 4466-67. During

16

cross-examination, the prosecutor questioned Dr. Thomas’s reliance on Mr. Jones

17

as a source of information. See, e.g., 30 RT 4469, 4509-10, 4534, 4538. The

18

prosecutor recognized the importance of a contemporaneous or at least an

19

examination close in time to these dissociative events. He asked Dr. Thomas “in

20

terms of . . . talking about this progressive disease, wouldn’t it have been helpful

21

for you to have had the input of other doctors . . . right after it happened or as soon

22

thereafter as possible? … [T]he further you get away from the actual incident, the

23

more difficult it is to project back?”

24

affirmatively to both questions. Id. The Report was the only medical examination

25

of Mr. Jones performed within hours of a dissociative episode, making it all the

26

more critical as evidence of Mr. Jones’s blackouts and the progressive nature of his

27

mental illness. The Report also would have mitigated evidence that Mr. Jones had

28

initially reported his encounter with Ms. Jackson as a consensual act (30 RT 4524,
79
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

30 RT 4539.

Dr. Thomas responded

Case No. CV-09-2158-CJC

1

4540; 31 RT 4648-49), and countered the prosecutor’s suggestion that Mr. Jones

2

was remorseless after the Jackson incident. 30 RT 4542.

3

In penalty closing arguments, the prosecutor returned to his theme that Mr.

4

Jones was not mentally ill, but was a liar who conveniently invented a story about

5

flash backs while on the stand to avoid criminal responsibility. 31 RT 4648, 4650-

6

52. Had Dr. Thomas had the benefit of the Report, it would have lent support to

7

his opinions regarding Mr. Jones’s symptoms and illness, and provided

8

independent evidence of both. The prejudice Mr. Jones suffered as a result of the

9

suppression of the Report is clear from the California Supreme Court’s opinion, in

10

which the court joined in the prosecutor’s characterization of Mr. Jones’s illness as

11

a “recent fabrication.” People v. Jones, 29 Cal. 4th 1229, 1253, 131 Cal. Rptr. 2d

12

468 (2003). As the court stated, “if defendant had a history of flashbacks and

13

blackouts, Dr. Thomas should have been aware of it.” Id. Thus, the Report was

14

evidence of Mr. Jones’s history of dissociative episodes and mental disorder that

15

provided independent mitigating evidence as well as a convincing basis for and

16

critical corroboration of Dr. Thomas’s conclusions. See Cone v. Bell, 556 U.S. 449,

17

475, 129 S. Ct. 1769, 1786, 173 L. Ed. 2d 701 (2009) (ruling that suppressed

18

evidence of mental impairment might have been material to rebut prosecution

19

suggestion that defendant manipulated expert into believing he was a drug addict

20

and to jury’s assessment of the proper punishment in capital case; holding that a

21

full review of the suppressed evidence and its effect warranted); Brown v. Borg,

22

951 F.2d 1011, 1015 (9th Cir. 1991) (invalidating murder conviction where

23

prosecutor advanced a robbery-murder theory due to the victim’s missing wallet

24

and jewelry while failing to disclose that hospital personnel had found these items

25

and returned them to the victim’s family).

26

Finally, it is significant that the prosecutor disclosed the arrest report (Ex.

27

179), but withheld the actual emergency room report. Ex. 180. Suppression of the

28

Report itself is powerful evidence of its materiality. See, e.g., Silva v. Brown, 416
80
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

F.3d 972, 987 (9th Cir. 2005) (“The prosecutor’s actions can speak as loud as his

2

words.”).35

3

evidence regarding a deal was itself evidence that the state regarded such evidence

4

as “material,” and the court could rely thereon when assessing “materiality” of

5

undisclosed evidence for Brady purposes. Id. at 990-91.36 Given the importance

6

of the mental state defense, the prosecutor’s attacks on Mr. Jones’s credibility, and

7

the jury’s lengthy deliberations, there is a reasonable probability had the Report

8

been disclosed to the defense the result of the guilt phase of Mr. Jones’s trial would

9

have been different. See, e.g., United States v. Bagley, 473 U.S. 667, 682, 105 S.

10

In Silva v. Brown, the court held that the state’s suppression of

Ct. 3375, 87 L. Ed. 2d 481 (1985).

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

35

The prosecution also withheld exculpatory impeachment material regarding
Shamaine Love, who rebutted Mr. Jones’s veracity and the guilt and penalty phase
defenses that relied on his significantly impaired mental state at the time of the
crime as a result of his drug use. On June 11, 1993, Ms. Shamaine Love signed a
statement for the prosecution, informing them that she would alter her testimony
to ensure petitioner’s conviction. Ex. 169. Ms. Love wrote and signed a
statement for the prosecution that stated, in part, “if I’m wrong on any account
which I don’t think I am I’ll add it during the testimony at court. Other than that
he guilty [sic.].” Ex. 169. Trial counsel never received this statement, and it was
disclosed by the prosecutor only in post-conviction proceedings. Fed. Pet. at 10405. In addition, the state unlawfully excised portions of a December 7, 1994,
interview with prosecution witness Mrs. Johnnie Anderson. 21 RT 3203. During
the interview, Mrs. Anderson provided strong impeachment evidence against
Pamela Miller, who also disputed Mr. Jones’s testimony concerning his drug use.
During her interview, Mrs. Anderson confessed to the prosecution that she “loves
Pam very much, [but] Pam lies.” 21 RT 3213; see also 21 RT 3199. Although the
prosecution provided the defense with a police report that detailed the interview
with Mrs. Anderson, the exculpatory statement was omitted from the police
report. State Pet. at 262-63.
36

Respondent does not address Mr. Jones’s claim that the prosecution’s false
assertions on cross-examination and in argument constituted the knowing
presentation of false evidence in violation of controlling federal law. Opening Br.
at 48 n.18.
81
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

b. Mr. Jones Made a Prima Facie Showing That the Prosecutor

2

Unlawfully Withheld the Los Angeles County Jail Medical

3

Records.

4

Following his arrest, Mr. Jones received mental health treatment after

5

admission to the Los Angeles County Jail in September 1992. While Mr. Jones

6

was in the custody of the Los Angeles County Sheriff’s Department, the prosecutor

7

obtained his medical records, including those relating to Mr. Jones’s psychiatric

8

treatment. Ex. 33. Critical information regarding when Mr. Jones first received

9

anti-psychotic medication and the clinical indications for its prescription, however,

10

were missing from the records produced at the time of trial. Inf. Reply at 232-33.

11

Mr. Jones established a prima facie showing that the failure to disclose the

12

jail medical records violated his federal constitutional rights. The records were

13

favorable because they supported Mr. Jones’s guilt phase defense that he lacked the

14

requisite mental state to convict him of first-degree murder and to find true the

15

special circumstance, and his penalty phase defense that compelling mitigating

16

evidence warranted mercy. Opening Br. at 50-54. Given the importance of Mr.

17

Jones’s mental functioning, trial counsel twice issued a subpoena and submitted a

18

release for the medical records, but was unable to obtain – and the prosecution did

19

not provide – the critical documents that demonstrated that jail medical personnel

20

observed his impaired mental functioning and determined that Mr. Jones’s

21

psychiatric condition required treatment with powerful psychotropic medication.

22

Opening Br. at 51.37 Finally, the complete medical records were material because

23
24
25
26
27
28

37

At the evidentiary hearing, and following the issuance of an order
protecting the confidentiality of trial counsel’s files, Mr. Jones will demonstrate
his diligence in attempting to obtain the records. Defense counsel issued a
subpoena for jail medical records on February 23, 1993, and then again on June
15, 1994. He subsequently submitted a third request for the records on December
2, 1994, using Mr. Jones’s authorization. The documents supporting these
requests are contained in the trial file.
82
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

they would have disproved the prosecutor’s characterization of Mr. Jones’s mental

2

state defense at the guilt and penalty phases as a sham. Opening Br. at 51-54.

3

Absent the prosecution’s unlawful failure to disclose the complete set of jail

4

records, trial counsel would have demonstrated that Mr. Jones continued to exhibit

5

active symptoms of psychosis on his admission to the county jail, which were

6

consistent with those he described on the night of the crime, the testimony of

7

Claudewell Thomas, M.D. would have been fully supported by the opinions of

8

state medical personnel, and trial counsel would have been prompted to conduct a

9

thorough investigation of Mr. Jones’s long-standing mental impairments. Opening

10

Br. at 47-50.

11

1) The California Supreme Court could not reasonably reject

12

the claim based on a theory that prosecution was not

13

obligated to disclose the medical records.

14

Respondent argues that “the California Supreme Court reasonably could

15

have determined that the prosecutor’s duty of disclosure did not extend to

16

information possessed by doctors who were treating Petitioner in jail.” Opp. at 43.

17

As the argument was not before the California Supreme Court, it could not have

18

been the basis for its decision.38 See section II.A.4., supra. Moreover, even had

19
20
21
22
23
24
25
26
27
28

38

In the state court, respondent’s only arguments for why Mr. Jones did not
state a prima facie case of a Brady claim was as follows:
Finally, petitioner contends the prosecution failed to disclose his
medical records from the Los Angeles County Jail. (Pet. at 265-66.)
Petitioner, however, fails to identify the medical records. Further,
petitioner’s own medical records were presumably available to him if
he had made reasonable efforts to acquire them. (See United States
v. Wilson (4th Cir. 1990) 901 F.2d 378,380, and cases cited therein
[Brady v. Maryland (1963) 373 U.S. 83 [83 S. Ct. 1194, 10 L. Ed. 2d
215] does not apply to evidence readily available to defense].)
Finally, any such medical records only related to petitioner’s mental
condition in jail, not his mental condition at the time of the crime.
83
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

continued…
Case No. CV-09-2158-CJC

1

respondent timely raised the issue, the California Supreme Court could not

2

reasonably have relied upon it in rejecting the claim because the prosecution

3

possessed at least some of the jail records and the prosecution’s relationship with

4

the Los Angeles County Sheriff’s Department made it responsible for obtaining the

5

complete set of records. Opening Br. at 51.

6

Counsel for Mr. Jones requested the jail medical records on three occasions,

7

but the prosecutor suppressed records detailing the initial evaluation of Mr. Jones’s

8

mental health symptoms requiring the prescription of Haldol. State Pet. at 265; Inf.

9

Reply at 232. A prosecutor’s duty to disclose evidence extends to “any favorable

10

evidence known to others acting on the government’s behalf, including the police.”

11

Kyles v. Whitley, 514 U.S. at 437; Opening Br. at 51. The Ninth Circuit in

12

interpreting Kyles observed that “[b]ecause the prosecution is in a unique position

13

to obtain information known to other agents of the government, it may not be

14

excused from disclosing what it does not know but could have learned.” Carriger

15

v. Stewart, 132 F.3d 463, 480 (9th Cir. 1997) (finding Brady violation although it

16

was unclear whether prosecutors had possession of the withheld corrections file).

17

The Los Angeles District Attorney’s Office was responsible for ensuring these

18

records were disclosed because of its unique relationship with the county jail. The

19

Los Angeles County District Attorney regularly has used the jail as a source of

20

information for aggravating evidence in the penalty phase of capital trials. See,

21

e.g., People v. Lewis, 43 Cal. 4th 415, 442, 181 P.3d 947 (2008) (prosecution

22

presented evidence of shank found concealed inside the mattress of defendant’s

23

single-person cell while awaiting trial); People v. Morrison, 34 Cal. 4th 698, 707,

24
25
26
27
28

Therefore, petitioner cannot show that the records would have
affected the result of the proceeding.
Inf. Resp. at 30. In this Court, respondent has abandoned the argument that the
records were unrelated to his mental condition at the time of the crime.
84
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

101 P.3d 568 (2004) (prosecution introduced aggravating evidence of defendant’s

2

assault on a deputy sheriff during an inmate riot at a Los Angeles County jail);

3

People v. Nakahara, 30 Cal. 4th 705, 719, 68 P.3d 1190 (2003) (prosecutor

4

introduced evidence that defendant hid a metal “shank” in the corner of his jail

5

cell). In addition, for many years, Los Angeles County prosecutors had a policy of

6

relying on the testimony of jailhouse informants, and continued to use these

7

informants even though they knew the testimony was perjured. See, e.g., People v.

8

Williams, 44 Cal. 3d 1127, 1141, 751 P.2d 901 (1988); People v. Gonzalez, 51 Cal.

9

3d 1179, 1240, 800 P.2d 1159 (1990). In Mr. Jones’s case, the prosecutor noted

10

that the set of jail records the court had at the time Mr. Jones was testifying

11

contained information only up to September 1994, and did not show the

12

medications Mr. Jones was taking in January 1995. 22 RT 3367.

13

The unique relationship between the prosecutor and the jail is evidenced by

14

the prosecutor’s statement that he was willing to stipulate to the medication Mr.

15

Jones was receiving once he had talked “to the people over there.” 22 RT 3367-68.

16

As this comment indicates, the prosecutor’s supervisory relationship with the jail

17

permitted him to discuss confidential medical information with jail officials

18

without a signed release from Mr. Jones or issuance of a subpoena. See, e.g., Cal.

19

Civil. Code § 56.10 (West 1995) (limiting disclosure of medical information

20

without authorization to specified circumstances).39

21

prosecution’s relationship with the jail officials and the role of those officials in the

22

prosecution of Mr. Jones raise factual issues that California Supreme Court could

At the very least, the

23
24
25
26
27
28

39

Despite post-conviction counsel’s best efforts in state court, the medical
records remain undisclosed. With limited discovery in state court, Mr. Jones has
not been afforded the opportunity to use well-established discovery mechanisms,
including deposing prosecution personnel and jail record custodians and
subpoenaing records, that will more fully demonstrate the prosecutor’s actual and
constructive access to Mr. Jones’s complete medical files.
85
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

not properly have resolved by summary adjudication. See section II.A.3., supra.

2

2) The California Supreme Court could not reasonably reject

3

the claim based on a theory that Mr. Jones could have

4

discovered the medical records.

5

Respondent next argues that “the California Supreme Court reasonably

6

could have determined that the prosecutor had no duty to disclose the information

7

because Petitioner was aware that he was receiving medical treatment in jail and

8

could have obtained his medical records himself with reasonable diligence.” Opp.

9

at 43. As the Opening Brief explained, respondent’s assertions concerning Mr.

10

Jones’s diligence in attempting to obtain the jail medical records created a factual

11

dispute that could not have been summarily resolved. Opening Br. at 54; see also

12

section II.A.3., supra. Moreover, Mr. Jones unquestionably established that he was

13

diligent in attempting to obtain the complete jail medical records. Although trial

14

counsel was not aware of the course of some of Mr. Jones’s psychiatric treatment

15

while in custody, he requested the complete jail medical record on three occasions

16

to document Mr. Jones’s profound psychiatric condition and to corroborate his

17

testimony. Ex. 150 at 2733.

18

Respondent cites to Raley v. Ylst, 470 F.3d 792, 804 (9th Cir. 2006), in

19

support of his contention that the prosecutor had no duty to disclose the jail

20

medical records because Mr. Jones knew of their existence. Opp. at 43. Raley is

21

distinguishable because Mr. Raley made no effort to obtain his jail medical records

22

despite possessing the “salient facts” regarding their existence. 470 F.3d at 804. In

23

addition, the prosecutor in this case had a long history of working with jail officials

24

in their prosecution of defendants, expressly informed the court and trial counsel

25

that he had the ability to obtain information from the jail medical staff, and

26

obtained records from the jail. See, e.g., 22 RT 3367-68.

27
28
86
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

3) The California Supreme Court could not reasonably reject

2

the claim based on a theory that Mr. Jones failed to produce

3

sufficient documentation of his claim.

4

Respondent finally asserts that Mr. Jones’s claim was defective in the state

5

proceedings “because Petitioner failed to produce the medical records in question,

6

failed to allege any facts concerning the content of those medical records, and

7

failed to allege any facts indicating that the medical records would have been

8

exculpatory or material.”

9

Respondent failed to make these arguments in state court, and thus they could not

10

be the bases for the California Supreme Court’s decision. See section II.A.4.,

11

supra. Moreover, the California Supreme Court did not deny the claim for failing

12

to provide detailed allegations, as it did not cite In re Swain, 34 Cal. 2d at 303-04,

13

or for Mr. Jones’s failure to provide the unavailable record as it did not so indicate

14

in that ground in its order, see, e.g., In re Curtis Price, No. S018328, Order (Cal.

15

Jan. 29, 1992) (rejecting claim because petitioner failed to provide copy of

16

competency report generated at trial).

Opp. at 44 (citing Duvall, 9 Cal. 4th at 474).

17

c. Mr. Jones Made a Prima Facie Showing That the Prosecutor’s

18

Unlawful Withholding of Exculpatory Material Cumulatively

19

Deprived Him of a Fair Trial.

20

Respondent does not address the cumulative prejudice of the prosecutor’s

21

multiple Brady violations. In tandem, the Report and complete jail medical records

22

would have provided compelling counter-evidence to the prosecutor’s arguments

23

that Mr. Jones had, in anticipation of his capital trial, manufactured a mental illness

24

to avoid responsibility for the crimes. To the contrary, they demonstrated that Mr.

25

Jones suffered from a severe mental disorder, which manifested itself many years

26

before the capital crime, and was becoming progressively worse over time. As the

27

California Supreme Court did not correctly apply well-established law developed

28

by Brady and its progeny, it similarly failed to consider the cumulative effect of the
87
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

undisclosed evidence, and section 2254(d) is satisfied. Kyles, 514 U.S. at 419,

2

436–37 & n.10, (holding that the State’s disclosure obligation under Brady turns on

3

the cumulative effect of the withheld evidence, not an item-by-item analysis).

4

2. Section 2254(d) Is Satisfied by the State Court’s Summary Denial of

5

Mr. Jones’s Adequately Pled Claim That the State Withheld

6

Material Exculpatory Evidence.

7

In his Opening Brief, Mr. Jones detailed the ways in which the state court’s

8

summary denial of Mr. Jones’s Brady claim satisfies section 2254(d). Opening Br.

9

at 5-13, 43-58. As a general matter, the California Supreme Court’s refusal to hear

10

Mr. Jones’s adequately pled claims of constitutional error is contrary to clearly

11

established federal law that prohibits state courts from creating “unreasonable

12

obstacles” to the resolution of federal constitutional claims that are “plainly and

13

reasonably made.”

14

Specifically, in light of Mr. Jones’s extensive factual allegations and supporting

15

materials in the state court – which the state court was obligated to accept as true –

16

the state court’s ruling that Mr. Jones failed to make any prima facie showing of

17

entitlement to relief constitutes an unreasonable application of Brady. See, e.g.,

18

Milke v. Ryan, 711 F.3d 998 (9th Cir. 2013) (concluding that state court’s focus on

19

discoverability of impeachment evidence, rather than disclosure requirements

20

under Brady and Giglio, was contrary to clearly established law as determined by

21

the Supreme Court of the United States; state court’s decision was based on an

22

unreasonable determination of the facts; and prosecutor’s failure to disclose

23

impeachment evidence violated Brady); Simmons v. Beard, 590 F.3d 223, 232-33

24

(3rd Cir. 2009) (holding that even under the deferential standard of 2254(d) the

25

district court was correct in rejecting the state court’s overall conclusion based on

26

its assessment of the cumulative effect of the Commonwealth’s Brady violations);

27

Browning v. Trammell, 717 F.3d 1092, 1108 (10th Cir. 2013) (affirming district

28

court’s conditional grant of habeas relief under 2254(d) based on a Brady violation
88

Davis, 263 U.S. at 24-25; see also Opening Br. at 7-11.

Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

arising from prosecution’s failure to disclose indispensable prosecution witness’s

2

mental health records).

3

D.

Claim Four: Mr. Jones’s Due Process Rights Were Violated Because No

4

Hearing Was Held to Determine His Competence and He Was

5

Incompetent to Stand Trial.

6

Mr. Jones satisfied state pleading requirements by presenting the California

7

Supreme Court with sufficient detail and supporting factual material to establish a

8

prima facie showing that he was entitled to relief on Claim Five. See, e.g., Duvall,

9

9 Cal. 4th at 474. In his habeas corpus proceedings, Mr. Jones presented evidence

10

that the trial court failed to conduct a hearing to determine his competence despite

11

substantial evidence that it was warranted, including Mr. Jones’s treatment at the

12

county jail with antipsychotic and antidepressant medication; psychiatrists’

13

conclusion that Mr. Jones suffered from a psychotic disorder and opinion that Mr.

14

Jones was not competent to stand trial; Mr. Jones’s bizarre and irrational behavior;

15

and Mr. Jones’s history of irrational and disturbed behavior before, during, and

16

after the capital crime, including his suicide attempts. See, e.g., Drope v. Missouri,

17

420 U.S. 162, 172, 95 S. Ct. 896, 43 L. Ed. 2d 103 (1975). Mr. Jones also made a

18

prima facie showing that he was, in fact, incompetent to stand trial, supporting his

19

allegations with numerous declarations from a defense psychiatrist and lay

20

witnesses who observed his mental functioning and behavior at the time of the trial

21

and additional experts and lay witnesses confirming and corroborating the

22

contemporaneous observations and conclusions. See, e.g., Cooper v. Oklahoma,

23

517 U.S. 348, 354, 116 S. Ct. 1373, 134 L. Ed. 2d 498 (1996). Finally, Mr. Jones

24

presented the California Supreme Court with a prima facie showing of ineffective

25

assistance of counsel, alleging that, as a result of trial counsel’s failure to declare a

26

doubt as to Mr. Jones’s competence to stand trial, he was tried while incompetent.

27

See, e.g., Newman v. Harrington, 726 F.3d 921, 929-32 (7th Cir. 2013) (holding

28

trial counsel ineffective for failing to investigate client’s fitness and request a
89
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

hearing).

2

This claim was not procedurally defaulted, and respondent did not present

3

factual materials or legal argument in state court to establish that Mr. Jones’s prima

4

facie showing should not be taken as true or that it otherwise lacked merit. Under

5

these circumstances, the state court was required to issue an order to show cause

6

and allow Mr. Jones access to state processes to develop and present evidence to

7

prove his claim. See, e.g. Duvall, 9 Cal. 4th at 475; Romero, 8 Cal. 4th at 742. By

8

instead summarily denying Mr. Jones’s claim, the California Supreme Court’s

9

decision satisfies section 2254(d) as set forth in Mr. Jones’s prior briefing and in

10

the sections that follow. See, e.g., Newman, 726 F.3d at 935 (holding state court’s

11

decision, made without a hearing, denying claims alleging ineffective assistance of

12

counsel for failing to raise fitness was not entitled to 2254(d) deference).

13

1. There Is No Reasonable Basis for the State Court Ruling That Mr.

14

Jones Failed to Make a Prima Facie Showing for Relief on His

15

Procedural and Substantive Competence to Stand Trial Claims.40

16

a. The Trial Court Violated Mr. Jones’s Due Process Rights by

17

Failing to Conduct a Competency Hearing.

18
19
20
21
22
23
24
25
26
27
28

40

Respondent conflates Mr. Jones’s procedural and substantive due process
claims, and apparently addresses only the claim that the trial court’s failure to
conduct a hearing. Opp. at 59 (“Based on the above, the trial court neither held,
nor reasonably should have held, a bona fide doubt as to Petitioner’s competence
to stand trial. Thus, the trial court did not violate Petitioner’s due process rights
when it did not sua sponte hold a hearing to determine Petitioner’s competence,
and there was a reasonable basis for the California Supreme Court’s summary
denial of relief on this claim.”); see also Opp. at 60 (“there is nothing in the
record to suggest that the trial court held, or reasonably should have held, a bona
fide doubt as to Petitioner’s competence”). Respondent does not clearly address
Mr. Jones’s prima facie showing of a substantive due process claim that he was in
fact incompetent or on what bases the California Supreme Court summarily
denied that claim.
90
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

Mr. Jones established a prima facie showing that the trial court’s failure to

2

conduct a competency hearing violated his federal constitutional rights. From at

3

least as early as March 1993, the trial court was on notice that Mr. Jones’s

4

competence to stand trial was in question when counsel requested the appointment

5

of two experts to assess Mr. Jones’s competence to proceed. 1 RT 14-15. Opening

6

Br. at 112-14. Over the course of the trial, the court additionally learned of Mr.

7

Jones’s treatment at the jail with antidepressant and anti-psychotic medication for

8

complaints of auditory hallucinations, delusions and paranoia; his diagnosis as

9

suffering from a major psychiatric disorder of a psychotic nature; and the results of

10

neuropsychological testing, which supported a diagnosis of chronic schizophrenia.

11

Opening Br. at 112.

12

psychiatric impairments through Mr. Jones’s behavior and demeanor in court,

13

including his conflicts with counsel.41 See generally Opening Br. at 112-14.42

In addition, the court was aware of Mr. Jones’s severe

14

Although the trial court possessed evidence, pretrial through sentencing, that

15

the symptoms of Mr. Jones’s psychiatric condition impaired his understanding of

16

the proceedings and his interactions with trial counsel, the court failed to hold a

17

hearing to determine his competency to proceed in violation of his due process

18

rights. See, e.g., Odle v. Woodford, 238 F.3d 1084, 1087 (9th Cir. 2001) (“a trial

19

judge must conduct a competency hearing whenever the evidence before him raises

20
21
22
23
24
25
26
27
28

41

On November 6, 1992, the Municipal Court entered an order directed to the
“Sheriff of the County of Los Angeles and Medical Services of Los Angeles
County Jail” that Mr. Jones was “suffering from extreme stress and need[ed] to be
examined by a psychologist or psychiatrist.” 1 CT 116. The trial court also found
Mr. Jones’s conduct noteworthy when it informed him that in a capital case every
proceeding was recorded “including your outbursts.” 1 RT 25.
42

A complete summary of the facts supporting both the procedural and
substantive due process claims was presented in the Motion for an Evidentiary
Hearing, filed Feb. 17, 2011, at 96-113 (Doc. 59), which Mr. Jones incorporates
by reference to avoid unduly lengthening this pleading.
91
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

a bona fide doubt about the defendant’s competence to stand trial, even if defense

2

counsel does not ask for one”); McMurty v. Ryan, 539 F.3d 1112, 1119 (9th Cir.

3

2008) (“If a reasonable judge would have had such a [bona fide] doubt, [defendant]

4

was entitled to a competency hearing, and the failure to hold such a hearing

5

violated his right to due process”); De Kaplany v. Enomoto, 540 F.2d 975, 980-81

6

(9th Cir. 1976) (en banc) (“‘Under the rule of Pate v. Robinson (1966) 383 U.S.

7

375, 86 S. Ct. 836, 15 L. Ed. 2d 815, a due process evidentiary hearing is

8

constitutionally compelled at any time that there is ‘substantial evidence’ that the

9

defendant may be mentally incompetent to stand trial.’”) (quoting Moore v. United

10

States, 464 F.2d 663, 666 (9th Cir. 1972)); Moore, 464 F.2d at 666 (“Evidence is

11

‘substantial’ if it raises a reasonable doubt about the defendant’s competency ....

12

Once there is such evidence from any source, there is doubt that cannot be

13

dispelled by resort to conflicting evidence.”).

14

In response to Mr. Jones’s claim that the trial court should have held a

15

hearing to determine whether he was competent, respondent asserts that “both

16

counsel and the trial court reasonably relied on the competency findings of Dr.

17

Stalberg43 and Mead.” Inf. Resp. at 27 n.15; see also Opp. at 55. To the extent that

18

the California Supreme Court relied on this argument in concluding that Mr. Jones

19

did not establish a prima facie case, it was an unreasonable application of

20

controlling federal law and an unreasonable determination of the facts presented.

21

See, e.g., Torres v. Prunty, 223 F.3d 1103, 1109 (9th Cir. 2000) (holding state

22

court’s findings to be unreasonable, in part because “the fact finding procedure by

23

the judge was clearly inadequate”). Contrary to respondent’s suggestion, which the

24

California Supreme Court apparently adopted, the competency reports “did not

25
26
27
28

43

Although the record reflects that Dr. Stalberg’s appointment was vacated on
April 14, 1993 (1 RT 17-20), Dr. Stalberg, in fact, performed the evaluation. 1 CT
138; State Pet. at 247.
92
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

stand alone” as the only evidence the trial court should have considered. Moore v.

2

United States, 464 F.2d 663, 666 (9th Cir. 1972). The doctors reports, evaluating

3

Mr. Jones in 1993, did not obviate the need for a hearing in light of the additional

4

evidence before the court regarding Mr. Jones’s competence. See Moore, 464 F.2d

5

at 666 (holding that records showing defendant’s history of mental illness and

6

instability raised reasonable doubt even though psychiatric report before his guilty

7

plea found him competent). Assuming arguendo that the court’s reliance on the

8

evaluations was reasonable because Mr. Jones was competent in 1993, “a trial

9

court must always be alert to circumstances suggesting a change that would render

10

the accused unable to meet the standards of competence to stand trial.” Drope, 420

11

U.S. at 181; United States v. Ives, 574 F.2d 1002, 1005-06 (9th Cir. 1978) (finding

12

error when court did not consider evidence of possible change in defendant’s

13

ability to stand trial following four alternating determinations of competency and

14

incompetency in less than a year). Once the trial court received the initial request

15

for appointment of experts to evaluate Mr. Jones’s competence, it was aware that

16

his competence could be in issue, and ought to have been alert to changes in Mr.

17

Jones’s condition that would render him unable to meet the standards of

18

competence to stand trial. As Dr. Thomas explained “Mr. Jones’s psychiatric

19

condition waxes and wanes, and can be more or less apparent or active at any given

20

time.” Ex. 154 at 2751; see also Ex. 144 at 2707 (“During the penalty phase of the

21

trial, I noticed a difference in Mr. Jones’s demeanor. . . . he rarely moved, his face

22

was expressionless, and his shoulders drooped. He rarely reacted to the testimony

23

or anything else that was going on in the courtroom. He acted as if he were in a

24

trance.”). Moreover, Drs. Stalberg and Mead received virtually no information

25

“regarding the case except a little summary of it. . . . and they wrote very brief

26

reports.” 28 RT 4088; see also State Pet. at 247-48.

27

In these circumstances, and given the other evidence before the trial court,

28

its reliance on representations from counsel that these doctors found Mr. Jones
93
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

competent did not obviate the need for a hearing.44 The evidence as to competence

2

must be taken together as a whole; in determining whether a substantial doubt has

3

been raised, a trial judge must evaluate the probative value of each piece of

4

evidence and view it in light of the others. Chavez v. United States, 656 F.2d 512,

5

517-18 (9th Cir 1981). In determining whether a constitutionally required hearing

6

is required, “evidence of a defendant’s irrational behavior, his demeanor at trial,

7

and any prior medical opinion on competence to stand trial are all relevant in

8

determining whether further inquiry is required, but . . . even one of these factors

9

standing alone may, in some circumstances, be sufficient” to raise a genuine doubt

10

as to competency. Drope, 420 U.S. at 180. The factors known to the trial court

11

individually and cumulatively created a doubt as to Mr. Jones’s competence,

12

including his ongoing psychiatric treatment; his need for antipsychotic medication;

13

confused and bizarre behavior; his prior suicide attempts and suicidal ideation.

14

See, e.g., Pate 383 U.S. at 386 (holding that a hearing was required because the

15
16
17
18
19
20
21
22
23
24
25
26
27
28

44

In the state court and this Court, respondent asserted that the Mr. Jones’s
testimony at trial, his receiving psychiatric treatment and antipsychotic
medication, and his diagnosis of schizophrenia “does not mean that petitioner was
incompetent to stand trial.” Inf. Resp. at 27; see also Opp. at 56-60. To the extent
that the California Supreme Court accepted these arguments, its summary denial
of the claim was an unreasonable application of clearly established federal law.
Respondent confuses the showing necessary to trigger a competency hearing with
the facts necessary to sustain a finding – following a proper hearing – that Mr.
Jones was, in fact, incompetent. Mr. Jones’s burden before the state court was
whether there was “‘substantial evidence’ that the defendant may be mentally
incompetent to stand trial.” Moore, 464 F.2d at 666 (emphasis added); Chavez,
656 F.2d at 519 (holding that “indicia of incompetence” that does not rise to the
level of establishing incompetence in fact nonetheless may be “sufficient to
require an evidentiary hearing”). To the extent that respondent’s argument may
relate to the substantive due process claim – that Mr. Jones was in fact
incompetent to stand trial, see n.40, supra – his assertions fail to address whether
a petitioner has made a prima facie showing entitling him to the issuance of an
order to show cause and an evidentiary hearing.
94
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

trial court knew of Mr. Robinson’s prior psychiatric treatment and “history of

2

pronounced irrational behavior”); Chavez, 656 F.2d at 519 (holding that a hearing

3

was required where defendant had a history of mental health treatment, emotional

4

outbursts, prior evaluations of impaired mental functioning, and poor relationship

5

with his attorney); Maxwell v. Roe, 606 F.3d 561, 571 (9th Cir. 2010) (“Maxwell’s

6

attempted suicide – taken in the context of his pre-trial behavior, strained

7

communication with defense counsel, mental health history, antipsychotic

8

medications, and subsequent psychiatric detentions – would have raised a doubt in

9

a reasonable judge.”); McMurtrey v. Ryan, 539 F.3d at 1125 (holding that evidence

10

of defendant’s behavior, medications, and memory problems was sufficient to raise

11

a reasonable doubt as to defendant’s competence); Miles v. Stainer, 108 F.3d 1109,

12

1112 (9th Cir. 1997) (finding that state court’s failure to ask defendant whether he

13

had been taking his psychotropic medication before accepting his guilty plea raised

14

reasonable doubt about defendant’s competence to plead guilty, and therefore

15

competency hearing should have been held); Moran v. Godinez, 972 F.2d 263, 265

16

(9th Cir. 1992), (holding that the trial court’s failure to inquire about the four

17

psychiatric medications defendant was taking, among other factors, raised

18

reasonable doubt about competence); overruled on other grounds, 509 U.S. 389,

19

113 S. Ct. 2680, 125 L. Ed. 2d 321 (1993). Thus, to the extent that the California

20

Supreme Court determined that the evidence did not require a competency hearing

21

under Pate, it was an unreasonable determination of the facts within the meaning

22

of 28 U.S.C. § 2254(d)(2). See, e.g., Torres v. Prunty, 223 F.3d at 1105; Maxwell,

23

606 F.3d at 568.

24

b. Mr. Jones Was Incompetent to Stand Trial.

25

Mr. Jones alleged facts before the state court that, if true, would show he was

26

incompetent to stand trial, that is, that he was unable effectively to communicate

27

with or assist trial counsel, comprehend key aspects of the trial and defense, or

28

attend to and recall the proceedings of the trial from day to day. See Dusky v.
95
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

United States, 362 U.S. 402, 402, 80 S. Ct. 788, 4 L. Ed. 2d 824 (1960); Drope,

2

420 U.S. at 171. Dr. Thomas who evaluated Mr. Jones at the time of trial opined

3

that Mr. Jones’s lacked the ability “to cooperate with counsel and rationally assist

4

in the preparation of his case for trial”:

5

I never had the opportunity to testify about Mr. Jones’s competency

6

to stand trial. I noted the necessity of his medication regimen at the

7

County Jail and cautioned Mr. Manaster in my report of December 7,

8

1994, about the serious competency issues: “In order to be sure that

9

[Mr. Jones] is competent to stand trial under the provisions of 1368

10

P.C., he should be treated until he is free of hallucinations and

11

delusional thought.” I had genuine doubts that Mr. Jones was able to

12

cooperate with counsel and rationally assist in the preparation of his

13

case for trial. I was not asked about Mr. Jones’s competency during

14

my testimony. If Mr. Manaster had asked me, I would have opined

15

that Mr. Jones was not competent to stand trial.

16

Ex. 154 at 2754; Inf. Reply at 205. In addition, the abrupt change in Mr. Jones’s

17

medication regime by jail medical personnel further impaired his ability to

18

comprehend the nature of the proceedings and assist in his defense. Dr. Thomas’s

19

declaration submitted to the state court explained the debilitating consequences

20

resulting from the medical staff’s inappropriate treatment:

21

Mr. Jones’s current attorneys obtained additional medical records

22

from the Los Angeles County Jail, which showed that Mr. Jones’s

23

prescription of Haldol was abruptly discontinued right before the

24

beginning of his trial, in November 1994, with no apparent clinical

25

basis for the change. I was further surprised to learn that one day

26

after Mr. Jones finished his testimony in the “guilt” phase of his trial,

27

his Haldol prescription was just as abruptly renewed. Thus, when

28

Mr. Jones testified in mid-January, he may have gone over two
96
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

months without anti-psychotic medication. Had I known about this

2

at trial, I could have testified more accurately about his medication

3

and the possible effect of its abrupt discontinuation. The lack of

4

appropriate medication not only distorted Mr. Jones’s appearance

5

and demeanor, but also adversely affected his ability to attend,

6

concentrate, assist his attorneys, and testify.

7

Ex. 154 at 2761-62.

8

Expert evaluations conducted at the request of post-conviction counsel

9

confirmed and corroborated Dr. Thomas’s findings. Opening Br. at 116-17. In

10

addition, those who came in contact with Mr. Jones at the time of trial observed the

11

effects his psychiatric impairments had on his functioning. Opening Br. at 117-18.

12

The trial paralegal, who was the defense team member with most contact with Mr.

13

Jones, “understood that he was very mentally ill” (Ex. 144 at 2706); noted that Mr.

14

Jones “had difficulty recalling events in his life” (Ex. 19 at 206); and was struck by

15

Mr. Jones’s difficulties processing and understanding information about his case

16

(Ex. 19 at 207). Critically, as the case progressed Ms. Cameron observed that Mr.

17

Jones “exhibited severe dissociative symptoms” (Ex. 19 at 206), and entered

18

dissociative states during the guilt and penalty phases of his trial, at which time he

19

exhibited a “blank expression and faraway look in his eyes that reminded [her] of a

20

closed curtain” (Ex. 144 at 2707); see also Ex. 12 at 109 (trial counsel recounts Mr.

21

Jones’s history of dissociative states).45

22
23
24
25
26
27
28

45

Mr. Jones also presented the state court with numerous declarations from
lay witnesses that confirm the severity of his longstanding mental health problems
and their effect on his functioning, particularly during stressful situations. See,
e.g., Ex. 178 at 3118-19, 3129, 3137, 3144, 3145-46, 3148-49, 3152-56; Ex. 124
at 2508, 2509, 2529-30, 2539-40, 2544 (describing Mr. Jones’s history of
hallucinations, sleep disturbances, dissociation, and disorganized thinking); Ex.
16 at 146-48, 168 (describing history of dissociation, hallucinations, altered states
of consciousness, and sleep disturbances); Ex. 131 at 2609-10 (describing history
97
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

continued…
Case No. CV-09-2158-CJC

1

The facts presented to the state court unquestionably stated a prima facie

2

case of a due process violation. See Dusky, 362 U.S. at 402; Drope, 420 U.S. at

3

171; Odle v. Woodford, 238 F.3d 1084, 1089 (9th Cir. 2001) (ruling that

4

competence to stand trial “requires the mental acuity to see, hear and digest the

5

evidence, and the ability to communicate with counsel in helping prepare an

6

effective defense”) (citing Dusky, 362 U.S. at 402).

7

1) The California Supreme Court could not reasonably reject

8

the claim based on Mr. Jones’s testimony during the guilt

9

phase or his interactions with the court.

10

In federal proceedings, respondent asserts for the first time that Mr. Jones

11

was “coherent and lucid,” and points to instances in the record where Mr. Jones

12

interacted with the court. Opp. at 56. Respondent cites to Mr. Jones’s Marsden

13

motion (1 RT 19-24) as evidence that Mr. Jones had a different view of the case

14

from his counsel, which, according to respondent, indicated that he could rationally

15

participate in his defense. Opp. at 56. In addition, respondent points to instances

16

in the record where Mr. Jones interacted with the court regarding getting to court

17

on time and requesting a shower and haircut. Opp. at 56.

18

This argument would not have provided a legal basis for the state court to

19

reject Mr. Jones’s claim, however, because respondent did not raise it in the state

20

court. In state court, respondent asserted, without any citations or explanation, that

21

Mr. Jones’s testimony “belies the contention that petitioner was unable to

22
23
24
25
26
27
28

of mood changes and altered states of consciousness/blackouts); Ex. 14 at 137
(describing Mr. Jones’s history of decompensation, mood changes, altered affect,
and “hearing . . . voices”); Ex. 10 at 99-100 (describing history of dissociation,
paranoia, disorganized thinking, depression, suicidality, delusions, auditory
hallucinations, and disorganized thinking); Ex. 21 at 227 (describing Mr. Jones as
“literally talking nonsense” and exhibiting symptoms of depression and
psychosis).
98
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

understand the nature of the proceedings and assist in his defense.” Inf. Resp. at

2

27. See section II.A.4., supra.

3

Had respondent presented such arguments, Mr. Jones would have provided

4

the state court with additional declarations from experts concerning the consistent

5

nature of Mr. Jones’s mental illness. Indeed, Mr. Jones did provide the state court

6

with evidence that “Mr. Jones’s psychiatric condition waxes and wanes, and can be

7

more or less apparent or active at any given time.” Ex. 154 at 2751. Critically, Mr.

8

Jones presented evidence in state court that at the time of his trial, “[he] was not

9

mentally fit to testify on his own behalf.” Ex. 154 at 2752. As Dr. Thomas

10

explained:

11

The unique characteristics and manifestations of his mental

12

disorders made him a poor candidate for testimony. Because of

13

Mr. Jones’s frank dissociation at the time of the events in

14

question, the Mr. Jones in the courtroom was not the same

15

person as the Mr. Jones who had acted that evening. Anything

16

he could remember, he would remember as a spectator,

17

watching as if from outside his body, with no emotions to call

18

upon to seem credible to the jury.

19

Ex. 154 at 2752. Furthermore, the interruption in Mr. Jones’s medication regimen,

20

which was critical to ensure that he was “free of hallucinations and delusional

21

thought” (Ex. 154 at 2754), also “adversely affected his ability to attend,

22

concentrate, assist his attorneys and testify” (Ex. 154 at 2762). Any evidence that

23

Mr. Jones was “able to assist his attorney at trial in minor ways” does not mean

24

that he was competent. See, e.g., Torres v. Prunty, 223 F.3d at 1110 (holding

25

evidence that defendant was able to assist his attorney in minor ways did not

26

obviate the need for a competency hearing). Competence to stand trial “requires

27

the mental acuity to see, hear and digest the evidence, and the ability to

28

communicate with counsel in helping prepare an effective defense.” Odle, 238
99
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

F.3d at 1089 (citing Dusky, 362 U.S. at 402). Finally, respondent’s argument – that

2

Mr. Jones’s “coherent and lucid” interactions with the court – raises at best a

3

factual dispute that the California Supreme Court could not have resolved without

4

conducting an evidentiary hearing. See section II.A.3., supra. Any inquiry into the

5

persuasiveness and weight to be given to the evidence of Mr. Jones’s competence

6

should be made at a hearing. See, e.g., Deere v. Woodford, 339 F.3d 1084, 1086-87

7

(9th Cir. 2003) (remanding for competency hearing because court improperly

8

resolved credibility of experts’ opinions).

9

2) The California Supreme Court could not reasonably reject

10

the claim based on a theory that Mr. Jones’s diagnosed

11

mental illness alone did not make him incompetent.

12

Respondent urged the state court to conclude that Dr. Thomas’s

13

determination that Mr. Jones suffered from schizophrenia “does not mean that

14

petitioner was incompetent to stand trial. . . . Indeed, the administration of

15

antipsychotic medications may have improved petitioner’s mental condition.” Inf.

16

Resp. at 27; see also Opp. at 57. 46 Although the diagnosis of a mental illness may

17

not per se render a defendant incompetent to stand trial, evidence of a defendant’s

18

irrational behavior, his demeanor at trial, and any prior medical opinion on his

19

competence to stand trial are all relevant in determining whether a defendant is

20
21
22
23
24
25
26
27
28

46

Respondent states that neither Dr. Spindell or Dr. Thomas offered an
opinion on Mr. Jones’s competence to stand trial, but were retained to explore his
ability to form the specific intent for the charged crimes. Opp. at 57. The referral
question counsel posed to Dr. Thomas was “whether you believe that [Mr. Jones]
was legally insane at the time of the offense. If you do not believe he was legally
insane or even if you do, whether he is suffering from some mental condition or
defect which he could not control and which might help explain his behavior”
(Ex. 154 at 2748); nonetheless, Dr. Thomas informed counsel about his concerns
regarding Mr. Jones’s competence (Id. at 2754), although he was not asked to
testify about this issue.
100
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

competent. Drope, 420 U.S. 162, at 180. However, “[n]one of these factors is

2

determinative. Any one of them may be sufficient to raise a reasonable doubt

3

about competence.” Miles v. Stainer, 108 F.3d 1109, 1112 (9th Cir. 1997) (citing

4

Drope, 420 U.S. at 180).

5

Respondent did not present any evidence in state court to support his

6

contention that medication rendered Mr. Jones competent; and the resolution of his

7

assertion would have required the California Supreme Court to resolve facts

8

without a hearing. Moreover, it fails to take into account evidence that Mr. Jones

9

was not in fact receiving his anti-psychotic medication from November 1, 1994,

10

through January 23, 1995, during critical stages of his trial and his testimony. See,

11

e.g., Ex. 33 at 596, 600, 602, 603, 604, 606, 608, 610, 613, 616, 61 E, 620, 622,

12

624, 625, 628, 630, 632, 634; Ex. 34 at 678, 680, 682, 685; State Pet. at 246-47.

13

Mr. Jones, however, presented evidence in state court that “without a proper

14

medication regimen . . . Mr. Jones was [not] competent to stand trial, much less

15

testify on his own behalf.”47 Ex. 154 at 2754.

16
17
18
19
20
21
22
23
24
25
26
27
28

47

Respondent urges this Court to view with skepticism Dr. Thomas’s findings
regarding Mr. Jones’s competency because his declaration was signed nine years
after trial and after having reviewed additional materials provided by postconviction counsel. Opp. at 57 n.24. Contrary to respondent’s contention, Dr.
Thomas first advised counsel that he had serious doubts about Mr. Jones’s
competence in a report dated December 7, 1994. Dr. Thomas advised, “In order
to be sure that [Mr. Jones] is competent to stand trial under the provisions of 1368
P.C., he should be treated until he is free of hallucinations and delusional
thought.” Ex. 154 at 2754. Hence, his opinion that Mr. Jones was incompetent
was contemporaneous with the trial. See Moran v. Godinez, 57 F.3d 690, 696 (9th
Cir.1994) (“medical reports contemporaneous to the time of the initial hearing
greatly increase the chance for an accurate retrospective evaluation of a
defendant’s competence”); Deere v. Woodford, 339 F.3d 1084, 1086–87 (9th Cir.
2003) (pointing to a doctor’s examination of petitioner within several days of
guilty plea as particularly probative of his mental status at trial). Moreover,
expert evaluations obtained during post-conviction corroborate and are consistent
101
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

continued…
Case No. CV-09-2158-CJC

1

Respondent also argues the mere fact Mr. Jones was on medication does not

2

mean he was incompetent, and suggests that Mr. Jones was required to present

3

additional evidence as to how the medication affected his thought processes and

4

rendered him incompetent. Inf. Resp. at 27; Opp. at 58. Respondent cites to

5

Sturgis v. Goldsmith, 796 F.2d 1103, 1109-10 (9th Cir. 1986),48 Corsetti v.

6

McGrath, C 03-084 SI (PR), 2004 WL 724951 (N.D. Cal. Mar. 26, 2004), 49 and

7

People v. Medina,50 11 Cal. 4th 694, 47 Cal. Rptr. 2d 165 (1995), as support for his

8

contention that failure to present evidence of how the medication affected his

9

competence failed to raise a bona fide doubt as to petitioner’s competence to stand

10

trial. In contrast to these cases, Mr. Jones presented testimony at trial and evidence

11

to the state court regarding the exact medications prescribed, the importance of

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

with Dr. Thomas’s findings from the time of trial. See, e.g., Ex. 178 at 3154-55,
3156-57; Ex. 175 at 3064, 3065-66, 3072, 3075-76.
48

In Sturgis, the petitioner testified at his state trial that he was on
medication. However, he presented no evidence to the district court as to what
drugs he took or how they might have affected his competence at trial. 796 F.2d
at 1110.
49

In Corsetti, the district court concluded that Mr. Corsetti was competent to
enter a no-contest plea in 2000. 2004 WL 724951 at *8. Mr. Corsetti submitted a
1998 medical record indicating that he was diagnosed with intermittent explosive
disorder and a borderline personality disorder, neither of which he demonstrated
were diseases of a sort that actually precluded him from consulting with his
lawyer with a reasonable degree of rational understanding or that caused him not
to have a rational as well as factual understanding of the proceedings against him.
Id. Corsetti also had not shown that at the time he entered the plea he was
actually taking any particular psychotropic medication. Id. Absent any additional
support, the court concluded that Mr. Corsetti had failed to establish his
entitlement to relief. Id. at *10
50

In People v. Medina the record failed to support Mr. Medina’s assertion that
he became incompetent to stand trial after his Thorazine medication ceased. The
court found that Medina’s assertions to the contrary were based solely on
“unsupported speculation.” 11 Cal. 4th at 733.
102
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

proper titration of the medication to ensure treatment of the psychosis and to avoid

2

harmful side effects; and the effects of an insufficient dosage of those medications.

3

See 23 RT 3547-51, 3565; State Pet. at 252; Ex. 154 at 2754 (describing Mr. Jones’

4

mental functioning and medication), 2762 (“the lack of appropriate medication not

5

only distorted Mr. Jones’s appearance and demeanor, but also adversely affected

6

his ability to attend, concentrate, assist his attorneys and testify”).

7

3) The California Supreme Court could not reasonably reject

8

the claim based on Mr. Jones’s history of disturbed behavior,

9

history of suicidal ideation or his attempted suicide prior to

10

the homicide, individually not supporting a finding of

11

incompetence.

12

Finally, respondent argues in federal court that Mr. Jones’s history of

13

disturbed behavior, his history of suicidal ideation and his attempted suicide prior

14

to the homicide, each “standing alone” do not support his claim of competence

15

because they do not bear upon his mental status at the time of trial. Opp. at 58.

16

This argument would not have provided a legal basis for the state court to reject

17

Mr. Jones’s claim, however, because respondent did not raise it in the state court.

18

See section II.A.4., supra. In any event, as stated above, evidence of Mr. Jones’s

19

incompetence must be viewed in its entirety, including evidence of his long-

20

standing history of mental illness. See, e.g., McMurtrey v. Ryan, 539 F.3d at 1125

21

(holding that records showing defendant’s history of mental illness and instability

22

raised reasonable doubt even though psychiatric report before his guilty plea found

23

him competent).

24

Mr. Jones presented sufficient facts to create a “real and substantial doubt as

25

to his competency” to stand trial and was entitled to a hearing “even if those facts

26

were not presented to the trial court.” Deere v, 339 F.3d at 1086. Finally, to the

27

extent that the California Supreme Court denied the claim on any one of these

28

proffered bases, its decision is an unreasonable application of clearly established
103
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

federal law. See, e.g., Chavez, 656 F.2d at 517-18 (9th Cir 1981) (holding that

2

probative value of each piece of evidence must be viewed in light of the others).

3

c. Section 2254(d) Is Satisfied by the State Court’s Summary

4

Denial of Mr. Jones’s Adequately Pled Claim That His Due

5

Process Rights Were Violated Because No Hearing Was Held to

6

Determine His Competence and He Was Incompetent to Stand

7

Trial.

8

In his Opening Brief, Mr. Jones detailed the ways in which the state court’s

9

summary denial of Mr. Jones’s competency claim satisfies section 2254(d).

10

Opening Br. at 5-13, 119-21. The state court’s summary denial of Mr. Jones’s

11

claim was both contrary to and an unreasonable application of Supreme Court

12

precedent. As a general matter, the California Supreme Court’s refusal to hear Mr.

13

Jones’s adequately pled claims of constitutional error is contrary to clearly

14

established federal law that prohibits state courts from creating “unreasonable

15

obstacles” to the resolution of federal constitutional claims that are “plainly and

16

reasonably made.” Davis v. Wechsler, 263 U.S. at 24-25; see also Opening Br. at

17

7-11.

18

Specifically, in light of Mr. Jones’s extensive factual allegations and

19

supporting materials in the state court – which the state court was obligated to

20

accept as true – the state court’s ruling that Mr. Jones failed to make any prima

21

facie showing of entitlement to relief constitutes an unreasonable application of

22

Dusky, Drope, and Pate. See, e.g., Maxwell v. Roe, 606 F.3d 561 (holding that state

23

trial court’s conclusion that evidence was insufficient to raise bona fide doubt as to

24

defendant’s competency to stand trial and require a second competency hearing,

25

was unreasonable determination of facts and unreasonable application of Supreme

26

Court’s clearly established law, where defendant had history of mental illness,

27

frequently refused to take prescribed antipsychotic medications, was unable to

28

verbally or physically control himself in courtroom, exhibited increasingly
104
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

paranoid and psychotic behavior that impaired his communication with defense

2

counsel and reasoning regarding his defense, attempted suicide in midst of trial,

3

and spent substantial portion of trial involuntarily committed to hospital

4

psychiatric ward as danger to others, himself, or gravely disabled,); Watts v. Yates,

5

387 F. App’x 772 (9th Cir. 2010) (holding state court’s decision affirming trial

6

court’s redetermination that defendant was competent to stand trial was based on

7

unreasonable factual finding, because the trail court overlooked evidence

8

developed after first competency proceeding); Burton v. Cate, 913 F. Supp. 2d 822

9

(N.D. Cal. 2012) (holding state appellate court’s finding that reasonable judge in

10

position of trial judge would not have expressed doubt about petitioner’s

11

competency to stand trial was unreasonable determination of facts where Court of

12

Appeal discounted value of expert report probative of petitioner’s competence to

13

stand trial and recommended competency hearing, and Court of Appeal, like trial

14

judge, apparently gave no weight to petitioner’s recent mental health records).

15

Moreover, as the Opening Brief sets forth, the California Supreme Court’s

16

decision was contrary to clearly established federal law because the California

17

Supreme Court consistently has conditioned relief on incompetence to stand trial

18

claims upon a showing of “a diagnosed mental illness.” People v. Taylor, 47 Cal.

19

4th 850, 864, 220 P.3d 872 (2010);51 see also Opening Br. at 119-20. The test set

20
21
22
23
24
25
26
27
28

51

See also People v. Rodrigues, 8 Cal. 4th 1060, 1110, 36 Cal. Rptr. 2d 235,
258 (1994) (rejecting defendant’s claim due to the lack of a disorder or disability
and stating that “A defendant is mentally incompetent ‘if as a result of a mental
disorder or developmental disability, the defendant is unable to understand the
nature of the criminal proceedings or to assist counsel in the conduct of a defense
in a rational manner.’” (quoting Cal. Penal Code § 1367; italics added by
Rodrigues court). Rodrigues quoted from and relied on People v. Stankewitz, 32
Cal. 3d 80, 92, 184 Cal. Rptr. 611, 617 (1982), for the proposition that a
defendant’s incompetence must be rooted in a diagnosed mental illness. In
People v. Taylor, the California Supreme Court incorrectly described the standard
set forth in California Penal Code section 1367–including the requirement of a
105
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

continued…
Case No. CV-09-2158-CJC

1

forth and explained in Dusky, Drope, and Godinez does not require a diagnosed

2

mental illness or disorder. This modification or addition to the standard enunciated

3

in Taylor and its predecessors is contrary to clearly established federal law.

4

Although a defendant who is incompetent to stand trial may suffer from a

5

diagnosed mental illness or developmental disability, there is no requirement that

6

he or she do so. Symptoms indicative of or consistent with a possible mental or

7

medical condition, without rising to the level of a diagnosis of a specific disorder,

8

equally may interfere with one’s “mental acuity to see, hear and digest the

9

evidence, and the ability to communicate with counsel in helping prepare an

10

effective defense.” Odle v. Woodford, 238 F.3d 1084, 1089 (9th Cir. 2001). As a

11

result, this modification or addition to the standard is contrary to clearly

12

established federal law. Williams (Terry), 529 U.S. at 405-06 (state court decision

13

was contrary to clearly established law by improperly adding to prejudice

14

requirement of Strickland); Kennedy v. Lockyer, 379 F.3d 1040, 1052 (9th Cir.

15

2004) (addition of “substantial compliance” doctrine as a method of satisfying

16

constitutional obligation to provide a transcript to indigent defendant rendered state

17

court decision contrary to clearly established federal law).

18

Respondent argues that “there is no evidence, and Petitioner points to none,

19

suggesting that the California Supreme Court applied any rule of law other than the

20

federal standards for competence in denying Petitioner relief.”

21

Notably, respondent urged the California Supreme Court to continue with this

22

deviation from controlling federal law by repeating the provision in California

23

Penal Code section 1367 that limits incompetent to stand trial claims those

24

resulting from “mental disorder or developmental disability.” Inf. Resp. at 26.

25

Moreover, respondent cited to People v. Medina, 11 Cal. 4th 694, 906 P.2d 2

Opp. at 59.

26
27
28

diagnosis–as equivalent to the test enunciated by the Supreme Court. Taylor, 47
Cal. 4th at 861.
106
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

(1995), Inf. Resp. at 27, which held that “a defendant is mentally incompetent ‘if,

2

as a result of mental disorder or developmental disability, the defendant is unable

3

to understand the nature of the criminal proceedings or to assist counsel in the

4

conduct of a defense in a rational manner.’” 11 Cal. 4th at 733 (quoting People v.

5

Danielson, 3 Cal. 4th 691, 727, 13 Cal. Rptr. 2d 1 (1992) (emphasis in original));

6

see also Inf. Resp. at 26 (citing Danielson). As explained above, the California

7

Supreme Court is bound to follow its precedents, unless it issues an order to show

8

cause and modifies those decisions in a published decision; its failure to do so in

9

Mr. Jones’s case is binding authority on this Court that it continued to limit

10

incompetence to stand trial claims to those in which the incompetency results from

11

a mental disorder or developmental disability. See section II.C., supra.

12

2. There Is No Reasonable Basis for the State Court Ruling That Mr.

13

Jones Failed to Make a Prima Facie Showing for Relief on His

14

Ineffective Assistance of Counsel Claim.

15

a. Trial Counsel Unreasonably and Prejudicially Failed to

16

Investigate and Declare a Doubt as to Mr. Jones’s Competence to

17

Stand Trial.

18

The two-pronged inquiry of Strickland v. Washington, 466 U.S. 668, 104 S.

19

Ct. 2052, 80 L. Ed. 2d 674 (1984), and its related precedents discussed in

20

Petitioner’s Opening Brief are the controlling law for this claim. Because “judges

21

must depend to some extent on counsel to bring these issues into focus,” Drope v,

22

420 U.S. at 176-77, protection of a client’s substantive and procedural due process

23

rights is part of counsel’s duty to provide effective representation within the

24

meaning of Strickland v. Washington. The Ninth Circuit has held that “Counsel’s

25

failure to move for a competency hearing violates the defendant’s right to effective

26

assistance of counsel when “there are sufficient indicia of incompetence to give

27

objectively reasonable counsel reason to doubt the defendant’s competency, and

28

there is a reasonable probability that the defendant would have been found
107
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

incompetent to stand trial had the issue been raised and fully considered.” Stanley

2

v. Cullen, 633 F.3d 852, 862 (9th Cir. 2011) (quoting Jermyn v. Horn, 266 F.3d

3

257, 283 (3d Cir. 2001).); see also Newman, 726 F.3d at 929-32 (holding trial

4

counsel ineffective for failing investigate client’s fitness and request a hearing).

5

Trial counsel knew, or reasonably should have known that, notwithstanding

6

the preliminary determination of Mr. Jones’s competence in the spring of 1993, it

7

was critical to monitor Mr. Jones’s competence. See Burt v. Uchtman, 422 F.3d

8

557, 565-70 (7th Cir. 2005) (counsel ineffective for failing to request a second

9

competency hearing where defendant’s mental status had changed, including that

10

his medications changed significantly between the time of his competency

11

evaluation and his trial). By counsel’s own admission, the competency evaluations

12

that were conducted were based on minimal information about the case, and

13

resulted in only brief reports from the doctors.52 28 RT 4088. Nonetheless,

14

counsel unreasonably failed to consult with a mental health expert from the spring

15

of 1993, until he retained Dr. Thomas in August 1994. Ex. 154 at 2748-49. During

16

this intervening period, Mr. Jones received treatment at the jail “for “nerves” with

17

Atarax, an anti-anxiety medication (Ex. 33 at 596, 600, 602, 603, 604, 606, 608,

18

610, 613, 616, 618, 620, 622; Ex. 34 at 678, 685), and Haldol because he was

19

hearing voices (Ex. 33 at 622, 647, 669).53 See also State Pet. at 244-47.

20
21
22
23
24
25
26
27
28

52

Counsel’s failure to provide Drs. Mead and Stalberg with adequate
materials to assess Mr. Jones’s competence was in itself unreasonable and
prejudicial. See, e.g., Brown v. Sternes, 304 F.3d 677 (7th Cir. 2002) (holding trial
counsel ineffective for failing to investigate defendant’s mental illness and in
permitting court appointed experts to evaluate defendant with inadequate data;
prejudice was shown, in part, because the medical records counsel neglected to
obtain showed defendant suffered from chronic schizophrenia and raised a “bona
fide doubt” regarding his competence).
53

On June 30, 1993, Mr. Jones began taking 10 milligrams of Haldol two
times a day. Ex. 33 at 622. On August 3, 1993, Dr. Kunzman continued the
prescriptions for Haldol and Cogentin because Mr. Jones was hearing “voices,”
108
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

continued…
Case No. CV-09-2158-CJC

1

After an initial review of the materials and interviews with Mr. Jones, Dr.

2

Thomas cautioned counsel about Mr. Jones’s competence.

Ex. 154 at 2752.

3

Counsel proceeded to ignore Dr. Thomas’s warnings regarding Mr. Jones’s

4

competence; failed to investigate further the issue of Mr. Jones’s competence; and

5

failed to alert the court regarding those findings; thereby rendering prejudicially

6

deficient performance within the meaning of Strickland. See, e.g., Newman, 726

7

F.3d at 929-32 (holding trial counsel ineffective for failing to investigate client’s

8

fitness and request a hearing); United States v. Howard, 381 F.3d 873, 881 (9th Cir.

9

2004) (“When counsel has reason to question his client’s competence to plead

10

guilty, failure to investigate further may constitute ineffective assistance of

11

counsel.”); see also Bouchillon v. Collins, 907 F.2d 589, 595 (5th Cir. 1990)

12

(same).

13

Trial counsel’s failure to request the trial court to declare a doubt as to

14

petitioner’s competence to stand trial was professionally unreasonable in light of

15

Dr. Thomas’s advice that he:

16

noted the necessity of [Mr. Jones’s] medication regimen at the

17

County Jail and cautioned Mr. Manaster in my report of

18

December 7, 1994, about the serious competency issues: “In

19

order to be sure that [Mr. Jones] is competent to stand trial

20

under the provisions of 1368 P.C., he should be treated until he

21

is free of hallucinations and delusional thought.”

22

Ex. 154 at 2754, Inf. Reply at 209.

23

Dr. Thomas “had genuine doubts that Mr. Jones was able to cooperate with

24
25
26
27
28

but changed the dosage of Haldol to 5 milligrams once a day, and the dosage of
Cogentin to 2 milligrams once a day. Two weeks later, Dr. Kunzman noted Mr.
Jones’s erratic behavior and the need to further evaluate him for a possible
underlying mental disorder. Ex. 33 at 641.
109
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

counsel and rationally assist in the preparation of his case for trial.” Ex. 154 at

2

2754. Because counsel did not pose the question of competency to Dr. Thomas, he

3

never had the opportunity to present this information to Mr. Jones’s jury during the

4

penalty phase. Dr. Thomas’s professional medical opinion is clear, however: “If

5

Mr. Manaster had asked me, I would have opined that Mr. Jones was not competent

6

to stand trial.” Ex. 154 at 2754. In addition to the above instances of deficient

7

performance, trial counsel further unreasonably failed to:

8

●

Conduct a thorough investigation into petitioner’s life history

9

and lifelong mental impairments, which also would have placed him

10

on notice of the need to monitor closely Mr. Jones’s competence, and

11

would have alerted him to Mr. Jones’s fluctuating mental conditions.

12

See, e.g., Ex. 154 at 2751 (discussing Mr. Jones’s psychosis, which

13

can be more or less apparent at any given time);

14

●

15

revealing the inappropriate medication regimen petitioner received

16

from jail medical staff. See Ex. 150 at 2733 (“I was not aware that

17

the jail medical staff had discontinued Mr. Jones’s prescription for

18

his anti-psychotic medication Haldol as of November 1, 1994, when

19

his trial was about to begin, and did not renew his medication until

20

the day after he finished testifying in the guilt phase of his trial. I

21

mistakenly believed that Mr. Jones was medicated throughout both

22

phases of his capital trial.”);

23

●

24

present this information to the jury through Dr. Thomas. See Ex. 154

25

at 2761-62 (“I was surprised to learn . . . that I had been misled by

26

the information given to me by Mr. Jones’s trial counsel regarding

27

Mr. Jones’s medication regimen. . . . medical records from the Los

28

Angeles County Jail, [ ] showed that Mr. Jones’s prescription of
110

Adequately request and/or review Mr. Jones’s medical records

Alert his own expert to this problem, and accordingly failed to

Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

Haldol was abruptly discontinued right before the beginning of his

2

trial, in November 1994, with no apparent clinical basis for the

3

change. I was further surprised to learn that one day after Mr. Jones

4

finished his testimony in the ‘guilt’ phase of his trial, his Haldol

5

prescription was just as abruptly renewed. Thus, when Mr. Jones

6

testified in mid-January, he may have gone over two months without

7

anti-psychotic medication. Had I known about this at trial, I could

8

have testified more accurately about his medication and the possible

9

effect of its abrupt discontinuation.”);

10

●

Adequately interview or prepare Dr. Kunzman, the jail

11

psychiatrist, to testify on Mr. Jones’s behalf, as any minimally

12

competent witness preparation would have revealed that Mr. Jones’s

13

medication had been discontinued after the defense paralegal had

14

spoken to Dr. Kunzman, and would have precluded any misleading

15

and inaccurate testimony on the topic. See Ex. 150 at 2733 (“ I

16

called a Los Angeles County jail psychiatrist, Dr. Kunzman,

17

expressly for the purpose of putting into evidence the fact of Mr.

18

Jones’s medication regimen and the nature and side effects of those

19

medications. I obtained some medical records for Mr. Jones prior to

20

his trial, but I did not obtain the medical records that revealed this

21

significant interruption of Mr. Jones’s medication regimen. I had no

22

strategic reason for not doing so”); and,

23

●

24

than during his testimony. Ex. 150 at 2733 (“I did notice that Mr.

25

Jones was very fatigued during his testimony, especially during the

26

district attorney’s cross-examination.

27

normally tired, and had more trouble responding to the district

28

attorney’s questions than one would expect.”); see also Ex. 13 at 206
111

Monitor Mr. Jones’s courtroom demeanor at any time other

Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

He seemed more than

Case No. CV-09-2158-CJC

1

(defense paralegal explaining Mr. Jones’s dissociative states); (Ex.

2

144 at 2707) (explaining that Mr. Jones entered dissociative states

3

during the guilt and penalty phases of his trial, at which time he

4

exhibited a “blank expression and faraway look in his eyes that

5

reminded [her] of a closed curtain”).

6

Dr. Thomas’s opinion regarding Mr. Jones’s competence, along with Mr.

7

Jones’s treatment at the county jail with antidepressants, antipsychotics, and anti-

8

anxiety medication were sufficient to trigger an inquiry into his competence to

9

stand trial unless counsel possessed some other knowledge suggesting that Mr.

10

Jones was competent. See, e.g., United States v. Howard, 381 F.3d 873, 881 (9th

11

Cir. 2004); Douglas v. Woodford, 316 F.3d 1079, 1085 (9th Cir. 2003) (“Trial

12

counsel has a duty to investigate a defendant’s mental state if there is evidence to

13

suggest that the defendant is impaired.”).

14

To satisfy Strickland’s prejudice prong, Mr. Jones must allege that but for

15

counsel’s errors he would have been found incompetent to stand trial. See, e.g.,

16

Stanley v. Cullen, 633 F.3d at 862. Mr. Jones presented substantial evidence in

17

state court that he was incompetent to stand trial. See State Pet. at 242-50; Inf.

18

Reply at 203-07; see also Opening Br. at 115-18; section IV.D.1.b.. supra. There is

19

a reasonable probability that, had counsel raised the additional facts known to him

20

regarding Mr. Jones’s lack of competence, Mr. Jones would have been found

21

incompetent to stand trial.

22

Moreover, in Mr. Jones’s case, despite the strong evidence of his

23

incompetence, counsel offered to stipulate to petitioner’s competence immediately

24

preceding the testimony of Dr. Thomas. (30 RT 4404-05.) Counsel’s “agreement”

25

that petitioner was competent to stand trial amounts to “constructive denial of the

26

assistance of counsel altogether[, which] is legally presumed to result in

27

prejudice.”

28

omitted). Counsel’s compete failure to apprise the trial court of numerous facts
112

Hull v. Kyler 190 F.3d 88, 112 (3rd Cir. 1999) (internal citation

Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

demonstrating Mr. Jones’s incompetency to stand trial constitutes prejudice.

2

b. Section 2254 Does Not Bar Relief on This Claim.

3

The state court summarily denied Mr. Jones’s ineffective assistance of

4

counsel claim as failing to state a prima facie case for relief. To the extent the state

5

court’s ruling reflects its determination that Mr. Jones failed to plead sufficient

6

facts that, if proved, would entitle him to relief, the state court’s decision is (1)

7

contrary to clearly established federal law, and (2) an unreasonable application of

8

Strickland under section 2254(d)(1).

9

unreasonably determined the facts under section 2254(d)(2) by finding facts and

10
11

In the alternative, the state court

resolving disputes without any adjudicative procedure.
a) Section 2254(d)(1) is satisfied.

12

Taken as true, Mr. Jones’s allegations established a prima facie case that trial

13

counsel’s performance was deficient in failing to declare a doubt as to Mr. Jones’s

14

competence to stand trial. Mr. Jones also made a prima facie showing that he was

15

prejudiced by trial counsel’s deficient performance, demonstrating in detail the lay

16

witness testimony, documentary evidence, and expert testimony that could have

17

been presented that would have shown that he was incompetent to stand trial.

18

The state court’s summary denial of this claim was contrary to federal law

19

requiring a state court to ascertain facts reliably before denying adequately

20

presented federal claims. See Opening Br. at 6-13. The state court’s decision also

21

was contrary to federal law because it addressed facts that were “materially

22

indistinguishable” from United States Supreme Court decisions and nevertheless

23

arrived at a result that differed from the Court’s precedents. Williams, 529 U.S. at

24

406. In spite of sufficiently pleading a materially indistinguishable basis for relief

25

as that found meritorious in the Court’s cases, Mr. Jones’s claim was summarily

26

denied without a hearing. This also satisfies section 2254(d)(1).

27

Finally, the state court’s summary denial also constitutes an unreasonable

28

application of Strickland. Although Mr. Jones made detailed factual allegations,
113
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

which, taken as true, would entitle him to relief, the state court did not require

2

respondent to respond formally to Mr. Jones’s allegations or present evidence to

3

support respondent’s factual contentions. The state court ruling also denied Mr.

4

Jones the opportunity to present evidence, subpoena witnesses, and prove his

5

allegations. See Opening Br. at 86. The state court therefore declined to engage in

6

any assessment of the factual allegations and fact finding before denying Mr.

7

Jones’s claims, thus satisfying section 2254(d)(1). See, e.g., Wiggins v. Smith, 539

8

U.S. at 527 (holding that state court application of Strickland was unreasonable

9

when it did not conduct an assessment of whether counsel’s limited penalty phase

10

investigation was reasonable); Mosley v. Atchison, 689 F.3d at 848.

11

b) Section 2254(d)(2) is satisfied.

12

Alternatively, the state court’s summary denial could be based on its

13

resolution of key factual disputes and mixed questions of fact and law, such as the

14

effect of trial counsel’s performance on the jury’s verdict and whether trial counsel:

15

●

Was objectively unreasonable in failing to request the trial

16

court to declare a doubt as to Mr. Jones’s competence to stand trial;

17

●

18

to investigate and present evidence of Mr. Jones’s incompetence to

19

stand trial;

20

●

Failed to adequately prepare and present expert testimony;

21

●

Had tactical reasons for his actions and omissions; or

22

●

Prepared and presented witnesses according to prevailing

23

professional norms.

Fell below an objective standard of reasonableness in failing

24

If the state court denied Mr. Jones’s claim on these or other factual bases at the

25

pleading stage, it unreasonably determined the facts under section 2254(d)(2) by

26

failing to provide Mr. Jones either with process to develop and present supporting

27
28
114
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

evidence; or notice of and an opportunity to be heard on the factual issues that the

2

state court intended to resolve. See Opening Br. at 6-13.54

3

E.

Claim Five: Mr. Jones’s Constitutional Rights Were Violated When the

4

State Inappropriately and Involuntarily Medicated Him.

5

Mr. Jones satisfied state pleading requirements on his claim that he was

6

inappropriately and improperly medicated by presenting the California Supreme

7

Court with sufficient detail and supporting factual material to establish a prima

8

facie showing that he was entitled to relief. See, e.g., Duvall, 9 Cal. 4th at 474.

9

Mr. Jones demonstrated that that he was involuntarily under the medical treatment

10

of Los Angeles County Jail personnel, who prescribed powerful medication

11

throughout his custody in the jail. During trial, he was medicated involuntarily

12

with Atarax, Cogentin, Haldol, and Sinequan that had serious side effects,

13

including psychosis, paranoia, slurred speech, drowsiness, stiff muscles, and

14

restlessness. Mr. Jones also demonstrated that he tried to refuse the medication,

15

and never consented to it being abruptly started and stopped for a significant period

16

of time in the middle of trial, thus increasing the detrimental side effects. Mr.

17

Jones established that this inappropriate medication regimen prejudicially

18

interfered with his appearance during trial and his ability to participate in the trial

19

and his defense, thereby entitling him to relief. Opening Br. at 105-10.

20

This claim was not procedurally defaulted, and respondent did not present

21

factual materials or legal argument in state court to establish that Mr. Jones’s prima

22
23
24
25
26
27
28

54

Respondent’s only argument with respect to this claim is that trial counsel
reasonably relied on the previous evaluations and Mr. Jones’s courtroom behavior
would not have alerted counsel to request an additional evaluation. Opp. at 6061. Both of these issues are addressed above. To the extent that the California
Supreme Court resolved the factual support for these assertions, including
counsel’s knowledge of Mr. Jones’s deteriorating mental condition, its decision
violated section 2254(d) because it did not afford Mr. Jones an opportunity to
present evidence at a hearing.
115
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

facie showing should not be taken as true or that it otherwise lacked merit. Under

2

these circumstances, the state court was required to issue an order to show cause

3

and allow Mr. Jones access to state processes to develop and present evidence to

4

prove his claim. See, e.g. Duvall, 9 Cal. 4th at 475; Romero, 8 Cal. 4th at 742. By

5

instead summarily denying Mr. Jones’s claim, the California Supreme Court’s

6

decision satisfies section 2254(d) as set forth in Mr. Jones prior briefing and in the

7

sections that follow.

8

1. There Is No Reasonable Basis for the State Court Ruling That Mr.

9

Jones Failed to Make a Prima Facie Showing for Relief on His

10

Inappropriate and Involuntary Medication Claim.

11

In this Court, respondent argues, “Petitioner’s allegations that by medicating

12

him the state violated his constitutional rights to counsel and to confront witnesses

13

under the Sixth Amendment, to a reliable death judgment and to be free of cruel

14

and unusual punishment under the Eighth Amendment, to present witnesses and

15

defenses, and to compulsory process are barred by Teague v. Lane, 489 U.S. 288,

16

109 S. Ct. 1060, 103 L .Ed. 2d. 334 (1989).” Opp. at 61. The Teague doctrine

17

limits this Court’s ability to grant relief apart from 28 U.S.C. section 2254(d) and

18

thus it is not relevant to this stage of the proceedings. See n.1, supra. To the extent

19

that respondent contends that Mr. Jones seeks the application of federal law that

20

was not clearly established at the time of the California Supreme Court’s summary

21

denial of this claim, respondent is incorrect.55

22

At the time that Mr. Jones filed his state petition, his claim regarding

23
24
25
26
27
28

55

Respondent concedes that there was “clearly established Supreme Court
precedent existing during the relevant time” addressing “whether involuntary
medication violated a petitioner’s due process rights under the Fourteenth
Amendment.” Opp. at 61. Thus, respondent’s sole argument is that Mr. Jones’s
rights under the Sixth and Eighth Amendments were not clearly established. Opp.
at 61.
116
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

inappropriate and involuntary medication was grounded on the controlling

2

Supreme Court law enunciated in Riggins v. Nevada, 504 U.S. 127, 112 S. Ct.

3

1810, 118 L. Ed. 2d 479 (1992).56 See Opening Br. at 106-07; State Pet. at 257

4

(citing Riggins); Inf. Reply at 211-15 (discussing and applying Riggins). The

5

Supreme Court held that a potential deprivation of due process of law occurs when

6

a defendant involuntarily is prescribed antipsychotic medication during criminal

7

proceedings, and that once the defendant moves to terminate the administration of

8

such medication, the state becomes obligated to establish that the medication is

9

needed and medically appropriate. Riggins, 504 U.S. at 134–35. In his informal

10

reply, Mr. Jones cited to Sell v. United States, 539 U.S. 166, 179-81, 123 S. Ct.

11

2174, 156 L. Ed. 2d 197 (2003),57 in which the Supreme Court set substantive

12

limits defining the standard to be used for determining when an individual could be

13

involuntarily administered medication for the purpose of being able to stand a trial.

14

Inf. Reply at 212.

15

Respondent asserts that, based on a “survey of relevant case law,” there is no

16

controlling federal law regarding a defendant’s Sixth Amendment rights not to be

17

forcibly medicated. Opp. at 61. Respondent’s survey failed to account for the

18

Supreme Court’s reasoning in Riggins and subsequent interpretations of it. In

19

Riggins, the Court granted certiorari to decide “whether forced administration of

20

antipsychotic medication during trial violated rights guaranteed by the Sixth and

21

Fourteenth Amendments.”

Riggins, 504 U.S. at 132–33.

In Riggins, Justice

22
23
24
25
26
27
28

56

The Court’s reasoning in Riggins relied upon its previous decision in
Washington v. Harper, 494 U.S. 210, 110 S. Ct. 1028, 108 L. Ed. 2d 178 (1990),
which recognized that a mentally ill state prisoner possessed a significant liberty
interest in avoiding unwanted administration of antipsychotic drugs under the Due
Process Clause of the Fourteenth Amendment.
57

Sell was decided on June 16, 2003, four months before Mr. Jones’s
conviction became final. Id. 539 U.S. 166.
117
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

Kennedy recognized that concerns about medication extend to a defendant’s Sixth

2

Amendment right to counsel.

3

The defendant must be able to provide needed information to his

4

lawyer and to participate in the making of decisions on his own

5

behalf.

6

attorney-client relation, preventing effective communication and

7

rendering the defendant less able or willing to take part in his

8

defense.

9

Riggins, 504 U.S. at 144.

The side effects of antipsychotic drugs can hamper the

Furthermore, Justice Kennedy observed that

10

fundamental to the adversary system is “that the trier of fact observes the accused

11

throughout the trial, while the accused is either on the stand or sitting at the defense

12

table. This assumption derives from the right to be present at trial, which in turn

13

derives from the right to testify and rights under the Confrontation Clause.”

14

Riggins, 504 U.S. at 142 (Kennedy, J., concurring).

15

behavior, manner, facial expressions, and emotional responses, or their absence,

16

combine to make an overall impression on the trier of fact, an impression that can

17

have a powerful influence on the outcome of the trial.” Id. Subsequent case law

18

confirms that the Supreme Court’s decision rested on Sixth Amendment and

19

Fourteenth Amendment principles. See, e.g., Benson v. Terhune, 304 F.3d 874,

20

880-81 (9th Cir. 2002) (“In Riggins, the Supreme Court held that the forced

21

administration of antipsychotic drugs to control the behavior of a pretrial

22

detainee—absent overriding justification and proof of medical appropriateness—is

23

impermissible because it may violate the defendant’s constitutional right to due

24

process, including her right to a fair trial.”) (emphasis added); Smith v. Moore, 137

25

F.3d 808, 818 n.6 (4th Cir. 1998) (“In Riggins, the Supreme Court held that the

26

defendant’s Sixth and Fourteenth Amendment rights were violated by the forced

27

administration of Mellaril during trial.”) (emphasis in original).

28

Thus, “the defendant’s

Similarly, the reasoning in Riggins that forced medication affects the
118
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

reliability of the proceedings necessarily implicates Eighth Amendment concerns

2

in capital cases.

3

addressed due process challenges and not Eighth Amendment claims, the logical

4

inference from these holdings is that subjecting a prisoner to involuntary

5

medication when it is not absolutely necessary or medically appropriate is contrary

6

to the ‘evolving standards of decency’ that underpin the Eighth Amendment.”

7

Thompson v. Bell, 580 F.3d 423, 440 (6th Cir. 2009).58

8

“Although the Supreme Court in Harper, Riggins and Sell

a. Mr. Jones Made a Prima Facie Showing That His Federal

9

Constitutional

10

Rights

Were

Violated

When

the

State

Inappropriately and Involuntarily Medicated Him.

11

Mr. Jones presented evidence in state court that he was prescribed Sinequan,

12

an

13

anticholinergic medication used to control extrapyramidal disorders caused by

14

neuroleptic drugs; Atarax, an antianxiety medication; and Theodrine, an

15

antiasthmatic. The state court record also demonstrates that Mr. Jones refused

16

medication on a number of occasions and, without any clinical basis, shortly before

17

trial, jail medical staff discontinued his medication but reinstated it the day after his

18

testimony in the guilt phase concluded. Opening Br. at 107-08. Mr. Jones also

19

presented evidence that the improper and inconsistent administration of his

20

medication by county jail medical staff prejudicially interfered with his appearance

21

during trial. Opening Br. at 108. Counsel noted Mr. Jones’s fatigue and difficulty

22

responding to the district attorney’s questions during cross examination. Ex. 150 at

23

2733; see also Ex. 144 at 2707 (describing Mr. Jones as quite agitated in the guilt

antidepressant;

Haldol,

an

antipsychotic

medication;

Cogentin,

an

24
25
26
27
28

58

In his opposition, respondent also asserted that “to the extent Petitioner is
arguing that he was not permitted to refuse antipsychotic medication, and the
evidence demonstrates that without such medication he would have been
incompetent to stand trial, his claims fail.” Opp. at 62. Mr. Jones did not raise
such a claim.
119
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

phase and noticing a change in his demeanor during the penalty phase, describing

2

him as “expressionless”).

3

Mr. Jones’s allegations before the California Supreme made a prima facie

4

showing that his constitutional rights were violated. State Pet. at 254-61. In

5

Riggins, 504 U.S. at 138, the Supreme Court held that the forced administration of

6

antipsychotic medication during trial violated a defendant’s right to due process,

7

unless the trial court made findings that the medication was necessary for the sake

8

of the defendant’s safety or the safety of others and that there were no other

9

reasonable alternatives available. No such findings were made in Mr. Jones’s case.

10

Moreover, Mr. Jones presented substantial evidence that the forced medication as

11

well as the abrupt cessation of the medication during trial had profound effects on

12

his functioning and appearance. The state’s unpredictable and abrupt changes in

13

Mr. Jones’s medication regimen included the abrupt discontinuation of

14

antipsychotic medications immediately after jail psychiatric staff consulted with a

15

member of the defense team, and the equally abrupt reinstating of these

16

medications immediately following Mr. Jones’s testimony in the guilt phase.

17

Opening Br. at 105-08; see also Ex. 33 at 640, 663; Ex. 34 at 690; Ex. 154 at 2754.

18

b. Respondent’s Proffered Rationales for the California Supreme

19

Court’s Decision Are Unavailing.

20

1) The California Supreme Court could not reasonably reject

21

the claim based on a theory that Mr. Jones voluntarily took

22

the medication or consented to the inappropriate medication

23

regimen.

24

In state court, respondent contended that there was no evidence that Mr.

25

Jones “was ever given the medications against his will.”

26

Respondent also asserted that Mr. Jones requested the medication. Inf. Resp. at 28.

27

In federal court as well, respondent found it significant that “Petitioner requested

28

Haldol.” Opp. at 63 (emphasis in original). However, Mr. Jones testified that he
120
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Inf. Resp. at 28.

Case No. CV-09-2158-CJC

1

did not specifically request any particular type of medication. 24 RT 3586-87. In

2

fact on June 8, 1993, jail medical records indicate Mr. Jones asked Dr. Kunzman

3

for vitamins, and that Dr. Kunzman determined that Mr. Jones required Atarax for

4

“nerves.” Ex. 33 at 648, 670. Respondent’s arguments, thus, raise factual disputes

5

that could not have been resolved by the state court without issuing an order to

6

show cause. See section II.A.3, supra.

7

In federal court, respondent acknowledges that Dr. Kunzman testified to

8

gaps in Mr. Jones’s medication, although Dr. Kunzman could not explain the

9

reason for change in the medication regime. Opp. at 63. Respondent then asserted

10

that nothing in the record shows that Mr. Jones was forced to take medication,

11

having refused them, “as was the case in Riggins.” Opp. at 63. This argument

12

would not have provided a legal basis for the state court to reject Mr. Jones’s claim,

13

however, because respondent did not raise it in the state court. See section II.A.4.,

14

supra.

15

Respondent argues that Riggins and Harper were the only clearly established

16

Supreme Court authority at the relevant time Mr. Jones’s conviction became final

17

and because neither addressed the “voluntary ingestion of psychotropic

18

medications” the state court did not unreasonably apply them. Mr. Jones’s claim is

19

that he was involuntarily and inappropriately medicated, not that he was

20

voluntarily medicated. Opening Br. at 105-06. Respondent further argued that the

21

California Supreme Court’s denial of relief was not inconsistent with Riggins or

22

Harper because the facts of Mr. Jones’s case are significantly different from those

23

cases. Opp. at 64. In Benson v. Terhune, 304 F.3d 874 (9th Cir. 2002), the Ninth

24

Circuit did not find distinctions between facts in a habeas petitioner’s case and

25

those in Riggins as dispositive. That case involved a claim that the defendant’s due

26

process rights were violated when she was medicated by jail personnel without

27

“informed consent.” The court stated that even if the facts of the case differed

28

from Riggins, “the question still remains whether the California court unreasonably
121
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

applied Riggins and other Supreme Court authority to this new factual situation.”

2

Id. at 882.59

3

2) The California Supreme Court could not reasonably reject

4

the claim that Mr. Jones was not prejudiced by his

5

appearance and demeanor as observed by the jury.

6

In state court, respondent asserted that Mr. Jones’s claim that the

7

medications “negatively affected his appearance before the jury is speculative and

8

unsupported.” Inf. Resp. at 28. In federal court, respondent stated that the only

9

support Mr. Jones offers for this argument “are biased declarations from defense

10

team members.” Opp. at 64 (citing to the declarations of trial counsel and the trial

11

paralegal). This argument would not have provided a legal basis for the state court

12

to reject Mr. Jones’s claim, however, because respondent did not raise it in the state

13

court.

14

credibility of Mr. Jones’s declarants involves weighing evidence and making

15

credibility findings that could not have been resolved by the state court without

16

issuing an order to show cause. Duvall, 9 Cal. 4th at 475; Romero, 8 Cal. 4th at

17

742; see also section II.A.3., supra.

See section II.A.4., supra.

In any event, respondent’s attack on the

18

In state court, respondent asserted additionally that “[n]othing indicates that

19

petitioner received an improper dosage of the medications, that that his mental state

20

was impaired rather than improved by the medications, or that the medications

21

adversely rather than beneficially affected his demeanor.” Inf. Resp. at 28. In

22
23
24
25
26
27
28

59

In Benson v. Terhune, the Ninth Circuit reviewed an appeal of denial of a
writ of habeas corpus by a prisoner convicted of second-degree murder. Ms.
Benson claimed she was medicated with psychotropic and other drugs during trial
without her informed consent. Ms. Benson challenged her original conviction on
these grounds before the California state courts. The California Supreme Court
issued an order to show cause and Judge David Herrick, conducted a ten-day
evidentiary hearing in Lake County Superior Court. Id. at 879.
122
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

federal court, respondent has abandoned most of these arguments, asserting instead

2

that Mr. Jones has not shown that the treatment “was not medically appropriate.”

3

Opp. at 64 (citing Riggins, 504 U.S. at 135). Respondent is mistaken. At trial, Dr.

4

Kunzman testified that if medication was not properly titrated, an individual

5

“would have slurred speech, would be drowsy, would appear to be stiff, sleepy” or

6

“might demonstrate the paranoia and suspiciousness and may not be able to attend

7

to what is going on and appear to responding [sic] to voices from someplace else.”

8

23 RT 3550. Notwithstanding Dr. Kunzman’s testimony regarding the proper

9

titration of medication, jail medical staff, with no apparent clinical basis for the

10

change, abruptly discontinued Mr. Jones’s prescription for Haldol and Cogentin

11

from November 2, 1994, until January 24, 1995, the day that Mr. Jones concluded

12

his testimony in the guilt phase of the trial. State Pet. at 255; Ex. 33; Ex. 34. At

13

best, respondent’s arguments raise factual disputes that could not have been

14

resolved by the state court without issuing an order to show cause. Duvall, 9 Cal.

15

4th at 475; Romero, 8 Cal. 4th at 742; see also section II.A.3, supra.

16

3) The California Supreme Court could not reasonably reject

17

the claim based on a theory that the medications did not

18

adversely affected his ability to understand the proceedings

19

or assist in his defense.

20

Mr. Jones presented evidence in state court that the improper and

21

inconsistent administration of his medication by county jail medical staff

22

prejudicially interfered with his ability to consult with counsel at trial. In state

23

court, respondent asserted that Mr. Jones failed to show that the “medications

24

adversely affected his ability to understand the proceedings or assist in his

25

defense.” Inf. Resp. at 29. Respondent correctly abandons this argument in this

26

Court, as Mr. Jones presented evidence in state court that “it was extremely

27

important for someone with Mr. Jones’s mental impairments to receive regular and

28

proper medications, particularly to decrease psychotic symptoms as much as
123
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

possible. Haldol is a difficult drug to take, and often has significant side effects.”

2

Ex. 154 at ¶ 25.

3

2. Section 2254(d) Is Satisfied by the State Court’s Summary Denial of

4

Mr. Jones’s Adequately Pled Claim That His Constitutional Rights

5

Were Violated When the State Inappropriately and Involuntarily

6

Medicated Him.

7

The state court’s summary denial of Mr. Jones’s claim was both contrary to

8

and an unreasonable application of Supreme Court precedent. As a general matter,

9

the California Supreme Court’s refusal to hear Mr. Jones’s adequately pled claims

10

of constitutional error is contrary to clearly established federal law that prohibits

11

state courts from creating “unreasonable obstacles” to the resolution of federal

12

constitutional claims that are “plainly and reasonably made.” Davis v. Wechsler,

13

263 U.S. at 24-25; see also Opening Br. at 7-11. Specifically, in light of Mr.

14

Jones’s extensive factual allegations and supporting materials in the state court –

15

which the state court was obligated to accept as true – the state court’s ruling that

16

Mr. Jones failed to make any prima facie showing of entitlement to relief is

17

contrary to Riggins. As explained in the Opening Brief, Mr. Jones’s allegations

18

that his rights were violated by the unwanted and medically inappropriate regimen

19

of drugs he received during trial are “materially indistinguishable” from those set

20

out in Riggins and Sell, but the state court determined that he did not sufficiently

21

plead a claim for relief.

22

concurring). By failing to engage in any fact finding or adversarial proceeding to

23

resolve Mr. Jones’s claim, the state court decision also was an unreasonable

24

application of Riggins and Sell. See Panetti v. Quarterman, 551 U.S. 930, 954, 127

25

S. Ct. 2842, 168 L. Ed. 2d 662 (2007). To the extent that the state court settled

26

these questions or other factual questions, its decision was an unreasonable

27

determination of facts. See Hurles v. Ryan, 650 F.3d 1301, 1312 (9th Cir. 2011).

See, e.g., Williams, 529 U.S. at 405 (O’Connor, J.,

28
124
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

F.

Claim Six: Mr. Jones’s Constitutional Rights Were Violated by the

2

Conduct and Rulings of Former Judge George Trammell.

3

In state court, Mr. Jones alleged that his death sentence and confinement

4

were unlawfully obtained in violation of his Fifth, Sixth, Eighth, and Fourteenth

5

Amendment rights guaranteed by the United States Constitution because the judge

6

who ruled on virtually all of the pretrial motions and empanelled petitioner’s jury

7

had a conflict of interest and disabling psychological condition that prevented him

8

from being an unbiased decision-maker. State Pet. at 378-82; Inf. Reply at 355-58.

9

Specifically, former Judge Trammell was tried and convicted in federal court for

10

coercing a defendant to have sex with him in exchange for a more lenient sentence

11

for her husband, conduct which occurred soon after petitioner’s trial. Ex. 137 at

12

2674-80. Judge Trammell’s rulings on questions relating to sexual assault, such as

13

his ruling preventing defense counsel from asking jurors whether evidence of a

14

prior sexual assault would cause them automatically to vote for death (2 RT 726-

15

28), casts doubt on the fairness of the proceedings in Mr. Jones’s trial. See Tumey

16

v. State of Ohio, 273 U.S. 510, 532, 47 S. Ct. 437 (1927). The judge’s conduct and

17

impairments denied Mr. Jones access to “a fair trial in a fair tribunal.” In re

18

Murchison, 349 U.S. 133, 136, 75 S. Ct. 623, 625, 99 L. Ed. 942 (1955).

19

The California Supreme Court’s summary denial of this claim was an

20

unreasonable application of controlling federal law because Mr. Jones stated a

21

prima facie case for relief. See, e.g., Bracy v. Gramley, 520 U.S. 899, 117 S. Ct.

22

1793, 138 L. Ed. 2d 97 (1997) (Constitutional floor established by Due Process

23

Clause of Fourteenth Amendment requires fair trial in fair tribunal before judge

24

with no actual bias against defendant or interest in outcome of his particular case.);

25

Hurles v. Ryan, 706 F.3d 1021, 1036-37 (9th Cir. 2013) (“We do not ask whether

26

Judge Hilliard actually harbored subjective bias.

27

average judge in her position was likely to be neutral or whether there existed an

28

unconstitutional potential for bias.” (citing Caperton v. A.T. Massey Coal Co., 556
125
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Rather, we ask whether the

Case No. CV-09-2158-CJC

1

U.S. 868, 881, 129 S. Ct. 2252, 173 L. Ed. 2d 1208 (2009)); Harrison v. McBride,

2

428 F.3d 652 (7th Cir. 2005) (granting habeas relief on judicial bias claim and

3

holding that the state court’s adjudication of the claim was contrary to clearly

4

established federal law where the state court standard required an “undisputed

5

claim of prejudice”); Franklin v. McCaughtry, 398 F.3d 955 (7th Cir. 2004)

6

(holding that the state court judicial bias standard is contrary to clearly established

7

federal law and granting habeas relief where judge found to be actually biased).

8

G.

9

Claim Seven: The Trial Court Violated Mr. Jones’s Rights to a Fair
Trial by Precluding Inquiry Into Prospective Jurors Biases.

10

In state court, Mr. Jones alleged that his convictions and sentence of death

11

were rendered in violation of his rights to a fair trial, an impartial jury, and a

12

reliable, rational, and non-arbitrary determination of penalty, as guaranteed by the

13

Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution,

14

because the trial court permitted an inadequate and one-sided voir dire of the jurors

15

and failed to ensure that the prospective jurors’ biases were revealed. State Pet. at

16

282-84; Inf. Reply at 261-64. Specifically, the trial court refused to permit trial

17

counsel to ask prospective jurors whether a prior conviction for sexual assault

18

would cause them automatically to vote for death (2 RT 725-26); misstated the law

19

regarding the consideration of mitigating and aggravating evidence (see, e.g., 11

20

RT 2036); and failed to correct misstatements of law offered by trial counsel. See,

21

e.g., 5 RT 1250; 8 RT 1638. The trial court’s curtailment of voir dire denied Mr.

22

Jones “a fair trial by a panel of impartial, indifferent jurors.” Irvin v. Dowd, 366

23

U.S. 717, 722, 81 S. Ct. 1639, 1642, 6 L. Ed. 2d 751 (1961). Moreover, it did not

24

enable the court to select an impartial jury or assist counsel in exercising

25

peremptory challenges. See, e.g., Rosales-Lopez v. United States, 451 U.S. 182,

26

188, 101 S. Ct. 1629, 1634, 68 L. Ed. 2d 22 (1981). To determine whether

27

potential jurors should be excused for cause, the trial court must permit sufficient

28

questioning to test the individuals’ ability to set aside their personal beliefs and
126
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

follow the judge’s instructions. See, e.g., Uttecht v. Brown, 551 U.S. 1, 20, 127 S.

2

Ct. 2218, 167 L. Ed. 2d 1014 (2007) (directing that a trial court’s discretion to

3

grant a challenge for cause is entitled to deference “where [ ] there is lengthy

4

questioning of a prospective juror and the trial court has supervised a diligent and

5

thoughtful voir dire”).

6

The California Supreme Court’s summary denial of this claim was an

7

unreasonable application of controlling federal law because Mr. Jones stated a

8

prima facie case for relief. See, e.g., Morgan v. Illinois, 504 U.S. 719, 729 (1992)

9

(stating “part of the guarantee of a defendant’s right to an impartial jury is an

10

adequate voir dire to identify unqualified jurors”); Darbin v. Nourse, 664 F.2d

11

1109, 1113 (9th Cir. 1981) (“The trial court must conduct voir dire in a manner that

12

permits the informed exercise of both the peremptory challenge and the challenge

13

for cause.

14

prejudice are, of course, a necessary part of voir dire because they may elicit

15

responses which will allow the parties to challenge jurors for cause. However,

16

such general inquiries often fail to reveal relationships or interests of the jurors

17

which may cause unconscious or unacknowledged bias. For this reason, a more

18

probing inquiry is usually necessary.”).60

19

H.

Questions which merely invite an express admission or denial of

Claim Eight: The Trial Court Violated Mr. Jones’s Rights to a Fair and

20

Impartial Jury When It Unreasonably Denied Cause Challenges.

21

In the state court, Mr. Jones alleged that his death sentence was rendered in

22

violation of the his right to a reliable, rational, non-arbitrary determination of guilt

23

and penalty as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments

24

to the United States Constitution because the trial court unreasonably sustained and

25
26
27
28

60

Respondent’s assertion that merits review of this claim is barred by the
procedural default doctrine is foreclosed for the reasons stated in Section III,
supra.
127
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

denied for-cause challenges, thus ensuring a death-prone jury. Specifically, the

2

judge excused prospective jurors Rich and Uzan for cause that were pro-life (9 RT

3

1792 (prospective juror Rich), 11 RT 2200 (prospective juror Uzan)) and denied

4

for-cause challenges for prospective jurors Labbee and Okamuro who were pro-

5

death (7 RT 1346 (prospective juror Labbee, 7 RT 1460 (prospective juror

6

Okamuro)). The trial judge employed his unique, arbitrary, unreviewable, and

7

wholly unconstitutional method of determining fitness to find that the body

8

language of pro-death prospective jurors indicated their pro-death views would not

9

“substantially impair the performance of [their] duties as a juror in accordance with

10

[their] instructions and [their] oath.” Wainwright v. Witt, 469 U.S. 412, 433, 105 S.

11

Ct. 844, 83 L. Ed. 2d 841 (1985) (internal citation omitted). The trial court’s

12

unreasonable decisions were apparent from the prospective jurors’ questionnaires

13

and the record on appeal. App. Opening Br. at 35-61; App. Reply Br. at 2-10; State

14

Pet. at 282-84; Inf. Reply at 261-67; II Supp. 7 CT 1827-51, 2003-27; II Supp. 10

15

CT 2905-29; II Supp. 14 CT 3907-31.

16

The California Supreme Court did not review Mr. Jones’s claim that the trial

17

court employed an incorrect standard in denying the cause challenges for jurors

18

Labbee and Okamuro and failed to employ consistent standards in granting the

19

prosecution’s challenges. Fed. Pet at 140-42. This claim was presented in the state

20

petition filed contemporaneously with the federal petition, but Mr. Jones withdrew

21

that petition and the California Supreme Court did not review the claim because

22

respondent expressly waived the exhaustion defense as to all claims in the federal

23

petition. See Answer to Petition for Writ of Habeas Corpus, filed April 6, 2010

24

(Doc. 28) at 2 n.3 (noting that “Respondent is not asserting that any claims in the

25

instant federal Petition are unexhausted”); Response to Application to Defer

26

Informal Briefing on Petition for Writ of Habeas Corpus, filed Mar. 25, 2010, In re

27

Jones, California Supreme Court Case No. S180926 at 1 (stating “respondent has

28

examined the federal petition and has determined that all claims therein appear to
128
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

be exhausted. . . . Respondent will therefore be filing an answer to the federal

2

petition and will not be asserting that any claims are unexhausted.”).61

3

Therefore, review of this claim is not barred by 28 U.S.C. section 2254(d).

4

Section 2254(d) applies only to claims that were “adjudicated on the merits in State

5

court proceedings.” 28 U.S.C. § 2254(d); see also Cullen v. Pinholster, ___ U.S.

6

___, 131 S. Ct. 1388, 1398, 179 L. Ed. 2d 557 (2011) (explaining that section

7

2254(d) applies to claims previously “adjudicated on the merits in state court

8

proceedings”) (quoting 28 U.S.C. § 2254(d)); Harrington v. Richter, ___ U.S. ___,

9

131 S. Ct. 770, 780, 178 L. Ed. 2d 624 (2011) (same).

10

I.

Claim Nine: Mr. Jones’s Federal Constitutional Rights Were Violated

11

When He Was Held to Answer and Convicted of Crimes for Which

12

There Was Insufficient Evidence.

13

In state court, Mr. Jones alleged that his death sentence was rendered in

14

violations of his right to a reliable, rational non-arbitrary determination of guilt and

15

penalty as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to

16

the United States Constitution because he was held to answer and convicted of

17

crimes for which the prosecution failed to marshal sufficient or any evidence of his

18

guilt on key charges and a critical special circumstance. State Pet. at 279-81; Inf.

19

Reply at 252-60. Specifically, Mr. Jones was charged with the crimes of murder,

20

rape, burglary, and robbery, as well as special circumstance allegations of rape,

21

burglary, and robbery. 1 CT 91-92. At the preliminary hearing on December 10,

22

1992, counsel successfully argued to have the rape and burglary special

23

circumstance allegations struck. 1 CT 84. On September 1, 1993, the prosecution

24

filed an amended information, re-charging the murder, with the rape, burglary, and

25

robbery special circumstance allegations, as well as separate charges of rape,

26
27
28

61

Thus, respondent’s assertion of non-exhaustion in the Opposition is
foreclosed. Opp. at 71.
129
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

robbery, and burglary. 1 CT 98-102. Despite the earlier ruling, trial counsel’s

2

motion to strike the information was denied by Judge Trammell. 1 RT 521-22.

3

The prosecution relied on three facts to prove the victim was raped: (1) that Mr.

4

Jones’s semen was found inside her; (2) her wrists and ankles were bound; and (3)

5

her lower body and torso was exposed. Inf. Reply at 255. In light of the totality of

6

the evidence that the sexual assault occurred post-mortem, the mere presence of

7

semen found inside the victim was insufficient to prove non-consensual sexual

8

intercourse. Inf. Reply at 256-60; Ex. 171 at 3038 (no evidence of hemorrhaging

9

or bruising to the victim’s wrists); Ex. 171 at 3038 (no evidence of disturbance on

10

skin at the site of ankle bindings); 17 RT 2777-78 (evidence victim was stabbed

11

prior to nightgown being pulled up.). Thus the record evidence in Mr. Jones’s case

12

could not “reasonably support a finding of guilt beyond a reasonable doubt.”

13

Jackson v. Virginia, 443 U.S. 307, 318, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560

14

(1979).

15

The California Supreme Court’s summary denial of this claim was an

16

unreasonable application of controlling federal law because Mr. Jones stated a

17

prima facie case for relief. See, e.g., Juan H. v. Allen, 408 F.3d 1262, 1277-79 (9th

18

Cir. 2005) (evidence is insufficient to support a verdict where mere speculation,

19

rather than reasonable inference, supports the state’s case), see also Briceno v.

20

Scribner, 555 F.3d 1069, 1079 (9th Cir. 2009) (evidence insufficient to support a

21

verdict where there is a “total failure of proof of the requisite specific intent”).62

22
23
24
25
26
27
28

62

Respondent’s assertion that merits review of this claim is barred by the
procedural default doctrine is foreclosed for the reasons stated in Section III,
supra.
Respondent’s reliance on the purported procedural default based on In re
Lindley, 29 Cal. 2d 709, 723, 177 P.2d 918 (1947), also is unavailing in light of
the state-court application of the bar in this case. Although the Ninth Circuit has
found, generally, that this bar is an independent and adequate state ground on
which procedural default can be based, see Carter v. Giurbino, 385 F.3d 1194,
130
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

continued…
Case No. CV-09-2158-CJC

1

J.

Claim Ten: Mr. Jones’s Constitutional Rights Were Violated by the

2

Introduction of Propensity Evidence During the Guilt Phase.

3

In state court, Mr. Jones alleged that his death sentence was rendered in

4

violation of his right to a reliable, rational non-arbitrary determination of guilt and

5

penalty as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to

6

the United States Constitution because (1) the trial court erroneously admitted facts

7

and circumstances surrounding Mr. Jones’s prior rape conviction; and (2) the

8

prosecutor used the evidence of the prior crime as improper propensity evidence to

9

impermissibly alleviate the burden of proof on the state for the felony-murder

10

charge and rape special circumstance. State Pet. at 54-65; Inf. Reply at 26-53.

11

Specifically, the prosecutor argued that the 1986 prior crime and the capital crime

12

were unique, distinctive crimes and admissible as identity, intent, and a common

13

plan or scheme pursuant to California Evidence Code section 1101(b). 1 RT 681-

14

82. Over Mr. Jones’s objection, the court concluded that the 1986 crime was

15

relevant to intent, common plan and design, and identity, but reserved ruling on

16

whether to exclude it based on Evidence Code section 352. 1 RT 688; see also 14

17

RT 2377. When the trial court later refused to rule on the admissibility of the 1986

18

crime, trial counsel withdrew his objection. 14 RT 2382-83.

19

The 1986 prior crime involving Mrs. Harris demonstrated a chaotic and

20
21
22
23
24
25
26
27
28

1196 (9th Cir. 2004), the application of the bar in this case demonstrates that the
state-court application is unclear and inconsistent. In addition to citing these
grounds to bar the claim, the California Supreme Court also denied the claim on
the merits. Reviewing the claim on the merits signals that the state court, at least
in some unknown circumstances, permits the filing of insufficiency claims on
habeas corpus. Because California law does not clarify when or how such a filing
is allowed, the bar is not sufficiently clear and regularly applied to constitute an
adequate bar to federal review. Accordingly, the claim that the evidence against
Mr. Jones was insufficient to sustain a conviction should not be dismissed as
procedurally defaulted.
131
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

disturbed series of events, and evidenced Mr. Jones’s inability to plan due to the

2

symptoms of his mental illness, thus negating a common scheme or plan with the

3

capital crime. See Ex. 8 at 88; Ex. 14 at 137; Ex. 104 at 2177, 2184; Ex. 178 at

4

3147; Inf. Reply at 34-36. The plan or scheme supposedly represented by the prior

5

crime was not sufficiently similar to the facts of the capitally charged crime to be

6

probative of the disputed issues at trial, including, among other things, Mr. Jones’s

7

friendly relationship with Mrs. Miller, and his being invited into Mrs. Miller’s

8

home. See 26 RT 3904; see also Inf. Reply at 32-33. The prior crime was not

9

probative on the issue of whether petitioner did, or could have, formed the specific

10

intent required for the counts charged in his capital trial. Inf. Reply at 36-39. Nor

11

was it probative of motive (1 RT 688) and identity was not in issue (1 RT 686).

12

Thus, the prior crimes evidence was irrelevant and its admission highly prejudicial;

13

thereby rendering Mr. Jones’s trial fundamentally unfair. See Estelle v. McGuire,

14

502 U.S. 62, 112 S. Ct. 475, 116 L. Ed. 2d 385 (1991).

15

The California Supreme Court’s summary denial of this claim was an

16

unreasonable application of controlling federal law because Mr. Jones stated a

17

prima facie case for relief. See, e.g., McKinney v. Rees, 993 F.2d 1378 (9th Cir.

18

1993) (defendant’s possession of and fascination with knives did not support any

19

permissible inference relevant to defendant’s prosecution for the stabbing-murder

20

of his mother, and violated due process); Leavitt v. Arave, 383 F.3d 809, 829 (9th

21

Cir. 2004) (evidence of unconnected prior crimes is inadmissible if the only

22

purpose is to show bad character or propensity to commit crimes.).63

23
24
25
26
27
28

63

Respondent’s assertion that merits review of this claim is barred by the
procedural default doctrine is foreclosed for the reasons stated in Section III,
supra. To the extent that trial counsel waived this claim at trial, Mr. Jones
presented a prima facie claim of ineffective assistance of counsel based on trial
132
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

continued…
Case No. CV-09-2158-CJC

1

K.

Claim Eleven: Mr. Jones Was Deprived of the Right to Present a

2

Defense When the Trial Court Refused to Permit Him to Testify About

3

His Mental Health History.

4

In Claim Eleven, Mr. Jones alleged that the trial court unconstitutionally

5

deprived him of his right to present a defense and testify in his own defense by

6

denying him the right to testify on his own behalf and provide testimony in support

7

of his defense that he was unable to form the specific intent for the crimes charged.

8

Fed. Pet. at 154-61. Mr. Jones presented this claim to the state court on direct

9

appeal. App. Opening Br. at 109-25; App. Reply Br. at 40-44.

10
11

1. Mr. Jones Established His Entitlement to Relief in the California
Supreme Court.

12

“The right to testify on one’s own behalf at a criminal trial has sources in

13

several provisions of the Constitution.” Rock v. Arkansas, 483 U.S. 44, 51, 107 S.

14

Ct. 2704, 2708-09, 97 L. Ed. 2d 37 (1987). “It is one of the rights that ‘are

15

essential to due process of law in a fair adversary process.’” Id. at 51 (citing

16

Faretta v. California, 422 U.S. 806, 819, n.15, 95 S. Ct. 2525, 2533 n.15, 45 L. Ed.

17

2d 562 (1975)). The right is further guaranteed by the Compulsory Process Clause

18

of the Sixth Amendment and is a “necessary corollary” to the Fifth Amendment’s

19

guarantee against compelled testimony. Rock, 483 U.S. at 52-53. The United

20

States Supreme Court has repeatedly held that this right cannot be arbitrarily

21

abridged by state rules of evidence. Id. at 55; Chambers v. Mississippi, 410 U.S.

22

284, 290, 296-303, 93 S. Ct 1038, 35 L. Ed. 2d 297 (1973) (explaining that few

23

rights are more fundamental than that of an accused to present witnesses in his own

24

defense and that the hearsay rule and other state evidentiary rules cannot “be

25

applied mechanistically to defeat the ends of justice”). Moreover, the right to offer

26
27
28

counsel’s unreasonable and prejudicial withdrawal of his objection to this
evidence at trial.
133
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

the testimony of witnesses “is in plain terms the right to present a defense, the right

2

to present the defendant’s version of the facts as well as the prosecution’s to the

3

jury so it may decide where the truth lies. Just as an accused has the right to

4

confront the prosecution’s witnesses for the purpose of challenging their testimony,

5

he has the right to present his own witnesses to establish a defense.” Washington v.

6

Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 1923, 18 L. Ed. 2d 1019 (1967). The

7

standard applicable to the state court’s review of prejudice flowing was whether the

8

court could “declare a belief that [the federal constitutional error] was harmless

9

before a reasonable doubt.” Chapman v. California, 386 U.S. 18, 24, 87 S. Ct.

10

824, 828, 17 L. Ed. 2d 705 (1967); see also Cudjo v. Ayers, 698 F.3d 752, 768 (9th

11

Cir. 2012) (explaining that the Chapman harmless error standard is applicable on

12

direct review).

13

During the guilt phase of the trial, Mr. Jones testified about his recollections

14

of the night of the capital crime and provided testimony about the severe and

15

debilitating mental health symptoms he suffered on the night of the offense. See

16

App. Opening Br. at 109-15. He further sought to introduce testimony about his

17

prior mental health history, which included hallucinations, psychiatric treatment in

18

prison, flashbacks, blackouts, dizzy spells, and night screaming, to support his

19

mental state defense. App. Opening Br. at 109-15; see also 22 RT 3347-69. The

20

prosecution objected on the grounds of relevance and lack of foundation, arguing

21

that such testimony was only admissible if presented through the testimony of a

22

mental health professional. 22 RT 3349. Trial counsel requested a hearing64

23

outside of the jury’s presence, which the court held. 22 RT 3353-59. Trial counsel

24
25
26
27
28

64

Appellant’s Opening Brief contains a typographical error, labeling the
hearing outside the jurors’ presence as an “evidentiary hearing.” App. Opening
Br. at 111. No evidence was taken and no witnesses testified during the hearing;
the court heard only argument. 22 RT 3352-59.
134
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

explained that he intended to introduce the testimony in support of a mental state

2

defense. 22 RT 3353. The prosecutor argued that the testimony “about a history of

3

hearing voices, of family history and things of that nature” was irrelevant without

4

the testimony of a psychiatrist to explain the significance of such testimony to the

5

jury. 22 RT 3355. Trial counsel explained that he did not seek to have Mr. Jones

6

offer a diagnosis of his own mental illness, but rather to testify about the symptoms

7

of mental illness he has suffered. 22 RT 3357. The prosecutor argued that such

8

testimony was not relevant to “how [Mr. Jones] was feeling the night of the

9

incident,” and reiterated his argument that such testimony could not be elicited

10

without the testimony of a psychiatrist to explain the significance of the testimony

11

to the jury. 22 RT 3357-58. Based upon trial counsel’s representation that he did

12

not intend to call a mental health expert to testify about psychiatric symptoms Mr.

13

Jones experienced throughout his life, the court excluded Mr. Jones’s proffered

14

testimony. 22 RT 3358-59; see also People v. Jones, 29 Cal. 4th 1229, 1253, 131

15

Cal. Rptr. 2d 468 (2003).

16

As Mr. Jones presented to the California Supreme Court in the automatic

17

appeal, the trial court’s exclusion of Mr. Jones’s testimony arbitrarily abridged Mr.

18

Jones’s rights to testify and to present a defense. See, e,g., Rock, 483 U.S. at 55;

19

Chambers, 410 U.S. at 290. The portions of Mr. Jones’s testimony that the trial

20

court excluded were relevant and probative on the issue of Mr. Jones’s mental state

21

at the time of the crime, a central issue in the case. See, e.g., 26 RT 3922 (trial

22

counsel arguing that “This whole case really depends on what is going on in

23

someone’s mind because the mental states are the most important things in this

24

case.”); see also 26 RT 3888-89 (prosecutor arguing that the mental state required

25

to prove first-degree murder is express malice aforethought or willful, deliberate,

26

and premeditated); 26 RT 3889 (prosecutor arguing that Mr. Jones had the specific

27

intent to kill); 26 RT 3891 (prosecutor arguing that Mr. Jones acted “willfully,

28

deliberately, and premeditatedly”); 26 RT 3892-94 (prosecutor explaining that
135
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

felony-murder requires a specific intent to rape, rob or steal). It is well-settled that

2

“[u]nder California law, a criminal defendant is allowed to introduce evidence of

3

the existence of a mental disease, defect, or disorder as a way of showing that he

4

did not have the specific intent for the crime.” Patterson v. Gomez, 223 F.3d 959,

5

965 (9th Cir. 2000); see also People v. Hernandez, 22 Cal. 4th 512, 520, 93 Cal.

6

Rptr. 2d 509, 514 (2000) (explaining that a defendant may present evidence at the

7

guilt phase to show that he lacked the mental state required to commit the charged

8

crime); Cal. Penal Code § 28 (evidence mental disease, defect, or disorder is

9

admissible “on the issue of whether or not the accused actually formed a required

10

specific intent, premeditated, deliberated, or harbored malice aforethought.”). That

11

is, under California law, evidence of a defendant’s prior mental health symptoms

12

are expressly admissible to demonstrate mental disease, defect, or disorder, and

13

such evidence is expressly admissible on the issue of mental state. This is so

14

because “[t]he right of an accused in a criminal trial to due process is, in essence

15

the right to a fair opportunity to defend against the State’s accusations,” Chambers,

16

410 U.S. at 294, and the state’s burden of proof at the guilt phase included proof of

17

Mr. Jones’s mental state at the time of the crime.

18

The opportunity to present a complete defense that includes testimony by a

19

defendant regarding his mental state “would be an empty one if the State were

20

permitted to exclude competent, reliable evidence bearing on [this issue] when

21

such evidence is central to the defendant’s [guilt phase] claim.” Crane v. Kentucky,

22

476 U.S. 683, 690, 106 S. Ct. 2142, 2147, 90 L. Ed. 2d 636 (1986). Mr. Jones’s

23

proffered testimony would have constituted competent, reliable evidence bearing

24

on his mental illness, an issue central to his guilt phase defense. The exclusion of

25

Mr. Jones’s testimony on the ground that such testimony was not relevant unless

26

preceded by testimony and a diagnosis from a mental health professional arbitrarily

27

deprived Mr. Jones of his right to present a complete defense and his right to

28

testify. Similarly, exclusion of such testimony on the arbitrary ground that it was
136
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

not relevant because Mr. Jones did not testify to hearing voices telling him to

2

attack Mrs. Miller constituted an arbitrary deprivation of Mr. Jones’s due process

3

rights. Due process commands that “[j]ust as a State may not apply an arbitrary

4

rule of competence to exclude a material defense witness from taking the stand, it

5

also may not apply a rule of evidence that permits a witness to take the stand, but

6

arbitrarily excludes material portions of his testimony.” Rock, 483 U.S. at 55.

7

Because the excluded testimony was highly relevant to a critical issue in the guilt

8

phase of the trial, regardless of whether the proffered testimony was admissible

9

without an expert laying a foundation, its exclusion constituted a violation of due

10

process. See, e.g., Green v. Georgia, 442 U.S. 95, 95-97, 99 S. Ct. 2150, 60 L. Ed.

11

2d 738 (1979). As the United States Supreme Court has recognized, foundation

12

requirements “‘may not be applied mechanistically to defeat the ends of justice.’”

13

Green, 442 U.S. at 97 (quoting Chambers, 410 U.S. at 302).

14

The resultant prejudice is clear: the jury was deprived of information about

15

Mr. Jones’s mental state at the time of the crime, an error that cannot be said to be

16

harmless beyond a reasonable doubt. Had Mr. Jones been permitted to corroborate

17

his own testimony about his psychiatric symptoms on the night of the crime with

18

testimony about his past mental health symptoms, the testimony would have set

19

what appeared to be an isolated occurrence against the reality of what was, in fact,

20

Mr. Jones’s deteriorating mental illness. Without such corroboration, Mr. Jones’s

21

testimony that he blacked out on the night of the murder was likely viewed by the

22

jury as self-serving; had they heard, however, that Mr. Jones had dissociated at

23

other time of extreme stress throughout his life, it would have added to his

24

credibility. See, e.g., Ex. 140 at 2694 (hearing about the flashbacks occurring

25

throughout Mr. Jones’s life may have made a difference to the jury). Similarly, had

26

the jury heard of Mr. Jones’s prior history of hallucinations co-occurring with

27

dissociative episodes, they would have given weight to his testimony that this was

28

not a onetime occurrence and understood his mental state at the time of the crime.
137
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

See, e.g., Ex. 138 at 2690 (jury did not have a clue why Mr. Jones would have done

2

such a thing); Ex. 9 at 94 (jury was “left still wondering why Mr. Jones had done

3

the things he did.”); see also Ex. 178 at 3142-50 (describing Mr. Jones’s

4

debilitating mental impairments and deteriorating mental state leading up to the

5

crime, and how, at the time of the crime, his psychiatric symptoms prevented him

6

from being able to modulate his behavior and resulted in spontaneous actions that

7

involved no conscious thought that were the product of his distorted and impaired

8

worldview and delusional thinking).

9

2. The State Court Decision.

10

The relevant decision in state court is the opinion on direct appeal. People v.

11

Jones, 29 Cal. 4th 1229, 1253, 131 Cal. Rptr. 2d 468 (2003). The state court

12

affirmed the trial court’s ruling, concluding that “[t]here was no error,” in the state

13

court’s exclusion of Mr. Jones’s proffered testimony. Id. at 1253. As described

14

above, the trial court excluded Mr. Jones’s proffered testimony on the ground that,

15

without any foundational testimony from a mental health professional, the

16

testimony was irrelevant. Id. In addition, the state court concluded that because

17

Mr. Jones testified he experienced auditory hallucinations after the offense, not that

18

the voices told him to commit the offense, any prior history of hearing voices

19

would have been irrelevant to his mental state.65 Id.

20

Thereafter, the state court concluded, without any legal citation, that “any

21

error . . . was harmless.” Id. at 1253. Citing Respondent’s Brief, the state court

22
23
24
25
26
27
28

65

The concurring state court opinion suggests that the majority “relies on a
different ground than the trial court” in holding that the trial court properly
excluded Mr. Jones’s testimony. Jones, 29 Cal. 4th at 1268 (Kennard, J.,
concurring). The majority does not, however, eschew the trial court’s holding;
indeed, it recites the trial court’s holding just before concluding, “There was no
error.” Id. at 1253. It follows that the state court adopted the trial court’s
reasoning as valid. Accordingly, Mr. Jones addresses both reasons in analyzing
the state court decision.
138
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

concludes that court-appointed psychiatrist Claudewell Thomas, M.D., who was

2

called by the defense to testify in the penalty phase of Mr. Jones’s trial, “should

3

have been aware” of any history of flashbacks and blackouts if such a history

4

existed. Id. The state court concluded, “[T]he fact that Dr. Thomas, when called

5

by the defense in the penalty phase, failed to mention any such history suggests

6

that defendant’s proposed testimony concerning such a history would have been a

7

recent fabrication.” Id.

8

3. Section 2254 Does Not Bar Relief on This Claim.

9

Section 2254(d) applies only to claims that were “adjudicated on the merits

10

in State court proceedings.” 28 U.S.C. § 2254(d); see also Cullen v. Pinholster,

11

___ U.S. ___, 131 S. Ct. 1388, 1398, 179 L. Ed. 2d 557 (2011) (explaining that

12

section 2254(d) applies to claims previously “adjudicated on the merits in State

13

court proceedings”) (quoting 28 U.S.C. § 2254(d)); Harrington v. Richter, ___ U.S.

14

___, 131 S. Ct. 770, 780, 178 L. Ed. 2d 624 (2011) (same).

15

acknowledges that the state court did not explicitly address Mr. Jones’s federal

16

constitutional claim that the exclusion of this testimony violated his right to present

17

a defense. Opp. at 87; see also Jones, 29 Cal. 4th at 1252-53. Respondent is

18

correct that, under these circumstances, the presumption arises that the state court

19

denied the federal constitutional claim on the merits. Opp. at 87-88; Johnson v.

20

Williams, 133 S. Ct. 1088, 1094-95, 185 L. Ed. 2d 105 (2013). Critically, however,

21

where–as here–the state standard is less protective than the federal standard, the

22

presumption that the state court adjudicated the federal claim on the merits may be

23

rebutted. Williams, 133 S. Ct. at 1096.

Respondent

24

The state court has long applied a standard far less protective than the

25

federal standard, holding that the ordinary rules of evidence simply do not

26

impermissibly infringe on the accused’s right to present a defense.

27

People v. Hall, 41 Cal. 3d 826, 834, 226 Cal. Rptr. 112 (1986) (“As a general

28

matter, the ordinary rules of evidence do not impermissibly infringe on the
139
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Compare

Case No. CV-09-2158-CJC

1

accused’s right to present a defense.”); People v. Mincey, 2 Cal. 4th 408, 440, 827

2

P.2d 388, 6 Cal. Rptr. 2d 822 (1992) (“Application of the ordinary rules of

3

evidence . . . does not impermissibly infringe on a defendant’s right to present a

4

defense.”), and People v. Fudge, 7 Cal. 4th 1075, 1102-03, 31 Cal. Rptr. 2d 321

5

(1994) (same), with Rock, 483 U.S. at 55 (holding that a state “may not apply a rule

6

of evidence that permits a witness to take the stand, but arbitrarily excludes

7

material portions of his testimony.”). In Fudge, the state court concluded that the

8

issue presented by petitioner–the trial court’s rulings limiting petitioner’s right to

9

present a defense–did not implicate federal constitutional principles, but was at

10

most an error of state law. Fudge, 7 Cal. 4th at 1102-03. The state court went on

11

to expressly decline to adjudicate the question of prejudice under federal law.

12

Fudge, 7 Cal. 4th at 1103 (explicitly declining to apply the Chapman harmless

13

error standard and instead adopting the less protective state law standard of

14

prejudice as set forth in People v. Watson, 46 Cal. 2d 818, 836, 299 P.2d 243

15

(1956)); see also Watson, 46 Cal. 2d at 836 (adopting a standard that a miscarriage

16

of justice should be declared only when the court, after an examination of the

17

entire cause, is of the opinion that it is “reasonably probable that a result more

18

favorable to the appealing party would have been reached in the absence of the

19

error”).

20

Because courts are presumed to apply already decided legal principles and

21

precedents when those principles and precedents predate the events on which the

22

dispute turns, see, e.g., Beam Distilling Co. v. Georgia, 501 U.S. 529, 534, 111 S.

23

Ct. 2439, 115 L. Ed. 2d 481 (1991); see also section II.C, supra, there is a

24

presumption that the state court applied this existing state precedent to its

25

evaluation of this claim. This presumption is further supported by the fact that the

26

state court’s opinion in this regard cites Respondent’s Brief in support of its

27

conclusion. Jones, 29 Cal. 4th at 1253 (beginning the prejudice analysis with the

28

phrase, “As the Attorney General points out, . . .”). The state court opinion mirrors
140
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

Respondent’s Brief, compare Resp. Br. at 84-85, with Jones, 29 Cal. 4th at 1253,

2

which, in turn, cites existing state law rejecting the harmless error standard set

3

forth in Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 282, 17 L. Ed. 2d

4

705 (1967), and adopting a more forgiving “reasonable probability” standard.

5

Resp. Br. at 84-85 (citing Fudge, 7 Cal. 4th at 1102-03; Watson, 46 Cal. 2d at 836);

6

see also Richter, 131 S. Ct. at 786 (explaining that § 2254(d) requires a habeas

7

court to determine “what arguments or theories supported or . . . could have

8

supported, the state court’s decision.”).

9

It is clear from the state court record that the arguments or theories that

10

supported or could have supported the state court’s decision are rooted in state law,

11

not established federal law. The state court therefore did not adjudicate this claim

12

the merits, and this Court may conduct the prejudice analysis de novo. See Porter

13

v. McCollum, 558 U.S. 30, 130 S. Ct. 447, 452, 175 L. Ed. 2d 398 (2009) (holding

14

that the state court’s failure to decide whether Porter’s counsel was deficient

15

required court to review that element of petitioner’s Strickland claim de novo);

16

Rompilla v. Beard, 545 U.S. 374, 390, 125 S. Ct. 2456, 162 L. Ed. 2d 360 (2005)

17

(same holding with respect to state court’s failure to decide question of prejudice).

18
19
20

To the extent this Court concludes that the claim was adjudicated on the
merits, Mr. Jones nevertheless satisfies § 2254(d) for the reasons below.
a. Section 2254(d)(1) Is Satisfied.

21

Mr. Jones satisfies section 2254(d)(1) for several reasons. First, to the extent

22

this Court concludes that the state court applied the correct governing law, the state

23

court’s decision constituted an unreasonable application of clearly established

24

federal law and was an “unreasonable refus[al] to extend . . . [a] principle to a new

25

context where it should apply.” Williams (Terry) v. Taylor, 529 U.S. 362, 407, 120

26
27
28
141
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

S. Ct. 1495, 1520, 146 L. Ed. 2d 389 (2000).66 As set forth in detail above, Rock,

2

Chambers, Crane, and Washington are directly applicable and command the

3

conclusion that the trial court’s exclusion of Mr. Jones’s proffered testimony

4

violated Mr. Jones’s due process rights. See Greene v. Lambert, 288 F.3d 1081,

5

1091-92 (9th Cir. 2002) (holding that the trial court’s preclusion of testimony by

6

petitioner and the victim regarding petitioner’s dissociative identity disorder

7

“impermissibly curtailed Petitioner’s right to tell his own story [and] . . . state of

8

mind at the time of the attack” and concluding that the state court unreasonably

9

applied Rock and Washington).

10

As explained above, there is ample evidence to support the conclusion that

11

the state court applied its settled precedent, which is contrary to controlling federal

12

authority. The state court’s application of its precedent that a proper application of

13

“ordinary rules of evidence” do not “impermissibly infringe on a defendant’s right

14

to present a defense;” that trial court error excluding testimony does not rise to the

15

level of federal constitutional error; and that the appropriate prejudice test is one of

16

reasonable probability, Fudge, 7 Cal. 4th at 1102-03, clearly contradicted

17

controlling Supreme Court authority. The state court’s “mistakes in reasoning” and

18

“wrong legal rule or framework,” Frantz v. Hazey, 533 F.3d 724, 734 (9th Cir

19

2008) (en banc), rendered the state court’s decision “contrary to” clearly

20

established federal law. See Williams (Terry), 529 U.S. at 405 (holding state

21

court’s decision is contrary to clearly established federal law if it applies a rule that

22

contradicts governing law); Paulino v. Harrison, 542 F.3d 692, 695 n.2 (9th Cir.

23
24
25
26
27
28

66

A reviewing court need not wait for some nearly identical factual pattern
before holding that a clearly established rule must be applied to a new context.
See, e.g., Panetti v. Quarterman, 551 U.S. 930, 953, 127 S. Ct. 2842, 2858, 168 L.
Ed. 2d 662 (2007); Carey v. Musladin, 549 U.S. 70, 81, 127 S. Ct. 649, 656, 166
L. Ed. 2d 482 (2006) (Kennedy, J., concurring); McQuillion v. Duncan, 306 F.3d
895, 901 (9th Cir. 2002); Bradley v. Duncan, 315 F.3d 1091, 1101 (9th Cir. 2002).
142
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

2008) (confirming that the state court’s use of the incorrect standard in evaluating a

2

Batson challenge rendered the state court decision contrary to controlling federal

3

law); Goodman v. Bertrand, 467 F.3d 1022, 1028 (7th Cir. 2006) (setting forth the

4

wrong legal framework is “[o]ne of the most obvious ways a state court may render

5

a decision ‘contrary to’ the Supreme Court’s precedents”).

6

In addition, the state court’s application of its prejudice test resulted in it

7

failing to reach the question of prejudice for federal constitutional error. This also

8

renders the state court’s decision contrary to clearly established federal law. Cudjo,

9

698 F.3d at 768 (holding that the California Supreme Court’s application of the

10

more lenient “reasonably probable” harmless error standard it applies to cases

11

involving claims of abrogation of a defendant’s right to present a defense is

12

contrary to clearly established federal law and thus satisfies § 2254(d)(1)); see also

13

Williams, 529 U.S. at 406 (explaining that a state court’s application of a rule

14

requiring the petitioner to meet a higher prejudice burden than the prejudice test set

15

forth in clearly established Supreme Court prejudice would be “contrary to” clearly

16

established federal law).

17

b. Section 2254(d)(2) Is Satisfied.

18

The state court made unreasonable determinations of the facts in reaching its

19

holding; consequently, Mr. Jones satisfies section 2254(d)(2). The state court’s

20

conclusion that because Mr. Jones did not testify that he heard voices telling him to

21

attack Mrs. Miller and instead only testified that he heard voices after the offense,

22

any prior history of voices was irrelevant, Jones, 29 Cal. 4th at 1253, is flawed for

23

several reasons. Preliminarily, it bears emphasis that at no point during the hearing

24

in the trial court did the trial court require Mr. Jones to demonstrate that he heard

25

voices before the crime to make his history of auditory hallucinations relevant.

26

Rather, the trial court abrogated Mr. Jones’s right to testify about his history of

27

auditory hallucinations because trial counsel did not intend to present an expert to

28

support his proffered testimony. Mr. Jones, consequently, had no notice that he
143
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

should make such a proffer to the court. For the state court to reach its conclusion

2

that Mr. Jones did not experience auditory hallucinations before the offense on

3

these grounds was therefore an unreasonable determination of the facts. A “state

4

court determination of factual issues not supported by the record, without an

5

evidentiary hearing on those issues, is per se unreasonable.”67 Lor v. Felker, No.

6

CIV S-08-2985 GEB, 2012 WL 1604519, *11 (E.D. Cal. May 7, 2012). Moreover,

7

the state court’s opinion does not address the remaining information Mr. Jones

8

wished to present, including testimony about flashbacks and blackouts. Mr. Jones

9

testified that he blacked out and experienced a flashback immediately prior to the

10

offense, 22 RT 3335-37, so following the state court’s logic regarding the Mr.

11

Jones’s auditory hallucinations, Mr. Jones’s proffered testimony about his prior

12

history of flashbacks and blackouts would have been relevant, and the trial court’s

13

exclusion therefore violated Mr. Jones’s rights to present a defense and testify. The

14

flaws that render the state court’s fact-finding process unreasonable are two-fold:

15

the state court’s finding is “unsupported by sufficient evidence,” and, regarding the

16

testimony about flashbacks and blackouts, “no finding was made by the state court

17

at all.” Taylor v. Maddox, 366 F.3d 992, 999-1000 (9th Cir. 2004).

18
19

Additionally, in its evaluation of the prejudice flowing from any error in the
trial court’s abridgement of Mr. Jones’s right to testify, the state court concluded:

20

Dr. Thomas, the court-appointed psychiatrist, interviewed defendant

21

at least three times, and he reviewed reports on defendant’s

22

background prepared by defendant’s relatives, as well as the reports

23

of numerous experts who had examined defendant. Therefore, if

24
25
26
27
28

67

Had the trial court made this inquiry, or had the state court held an
evidentiary hearing to make this factual determination, it would have learned that
Mr. Jones did indeed enter a trance-like, dissociative state before he entered Mrs.
Harris’ house, and, as he stood outside the house, “[v]oices told him to go
forward.” Ex. 178 at ¶ 161.
144
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

defendant had a history of flashbacks and blackouts, Dr. Thomas

2

should have been aware of it. Accordingly, the fact that Dr. Thomas,

3

when called by the defense in the penalty phase, failed to mention

4

any such history suggests that defendant’s proposed testimony

5

concerning such a history would have been a recent fabrication.

6

Jones, at 29 Cal. 4th at 1253. Neither respondent nor the state court cited to any

7

evidence in the record to support the state court’s conclusion that Mr. Jones’s

8

proposed testimony would have been a recent fabrication or that Dr. Thomas

9

should have been aware of Mr. Jones’s history of flashbacks and blackouts merely

10

because he interviewed Mr. Jones and reviewed reports. The state court, however,

11

ignored two key facts. First, the state court ignored the fact that Dr. Thomas was a

12

penalty phase expert, and thus his testimony has no bearing on Mr. Jones’s

13

proffered guilt phase testimony. See Jones, 29 Cal. 4th at 1269 (Kennard, J.,

14

concurring).

15

misapprehension of the record, and because “the misapprehension goes to a

16

material factual issue that is central to [Mr. Jones’s] claim, that misapprehension . .

17

. fatally undermine[d] the fact-finding process, rendering the resulting factual

18

finding unreasonable.” Taylor, 336 F.3d at 1001. Second, there is, in fact, no

19

evidence in the state court record to support the conclusion that Dr. Thomas should

20

have been aware of Mr. Jones’s history after brief interviews and review of reports

21

provided by trial counsel: the record before the state court on direct appeal did not

22

reveal the content of those interviews or reports, nor did it reveal the nature of Dr.

23

Thomas’ communications with trial counsel.68 The state court’s denial rests on an

The state court’s conclusions in this regard reflect a plain

24
25
26
27
28

68

Indeed, the record before the state court in post-conviction demonstrates
that the state court’s factual determination was incorrect and underscore the need
for the state court to hold a hearing before determining factual issues not
supported by the record. Dr. Thomas did not have knowledge of Mr. Jones’s
history of flashbacks and dissociation as a consequence of trial counsel’s
145
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

continued…
Case No. CV-09-2158-CJC

1

unreasonable determination of the facts; the state court’s failure to hold a hearing

2

before engaging in this fact-finding renders its decision per se unreasonable. See

3

Lor, 2012 WL 1604519, at *11.69 “Where a state court makes factual findings

4

without an evidentiary hearing or other opportunity for the petitioner to present

5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

ineffectiveness. Ex. 154 at 2752-53 (Dr. Thomas explaining that Mr. Jones’s legal
team neglected to inform Dr. Thomas about Mr. Jones’s recollections of
flashbacks and explaining that had he been asked to do so, he would have
evaluated Mr. Jones in light of this information); id. at 2758 (Dr. Thomas
explaining that he was not provided with a complete account of a critical family
event or its long-lasting effects on Mr. Jones, which was critical to a complete
understanding of his behavior and functioning); see also Claim Sixteen, infra.
Moreover, numerous declarations refute the state court’s conclusion that Mr.
Jones’s testimony about his history of mental health symptoms flashbacks and
blackouts would have been a recent fabrication. See, e.g., Ex. 178 at 3118-19,
3129, 3137, 3144, 3145-46, 3148-49, 3152-56; Ex. 124 at 2508, 2509, 2529-30,
2539-40, 2544 (describing Mr. Jones’s history of hallucinations, sleep
disturbances, dissociation, and disorganized thinking); Ex. 16 at 146-48, 168
(describing history of dissociation, hallucinations, altered states of consciousness,
and sleep disturbances); Ex. 131 at 2609-10 (describing history of mood changes
and altered states of consciousness/blackouts); Ex. 14 at 137 (describing Mr.
Jones’s history of decompensation, mood changes, altered affect, and “hearing . . .
voices”); Ex. 10 at 99-100 (describing history of dissociation, paranoia,
disorganized thinking, depression, suicidality, delusions, auditory hallucinations,
and disorganized thinking); Ex. 21 at 227 (describing Mr. Jones as “literally
talking nonsense” and exhibiting symptoms of depression and psychosis). Had
the state court held an evidentiary hearing–as is required for AEDPA deference
under these circumstances, see, e.g. Lor, 2012 WL 1604519, at *11–Mr. Jones
would have presented then the facts he presented to the state court in postconviction that demonstrate conclusively that Mr. Jones had a long history of
flashbacks and blackouts and that his testimony would not have been a recent
fabrication.
69

Moreover, Supreme Court precedent makes clear that questions of
credibility are for the jury to decide, see, e.g., United States v. Bailey, 444 U.S.
394, 414, 100 S. Ct. 624, 62 L. Ed. 2d 575 (1980); accordingly, the state court’s
conclusion that any error was harmless because evidence suggests that Mr.
Jones’s testimony would have been a recent fabrication is irrelevant.
146
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

evidence, ‘the fact-finding process itself is deficient’ and not entitled to deference.”

2

Hurles v. Ryan, 706 F.3d 1021, 1038 (9th Cir. 2013) (quoting Taylor, 366 F.3d at

3

1001); see also Perez v. Rosario, 459 F.3d 943, 950 (9th Cir. 2006) (“In many

4

circumstances, a state court’s determination of the facts without an evidentiary

5

hearing creates a presumption of unreasonableness.”) (citing Taylor, 366 F.3d at

6

1000); Nunes v. Mueller, 350 F.3d 1045, 1055 (9th Cir. 2003) (“But with the state

7

court having refused [the petitioner] an evidentiary hearing, we need not of course

8

defer to the state court’s factual findings–if that is indeed how those stated findings

9

should be characterized–when they were made without such a hearing.”).

10

Accordingly, the state court decision satisfies the provisions of sections

11

2254(d)(1) and (2), and there is no prohibition in the AEDPA to this Court

12

reviewing Mr. Jones’s claim de novo and granting relief.

13

L.

Claim Twelve: The Guilt Phase Instructions Were Inaccurate,

14

Incomplete, and Conflicting, in Violation of Mr. Jones Constitutional

15

Rights.

16

In state court, Mr. Jones alleged that his convictions were unconstitutional

17

because of flaws in jury instructions and verdict forms provided to the jury at the

18

guilt phase of Mr. Jones’s trial. State Pet. at 285-89; Inf. Reply at 268-75.

19

As discussed in argument concerning Claim Ten, supra, there was no

20

permissible basis on which to allow the admission of prior-crime evidence. Having

21

erred by admitting the prior-crime evidence, the trial court compounded the error

22

by instructing the jury in a manner that failed to limit the use of the evidence. The

23

trial court instructed the jurors, using CALJIC Instruction 2.50, that they were

24

permitted to consider the prior crimes evidence in determining the issues of intent,

25

identity, motive, and common plan or scheme. 26 RT 3830-32. At the time that the

26

jury received the instructions, there was no disputed issue as to identity in the case,

27

and the trial court never determined that the evidence was relevant to the issue of

28

motive. 1 RT 688. Moreover, as discussed above, the prior crimes evidence was
147
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

not relevant to the resolution of any of these four issues. The instruction therefore

2

was improperly given. This error was exacerbated by the court’s elimination of a

3

critical sentence from the end of the form instruction: “You’re not permitted to

4

consider such evidence for any other purpose.” 26 RT 3831-32; CALJIC No. 2.50

5

(5th ed. 1988).

6

The California Supreme Court’s summary denial of this claim of error

7

amounts to an unreasonable application of clearly established federal law.

8

Although the instruction in Mr. Jones’s case – like the instruction in Estelle v.

9

McGuire, 502 U.S. 62, 67 n.1, 75, 112 S. Ct. 475, 116 L. Ed. 2d 385 (1991) –

10

directed the jury not to consider the prior-crime evidence to prove bad character or

11

a disposition to commit crimes, the inclusion of the above-noted irrelevant

12

language on intent and motive introduced a reasonable likelihood that the jury

13

would understand the instruction to allow for the prior-crime evidence to be as

14

“propensity evidence” – infusing Mr. Jones’s trial with unfairness as to deny him

15

due process of law. This “reasonable likelihood” also is buttressed by the trial

16

court’s deletion of the limiting language at the end of the model instruction (i.e.,

17

“You are not permitted to consider such evidence for any other purpose.”), which

18

was part of the instruction upheld by the Supreme Court in Estelle v. McGuire.

19

Compare Estelle v. McGuire, 502 U.S. at 67 n.1 with 2 CT 270.

20

This constitutionally unacceptable instruction had a substantial and injurious

21

effect or influence on the jury’s determination of the verdicts. As discussed more

22

fully in argument concerning Claim Ten, supra, the jury heard emotional,

23

inflammatory testimony directly from the sixty-two year-old victim of the attack,

24

Ms. Harris, who described for the jury in graphic detail how Mr. Jones choked and

25

struck her, causing her nose to bleed, raped and sodomized her, and how she feared

26

him. 20 RT 3164, 3167-70. It was apparent to the jurors that Ms. Harris was still

27

frightened of Mr. Jones while she testified, and the jurors were heavily swayed by

28

her testimony.

Ex. 23 at 239; Ex. 139 at 2693.
148

Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

The prosecutor repeatedly
Case No. CV-09-2158-CJC

1

referenced the prior crime throughout his closing arguments, including mentioning

2

the irrelevant identity issue. See, e.g., 26 RT 3891, 3901, 3902, 3906; 27 RT 3969,

3

3976, 3977, 3978, 3991, 3992.

4

disputed issues in the case was weak in the absence of the prior-crime evidence,

5

and the jury only returned guilty verdicts on the rape charge and the related rape-

6

murder special circumstance (not the robbery and burglary charges and special

7

circumstances). Thus, section 2254(d) does not bar relief of Mr. Jones’s claim.

8

M.

9

Moreover, the prosecution’s evidence on the

Claim Thirteen: Unreliable DNA Evidence Unconstitutionally Affected
the Jury’s Verdicts.

10

In state court, Mr. Jones alleged that his death sentence was rendered in

11

violation of his right to a reliable, rational non-arbitrary determination of guilt and

12

penalty as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to

13

the United States Constitution by the introduction of unreliable and prejudicial

14

testimony regarding deoxyribonucleic acid (DNA) testing of semen found on the

15

victim.

16

performed by the prosecution linked Mr. Jones to sperm and semen samples found

17

on the victim’s body. 1 RT 501, 506. The parties litigated the admissibility of the

18

testimony pursuant to People v. Kelly, 17 Cal. 3d 24 (1976), and Frye v. United

19

States, 293 F. 1013-14 (D.C. Cir. 1923). After considering trial counsel’s motion to

20

exclude the introduction of the DNA evidence and taking judicial notice of

21

documents, but without taking any testimony from witnesses, the trial court ruled

22

that the prosecution would be permitted to present the results of the DNA analysis

23

at trial. 1 CT 195; 1 RT 664-65. Tril ounsel moved to exclude the DNA evidence

24

on the grounds that the statistical probabilities evidence using the modified ceiling

25

principle was not generally accepted by the scientific community and that the

26

procedures used by Cellmark in arriving at that statistical probability were flawed.

27

II Supp. 2 CT 106-23. At several hearings on the motion to exclude the evidence,

28

the judge acknowledged his unfamiliarity with DNA analysis and requested that
149

State Pet. at 20-53; Inf. Reply at 9-26.

Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Specifically, DNA testing

Case No. CV-09-2158-CJC

1

the parties present expert testimony to assist the court. See, e.g., 1 RT 572-73, 632.

2

The court repeatedly requested that the parties present witnesses at a hearing to

3

allow the court properly to determine the admissibility of the DNA evidence and

4

expressed its dissatisfaction with the process being used to litigate the issue. See,

5

e.g., 1 RT 573, 628-29, 632; see also 1 RT 664-65; 2 RT 722-23. Ultimately, the

6

trial court ruled that the statistical calculation method met the Kelly/Frye standard

7

of admissibility (1 CT 195; 1 RT 665) and denied counsel’s motion for

8

reconsideration (1 CT 201; 2 RT 722-23).

9

On January 8, 1995, without conducting an evidentiary hearing pursuant to

10

Kelly-Frye, the court found the DNA modified ceiling principle generally accepted

11

throughout the scientific community. 14 RT 2375; 1 CT 233. On January 17,

12

1995, pursuant to California Evidence Code section 402, the prosecution presented

13

the testimony of Melisa Weber, an employee of Cellmark to establish that she

14

followed “the correct protocols at the lab and applied the correct statistical

15

analysis.” 19 RT 3017; 1 CT 239;19 RT 2905-3038, 3042-47. At the conclusion of

16

the testimony and argument, the court denied trial counsel’s motion to exclude. 1

17

CT 239; 19 RT 3079. Thereafter, the prosecution presented the testimony of

18

Melisa Weber to the jury.

19

procedures used to analyze the blood samples and found that the “DNA banding

20

pattern of Ernest Jones did match the bands in the sample from the vaginal swabs.”

21

20 RT 3129. She concluded that the “chance that a random individual might have

22

the same DNA banding pattern as Ernest Jones is approximately 1 in 78 million.

23

20 RT 3130.

20 RT 3091-130.

Ms. Weber testified about the

24

As a general matter, the California Supreme Court’s refusal to hear Mr.

25

Jones’s adequately pled claims of constitutional error is contrary to clearly

26

established federal law that prohibits state courts from creating “unreasonable

27

obstacles” to the resolution of federal constitutional claims that are “plainly and

28

reasonably made.” Davis v. Wechsler, 263 U.S. 22, 24-25, 44 S. Ct. 13, 14, 68 L.
150
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

Ed. 143 (1923); see also Opening Br. at 7-11. Specifically, in light of Mr. Jones’s

2

extensive factual allegations and supporting materials in the state court–which the

3

state court was obligated to accept as true–the state court’s ruling that Mr. Jones

4

failed to make any prima facie showing of entitlement to relief constitutes an

5

unreasonable application of controlling federal law. The trial court’s failure to

6

conduct a full and fair hearing on the admissibility of the DNA evidence, rendered

7

Mr. Jones’s trial fundamentally unfair. See Estelle v. McGuire, 502 U.S. 62, 112 S.

8

Ct. 475, 116 L. Ed. 2d 385 (1991). Moreover, trial counsel’s unreasonably failed to

9

investigate and challenge the DNA evidence.

See Claim One, supra.

The

10

particular method (RFLP) used to test the samples in Mr. Jones’s case has been

11

controversial and has been held inadmissible for lack of compliance with

12

procedures recommended by the National Research Council, DNA Technology in

13

Forensic Science (1992) for determining the statistical probability of a random

14

match. See, e.g., Inf. Reply at 24-25. Had the DNA evidence been excluded, trial

15

counsel would not have conceded the rape. Ex. 12 at 106.

16

N.

Claim Fourteen: Mr. Jones Federal Constitutional Rights Were Violated

17

by the Prosecutor’s Presentation of False Testimony and Misleading and

18

Prejudicial Arguments to the Jury.

19

Mr. Jones presented the California Supreme Court with a prima facie claim

20

of prosecutorial misconduct, alleging that the prosecutor (1) presented false

21

testimony regarding the wrist injuries to the victim; (2) made inflammatory

22

statements that misled the jury regarding the stab wound to the pubic area of the

23

victim; and (3) improperly argued in aggravation that Mr. Jones had failed to take

24

advantage of psychiatric treatment. The prosecutor’s misconduct infected the trial

25

with unfairness and had a substantial and injurious effect in determining the jury’s

26

verdict. State Pet. at 267-71, 272-76, 320-25; Inf. Reply at 216-23, 237, 239, 242-

27

43.

28

Respondent did not present factual materials or legal argument in state court
151
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

to establish that Mr. Jones’s prima facie showing should not be taken as true or that

2

it otherwise lacked merit. Under these circumstances, the state court was required

3

to issue an order to show cause and allow Mr. Jones access to state processes to

4

develop and present evidence to prove his claim. See, e.g. Duvall, 9 Cal. 4th at

5

475; Romero, 8 Cal. 4th at 742. By instead summarily denying Mr. Jones’s claim,

6

the California Supreme Court’s decision satisfies section 2254(d) as set forth in Mr.

7

Jones prior briefing and in the sections that follow.

8
9

1. There Is No Reasonable Basis for the State Court Ruling That Mr.
Jones Failed to Make a Prima Facie Showing for Relief.

10

“[A] state may not knowingly use false evidence, including false testimony,

11

to obtain a tainted conviction” without violating a defendant’s due process right to

12

a fair trial. Mooney v. Holohan, 294 U.S. 103, 55 S. Ct. 40, 79 L. Ed. 791 (1935).

13

In Napue v. Illinois, 360 U.S. 264, 269, 79 S. Ct. 1173, 3 L. Ed. 2d 1217 (1959),

14

the Supreme Court held that “a conviction obtained through use of false evidence,

15

known to be such by representatives of the State” violates the Fourteenth

16

Amendment. The “same result obtains” when the state allows false evidence “to

17

go uncorrected when it appears” as when it solicits false evidence directly. Id. “A

18

claim under Napue will succeed when “‘(1) the testimony (or evidence) was

19

actually false, (2) the prosecution knew or should have known that the testimony

20

was actually false, and (3) the false testimony was material.’” Jackson v. Brown,

21

513 F.3d 1057, 1071-72 (9th Cir. 2008) (quoting Hayes v. Brown, 399 F.3d 972,

22

984 (9th Cir. 2005) (en banc)).

23

reasonable likelihood that the false testimony could have affected the judgment of

24

the jury.” United States v. Agurs, 427 U.S. 97, 103, 96 S. Ct. 2392, 49 L. Ed. 2d

25

342 (1976)). Under this materiality standard, “‘[t]he question is not whether the

26

defendant would more likely than not have received a different verdict with the

27

evidence, but whether in its absence he received a fair trial, understood as a trial

28

resulting in a verdict worthy of confidence.’” Hall v. Director of Corrections, 343
152

False testimony is material if “there is any

Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

F.3d 976, 983-84 (9th Cir. 2003) (per curiam) (quoting Kyles v. Whitley, 514 U.S.

2

419, 434, 115 S. Ct. 1555, 131 L. Ed. 2d 490 (1995)).

3

In determining whether a prosecutor has committed misconduct in the

4

context of summation, the Supreme Court has held “The relevant question is

5

whether the prosecutor’s comments ‘so infected the trial with unfairness as to make

6

the resulting conviction a denial of due process.’” Darden v. Wainwright, 477 U.S.

7

168, 181, 106 S. Ct. 2464, 91 L. Ed. 2d 144 (1986) (quoting Donnelly v.

8

DeChristoforo, 416 U.S. 637, 94 S. Ct. 1868, 40 L. Ed. 2d 431 (1974)). Under

9

Darden, the first issue is whether the prosecutor’s remarks were improper. If so,

10

the question turns to whether the remark, considered in light of the entire record,

11

deprived the defendant of a fair trial. See Tak Sun Tan v. Runnels, 413 F.3d 1101,

12

1112 (9th Cir. 2005). Factors relevant to considering whether a comment rendered

13

a trial constitutionally unfair include “whether the comment misstated the

14

evidence, whether the judge admonished the jury to disregard the comment,

15

whether the comment was invited by defense counsel in its summation, whether

16

defense counsel had an adequate opportunity to rebut the comment, the prominence

17

of the comment in the context of the entire trial and the weight of the evidence.”

18

Hein v. Sullivan, 601 F.3d 897, 912-13 (9th Cir. 2010) (citing Darden, 477 U.S. at

19

182).

20

a. Mr. Jones Made a Prima Facie Showing That the Prosecutor

21

Knowingly Presented False Testimony to the Jury.

22

1) The testimony presented to the jury regarding injuries to the

23

victim’s wrist was false.

24

Dr. Scholtz, a Deputy Medical Examiner for the Los Angeles County

25

Coroner’s Office, performed the autopsy on Mrs. Miller, and prepared a report

26

detailing his findings. See generally Ex. 171. In his report, under the “Anatomical

27

Summary,” Dr. Scholz detailed that the victim’s wrists and ankles were bound and

28

she was gagged. Ex. 171 at 3030. Daniel T. Anderson, a senior criminalist with
153
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

the coroner’s office, was present for the initial examination of the body. Mr.

2

Anderson logged the ligatures on the victim’s body, describing the wrist bindings:

3

“[b]lack purse ligature around wrist - The right wrist had 2 strands around it with 2

4

strands connecting to the right and left wrist. Whereas the left wrist had 3 strands

5

of the purse strap and also had a knot positioned there. - Telephone cord ligature

6

around the wrists, underneath the black purse strap. The right wrist had 7 strands

7

with the left wrist having 10 strands. There were 5 strands of the telephone cord

8

connecting the two wrists. There were no knots, just the two male ends were

9

tucked under all the strands on the left wrist.” Following removal of the bindings,

10

Dr. Scholtz reported, “The wrist bindings leave crease marks but no other

11

disturbance on the skin.” Ex. 171 at 3038 (emphasis supplied); Inf. Reply at 220.

12

At trial, Dr. Scholtz testified that he received the victim’s body wrapped in

13

covering and clothed as she had been found at the crime scene. Her feet and hands

14

had been bound and she was gagged. 17 RT 2774. The prosecutor specifically

15

asked Dr. Scholtz whether he had noted “any injuries to wrists or the ankles or the

16

face as a result of the binding.” Id. at 2775. Dr. Scholtz responded “the only area

17

that I could attribute injury from binding was the left wrist area in which there was

18

a bruising and abrasion which could have been caused by the bindings.” Id. at

19

2775-76; see also Ex. 177 at 3086.70 Although this testimony was contradicted by

20

Dr. Scholtz’s observations at the autopsy and the written report, the prosecutor did

21

not correct his testimony.

22
23
24
25
26
27
28

70

In state court, respondent contended that Mr. Jones failed to explain how
the testimony was false or provide proof to support his claim that the testimony
was false. Inf. Resp. at 32. Respondent correctly abandoned that argument
before this Court. The absence of any indication from the state court that it
rejected the claim based on any purported lack of documentation forecloses that
argument before this Court. See section II.A.2., supra.
154
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

2) The prosecutor knew the testimony was false.

2

The prosecutor knew or should have known that this evidence was false

3

because he had reviewed the report and had numerous conversations with Dr.

4

Schotz in preparation for his testimony. See, e.g., 17 RT 2782 (prosecutor showing

5

Dr. Scholtz his autopsy report to refresh his recollection); see also 15 RT 2461

6

(prosecutor stating he had been speaking to his coroner regarding his opinion of the

7

victim’s wounds); see also 15 RT 2463 (prosecutor noting wounds depicted in

8

photographs had been described in coroner’s report); 15 RT 2465 (prosecutor

9

informing court he would be talking to the coroner again). Despite his knowledge

10

that this testimony was false, the prosecutor failed to correct it, breaching his duty

11

under Napue. See, e.g., Blumberg v. Garcia, 687 F. Supp. 2d 1074, 1126 (C.D. Cal.

12

2010). A prosecutor’s duty under Napue to correct false evidence and elicit the

13

truth “‘requires a prosecutor to act when put on notice of the real possibility of

14

false testimony. This duty is not discharged by attempting to finesse the problem

15

by pressing ahead without a diligent and good faith attempt to resolve it.’”

16

Commonwealth of Northern Mariana Islands v. Bowie, 243 F.3d 1109, 1118 (9th

17

Cir. 2001) (quoting Napue, 360 U.S. at 269-70). Nor can a prosecutor “avoid this

18

obligation by refusing to search for the truth and remaining willfully ignorant of

19

the facts.’” Morris v. Ylst, 447 F.3d 735, 744 (9th Cir. 2006) (quoting Bowie, 243

20

F.3d at 1118); see also Blumberg, 687 F. Supp. 2d at 1126.

21

3) The false testimony was material.

22

It was crucial to the prosecution’s theory of the case that Mrs. Miller was

23

bound, gagged, raped, and then murdered because it undermined Mr. Jones’s

24

testimony and his mental state defense. State Pet. at 268; Inf. Reply at 218-25.

25

The prosecutor argued in guilt-phase closing arguments. “What on earth can he

26

say to get out from under the rape allegation?

27

explanation. So his explanation is I can’t remember. That’s what he told you. . . .

28

He remembers a couple [of] stab wounds. And think about that. It seemed like Mr.
155
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

‘I blacked out.’ He has no

Case No. CV-09-2158-CJC

1

Jones is kind of positing the theory that maybe I killed her first and then raped

2

her.” 26 RT 3902.

3

The lack of bruising and abrasion tended to prove that the rape occurred

4

post-mortem. State Pet. at 268; Inf. Reply at 221. “Had the bindings been applied

5

to the victim’s wrists prior to her death, internal hemorrhaging could have been

6

present at the site of the crease marks.”

7

pathologist retained by post-conviction counsel noted, “if the victim were

8

struggling, to the extent that she required subduing in order for the perpetrator to

9

continue his attack, her wrists could have sustained abrasions or bruises from

10

Ex. 177 at 3086. As the forensic

contact with the bindings.” id..

11

The jury convicted Mr. Jones under a felony murder theory, finding him

12

guilty of first degree murder, committed while engaged in the commission of a

13

rape. 2 CT 365. The jury found true the special circumstance that Mr. Jones

14

committed a rape. 2 CT 367. Therefore a pivotal question for the jury was

15

whether Mr. Jones formed the intent to rape Mrs. Miller before killing her. The

16

defense’s theory of the case was that Mr. Jones lacked the requisite mental state to

17

convict him of first-degree murder and to find true the special circumstance. Thus,

18

Dr. Scholtz’s testimony that the victim sustained wounds caused by the wrist

19

bindings was critical to prove that Mrs. Miller was alive when bound. This

20

evidence was key to determining the sequence of the crime, particularly because

21

the only other evidence admitted regarding the sequence of the crime was Mr.

22

Jones’s own testimony. That this evidence “could have affected the judgment of

23

the jury” is clear. Agurs, 427 U.S. at 103; see also Miller v. Pate, 386 U.S. 1, 87 S.

24

Ct. 785, 17 L. Ed. 2d 690 (1967) (prosecutor’s knowing use of false evidence

25

likely to have important effect on jury’s determination and warrants habeas relief);

26

Brown v. Borg, 951 F.2d 1011 (9th Cir. 1991) (prosecutor’s knowing introduction

27

of and reliance on false evidence suggesting that murder had occurred during

28

course of robbery violated due process, and required murder conviction be
156
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

reversed, rather than merely reduced from first to second degree murder).

2

4) Mr. Jones’s claim is not procedurally barred.

3

Respondent argues that merits review is precluded because the state court

4

procedurally defaulted this claim pursuant to In re Seaton, 34 Cal. 4th 193, 17 Cal.

5

Rptr. 3d 633 (2004), on the grounds that Mr. Jones failed to raise it in the trial

6

court. Opp. at 101. As explained in section III, supra, the state court’s denial of

7

this claim based on a Seaton bar does not preclude federal review. 71

8

5) The California Supreme Court could not have reasonably

9

rejected Mr. Jones’s false testimony claim based on a theory

10

that the witness “forgot” to include it in his report.

11

In federal court, respondent asserts “the fact the autopsy report does not

12

indicate such bruising does not mean the coroner’s testimony was false or the

13

prosecutor knew it was false. The coroner may have simply forgotten to include it

14

in his report.” Opp. at 102. As this argument was not before the California

15

Supreme Court, it could not have been the basis for its decision. See section

16

II.A.4., supra. Furthermore, respondent’s efforts to attribute innocent explanations

17

for the false testimony create a factual dispute, and would have required the state

18

court to make credibility findings regarding the coroner’s testimony, the

19

prosecutor’s knowledge that the evidence was false, and the prosecutor’s

20

motivation for failing to correct it, which the California Supreme Court was unable

21

to make prior to the issuance of an order to show cause. See section II.A.3, supra.

22

Respondent cites to United States v. Croft, 124 F.3d 1109 (9th Cir. 1997), as

23

support for his contention that earlier prior inconsistent statement made by a

24

witness does not establish that the witness’s testimony at trial was false. Opp. at

25
26
27
28

71

In addition, the claim is properly before this Court because Mr. Jones made
a prima facie showing that trial counsel was ineffective for failing to investigate
and adequately defend against the rape charges. See Opening Br. at 27-30.
157
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

102. Croft is distinguishable because in that case the court noted the district court’s

2

findings that the inconsistencies in the testimony in question related to “collateral

3

matters.” Citing to United States v. Saadeh, 61 F.3d 510, 523 (7th Cir. 1995), the

4

court stated that perjured testimony cannot be cause for reversal if it was not

5

“directly related to the defendant’s guilt or innocence.” Respondent contends that

6

the prosecutor did not improperly use the evidence to establish that sexual

7

intercourse occurred before death, and that the issue of when the sexual intercourse

8

occurred “was never seriously a focus of the defense at trial. Therefore, the

9

California Supreme Court reasonably could have concluded that the alleged

10

misconduct did not affect the fairness of the trial.” Opp. at 102-03. As respondent

11

did not raise this argument in state court, it could not have been the basis for its

12

decision. See section II.A.4., supra. Moreover, as set out above, whether the

13

binding took place pre- or post-mortem was critical to Mr. Jones’s mental state

14

defense and when, and whether, he formed the intent to rape Mrs. Miller.

15

Furthermore, respondent’s argument would have required the state court to

16

evaluate the weight and credibility of evidence going to the question of prejudice,

17

which it could not have done without holding a hearing. See section II.A.3., supra.

18

b. Mr. Jones Made a Prima Facie Showing That the Prosecutor

19

Committed Misconduct in His Summation to the Jury.

20

1) Improper argument regarding the vaginal wound.

21

In performing the autopsy on Mrs. Miller, Dr. Schotz recorded a stab wound

22

to the peritoneum that penetrated the uterus. Ex. 171 at 3033-34. At trial, the

23

prosecutor elicited testimony from Dr. Schotz that this wound to the pubic area,

24

“penetrated into the left side of the vulva or the entrance to the vagina from the

25

pubic area.” 17 RT 2797. The prosecutor then showed People’s Exhibit 7B to Dr.

26

Scholtz to demonstrate the location of the stab wound.

27

prosecutor’s reason for including this photograph was “twofold.”

28

prosecutor previously had explained to the court, “what we have here is a rape158
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

17 RT 2798.

The

As the

Case No. CV-09-2158-CJC

1

murder, and the sexual aspect that accompanies it I think is shown by the fact that

2

Mr. Jones – or the fact that there is a vaginal wound here. . . . because [ ] it is part

3

and parcel to rape, and this was a sexual assault.” 15 RT 2460.

4

In closing arguments, the prosecutor urged the jury to accept a theory of

5

felony murder-rape by arguing: “During the course of that rape he has got knives

6

there, and if you feel he didn’t intentionally kill her for some reason, if you find

7

that that killing was a direct result of his rape with the knives and – and, again,

8

remember where these knives ended up. We had little poke wounds throughout the

9

victim. There’s a knife into the vaginal area. These knives are part and parcel of

10

the sexual assault. So if you find that the killing was as a result, direct causal

11

result of the rape, even if you don’t believe it is premeditated and deliberate, even

12

if you don’t think there’s express malice, but you do find he specifically intended

13

to rape her, that is a first degree murder.” 26 RT 3892 (emphasis added).

14

The prosecutor’s argument misstated the evidence and was designed to

15

mislead the jury into believing that Mr. Jones raped or “sexually assaulted” the

16

victim with a knife. A prosecutor may not “make statements in closing argument

17

unsupported by the evidence, . . . misstate admitted evidence, or . . . misquote a

18

witness’ testimony.” United States v. Watson, 171 F .3d 695, 699 (D.C. Cir. 1999)

19

(finding prosecutor’s remarks were error to the extent that they misstated and

20

misquoted witness’ testimony). “A misstatement of evidence is error when it

21

amounts to a statement of fact to the jury not supported by proper evidence

22

introduced during trial, regardless of whether counsel’s remarks were deliberate or

23

made in good faith.” Id. at 700; see also Miller v. Pate, 386 U.S. 1, 87 S. Ct. 785,

24

17 L. Ed. 2d 690 (1967) (prosecutor engaged in misconduct by seeking to connect

25

defendant with the rape-murder of a young girl by arguing repeatedly that a pair of

26

men’s undershorts belonging to the defendant were stained with blood although the

27

prosecutor knew they were stained with paint).

28

Moreover, the prosecutor’s comments were calculated “to arouse passion
159
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

and prejudice” in the jury (Viereck v. United States, 318 U.S. 236, 247, 63 S. Ct.

2

561, 566, 87 L. Ed. 734 (1943)), and were especially prejudicial because no

3

hemorrhaging was noted with regard to this wound, indicating that it was most

4

likely inflicted post-mortem (Ex. 177 at 3087).

5

2) Mr. Jones’s claim is not procedurally barred.

6

Respondent argues that this claim was denied in state court under In re

7

Seaton, 34 Cal. 4th 193, 17 Cal. Rptr. 3d 633 (2004), on grounds that Mr. Jones

8

had failed to raise it in the trial court.72 Opp. at 101. As explained in section III,

9

supra, the state court’s denial of this claim based on a Seaton bar does not preclude

10

federal review.

11

3) The California Supreme Court could not reasonably have

12

rejected this claim based on a theory that no juror would

13

have believed the rape charge was based on penetration with

14

a knife.

15

In state court, respondent asserted that the prosecutor’s argument was

16

“intended to show only that the rape was forcible because it involved the use of

17

knives.”

18

“sexual intercourse be proven, and the insertion of a knife is not sexual

19

intercourse.” Id. Evidence of semen found inside the victim, respondent argued,

20

showed the prosecution was relying on a theory of rape based on sexual

21

intercourse. Id. In federal court, respondent argued that it was “wholly proper for

22

the prosecutor to describe the wound as a vaginal wound.”

23

Respondent contends that the prosecutor’s argument was that “Petitioner’s use of

24

knives to stab Mrs. Miller to death was part and parcel of the rape.”

Inf. Resp. at 32.

Respondent claimed the rape instruction required

Opp. at 101.

Id.

25
26
27
28

72

In addition, the claim is properly before this Court because Mr. Jones made
a prima facie showing that trial counsel was ineffective for failing to investigate
and adequately defend against the rape charges. See Opening Br. at 27-30.
160
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

Respondent elaborates that “even if the prosecutor had argued that Mrs. Miller was

2

raped with a knife, it would not have rendered the trial fundamentally unfair since

3

it was clear that the basis of the rape charge and rape special circumstance was

4

Petitioner’s forcible sexual intercourse with Mrs. Miller.”

5

arguments create a factual dispute and would have required the state court to

6

resolve whether the prosecutor’s arguments misstated the evidence and the

7

prejudicial impact of his argument on the jury’s findings. The state court could not

8

have resolved those issues prior to the issuance of an order to show cause. See

9

section II.A.3., supra.

10

Id.

Respondent’s

4) Failure to take advantage of psychiatric treatment.

11

Throughout the guilt and penalty phases, the prosecutor denigrated evidence

12

of Mr. Jones’s mental illness, and impugned his credibility. In penalty phase

13

closing argument, the prosecutor argued that Mr. Jones had had several “wake up

14

call[s]” to get help “if he truly had these mental problems.” 31 RT 4640. The

15

prosecutor urged the jury to accept Mr. Jones’s perceived failure to take advantage

16

of psychiatric treatment as a factor in aggravation, arguing:

17

The doctor testified that he went to Kedren hospital a number of

18

times. Now, either he refused to go along with the treatment, they

19

couldn’t treat him. He didn’t really have a problem, and that this

20

was something that he went along with in order to get a reduced

21

sentence of a battery. And I want you to think about that, and his

22

lack of participation in the program.

23

incident takes place, and he goes to prison for six years. He’s

24

released from prison, and his father . . . tried to get his son interested

25

in the Christian church, and the Christian learning that he did and

26

asked him to participate with him in these programs. He went four

27

or five times and quit and didn’t continue with it.

28

opportunity that he could have used to get himself together that he
161
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Then the Doretha Harris

Another

Case No. CV-09-2158-CJC

1

did not. And admittedly the parole psychiatrist didn’t have the first

2

meeting until June the 23rd, but if Mr. Jones is sincere in his

3

statements of remorse, his protestations that “I want to learn about

4

myself,” why wasn’t he talking to Sizemore from the outset, “I need

5

some additional help?” and when Dr. Hazel did meet with him in

6

June of ‘93 and there were some five meetings. The defendant didn’t

7

participate. Didn’t open himself up. He had a chance again to get

8

himself together, to try to deal with his problem, if, in fact, that is

9

what it was, or was he just going through the motions knowing that

10

there is really nothing wrong with him. And that there is another

11

explanation for this conduct, and that is, he likes to rape.

12

31 RT 4640-42.

13

The prosecutor knew that Mr. Jones had not been in treatment at Kedren

14

long enough for a complete evaluation73 (Ex. 102 at 2045) and that Mr. Jones had

15

not received any psychiatric treatment in state prison (see 22 RT 3353), a fact to

16

which Mr. Jones was prohibited from testifying in the guilt phase (22 RT 3358).

17

The prosecutor also was aware that Dr. Hazell had 100-125 people in her caseload,

18

and that Mr. Jones received no meaningful treatment during his four or five fifteen-

19

minute sessions with her. 30 RT 4426. The prosecutor’s argument is particularly

20

egregious because he suppressed a material, exculpatory emergency room report

21

from 1984, which documented Mr. Jones’s two-year history of transient memory

22

loss. See Opening Brief at 48 n.18. A prosecutor who makes statements to the jury

23

during closing argument that he knows are false or has strong reason to doubt, with

24
25
26
27
28

73

In fact, the Kedren records show that Mr. Jones was offered merely six
hours of counseling. Ex. 30 at 360, 375. Only two months elapsed between Mr.
Jones’s first counseling session and his arrest for the assault on Mrs. Harris. Ex.
30 at 360; Ex. 102 at 2047.
162
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

respect to material facts on which the defendant’s defense relied, has committed

2

misconduct. See, e.g., United States v. Reyes, 577 F.3d 1069, 1078 (9th Cir. 2009)

3

(finding prosecutor’s harmful misconduct in making false assertion to jury in

4

closing argument that corporation’s finance department did not know backdating of

5

stock options was occurring warranted a new trial); United States v. Udechukwu, 11

6

F.3d 1101 (1st Cir. 1993) (finding fatal taint from the prosecutor’s persistent theme

7

in closing argument that dealer who allegedly pressured defendant to transport

8

drugs did not exist, where prosecutor knew existence of dealer had been confirmed

9

prior to trial). As Mr. Jones’s history of mental illness was the cornerstone of his

10

defense in both the guilt and penalty phases, this misstatement and improper

11

argument rendered Mr. Jones’s trial unconstitutionally unfair.

12

Moreover, the jury’s consideration of this “aggravating” evidence precluded

13

it from fully considering all the evidence of Mr. Jones’s mental illness as

14

mitigating. [I]n capital cases the fundamental respect for humanity underlying the

15

Eighth Amendment . . . requires consideration of the character and record of the

16

individual offender and the circumstances of the particular offense as a

17

constitutionally indispensable part of the process of inflicting the penalty of death.”

18

Woodson v. North Carolina, 428 U.S. 280, 304, 96 S. Ct. 2978, 49 L. Ed. 2d 944

19

(1976). Restrictions on a jury’s ability to consider and give appropriate weight to

20

mitigating evidence consistently have been found to violate the Eighth

21

Amendment. See, e.g., Lockett v. Ohio, 438 U.S. 586, 98 S. Ct. 2954, 57 L. Ed. 2d

22

973 (1978) (Eighth and Fourteenth Amendments require that the sentencer, in all

23

but the rarest kind of capital case, not be precluded from considering as a

24

mitigating factor any aspect of a defendant’s character or record and any of the

25

circumstances of the offense that the defendant proffers as a basis for a sentence

26

less than death). Moreover, clearly established federal law requires close scrutiny

27

of the import and effect of invalid aggravating factors on individualized sentencing

28

determinations in death penalty cases. See, e.g., Stringer v. Black, 503 U.S. 222,
163
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

112 S. Ct. 1130, 117 L. Ed. 2d 367 (1992).

2

5) The California Supreme Court could not reasonably have

3

rejected this claim based on a theory that the misconduct did

4

not influence the jury’s penalty verdict.

5

In state court, respondent argued “petitioner cannot demonstrate a reasonable

6

possibility that the verdict was affected by the alleged misconduct. . . . It is

7

apparent the jury chose the death penalty because of the brutal nature of

8

petitioner’s rape and murder . . . not because . . . [he] failed to seek psychiatric

9

help” Inf. Resp. at 49. In federal court, respondent asserted that “Petitioner does

10

not cite any Supreme Court law that establishes that such types of comments

11

violated due process” and cited to Gonzalez v. Wong, 667 F.3d 965, 994-95 (9th

12

Cir. 2011). Opp. at 114. As this argument was not before the California Supreme

13

Court, it could not have been the basis for its decision. See section II.A.4., supra.

14

In Gonzalez, petitioner alleged that statements by the prosecutor (1)

15

instructing the jurors that they should not consider sympathy; (2) discussing the

16

jury’s discretion to impose the death penalty if it found the aggravating

17

circumstances outweighed the mitigating circumstances; and (3) suggesting the

18

absence of a mitigating circumstance be treated as an aggravating circumstance,

19

violated his due process rights. Gonzalez, 667 F.3d 965 at 994. The court noted

20

that petitioner had not pointed to any clearly established federal law establishing

21

that these statements deprived him of due process. Id. at 995. There, petitioner

22

argued the statements were in violation of state law, “and that in making these

23

statements the prosecutor violated his constitutional right to have the jury exercise

24

its discretion in the manner authorized by state law.” Id. at 995.

25

Gonzalez is inapplicable for several reasons. First, Mr. Gonzalez did not

26

argue that any of the prosecutor’s statements were a violation of federal law.

27

Rather, Mr. Gonzalez “argued that the prosecutor’s statements were in violation of

28

state law and that in making these statements the prosecutor violated his
164
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

constitutional right to have the jury exercise its discretion in the manner authorized

2

by state law.” Id. at 995. Second, it has long been recognized that a state may not

3

preclude jury’s consideration of mitigating factors. In Penry v. Lynaugh, 492 U.S.

4

302, 327-28, 109 S. Ct. 2934, 106 L. Ed. 2d 256 (1989), described the

5

constitutional limitation on a state’s ability to preclude the consideration of

6

mitigation:

7

“In contrast to the carefully defined standards that must narrow a

8

sentencer’s discretion to impose the death sentence, the Constitution

9

limits a State’s ability to narrow a sentencer’s discretion to consider

10

relevant evidence that might cause it to decline to impose the death

11

sentence.” McCleskey v. Kemp, 481 U.S. 279, 304, 107 S. Ct. 1756,

12

1773, 95 L. Ed. 2d 262 (1987) (emphasis in original). Indeed, it is

13

precisely because the punishment should be directly related to the

14

personal culpability of the defendant that the jury must be allowed to

15

consider and give effect to mitigating evidence relevant to a

16

defendant’s character or record or the circumstances of the offense.

17

Rather than creating the risk of an unguided emotional response, full

18

consideration of evidence that mitigates against the death penalty is

19

essential if the jury is to give a “‘reasoned moral response to the

20

defendant’s background, character, and crime.’” Franklin, 487 U.S.,

21

at 184, 108 S. Ct., at 2333 (O’Connor, J., concurring in judgment)

22

(quoting California v. Brown, 479 U.S., at 545, 107 S. Ct., at 841

23

(O’Connor, J., concurring)). In order to ensure “reliability in the

24

determination that death is the appropriate punishment in a specific

25

case,” Woodson, 428 U.S., at 305, 96 S. Ct., at 2991, the jury must be

26

able to consider and give effect to any mitigating evidence relevant

27
28
165
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

to a defendant’s background and character or the circumstances of

2

the crime.74

3

Third, the Supreme Court explicitly has held that a state may not attach an

4

aggravating label to the mitigating evidence presented here:

5

In analyzing this contention it is essential to keep in mind the sense

6

in which that aggravating circumstance is “invalid.” It is not invalid

7

because it authorizes a jury to draw adverse inferences from conduct

8

that is constitutionally protected.

9

sought to characterize the display of a red flag, cf. Stromberg v.

10

California, the expression of unpopular political views, cf.

11

Terminiello v. Chicago, 337 U.S. 1, 69 S. Ct. 894, 93 L. Ed. 1131

12

(1949), or the request for trial by jury, cf. United States v. Jackson,

13

390 U.S. 570, 88 S. Ct. 1209, 20 L. Ed. 2d 138 (1968), as an

14

aggravating circumstance.

15

“aggravating” label to factors that are constitutionally impermissible

16

or totally irrelevant to the sentencing process, such as for example

17

the race, religion, or political affiliation of the defendant, cf.

18

Herndon v. Lowry, 301 U.S. 242, 57 S. Ct. 732, 81 L. Ed. 1066

19

(1937), or to conduct that actually should militate in favor of a lesser

20

penalty, such as perhaps the defendant’s mental illness. Cf. Miller v.

Georgia has not, for example,

Nor has Georgia attached the

21
22
23
24
25
26
27
28

74

Thus, to comply with the Eighth Amendment, California law prohibits a
prosecutor from presenting evidence in aggravation that is not relevant to the
statutory factors enumerated in Penal Code section 190.3. See, e.g., People v.
Boyd, 38 Cal. 3d at 762, 772-76, 215 Cal. Rptr. 1, (1985); see also, e.g.,
Hernandez v. Martel, 824 F. Supp. 2d 1025, 1128 (C.D. Cal. 2011) (prosecutor
may argue that petitioner failed to put on affirmative evidence of rehabilitation,
but may not argue that the jury can consider the paucity of evidence on the subject
as a positive aggravating factor) (citing People v. Crittenden, 9 Cal. 4th 83, 149,
36 Cal. Rptr. 2d 474 (1994)).
166
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

Florida, 373 So.2d 882, 885–86 (Fla.1979).

2

circumstance at issue in this case had been invalid for reasons such

3

as these, due process of law would require that the jury’s decision to

4

impose death be set aside.

5

If the aggravating

Zant v. Stephens, 462 U.S. 862, 885, 103 S. Ct. 2733, 77 L. Ed. 2d 235 (1983).

6

The prosecutor’s argument in this case violated both the well-established

7

principle that a sentencer “not be precluded from considering, as a mitigating

8

factor, any aspect of a defendant’s character or record and any of the circumstances

9

of the offense that the defendant proffers as a basis for a sentence less than death,”

10

Lockett, 438 U.S. at 604, and attached a aggravating label to Mr. Jones’s mental

11

illness, Zant, 462 U.S. at 885. In contrast, in Gonzalez, there was no mitigation for

12

the jury to consider and thus the prosecutor’s argument did not preclude it “from

13

considering” mitigation that was presented. Lockett, 438 U.S. at 604. Nor did the

14

prosecutor urge the jury to consider Mr. Gonzales’s mental illness as aggravation.

15

2. Section 2254(d) Is Satisfied.

16

Taken as true, Mr. Jones’s allegations established (1) a prima facie Napue

17

violation, demonstrating that the prosecutor knowingly presented false testimony,

18

(2) the prosecutor’s improper arguments infected the trial with unfairness as to

19

make the resulting conviction a denial of due process under Darden v. Wainwright,

20

and (3) that the prosecutor improperly argued in aggravation that Mr. Jones had

21

failed to take advantage of psychiatric treatment, in violation of Woodson, Lockett,

22

Eddings and their progeny. By summarily denying the claim, the state court did

23

not require respondent to respond formally to Mr. Jones’s allegations or present

24

evidence to support respondent’s factual contentions. The state court ruling also

25

denied Mr. Jones the opportunity to present evidence, subpoena witnesses, and

26

prove his allegations. See Opening Br. Section I.B.2. The state court’s summary

27

denial of this claim therefore was contrary to federal law requiring a state court to

28

ascertain facts reliably before denying adequately presented federal claims. See
167
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

Opening Br. at 1-13.

2

To the extent that the California Supreme Court determined that Mr. Jones

3

did not state a prima facie case, its determination was contrary to or an

4

unreasonable application of clearly established federal law. See Williams v. Taylor,

5

529 U.S. 362, 405-06, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000). See also, e.g.

6

Goldstein v. Harris, 82 F. App’x 592 (9th Cir. 2003) (upholding district court’s

7

finding of Napue violation that prosecution knew or should have known jailhouse

8

informant falsely testified that he was not receiving any benefit from law

9

enforcement for his testimony against petitioner, and that he had not received

10

similar benefits for prior testimony in other cases.); see also Shortt v. Roe, 342 F.

11

App’x 331 (9th Cir. 2009) (state court had unreasonably applied Brady and Napue

12

when it found that the prosecution’s failure to disclose that its witness had been

13

given sentencing consideration in exchange for his testimony against petitioner, to

14

disclose impeaching psychiatric opinions and reports and probation reports from

15

prior cases, or to correct witness’s false testimony regarding consideration received

16

for his cooperation and testimony; see also Lee v. Lewis, 27 Fed. App’x 774 (9th

17

Cir. 2001) (finding California Supreme Court unreasonably applied Darden and

18

Strickland where prosecutor’s detailed recitation of facts underlying shooting

19

defendant’s prior conviction during cross-examination of defendant, in violation of

20

court’s in limine ruling, rendered trial so unfair as to result in denial of due

21

process; given weakness of state’s case, there was reasonable likelihood that

22

conviction was result of jury’s perception of defendant as violent and dangerous

23

person, and prosecutor’s conduct invited such impermissible reasoning.)

24
25

Alternatively, the state court’s summary denial could be based on its
resolution of key factual disputes and mixed questions of fact and law, such as:

26

●

whether the coroner’s testimony was false;

27

●

whether the prosecutor knew the evidence was false, and if so,

28

●

why he failed to correct it;
168

Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

●

the effect the false testimony had on the jury’s verdict;

2

●

whether the prosecutor’s argument characterizing the wound

3

to the peritoneum as a vaginal wound was improper;

4

●

5

believe that Mr. Jones had raped Mrs. Miller with a knife;

6

●

the effect the prosecutor’s argument had on the jury’s verdict;

7

●

whether the prosecutor’s introduction of non-statutory

8

aggravating evidence that Mr. Jones had failed to take advantage of

9

psychiatric treatment had a substantial influence on the jury’s

whether his argument was designed to mislead the jury to

10

determination to sentence Mr. Jones to death.

11

To the extent that the state court denied Mr. Jones’s claim on these or other

12

factual bases at the pleading stage, it unreasonably determined the facts under

13

section 2254(d)(2) by failing to provide Mr. Jones either with process to develop

14

and present supporting evidence, or notice of and an opportunity to be heard on the

15

factual issues that the state court intended to resolve. See Opening Br. at 6-13.75

16

O.

Claim Fifteen: Mr. Jones’s Constitutional Rights Were Violated by the

17

Prosecution’s Failure to Provide Notice of Aggravators and the

18

Introduction of Irrelevant and Highly Prejudicial Testimony in the

19

Penalty Phase.

20

In state court, Mr. Jones alleged that his death sentence was rendered in

21

violation of his right to a reliable, rational non-arbitrary determination of guilt and

22

penalty as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to

23

the United States Constitution because the prosecution failed to provide

24
25
26
27
28

75

Respondent’s assertion that merits review of this claim is barred by the
procedural default doctrine is foreclosed for the reasons stated in Section III,
supra. Respondent also contends that the Teague doctrine limits this Court’s
ability to grant relief, which is not relevant to this stage of the proceedings. See
n.1, supra.
169
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

constitutionally required notice of factors to be used in aggravation, and the trial

2

court permitted the prosecution to introduce highly prejudicial and irrelevant

3

testimony of petitioner’s sister regarding a statement Mr. Jones allegedly made to

4

her two and half years after the crime. State Pet. at 371-74; Inf. Reply at 330-31,

5

340-44. Specifically, on the day of the guilt verdict, the prosecutor orally informed

6

counsel that he planned to call Pam Miller and Kim Jackson, “a prior rape victim

7

of the defendant,” to “testify to the circumstances” regarding that incident. 27 RT

8

4064-65. The prosecutor made no further oral or written proffer regarding Ms.

9

Jackson’s testimony.

No more than five days, and only three business days,

10

elapsed between the prosecution’s notice of aggravation and Ms. Jackson’s

11

testimony. During her testimony, Ms. Jackson added additional damaging facts to

12

her version of the events of the crime, and testified inconsistently with her

13

testimony during the preliminary hearing of the prior crime. See 28 RT 4180-81;

14

Ex. 102 at 2065-93. In addition, the prosecutor failed to provide timely notice of

15

his intention to introduce testimony of Mr. Jones’s sister Gloria Hanks (28 RT

16

4074, 4083-84) and the trial court, over objection, admitted Ms. Hanks’s testimony

17

regarding a highly prejudicial and irrelevant statement Mr. Jones made to her in a

18

telephone call on New Year’s Eve 1994 (28 RT 4115-16). Without notice, Mr.

19

Jones did not have a reasonable opportunity to “deny or explain” the evidence

20

against him. Gardner v. Florida, 430 U.S. 349, 362, 97 S. Ct. 1197, 51 L. Ed. 2d

21

393 (1977) (finding due process violation when death sentence imposed, at least in

22

part, on basis of confidential information which was not disclosed to defendant or

23

his counsel). Furthermore, the statement Mr. Jones made to his sister on New

24

Year’s Eve was irrelevant, taken out of context, had no probative value, was highly

25

prejudicial, and inadmissible because Mr. Jones had not put remorse in issue. The

26

admission of this irrelevant and overtly prejudicial evidence violated Mr. Jones’s

27
28
170
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

right to a fair trial, rendering it fundamentally unfair. See Jammal v. Van de Kamp,

2

926 F.2d 918, 920 (9th Cir.1991).76

3

P.

Claim Sixteen: Mr. Jones Received Ineffective Assistance of Counsel

4

During the Penalty Phase of His Trial.

5

Mr. Jones satisfied state pleading requirements by presenting this claim in

6

state court with sufficient detail and supporting factual material to establish a prima

7

facie showing that he was entitled to relief. See, e.g., Duvall, 9 Cal. 4th at 474.

8

Mr. Jones’s allegations established that trial counsel knew about several aspects of

9

Mr. Jones’s troubled history, but failed to conduct an adequate investigation into

10

Mr. Jones’s background. As a result of this and other failings, trial counsel did not

11

present significant, mitigating evidence through expert and lay witness testimony -

12

evidence that would have made a difference in the jury’s penalty determination.

13

State Pet. at 167-239; Inf. Reply at 129-89; Opening Br. at 58-87.

14

This claim was not procedurally defaulted, and respondent did not present

15

factual materials or legal argument in state court to establish that Mr. Jones’s prima

16

facie showing should not be taken as true or that it otherwise lacked merit. Under

17

these circumstances, the state court was required to issue an order to show cause

18

and allow Mr. Jones access to state processes to develop and present evidence to

19

prove his claim. See, e.g. Duvall, 9 Cal. 4th at 475; Romero, 8 Cal. 4th at 742. By

20

instead summarily denying Mr. Jones’s claim, the California Supreme Court’s

21

decision satisfies section 2254(d) as set forth in Mr. Jones’s prior briefing and in

22

the sections that follow.

23

In this Court, respondent does not reasonably contend that Mr. Jones failed

24

to present a prima facie case to the state court. Indeed, respondent concedes that

25
26
27
28

76

Respondent’s assertion that merits review of this claim is barred by the
procedural default doctrine is foreclosed for the reasons stated in Section III,
supra.
171
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

the state court’s summary denial of Mr. Jones’s prima facie case for relief, as set

2

forth in Mr. Jones’s Opening Brief, satisfies section 2254(d). See section II.C.,

3

supra. Respondent instead asserts that the state court properly rejected this claim

4

by making a variety of determinations about trial counsel’s actions and omissions,

5

possible tactical decisions, and the weight, credibility, and impact of evidence that

6

should have been presented during the penalty phase of Mr. Jones’s trial but was

7

not. Inf. Resp. at 21-26; Opp. at 127-31. These contentions are contrary to federal

8

law, state court procedures, and the record before the state court and therefore

9

could not reasonably have formed the basis for the state court’s summary denial.

10

1. There Is No Reasonable Basis for the State Court Ruling That Mr.

11

Jones Failed to Make a Prima Facie Showing for Relief.

12

a. Mr. Jones Made a Prima Facie Showing That Trial Counsel

13

Failed to Conduct a Reasonable Investigation.

14

Mr. Jones’s allegations and supporting factual material in state court

15

established that trial counsel recognized “Mr. Jones’s obvious mental illness,” Ex.

16

12 at 107, and had notice of several aspects of Mr. Jones’s troubled history,

17

including physical abuse, a lengthy history of mental disturbance, intellectual

18

disability, and possible brain damage, Opening Br. at 61, but failed to conduct an

19

adequate investigation into these and other aspects of Mr. Jones’s history in

20

advance of the penalty phase of trial. State Pet. at 170-75; Inf. Reply at 135-84.

21

At the time of Mr. Jones’s trial, it was well understood that capital trial

22

counsel was required to conduct a comprehensive investigation into the defendant’s

23

background, and that evidence about family dynamics; physical and sexual abuse;

24

mental illness and suicidality; developmental delay; childhood neglect and

25

deprivation; and socioeconomic status, among other things, constituted relevant,

26

admissible mitigation. See, e.g., Ex. 182 at 3168; Ex. 183 at 3177-78; Wiggins,

27

539 U.S. at 535 (holding evidence of mother’s alcoholism, physical and sexual

28

abuse, homelessness, and diminished mental capacities, “the kind of troubled
172
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

history [the Court has] declared relevant to assessing a defendant’s moral

2

culpability”); In re Marquez, 1 Cal. 4th at 600 (finding that “competent counsel

3

would have undertaken in-depth interviews with petitioner’s family, friends, and

4

neighbors in an effort to uncover mitigating evidence.”).

5

included the collection of records related to the client’s background and to the

6

background of his parents, siblings, and other family members. Ex. 183 at 3179;

7

Rompilla, 545 U.S. at 392 (holding school and medical records, among others,

8

were source of mitigating evidence for 1988 trial); Wiggins, 539 U.S. at 516

9

(same). Experienced, knowledgeable investigators were required for this work;

10

however, trial counsel was responsible for guiding the investigation and was not

11

permitted to delegate strategic decision-making to the investigator or others. See,

12

e.g., Ex. 182 at 3168; Ex. 183 at 3181; Bloom v. Calderon, 132 F.3d 1267, 1277

13

(9th Cir. 1997) (holding counsel ineffective in 1983 trial for delegating defense

14

preparation to a law clerk). Trial counsel’s duty to investigate the aggravating

15

evidence the prosecutor was likely to present was coextensive with the duty to

16

investigate, develop, and present mitigating evidence. See, e.g., Ex. 183 at 3185;

17

Rompilla, 545 U.S. at 385-86 (holding trial counsel ineffective in 1988 case for

18

failing to investigate aggravating evidence); In re Marquez, 1 Cal. 4th at 606

19

(same). In other words, as the Supreme Court held regarding a 1988 trial, “It is

20

unquestioned that under the prevailing professional norms at the time . . . counsel

21

had an ‘obligation to conduct a thorough investigation of the defendant’s

22

background.’ Williams v. Taylor, 529 U.S. 362, 396, 120 S. Ct. 1495, 146 L. Ed. 2d

23

389 (2000).” Porter v. McCollum, 558 U.S. 30, 39, 130 S. Ct. 447, 452-53, 175 L.

24

Ed. 2d 398 (2009).

This investigation

25

Mr. Jones established that, in spite of this duty, trial counsel delegated the

26

penalty phase investigation to his paralegal, and did not provide her any direction

27

regarding the scope, purpose, or content of the interviews she conducted with

28

family members. Ex. 12 at 105-06; Ex. 19 at 203-05. The interviews that the
173
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

paralegal conducted were “limited in scope and detail,” and “failed to elucidate the

2

problems [in Mr. Jones’s home environment] in much detail or discuss Mr. Jones

3

with much specificity.” Ex. 154 at 2750. Trial counsel confirmed that no one on

4

the defense team interviewed extended family members, neighbors, and other

5

witnesses who provided background information about Mr. Jones for the state

6

habeas petition, and stated that he did not have a strategic reason for failing to do

7

so. Ex. 150 at 2733-34.

8

The record before the state court demonstrates the limited extent of trial

9

counsel’s preparation for the penalty phase. Trial counsel presented the testimony

10

of only five witnesses who knew Mr. Jones: Mr. Jones’s youngest sister, his father,

11

an aunt, a school friend, and an acquaintance. 29 RT 4236, 4251, 4345, 4354; 31

12

RT 4566. Trial counsel’s questions and the witnesses’ testimony were quite limited

13

and only hinted at a few of the mitigating aspects of Mr. Jones’s background – his

14

parents’ alcoholism, domestic violence, infidelity, and neglect and physical abuse

15

of Mr. Jones and his siblings. Opening Br. at 79-81.

16

Mr. Jones’s allegations therefore demonstrate that trial counsel was

17

objectively

unreasonable

because

despite

well-defined

norms

requiring

18

investigation “to discover all reasonably available mitigating evidence,” trial

19

counsel instead “abandoned their investigation of petitioner’s background after

20

having acquired only rudimentary knowledge of his history from a narrow set of

21

sources.” Wiggins, 539 U.S. at 524 (internal quotations omitted) (emphasis in

22

original).

23

Respondent contends in this Court that the state court “reasonably could

24

have concluded that counsel’s investigation was sufficient in light of the extensive

25

social history evidence that he presented at trial.” Opp. at 127. This not only

26

misrepresents the record of trial counsel’s penalty phase presentation, but also

27

conflicts with Mr. Jones’s showing in state court that trial counsel did not interview

28

many witnesses, and that the background interviews that were conducted were
174
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

limited in scope, lacked detail, and failed to discuss Mr. Jones specifically. Ex. 150

2

at 2733-34; Ex. 154 at 2750. The state court was obligated to take those factual

3

allegations as true absent the presentation of legal authority or factual material by

4

respondent to the contrary. Romero, 8 Cal. 4th at 742 (1994).

5

Respondent did not argue in state court that trial counsel’s investigation was

6

adequate, and instead made a number of contentions about tactical decisions that

7

trial counsel may have made to forgo the development of mitigating evidence –

8

arguments that respondent has abandoned before this Court. Inf. Resp. at 23-24;

9

Opp. 127-29. Trial counsel’s allegedly sufficient investigation therefore would not

10

have provided a basis for the state court to reject Mr. Jones’s claim, because

11

respondent did not raise that issue in the state court. See section II.A.4., supra.

12

Furthermore, the Supreme Court has made it clear that establishing ineffective

13

assistance in the penalty phase of a capital trial does not turn on the mitigation that

14

was or was not presented; rather, the proper inquiry is “whether the investigation

15

supporting counsel’s decision not to introduce mitigating evidence of [the client’s]

16

background was itself reasonable.”

17

original). Whether trial counsel’s investigation is reasonable, is determined in part

18

by prevailing professional standards, Wiggins, 539 U.S. at 524, and also by

19

inquiring “whether the known evidence would lead a reasonable attorney to

20

investigate further,” id. at 527. Taken as true, Mr. Jones’s prima facie showing

21

satisfied these standards.

Wiggins, 539 U.S. at 523 (emphasis in

22

b. Mr. Jones Made a Prima Facie Showing That Trial Counsel

23

Failed to Adequately Prepare and Present Expert Testimony.

24

Mr. Jones’s allegations and supporting factual material in state court

25

established that trial counsel retained a psychiatrist, Dr. Claudewell Thomas, very

26

close to the start of trial and did not adequately prepare him to testify during the

27

penalty phase. State Pet. at 238-39; Inf. Reply at 185-89. Trial counsel asked Dr.

28

Thomas to determine whether Mr. Jones “was legally insane at the time of the
175
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

offense” or “is suffering from some mental condition or defect which he could not

2

control and which might help explain his behavior.” Ex. 154 at 2748. Dr. Thomas

3

requested information related to Mr. Jones’s medical, mental health, educational,

4

and other social history in order to evaluate Mr. Jones’s mental functioning, but

5

received little information other than summaries from family interviews that were

6

inadequate. Ex. 154 at 2750. Dr. Thomas also recommended neuropsychological

7

testing of Mr. Jones to determine the nature and extent of his organic brain deficits,

8

but only received incomplete testing that was not reliable. Ex. 150 at 2732; Ex.

9

154 at 2761.

10

Prior to Dr. Thomas’s testimony, trial counsel asked him to discuss Mr.

11

Jones’s mental state on the night of the crime, but did virtually nothing to prepare

12

him for that testimony. Ex. 154 at 2752. Dr. Thomas explained,

13

By the time that I was retained, Mr. Manaster had very little time to

14

prepare a mental state defense and thus did not have much time to

15

direct or assist in my evaluation of Mr. Jones. I wanted to work on

16

the case as best I could, but my limited contact with Mr. Manaster

17

was very dissatisfying.

18

Manaster a great deal of distress, which adversely affected his

19

decision-making.

The case apparently had caused Mr.

20

Ex. 154 at 2749. Trial counsel acknowledged that Dr. Thomas “was not adequately

21

prepared to testify” and “did not adequately convey to the jury how mentally ill

22

Mr. Jones really is.” Ex. 12 at 110. During the cross-examination of Dr. Thomas,

23

the prosecutor repeatedly undermined Dr. Thomas’s testimony by highlighting the

24

limited information upon which his conclusions were based. Opening Br. at 81-82.

25

Mr. Jones also demonstrated that although trial counsel considered Dr.

26

Thomas the “cornerstone of the penalty phase defense,” Ex. 12 at 110, he

27

unreasonably failed to ask Dr. Thomas, or any other expert, to conduct a thorough

28

evaluation of Mr. Jones’s background in order to adequately develop and present
176
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

relevant mitigating evidence unrelated to his mental state at the time of the crime,

2

State Pet. at 237-38; Inf. Reply 189-90; Ex. 154 at 2755. See also, e.g., Ex. 183 at

3

3183 (explaining that standard practice as of the mid-1980s was to retain and

4

present an expert qualified to testify about a capital defendant’s psychosocial

5

history); Penry v. Lynaugh, 492 U.S. 302, 319, 109 S. Ct. 2934, 2947, 106 L. Ed.

6

2d 256 (1989) (holding relevant in capital trial “evidence about the defendant’s

7

background and character”), abrogated on other grounds by Atkins v. Virginia, 536

8

U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002); Wiggins, 539 U.S. at 516, 534

9

(holding trial counsel unreasonable for failing to develop “evidence of petitioner’s

10

life history or family background”). Because trial counsel did not even explain to

11

Dr. Thomas the role of mitigation in a capital case, Dr. Thomas was unable to

12

testify about the “the limited information I did have of the dysfunctional family life

13

Mr. Jones had, and the impact it had on his growth and functioning.” Ex. 154 at

14

2755.

15

Taken as true, these allegations established that trial counsel unreasonably

16

failed to adequately prepare expert testimony on behalf of Mr. Jones. See, e.g.,

17

Caro v. Woodford, 280 F.3d 1247, 1254-55 (9th Cir. 2002) (ruling that “counsel has

18

an affirmative duty to provide mental health experts with information needed to

19

develop an accurate profile of the defendant’s mental health”); Bean v. Calderon,

20

163 F.3d 1073, 1079 (9th Cir. 1998) (holding counsel ineffective for failing to

21

provide requested information and testing to expert and presenting expert

22

testimony with little preparation or foundation); Clabourne v. Lewis, 64 F.3d 1373,

23

1385 (9th Cir. 1995) (holding counsel ineffective for retaining expert with little

24

time to prepare, failing to provide experts with records, and failing to prepare them

25

to testify).

26

In state court, respondent contended that trial counsel may have made a

27

strategic decision to limit Dr. Thomas’s testimony because additional evidence

28

about Mr. Jones’s childhood could have had an adverse effect on the jury. Inf.
177
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

Resp. at 26. Respondent also complained that this aspect of Mr. Jones’s claim was

2

conclusory, because he did not explain what Dr. Thomas’s testimony would have

3

been regarding the additional evidence of childhood trauma or how it would have

4

affected the verdict. Inf. Resp. at 26.77 In this Court, respondent states that the

5

state court could have rejected this claim because Dr. Thomas received “substantial

6

information concerning Petitioner’s background and mental health history,” and

7

because nothing in the record shows that trial counsel had reason to believe that Dr.

8

Thomas’s diagnosis was incorrect or incomplete. Opp. at 130.

9

Respondent’s purely speculative theory that trial counsel made a strategic

10

decision to withhold background information from Dr. Thomas could not have

11

provided a basis for the state court to reject this claim. See Romero, 8 Cal. 4th at

12

742 (holding that respondent must demonstrate through legal authority or factual

13

materials that claims lack merit).

14

conducted a reasonable investigation to determine what additional evidence about

15

Mr. Jones’s childhood existed, he could not have made a tactical decision to

16

withhold additional information from Dr. Thomas. Wiggins, 539 U.S. at 523. The

17

state court therefore could not reasonably have relied on this justification as a legal

18

basis for rejecting this claim.78 Respondent’s contentions in this Court that the

19

state court reasonably could have rejected the claim by deciding that Dr. Thomas

Furthermore, because trial counsel had not

20
21
22
23
24
25
26
27
28

77

Had the state court deemed this aspect of Mr. Jones’s claim conclusory, it
would have provided notice of this pleading defect and afforded Mr. Jones an
opportunity to correct it. See section II.A.2., supra. Moreover, respondent’s
assertion ignores the extensive factual material that Mr. Jones submitted in
support of this claim, including the additional information and corroboration that
would have bolstered Dr. Thomas’s testimony, Ex. 154 at 2756-61, and fully and
adequately prepared expert evaluation by an independent psychiatrist, Ex. 178,
and neuropsychologist, Ex. 175. See also section IV.P.1.c., infra.
78

Apparently recognizing this, respondent has abandoned this argument in
this Court.
178
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

received sufficient background material and did not provide incorrect or materially

2

incomplete testimony, Opp. at 130, are not issues that were raised in the state court

3

and therefore could not have provided a basis for its dismissal of the claim. See

4

section II.A.4., supra.

5

procedures, which obligate the state court to accept Mr. Jones’s allegations and

6

factual materials – that Dr. Thomas did not receive sufficient background material

7

and was not adequately prepared to testify effectively – as true. Duvall, 9 Cal. 4th

8

at 474-75. At most, this contention created a factual dispute that the state court

9

could not have resolved without issuing an order to show cause. Duvall, 9 Cal. 4th

10

These arguments also are contrary to the state court

at 475; Romero, 8 Cal. 4th at 742.

11

c. Mr. Jones Made a Prima Facie Showing That Trial Counsel Was

12

Ineffective for Failing to Investigate, Develop, and Present

13

Compelling Mitigation Through Expert and Lay Witness

14

Testimony.

15

Mr. Jones’s allegations and supporting factual material in state court

16

demonstrated in significant detail that trial counsel failed to discover and present

17

critical, available mitigating background information about Mr. Jones. Although

18

the jury at Mr. Jones’s trial heard witnesses briefly mention his parents’ alcoholism,

19

domestic violence in the home, his parents’ infidelity, and neglect and physical

20

abuse of Mr. Jones and his siblings, it learned nothing about many other aspects of

21

Mr. Jones’s background that would have provided additional, compelling

22

mitigation, including detailed accounts about the following topics, among others:

23

●

Sexual abuse of Mr. Jones by his mother and a history in the

24

family of inappropriate sexual behavior and sexual abuse;

25

●

26

witnessed between his parents and the severity and frequency of

27

physical abuse Mr. Jones experienced;

The extent and degree of physical abuse that Mr. Jones

28
179
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

●

Mr. Jones’s reactions and behavior in response to the

2

persistent and severe trauma he experienced, including “blank,”

3

dissociative behavior from an early age;

4

●

5

in Special Education classes, and inability even as he grew older to

6

read and write;

7

●

8

dysfunction, including the absence of a stable home, basic

9

necessities, and Mr. Jones’s homelessness at a young age;

Mr. Jones’s intellectual and academic limitations, enrollment

The effect on Mr. Jones of his parents’ alcoholism and

10

●

The history in Mr. Jones’s family of mental illness, substance

11

abuse, and intellectual impairment;

12

●

13

older brother and his aunt’s suicide; and

14

●

15

up to the crime, including his increasingly bizarre behavior, frequent

16

dissociative episodes, marked depression and suicidality, inability to

17

work steadily, and the recognition among friends and family that he

18

was in need of mental health treatment.

Traumatic events in Mr. Jones’s life such as the murder of his
Mr. Jones’s significant mental deterioration in the time leading

19

Opening Br. at 23-27, 66-75; see also State Pet. at 170-237; Inf. Reply at 129-84.

20

Mr. Jones also demonstrated that with adequate preparation, Dr. Thomas would

21

have identified these and several additional mitigating aspects of Mr. Jones’s

22

background and would have been able to explain, wholly apart from Mr. Jones’s

23

mental state at the time of the crime, the importance of mitigating factors in Mr.

24

Jones’s life. Ex. 154 at 2762-64.

25

Mr. Jones’s allegations also established that, properly prepared, Dr. Thomas

26

would have been able to provide much more complete and fully corroborated

27

diagnoses and assessment of Mr. Jones’s mental condition and could have “given a

28

more persuasive account of his development and background leading up to the
180
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

night of the incident.”

Ex. 154 at 2757.

Information from a reasonable

2

investigation of Mr. Jones’s background would have allowed Dr. Thomas to

3

provide the jury with critical corroboration of the etiology and onset of Mr. Jones’s

4

mental illness. Ex. 154 at 2757. Among other things, Dr. Thomas could have

5

provided affecting examples of how sexuality was a frequent trigger for brutal and

6

violent domestic strife when Mr. Jones was a young child, and explained how this

7

and other violent dysfunction and sexual abuse, mental illness, and substance abuse

8

in Mr. Jones’s childhood environment and family history significantly

9

compromised Mr. Jones’s opportunity for appropriate social adjustment and

10

development. Ex. 154 at 2757-60. Access to information from a reasonable

11

background investigation also would have allowed Dr. Thomas to support his

12

clinical impressions of Mr. Jones’s symptoms of psychosis with descriptions of Mr.

13

Jones’s behavior, and to explain how Mr. Jones’s history was consistent with

14

lifelong organic impairment. Ex. 154 at 2760-61.

15

Mr. Jones further supported his allegations that he was prejudiced by trial

16

counsel’s failure to adequately investigate, develop, and present mitigating

17

evidence with a lengthy declaration summarizing available background history and

18

mitigation from Zakee Matthews, M.D., an expert specializing in child and

19

adolescent psychiatry and the effects of childhood trauma, see generally Ex. 178,

20

educational professionals describing Mr. Jones’s cognitive impairment and

21

academic difficulties, see Exs. 125, 130, numerous declarations from friends,

22

family, neighbors, see, e.g., Exs. 1-25, 123-24, 126, 128-29, 131-32, 134-35, 143,

23

145, 147, 152, 155, and medical, educational, and other records routinely collected

24

as part of a reasonable background investigation, see, e.g., Exs. 26-120. See also

25

Opening Br. at 66-79.

26

Taken as true, this showing plainly established that Mr. Jones was prejudiced

27

by trial counsel’s inadequate investigation and preparation – indeed, at the time of

28

the state court’s summary denial of Mr. Jones’s claim, the Supreme Court
181
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

recognized the prejudicial effect of depriving a capital defendant of the sort of

2

mitigating information that trial counsel failed to discover and present in Mr.

3

Jones’s penalty phase. See Opening Br. at 82-83. For example, in Wiggins,

4

prejudicial omission of mitigation included counsel’s failure to discover and

5

present evidence that the client’s mother had sex with men while her children slept

6

in the same bed, sexual abuse of the client, and the client’s homelessness and

7

diminished mental capacities. 529 U.S. at 517, 535. In Williams, such evidence

8

included abuse and neglect of the client and the client’s low intellectual

9

functioning, academic limitations, and organic mental impairment. Similarly, in

10

Rompilla, evidence included the client’s parents’ severe alcoholism, neglect and

11

physical abuse of the client, and the client’s organic brain damage and low

12

intellectual functioning. 545 U.S. at 391; see also Porter, 558 U.S. at 43 (holding

13

prejudicial counsel’s failure to present evidence of client’s brain abnormality,

14

difficulty reading and writing, and limited schooling).

15

In state court, respondent asserted that omission of the additional mitigating

16

evidence was not prejudicial because it might have alienated the jury; evidence

17

related to Mr. Jones’s family history of mental illness was not “particularly

18

helpful;” and that Mr. Jones’s intellectual and academic impairment “would have

19

had relatively little mitigating value.” Inf. Resp. at 23-25. Respondent repeats

20

these contentions before this Court. Opp. at 127-29.

21

Clearly established federal law foreclosed a ruling by the state court that

22

additional mitigation established by Mr. Jones’s allegations and factual material

23

could have adversely affected his jury. The Supreme Court has acknowledged that

24

some background information that is mitigating may have a “double edge.”

25

Wiggins, 539 U.S. at 535 (citing Burger v. Kemp, 483 U.S. 776, 107 S. Ct. 3114, 97

26

L. Ed. 2d 638 (1987), and Darden v. Wainwright, 477 U.S. 168, 106 S. Ct. 2464, 91

27

L. Ed. 2d 144 (1986), as examples of such findings). In Burger, the Court ruled

28

that evidence of petitioner’s encounters with law enforcement authorities that were
182
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

not disclosed by his clean criminal record could have adversely affected the jury.

2

483 U.S. at 793. In Darden, the Court similarly ruled that trial counsel reasonably

3

could have decided not to present evidence that would have revealed undisclosed

4

prior convictions that were “particularly damaging.”

5

mitigating evidence that Mr. Jones’s trial counsel failed to discover and present had

6

none of the features of a double edge – it did not reveal undisclosed criminal

7

activity, but instead revealed through “often poignant accounts,” Ex. 150 at 2733,

8

“the kind of troubled history” that is “relevant to assessing a defendant’s moral

9

culpability,” Wiggins, 539 U.S. at 535.79

477 U.S. at 186.

The

10

The state court could not reasonably have determined that evidence of

11

mental illness, low intellectual functioning, and poor academic achievement had

12

little mitigation value. The Supreme Court long has recognized that in capital

13

cases the Eighth Amendment dictates that “evidence about the defendant’s

14

background and character is relevant because of the belief, long held by this

15

society, that defendants who commit criminal acts that are attributable to a

16

disadvantaged background, or to emotional and mental problems, may be less

17

culpable than defendants who have no such excuse.” Penry, 492 U.S. at 319. The

18

Supreme Court’s rulings in Wiggins, Williams, Rompilla, and Porter, as referenced

19

above, plainly demonstrate that the type of mitigation that Mr. Jones’s trial counsel

20

failed to develop and present would have influenced the jury. See Cauthern v.

21

Colson, 736 F.3d 465, 487 (6th Cir. 2013) (holding state court unreasonably

22
23
24
25
26
27
28

79

The decision in Cullen v. Pinholster, __ U.S. __, 131 S. Ct. 1388, 1410, 179
L. Ed. 2d 557 (2011), cited by respondent, does not dictate a different result.
Opp. at 128. In that case, the Court similarly pointed to further aggravating
evidence as potentially damaging. 131 S. Ct. at 1410. A different interpretation
of that decision, however, could not have provided a basis for the state court’s
summary denial of Mr. Jones’s claim, because it was issued years after the state
court ruling.
183
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

applied federal law in ruling that petitioner’s “family-history evidence” was

2

marginal to the case as mitigation in the penalty phase and therefore not

3

prejudicial); Johnson v. Mitchell, 585 F.3d 923, 943 (6th Cir. 2009) (holding state

4

court unreasonably applied federal law in ruling that petitioner was not prejudiced

5

by trial counsel’s failure to investigate and present mitigating evidence from

6

“numerous family members” and information from a mental health expert about his

7

“social and emotional development”);

8

Mr. Jones’s allegations demonstrated that trial counsel’s omissions were

9

prejudicial because the mitigation that trial counsel could have, but did not present

10

to Mr. Jones’s jury, “bears no relation to the few naked pleas for mercy actually put

11

before the jury.” Rompilla, 545 U.S. at 393. As the Court in Rompilla held,

12

“although we suppose it is possible that a jury could have heard it all and still have

13

decided on the death penalty, that is not the test. It goes without saying that the

14

undiscovered mitigating evidence, taken as a whole, might well have influenced

15

the jury’s appraisal of [the defendant’s] culpability.” 545 U.S. at 393.

16

2. Section 2254(d) Is Satisfied by the State Court’s Summary Denial of

17

Mr. Jones’s Adequately Pled Claim That Trial Counsel Was

18

Ineffective During the Penalty Phase of Trial.

19

In his Opening Brief, Mr. Jones detailed the ways in which the state court’s

20

summary denial of Mr. Jones’s claim of ineffective assistance of counsel during the

21

penalty phase satisfies section 2254(d). Opening Br. at 55-58. As a general matter,

22

the California Supreme Court’s refusal to hear Mr. Jones’s adequately pled claims

23

of constitutional error is contrary to clearly established federal law that prohibits

24

state courts from creating “unreasonable obstacles” to the resolution of federal

25

constitutional claims that are “plainly and reasonably made.” Davis, 263 U.S. at

26

24-25; see also Opening Br. at 7-11. In light of Mr. Jones’s extensive factual

27

allegations and supporting materials in the state court – which the state court was

28

obligated to accept as true – the state court’s ruling that Mr. Jones failed to make
184
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

any prima facie showing of entitlement to relief, and refusal to initiate proceedings

2

to take evidence and assess the claim, constitutes an unreasonable application of

3

Strickland. See, e.g., Wiggins, 539 U.S. at 527 (holding state court application of

4

Strickland unreasonable under section 2254(d)(1) for failing to assess factual

5

elements of the claim); Mosley, 689 F.3d at 848 (holding state court summary

6

ruling on limited record was unreasonable application of Strickland). The state

7

court denial also is contrary to clearly established federal law because Mr. Jones’s

8

factual allegations about the mitigation that could have been, but was not,

9

presented during the penalty phase of his trial, are “materially indistinguishable”

10

from those omissions addressed by Supreme Court and held to be prejudicial.

11

Williams, 529 U.S. at 406.

12

Although the California Supreme Court summarily denied Mr. Jones’s claim

13

without issuing a reasoned opinion, its precedent provides a framework for

14

adjudicating prejudice in ineffective assistance of counsel claims that is contrary to

15

clearly established federal law. Opening Br. at 40-42. Among other things, the

16

California Supreme Court relies on an additional prejudice requirement derived

17

from Lockhart v. Fretwell, 506 U.S. 364, 113 S. Ct. 838, 122 L. Ed. 2d 180 (1993),

18

an approach that repeatedly has been rejected. See, e.g., Williams v. Taylor, 529

19

U.S. at 393; Lafler v. Cooper, __ U.S. __, 132 S. Ct. 1376, 1386, 182 L. Ed. 2d 398

20

(2012).80 Finally, because an evidentiary hearing is usually required to adjudicate

21
22
23
24
25
26
27
28

80

Under state law, issuance of an order to show cause and a reasoned opinion
to correct erroneous state law applications of federal law are necessary to remedy
this erroneous precedent. See, e.g., Romero, 8 Cal. 4th at 740 (holding issuance of
an order to show cause is the means by which issues are joined and decided; an
order to show cause triggers the state constitutional requirement that the cause be
resolved “in writing with reasons stated”); Schmier v. Supreme Court, 78 Cal.
App. 4th 703, 710 (2000) (the publication of written opinions is the manner in
which this Court determines “the evolution and scope of this state’s decisional
law”).
185
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

ineffectiveness claims, the California Supreme Court’s rejection of a prima facie

2

ineffectiveness claim without fact-finding also may be considered an unreasonable

3

determination of the facts under § 2254(d)(2). See, e.g., Hurles v. Ryan, 706 F.3d

4

1021, 1038 (9th Cir. 2013) (explaining that the Ninth Circuit has “held repeatedly

5

that where a state court makes factual findings without an evidentiary hearing or

6

other opportunity for the petitioner to present evidence the fact-finding process

7

itself is deficient and not entitled to deference”).

8

Respondent’s failure to respond to these arguments constitutes consent to a

9

ruling in favor of Mr. Jones on these bases. See, e.g., Stichting, 802 F. Supp. 2d at

10

1132; In re Teledyne, 849 F. Supp. at 1373; Local Civil Rules, L.R. 7-9. Given Mr.

11

Jones’s showing before the state court, he is entitled to an evidentiary hearing in

12

this Court in which he has an opportunity, for the first time, to develop and present

13

evidence to prove his claim and obtain relief.

14

Q.

Claim Seventeen: The Trial Court Violated Mr. Jones’s Constitutional

15

Rights When It Precluded Mr. Jones From Introducing Mitigating

16

Evidence.

17

In Claim Seventeen, Mr. Jones alleged that the trial court unconstitutionally

18

and prejudicially excluded constitutionally relevant and admissible mitigating

19

testimony from defense expert James Park.

20

presented this claim to the state court on direct appeal. App. Opening Br. at 191-

21

201; App. Reply Br. at 83-88.

22
23

Fed. Pet. at 339-43.

Mr. Jones

1. Mr. Jones Established His Entitlement to Relief in the California
Supreme Court.

24

The Eighth and Fourteenth Amendments permit virtually no limits on the

25

presentation of relevant mitigating evidence by a capital defendant. See, e.g.,

26

Lockett v. Ohio, 438 U.S. 586, 604-05, 98 S. Ct. 2954, 2964-65, 57 L. Ed. 2d 973

27

(1978); Eddings v. Oklahoma, 455 U.S. 104, 113-14, 102 S. Ct. 869, 876-77, 71 L.

28

Ed. 2d 1 (1982); Hitchcock v. Dugger, 481 U.S. 393, 398-99, 107 S. Ct. 1821,
186
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

1824, 95 L. Ed. 2d 347 (1987). More specifically, “evidence that a defendant

2

would not pose a danger if spared (but incarcerated) must be considered potentially

3

mitigating.

4

sentencer’s consideration.” Skipper v. South Carolina, 476 U.S. 1, 5, 106 S. Ct.

5

1669, 1671, 90 L. Ed. 2d 1 (1986).

Under Eddings, such evidence may not be excluded from the

6

A corollary to these principles is the principle that due process guarantees a

7

capital defendant the right to mitigate, explain, or otherwise rebut evidence

8

presented against him. See, e.g., Simmons v. South Carolina, 512 U.S. 154, 161,

9

114 S. Ct. 2187, 2192, 129 L. Ed. 2d 133 (1994); Gardner v. Florida, 430 U.S.

10

349, 362, 97 S. Ct. 1197, 1207, 51 L. Ed. 2d 393 (1977) (holding “that petitioner

11

was denied due process of law when the death sentence was imposed, at least in

12

part, on the basis of information which he had no opportunity to deny or explain.”);

13

see also Skipper, 476 U.S. 1, 5 n.1, 106 S. Ct. 1669, 1671 n.1, 90 L. Ed. 2d 1

14

(1986) (holding that where the prosecution relies on a prediction of future

15

dangerousness in asking for the death penalty, “it is not only the rule of Lockett and

16

Eddings that requires that the defendant be afforded an opportunity to introduce

17

evidence on this point; it is also the elemental due process requirement that a

18

defendant not be sentenced to death ‘on the basis of information which he had no

19

opportunity to deny or explain.’” (quoting and citing Gardner, 430 U.S. at 362)).

20

Here, trial counsel presented in mitigation the testimony of James Park, a

21

prison consultant, who testified that Mr. Jones would not pose a danger to others if

22

he were sentenced to life without the possibility of parole. 29 RT 4270-85. The

23

trial court permitted the prosecutor to cross-examine Mr. Park about Mr. Jones’s

24

disciplinary infractions while in prison. 29 RT 4219. In light of this, trial counsel

25

sought to introduce testimony of conditions of confinement to rebut the

26

prosecutor’s cross-examination:

27

. . . if the court does permit the District Attorney to go into each of

28

these little tiny incidents, I think I then should have the right to show
187
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

. . . the way he would be treated now and that tighter security would

2

be imposed upon him because of the level of his incarceration.

3

29 RT 4217. The trial court denied counsel’s request and precluded trial counsel

4

from introducing such testimony on re-direct examination.

5

In the course of his cross-examination, the prosecutor repeatedly suggested

6

that Mr. Jones was a future danger who could not be controlled within the prison

7

environment. See, e.g., 29 RT 4324 (“Well, sir, don’t you think a person who has

8

problems controlling their anger in stressful situations, who in the past has

9

committed crimes based upon anger, where drug use is involved, that a person like

10

that, if they are in a stressful prison facility and they get ahold of alcohol or drugs,

11

that that person might in fact be violent in the future?”);81 29 RT 4322 (prosecutor

12

asking Mr. Park whether a person who committed first degree murder without

13

special circumstances and was sentenced to twenty-five years to life would have

14

the same propensity for violence in prison as a person sentenced to life without the

15

possibility of parole for grand theft auto pursuant to Three Strikes legislation). The

16

prosecutor’s questions not only suggested that Mr. Jones was a future danger, but

17

also misled the jury by implying that Mr. Jones, if sentenced to life without the

18

possibility of parole, would be housed in the same facility and subject to the same

19

level of security as individuals convicted of non-violent crimes. See 29 RT 4322.

20

In light of this cross-examination, trial counsel again sought leave of the court to

21

introduce testimony on re-direct regarding conditions of confinement, arguing that

22

“at this point it becomes extremely important and relevant to show that there’s a

23
24
25
26
27
28

81

In response to this question, Mr. Park attempted to explain the reasons he
believed Mr. Jones would adjust well to prison despite his criminal history and the
few disciplinary infractions the prosecutor raised, which included the fact that
prisoners sentenced to life without the possibility of parole are confined in Level
IV prisons in response to this question, but the trial court’s ruling precluded him
from doing so. 29 RT 4324; see also 29 RT 4329.
188
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

different place that . . . [Mr. Jones] would be kept than a person that goes . . . [to

2

prison] for 25 [years] to life for a third strike case.” 29 RT 4329. Again, the trial

3

court precluded the introduction of such testimony to rebut the prosecutor’s

4

suggestions. 29 RT 4330-31.

5

The trial court’s preclusion of this testimony violated Mr. Jones’ absolute

6

right to present relevant mitigating evidence. The prosecutor’s cross-examination

7

made relevant Mr. Park’s proffered testimony about the conditions under which

8

Mr. Jones would be confined if sentenced to life without the possibility of parole,

9

both as affirmative mitigation and, more critically, to rebut the prosecutor’s

10

improper suggestions and explain the basis of Mr. Park’s opinion. See Simmons,

11

512 U.S. at 161; Skipper, 476 U.S. at 5 n.1; Gardner, 430 U.S. at 362. Because of

12

the “qualitative difference” between the finality of a death sentence and a sentence

13

of life imprisonment, there is a corresponding heightened “need for reliability in

14

the determination that death is the appropriate punishment in a specific case.”

15

Woodson v. North Carolina, 428 U.S. 280, 305, 96 S. Ct. 2978, 49 L. Ed. 2d 944

16

(1976) (plurality opinion); see also Zant v. Stephens, 462 U.S. 862, 884-85, 103 S.

17

Ct. 2733, 77 L. Ed. 2d 235 (1983); Lowenfield v. Phelps, 484 U.S. 231, 238-39,

18

108 S. Ct. 546, 98 L. Ed. 2d 568 (1988); Lockett, 438 U.S. at 604.

19

prosecutor’s uncorrected suggestions that Mr. Jones would be confined in the same

20

conditions and subjected to the same level of security as prisoners convicted on

21

non-violent crimes such as grand theft auto presented an “intolerable danger” that

22

the jury would sentence Mr. Jones to death based on incorrect, unreliable

23

information. See generally Caldwell v. Mississippi, 472 U.S. 320, 333, 105 S. Ct.

24

2633, 2642, 86 L. Ed. 2d 231 (1985) (holding that the prosecutor’s uncorrected

25

suggestion that the responsibility for determination of death will rest with others

26

presented an intolerable danger that the jury would choose to minimize the

27

importance of its role).

28

The

This error prejudiced Mr. Jones and enabled the prosecutor to argue that “the
189
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

dangerousness that exists in this man” “in itself might be an aggravating factor.”

2

31 RT 4644. Had Mr. Jones been able to present the precluded testimony, he

3

would have been able to rebut the prosecutor’s arguments regarding aggravation,

4

his suggestions on cross-examination that Mr. Park’s opinion was unfounded and

5

speculative, and his improper suggestion to the jury that Mr. Jones would be

6

confined under the same conditions as individuals convicted of non-violent crimes.

7

2. The State Court Decision.

8

The relevant decision in state court is the opinion on direct appeal. People v.

9

Jones, 29 Cal. 4th 1229, 1260-62, 131 Cal. Rptr. 2d 468 (2003). The state court

10

denied Mr. Jones’s claim, relying on its prior holdings that evidence of conditions

11

of confinement that a defendant will experience if sentenced to life without the

12

possibility of parole is irrelevant because it does not relate to the defendant’s

13

character, culpability, or the circumstances of the offense. Jones, 29 Cal. 4th at

14

1261. The state court did not address Mr. Jones’s specific argument that he should

15

have been permitted to introduce such testimony to rebut the prosecutor’s

16

suggestions in cross-examination, simply stating, “We have been given no reason

17

to reconsider our holdings in this regard.” Jones, 29 Cal. 4th at 1262.

18

3. Section 2254 Does Not Bar Relief on This Claim.

19

Mr. Jones is entitled to relief because the state court was contrary to and an

20

unreasonable application of clearly established federal law.

28 U.S.C. §

21

2254(d)(1). The state court did not reach the question of whether such testimony

22

was made admissible in light of the prosecutor’s cross-examination and improper

23

suggestions; rather, it relied on case law that holds that such testimony is not

24

admissible as affirmative mitigation. In failing to reach this question, the state

25

court “unreasonably refuse[d] to extend” the legal principles contained in the

26

established federal law set forth above “to a new context where it should apply.”

27

Williams (Terry) v. Taylor, 529 U.S. 362, 407, 120 S. Ct. 1495, 1520, 146 L. Ed. 2d

28

389 (2000).

The state court’s ruling was also “in conflict with” established
190

Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

Supreme Court precedent.

Williams (Terry), 529 U.S. at 388.

In 2004, the

2

Supreme Court explained that when it addressed directly the relevance standard

3

applicable to mitigating evidence in 1990, it “spoke in the most expansive terms”

4

and set forth a “low threshold” for relevance. Tennard v. Dretke, 542 U.S. 274,

5

284, 124 S. Ct. 2562, 2570, 159 L. Ed. 2d 384 (2004) (citing McKoy v. North

6

Carolina, 494 U.S. 433, 440-41, 110 S. Ct. 1227, 108 L. Ed. 2d (1990)). That is,

7

Skipper, Lockett, Eddings, and their progeny established that evidence should be

8

considered by the sentence in mitigation so long as it falls under a category deemed

9

relevant by the United States Supreme Court. Evidence proffered to rebut the

10

prosecution’s arguments in aggravation is clearly relevant under Supreme Court

11

law. Simmons, 512 U.S. at 161; Skipper, 476 U.S. at 5 n.1; Gardner, 430 U.S. at

12

362. Accordingly, Mr. Jones satisfies section 2254(d) and is entitled to de novo

13

review of this claim.

14

R.

Claims Eighteen and Nineteen: Mr. Jones Was Denied His Right to an

15

Impartial Jury and a Fair Trial.

16

Mr. Jones satisfied state pleading requirements by presenting his juror bias

17

and misconduct claims in state court with sufficient detail and supporting factual

18

material to establish a prima facie showing that he was entitled to relief. See, e.g.,

19

Duvall, 9 Cal. 4th at 474. In the state court, Mr. Jones demonstrated that several

20

jurors manifested bias by disregarding the court’s repeated admonitions not to

21

discuss the case prematurely and to refrain from forming opinions until all

22

evidence had been presented. Contrary to these instructions, several jurors decided

23

to impose the death penalty before the penalty phase began and regularly discussed

24

their decisions with each other prior to penalty phase deliberations. The victim’s

25

daughters’ courtroom outbursts further compromised the jury’s impartiality. Jurors

26

improperly considered extrinsic evidence, including (1) biblical teachings

27

mandating imposition of the death penalty for murder; (2) one juror’s specialized

28

knowledge of evidence the defense presented about Mr. Jones’s medications; and
191
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

(3) information that Mr. Jones would not likely be executed if sentenced to death.

2

One juror slept during the critical testimony of the defense’s only penalty phase

3

mental health expert. As a result, Mr. Jones was deprived of his Sixth Amendment

4

guarantee of “a fair trial by a panel of impartial, ‘indifferent’ jurors,” Irvin v. Dowd,

5

366 U.S. 717, 722, 81 S. Ct. 1639, 6 L. Ed. 2d 751 (1961), and his jury trial and

6

due process rights to a jury willing to decide the case solely on the evidence, see,

7

e.g., McDonough Power Equip v. Greenwood, 464 U.S. 548, 554, 104 S. Ct. 845,

8

849, 78 L. Ed. 2d 663 (1984); Jordan v. Massachusetts, 225 U.S. 167, 176, 32 S.

9

Ct. 651, 56 L. Ed. 1038 (1912).

10

This claim was not procedurally defaulted, and respondent did not present

11

factual materials or legal argument in state court to establish that Mr. Jones’s prima

12

facie showing should not be taken as true or that it otherwise lacked merit. Under

13

these circumstances, the state court was required to issue an order to show cause

14

and to allow Mr. Jones access to state processes to develop and present evidence to

15

prove his claim. See, e.g. Duvall, 9 Cal. 4th at 475; Romero, 8 Cal. 4th at 742. The

16

Supreme Court “has long held that the remedy for allegations of juror partiality is a

17

hearing” to allow the defendant to prove actual bias; the hearing serves as “a

18

guarantee of a defendant’s right to an impartial jury.” Smith v. Phillips, 455 U.S.

19

209, 215-16, 102 S. Ct. 940, 71 L. Ed. 2d 78 (1982) (O’Connor, J., concurring);

20

see also Dyer v. Calderon, 151 F.3d 970, 974 (9th Cir.1998) (en banc) (“[a] court

21

confronted with a colorable claim of juror bias must undertake an investigation of

22

the relevant facts and circumstances”). This requirement applies with equal force

23

when a juror has been exposed to extrinsic information. See, e.g., Tanner v. United

24

States, 483 U.S. 107, 120, 107 S. Ct. 2739, 97 L. Ed. 2d 90 (1987) (ruling that

25

“[t]he Court’s holdings requir[e] an evidentiary hearing where extrinsic influence

26

or relationships have tainted the deliberations”); Remmer v. United States, 347 U.S.

27

227, 230, 74 S. Ct. 450, 98 L. Ed. 654 (1954) (holding that to resolve a claim of

28

exposure to extrinsic evidence, the court “should determine the circumstances, the
192
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

impact thereof upon the juror, and whether or not it was prejudicial, in a hearing

2

with all interested parties permitted to participate”).

3

A hearing is necessary to inquire into the “juror’s memory, his reasons for

4

acting as he did, and his understanding of the consequences of his actions,” and

5

permit the fact-finder “to observe the juror’s demeanor under cross-examination

6

and to evaluate his answers” in light of the facts. Phillips, 455 U.S. at 222

7

(O’Connor, J., concurring); see also id. (explaining that “in most instances a post-

8

conviction hearing will be adequate to determine whether a juror is biased,” but the

9

implied bias doctrine is necessary where a hearing may not be sufficient to protect

10

a defendant’s rights).

11

California Supreme Court’s decision satisfies section 2254(d) as set forth in Mr.

12

Jones prior briefing and in the sections that follow. See, e.g., Stouffer v. Trammell,

13

738 F.3d 1205, 1219 (10th Cir. 2013) (holding that determination of prejudice

14

resulting from juror misconduct requires a hearing and that section 2254(d) does

15

not bar merits review when state court failed to conduct one).

16

By instead summarily denying Mr. Jones’s claim, the

1. There Is No Reasonable Basis for the State Court Ruling That Mr.

17

Jones Failed to Make a Prima Facie Showing for Relief.

18

a. Mr. Jones Made a Prima Facie Showing That Jurors Improperly

19

Prejudged the Case and Prematurely Discussed Penalty.

20

The trial court repeatedly instructed the jurors on four key obligations: (1)

21

not to discuss the case outside of deliberations; (2) not to consider Mr. Jones’s

22

penalty until penalty phase deliberations; (3) not to seek out extrinsic information;

23

and (4) to report misconduct promptly to the court. Opening Br. at 91-92. Several

24

jurors blatantly disregarded these instructions, instead deciding to vote for a death

25

sentence prior to the penalty phase, and discussing their decision well before

26

penalty phase deliberations in their social interactions and while the guilt phase

27

was occurring. Id. at 92.

28

Two male jurors were extremely vocal from the start of guilt phase
193
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

deliberations that Mr. Jones should be sentenced to death because he was guilty of

2

the charged crimes. Opening Br. at 92-93. One male juror insisted on expressing

3

his opinion during the trial that Mr. Jones was guilty and deserved the death

4

penalty. Opening Br. at 93. After hearing the victim’s daughters’ outbursts during

5

the guilt phase, another juror immediately resolved to vote for death; he shared his

6

decision with the other jurors during guilt phase deliberations. Opening Br. at 93.

7

Prior to penalty phase deliberations, some of the jurors discussed both their

8

decisions to sentence Mr. Jones to death during their lunchtime conversations and

9

their concerns that a fellow juror (who obeyed the court’s instructions and refused

10

to participate in this misconduct) was planning to vote for life without parole.

11

Opening Br. at 93.

12

The jurors’ widespread prejudgment of Mr. Jones’s sentence made them

13

view the defense’s penalty phase presentation and their subsequent deliberations as

14

essentially irrelevant. Juror Muhammad explained: “We talked about how the case

15

was all about the guilt phase because once we decided that we knew we had to vote

16

for death . . By the time the penalty phase came . . . our minds were already made

17

up.”

18

deliberations], [w]e all talked about how we already decided that he was guilty, and

19

we did not understand how to view the [defense’s penalty phase] evidence in light

20

of our guilt verdicts.” Ex. 9 at 95.

Ex. 138 at 2690-91.

Juror Ruotolo concurred: “[During penalty phase

21

The California Supreme Court’s determination that Mr. Jones failed to allege

22

a prima facie case was an unreasonable application of controlling federal law. The

23

jurors committed misconduct by prematurely deliberating and prejudging Mr.

24

Jones’s case. See, e.g., Irvin, 366 U.S. at 724; Green v. White, 232 F.3d 671, 673,

25

678 (9th Cir. 2000) (applying Supreme Court precedent to grant relief on juror bias

26

claim where, inter alia, one juror told others that he knew that petitioner was guilty

27

from the moment that he saw him); United States v. Resko, 3 F.3d 684, 688-89 (3d

28

Cir. 1993) (granting relief on juror bias claim where jurors prematurely discussed
194
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

the case). A juror who prejudges the facts is actually biased. See, e.g., Phillips,

2

455 U.S. at 215, 221, (O’Connor, J., concurring); Gibson v. Berryhill, 411 U.S.

3

564, 578, 93 S. Ct. 1689, 36 L. Ed. 2d 488 (1973). Regardless of the number of

4

jurors affected, juror bias is structural constitutional error that renders the trial

5

fundamentally unfair, and is thus not subject to harmless error analysis. See, e.g.,

6

Neder v. United States, 527 U.S. 1, 8-9, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999);

7

Parker v. Gladden, 385 U.S. 363, 366, 87 S. Ct. 468, 17 L. Ed. 2d 420 (1966).

8

Similarly, the California Supreme Court’s summary denial deprived Mr. Jones of

9

his right to a hearing to establish his entitlement to relief. Clearly established

10

federal law mandates that a defendant alleging juror bias is entitled to a hearing to

11

prove actual bias. See, e.g., Phillips, 455 U.S. at 215-16.
In state court, respondent challenged only the sufficiency of Mr. Jones’s

12
13

pleading:

14

Petitioner next contends that jurors prematurely discussed the case.

15

State Pet. at 305.

16

conclusory and unsupported, as there are no facts establishing that

17

the case was actually discussed by jurors prematurely.

18

Inf. Resp. at 44 (footnote and citation omitted). As the California Supreme

19

Court’s order summarily denying the claim did not cite case law indicating that that

20

it was inadequately alleged or lacked adequate documentary support, see section

21

II.A.2., supra, respondent’s assertions did not form the basis for its decision. In

22

this Court, although respondent briefly mentions his claim that Mr. Jones failed to

23

prove that “the case was actually discussed by jurors prematurely,”82 he posits a

The claim should be rejected because it is

24
25
26
27
28

82

Respondent’s entire discussion of this rationale is confined to
characterizing Virginia Surprenant’s declaration as “vague.” Opp. at 140-41
(“Surprenant did not directly state that she and other jurors discussed the case
prior to deliberations; she only made a vague reference to her feelings.”).
Respondent misreads Ms. Suprenant’s declaration; she unequivocally describes
195
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

continued…
Case No. CV-09-2158-CJC

1

different justification for the summary denial of this claim: “because there was no

2

evidence that any of Petitioner’s jurors did not keep an open mind, the California

3

Supreme Court reasonably concluded that Petitioner failed to demonstrate that the

4

resulting prejudice was so severe so as to violate his right to a fair trial.” Opp. at

5

141.

6

Respondent’s assertion does not establish any basis for concluding that

7

section 2254(d) bars the granting of relief on this claim. First, as respondent failed

8

to raise this argument in the California Supreme Court, it could not form the basis

9

for that court’s decision. See section II.A.4., supra. Second, as set forth in the

10

Opening Brief and above, Mr. Jones presented ample declaratory support for the

11

propositions that several jurors prematurely discussed the case and resolved to vote

12

for death prior to the start of penalty phase deliberations. See Opening Br. at 92-

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

jurors discussing their views on the appropriateness of sentencing Mr. Jones to
death during lunch prior to the deliberations. See Ex. 23 at 240. Moreover, Ms.
Suprenant’s statements that jurors had prejudged the sentence determination are
confirmed by those of three other jurors, Donald Kay, Omar Muhammad, and
Emil Ruotolo. Ex. 122 at 2475 (noting that one male juror “always wanted to talk
during the trial and assert his opinion that Mr. Jones was guilty and deserved the
death penalty”); Ex. 138 at 2690-91 (“We talked about how the case was all about
the guilt phase because once we decided that we knew we had to vote for death …
By the time the penalty phase came it was too late, our minds were already made
up. We needed something to work with in the guilt phase, but there was
nothing.”); Ex. 9 at 93 (stating that a juror determined to vote for death after the
victim’s daughter had an outburst during the guilt phase in which she accused Mr.
Jones of causing the death of her father); Ex. 9 at 95 (“We all talked about how
we already decided that he was guilty, and we did not understand how to view the
[penalty phase] evidence in light of our guilt verdicts.”). To the extent that
respondent disputes whether the jurors discussed and prejudged the appropriate
sentence, the California Supreme Court’s resolution of that dispute, without
conducting an evidentiary hearing, satisfies section 2254(d). See section II.A.3.,
supra.
196
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

93; Ex. 9 at 93, 95; Ex. 23 at 240; Ex. 122 at 2475; Ex. 138 at 2690-91.83 Third,

2

factual determinations of whether the jurors kept “an open mind” or were so biased

3

in their prejudgment of the case may be made only after affording Mr. Jones the

4

opportunity to present evidence at a hearing. See, e.g., Phillips, 455 U.S. at 215-

5

16.

6

evidentiary hearing that jurors kept an open mind as to Mr. Jones’s sentence and

7

merely expressed opinions early in penalty phase deliberations, its decision

8

satisfied section 2254(d)(2) as an unreasonable determination of the facts. See,

9

e.g., Hurles v. Ryan, 706 F.3d 1021, 1038-39 (9th Cir. 2013) (holding that state

10

court’s factual findings made without an opportunity for the petitioner to present

11

evidence are not entitled to deference); Taylor v. Maddox, 366 F.3d 992, 1001 (9th

12

Cir. 2004) (holding that state court ruling satisfies 2254(d)(2) by making

13

evidentiary findings without “holding a hearing and giving petitioner an

14

opportunity to present evidence”).84

To the extent that the California Supreme Court determined without an

15
16
17
18
19
20
21
22
23
24
25
26
27
28

83

In this Court, respondent asserts that, because “Juror Virginia Surprenant
was not a voting member on Petitioner’s jury,” “the California Supreme Court
could reasonably deny the claim because any misconduct on her part in deciding
on penalty during the guilt phase was clearly harmless.” Opp. at 142.
Respondent did not advance this argument in the state court proceedings, and in
any event, it may not be used to justify the California Supreme Court’s summary
denial of Mr. Jones’s claim. Mr. Jones does not contend that Ms. Surprenant’s
actions warrant relief; instead, Ms. Surprenant’s observations of jurors’ statements
demonstrating their prejudgment forms the basis of his claim. See Ex. 23 at 240
(stating that jurors discussed their feelings about the penalty during lunch prior to
deliberations).
84

Respondent’s reliance on Davis v. Woodford, 384 F.3d 628 (9th Cir. 2004),
is misplaced. In Davis, after instructions were given but prior to the start of
deliberations, a juror submitted a note to the trial court asking several questions
concerning the legal process and the effect of the penalty verdict. 384 F.3d at
651. There was “no evidence” “that any of the jurors relied upon extrinsic
evidence in reaching a death verdict, or that any of the jurors reached a sentencing
determination prematurely.” 384 F.3d at 653. The trial judge instructed the jury
197
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

continued…
Case No. CV-09-2158-CJC

1

b. Mr. Jones Made a Prima Facie Showing That Jurors Were

2

Improperly and Prejudicially Exposed to Extrinsic Evidence

3

The jurors were exposed to several extrinsic influences, including the

4

victim’s daughters’ outbursts, biblical teachings, unsworn opinions about Mr.

5

Jones’s psychiatric medications, and factors that diminished their responsibility in

6

sentencing Mr. Jones to death. Opening Br. at 94-100. In response to Mr. Jones’s

7

factual and legal bases demonstrating the unreasonableness of the California

8

Supreme Court’s decision, respondent abandons virtually all of the arguments that

9

he presented in state court. Compare Inf. Resp. at 41-48, with Opp. at 141-45.

10

Instead, respondent encourages this Court to adopt reasoning that could not have

11

formed the basis for the state court’s decision or which itself is an unreasonable

12

application of clearly established federal law.85

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

regarding the questions, which was “sufficient to cure any possible prejudice.”
384 F.3d at 653. The record before the California Supreme Court and this Court
is markedly different than that in Davis; Mr. Jones submitted sworn declarations
that demonstrate that jurors not only discussed the case prior to deliberations, but
also “reached a sentencing determination prematurely.” 384 F.3d at 653.
85

In describing the law governing this claim, respondent also asserts that Mr.
Jones has “the burden of establishing that a juror’s consideration of extrinsic
material had a ‘substantial and injurious effect or influence in determining the
jury’s verdict.’” Opp. at 135 (quoting Brecht v. Abrahamson, 507 U.S. 619, 637,
113 S. Ct. 1710, 123 L. Ed. 2d 353 (1993)). It is not clear whether respondent is
arguing that the California Supreme Court used this standard in denying Mr.
Jones’s claim. The California Supreme Court was not presented with such an
argument and had not previously adopted this limitation on the granting of relief
for juror misconduct claims. Respondent also has a section on the admissibility
of juror’s impressions in adjudicating the merits of claims. Opp. at 136. To the
extent that respondent is arguing the application of the Brecht standard to this
Court’s resolution of the merits of the claim or the admissibility of certain
statements by the jurors, such arguments are premature, as this Court’s briefing
order was limited to whether 28 U.S.C. § 2254 bars consideration of the claims on
the merits.
198
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

1) Victim’s daughters’ outbursts

2

The victim’s daughters, Pamela Miller and Deborah Harris, were vocally

3

hostile towards Mr. Jones in the jury’s presence. Opening Br. at 94. Ms. Harris sat

4

in the front row in clear view of the jury during a witness’s testimony in the guilt

5

phase. She was required to leave the courtroom by the judge, who explained,

6

“[Y]ou keep gesturing with your head, shaking your head, nodding up and down

7

and shaking your head back and forth and making comments.” 22 RT 3272-73.

8

Ms. Miller “called Mr. Jones names and screamed out that he had also caused the

9

death of her father who died of a heart attack a few months after her mother was

10

killed.” Ex. 9 at 93.

11

The jurors found Ms. Miller’s and Ms. Harris’s outbursts highly influential.

12

An alternate juror recalled that “the victim’s daughters carried on constantly,

13

screaming and yelling at Mr. Jones . . . and [were] unable to control themselves.

14

The way they behaved, they could have been on television.” Ex. 23 at 239.

15

Another juror recalled that Ms. Miller was “extremely vocal throughout . . . the

16

entire trial,” and that Ms. Harris “yelled out in court many times.” Ex. 9 at 93.

17

The jurors were inevitably affected by their exposure to the daughters’ anger and

18

sadness. As one juror related, “[d]uring guilt deliberations, one of the jurors told

19

us . . . he could understand how upset the daughter was . . . He said right then and

20

there, after hearing the daughter, he knew he had to vote for death.” Id.

21

The California Supreme Court’s determination that Mr. Jones failed to allege

22

a prima facie case was an unreasonable application of controlling federal law. The

23

daughters’ conduct denied Mr. Jones his right to a fair trial by a panel of impartial

24

jurors unaffected by extraneous information. See, e.g., Parker, 385 U.S. at 364;

25

Tanner, 483 U.S. at 117; Taylor v. Kentucky, 436 U.S. 478, 485, 98 S. Ct. 1930, 56

26

L. Ed. 2d 468 (1978) (holding a defendant is entitled to a jury verdict based solely

27

on trial evidence, not on “other circumstances not adduced as proof at trial”).

28

Where disruptions in the courtroom threaten the impartiality of the jury, “the
199
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

appropriate safeguard against such prejudice is the defendant’s right to demonstrate

2

that the [disruption] compromised the ability of the particular jury that heard the

3

case to adjudicate fairly.” Phillips, 455 U.S. at 217.
In state court, respondent urged the court to deny the claim for lack of

4
5

sufficient specificity in the allegations or proof:

6

First, there is no evidence as to the nature of Ms. Miller’s comments

7

or the testimony that prompted her to shake her head. There is also

8

no evidence that the jurors heard Ms. Miller’s comments or observed

9

her head movements. Finally, Woodrow Brooks was a relatively

10

unimportant witness and it is therefore unlikely that any spectator

11

misconduct during his testimony was prejudicial.

12

Inf. Resp. at 40. As explained, supra, the California Supreme Court’s lack of a

13

citation to case law finding such curable deficiencies disproves any argument that

14

it relied upon these reasons in denying the claim, and respondent abandons these

15

arguments in this Court.

16

In federal court, respondent contends for the first time that no clearly

17

established federal law establishes that spectator misconduct may be prejudicial

18

reversible error. Opp. at 149. As set forth supra, if the state court considered

19

reasons for denying the claim that were not presented by respondent, it would have

20

afforded Mr. Jones the opportunity to respond to those grounds. Moreover, had the

21

state court relied on respondent’s reasoning to deny Mr. Jones’s claim, its decision

22

would have constituted an unreasonable application of the Supreme Court’s

23

precedents that establish that a juror’s consideration of extrinsic evidence violates

24

due process and is presumptively prejudicial. See, e.g., Tanner, 483 U.S. at 117;

25

Remmer, 347 U.S. at 229.86

26
27
28

86

To the extent that respondent raises factual questions about what the jurors
observed and heard, Opp. at 149-50, clearly established federal law required the
200
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

continued…
Case No. CV-09-2158-CJC

1

Respondent similarly raises a new argument in this Court that the jury

2

instructions ameliorated the prejudicial effect of the behavior.

3

Respondent’s failure to present this argument in state court precludes any

4

conclusion that the California Supreme Court relied on it as the basis for its ruling.

5

See section II.A.4., supra. Had respondent raised it, Mr. Jones would have alerted

6

the California Supreme Court that presuming that his jurors “follow[ed]

7

instructions,” Opp. at 150, was unwarranted given the number of instances in

8

which the jurors failed to heed other instructions. See, e.g., Ex. 23 at 240 (stating

9

that jurors discussed their feelings about the penalty during lunch prior to

10

deliberations); Ex. 127 at 2565 (stating that a juror consulted his priest); Ex. 9 at 93

11

(stating that a juror determined to vote for death after the victim’s daughter had an

12

outburst during the guilt phase in which she accused Mr. Jones of causing the death

13

of her father); see also People v. Daniels, 52 Cal. 3d 815, 865, 277 Cal. Rptr. 122

14

(1991) (holding that a “judge may reasonably conclude that a juror who has

15

violated instructions to refrain from discussing the case . . . cannot be counted on to

16

follow instructions in the future” and is unable to perform her duty as a juror).

17

Moreover, given that Mr. Jones had established a prima facie case for relief, the

18

California Supreme Court was required, “to determine the circumstances, the

19

impact thereof upon the juror, and whether or not it was prejudicial, in a hearing

20

with all interested parties permitted to participate.” Remmer, 347 U.S. at 230. The

21

failure to conduct a hearing satisfies section 2254(d).

22

Opp. at 150.

2) Biblical teachings.

23

During penalty phase deliberations, “each of the jurors took turns speaking

24

[their] mind.” Ex. 127 at 2565. Juror Youssif Botros told the other jurors that he

25

was “having a difficult time sentencing someone to death,” so “he asked his priest

26
27
28

California Supreme Court to resolve those questions by conducting an evidentiary
hearing. See, e.g., Phillips, 455 U.S. at 217.
201
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

for help.”87 Ex. 127 at 2565. His priest directed him to read the Bible for

2

guidance. Id. Mr. Botros told the other jurors that he subsequently read the

3

biblical teaching requiring an “eye for an eye” and as a result was able to vote for

4

death. Ex. 127 at 2565.

5

The California Supreme Court’s determination that Mr. Jones failed to allege

6

a prima facie case was an unreasonable application of controlling federal law.

7

Exposure to biblical death penalty teachings is particularly improper.

8

“[D]elegation of the ultimate responsibility for imposing a sentence to divine

9

authority undermines the jury’s role in the sentencing process.”

Sandoval v.

10

Calderon, 241 F.3d 765, 777 (9th Cir. 2000); see also Jones v. Kemp, 706 F. Supp.

11

1534, 1559 (N.D. Ga. 1989) (“To the average juror . . . the Bible is an authoritative

12

religious document and is different not just in degree, although this difference is

13

pronounced, but in kind” from other reference sources).

14

Mr. Botros’s misconduct went to the central issue of whether Mr. Jones

15

should be sentenced to death. He violated Mr. Jones’s rights to a fair trial by

16

impartial jury and to due process by exposing the jury to prejudicial extrinsic

17

statements from the Bible and his priest.

18

Gardner, 430 U.S. at 362; Mattox, 146 U.S. at 149. Jurors commit constitutional

19

error when they consult the Bible for the appropriate penalty for murder during

20

penalty phase deliberations. See Oliver v. Quarterman, 541 F.3d 329, 339-40 (5th

21

Cir. 2008) (noting that the vast majority of circuits have consistently deemed the

22

Bible an improper external influence on jury deliberations); McNair v. Campbell,

23

416 F.3d 1291, 1308 (11th Cir. 2005) (presuming prejudice where juror read aloud

24

from Bible and led other jurors in prayer during deliberations); Kemp, 706 F. Supp.

Tanner, 483 U.S. at 117; see also

25
26
27
28

87

Mr. Botros’s disregard for the trial court’s repeated instructions to the jury
not to rely on extrinsic sources also illustrates his actual bias. Opening Br. at 96
n.33.
202
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

at 1558-60 (jury obligated to apply state law, “not … its own interpretation of

2

precepts of the Bible, in determining whether the petitioner should live or die”).

3

Mr. Jones’s allegations entitled him to a hearing to discover and present further

4

details of Mr. Botros’s misconduct and its prejudicial effect. See, e.g., Remmer,

5

347 U.S. at 229; Tanner, 483 U.S. at 120.

6

The sole reason with which respondent presented the state court to deny this

7

claim is that there “is no substantial likelihood of prejudice or bias from the juror’s

8

conduct,” because the expression is commonly used outside of the biblical context,

9

the reference “appears to have been isolated,” “and the juror did not indicate that

10

the priest endorsed that or any other biblical passage.” Inf. Resp. at 44. In this

11

Court, respondent correctly abandons the factual underpinnings of his argument, as

12

these assertions would have required the California Supreme Court to conduct an

13

evidentiary hearing to resolve them. Instead, respondent asserts in this Court that

14

Mr. Botros’s exposing the jury to biblical teachings mandating the death penalty

15

for murder did not have a “substantial and injurious effect” where there was

16

significant evidence of Mr. Jones’s guilt. Opp. at 138. As noted above, the

17

California Supreme Court has not adopted the Brecht standard for resolving juror

18

misconduct claims and thus it is irrelevant for the purposes of section 2254(d). See

19

n.80, supra.

20

reasoning with regard to the evidence of guilt, Mr. Jones would have alerted the

21

court about the fact that jury deliberations in the guilt phase lasted four days (2 CT

22

247-48, 251, 377), and would have argued that a hearing was necessary to

23

determine the extent of the prejudice from Mr. Botros’s violation of the instruction

24

not to discuss the case with third parties and the jury’s subsequent consideration of

25

extrinsic evidence that resulted from that discussion. See, e.g., Tanner, 483 U.S. at

26

117; Remmer, 347 U.S. at 229.

Moreover, had the state court been presented with respondent’s

27

Respondent presents several additional new contentions for the first time in

28

this Court. As set forth supra, the California Supreme Court’s decision was not
203
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

based on arguments respondent did not present in the Informal Response.

2

Moreover, respondent’s new theories satisfy section 2254(d) as set forth below.

3

First, respondent asserts that California Supreme “could reasonably conclude

4

that there was no juror misconduct” because “[t]here is no clearly established

5

Supreme Court law holding that references to the Bible is extrinsic evidence” “or

6

holding that ‘reading and sharing biblical passages constitutes juror misconduct.’”

7

Opp. at 138. Regardless of whether a state court may exclude references to the

8

Bible during deliberations from the definition of “extrinsic evidence,” the

9

California Supreme unquestionably considers such actions to constitute

10

constitutionally prohibited misconduct. See, e.g., People v. Williams, 40 Cal. 4th

11

287, 333, 148 P.3d 47 (2006) (“This court has held that reading aloud from the

12

Bible or circulating biblical passages during deliberations is misconduct. … The

13

Attorney General concedes that bringing biblical passages into the jury room and

14

reading them aloud during deliberation constitutes misconduct.”) (emphasis

15

supplied); People v. Danks, 32 Cal. 4th 269, 308 n.12, 308, 82 P.2d 1249 (2004)

16

(“Juror K.A.’s conduct in bringing Bible passages into the jury room was

17

misconduct”); People v. Mincey, 2 Cal. 4th 408, 467, 827 P.2d 388 (1992) (holding

18

that consideration of material extrinsic to the record, including a Bible, is

19

misconduct); see also People v. Wash, 6 Cal. 4th 215, 261, 24 Cal. Rptr. 2d 421

20

(1993) (“The primary vice in referring to the Bible and other religious authority is

21

that such argument may “diminish the jury’s sense of responsibility for its verdict

22

and ... imply that another, higher law should be applied in capital cases, displacing

23

the law in the court’s instructions”) (quoting People v. Wrest, 3 Cal 4th 1088, 1107,

24

13 Cal. Rptr. 2d 511 (1992)). Thus, the California Supreme Court’s denial of Mr.

25

Jones’s claim did not rest on any alleged ambiguity in controlling federal law.

26

Second, respondent presents substantial factual speculation, imagining that Mr.

27

Botros’s contact with his priest was “likely” de minimis, asserting that there was no

28

evidence that the contact related to a material aspect of the case or that the priest
204
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

commented on the specific evidence in the case. Opp. at 140. Resolution of Mr.

2

Jones’s juror misconduct claim thus “necessarily require[d] a credibility

3

determination between competing factual assertions.” Fanaro v. Pineda, No. 2:10-

4

CV-1002, 2012 WL 1854313, *3 (S.D. Oh. May 21, 2012); see also Bell v. Uribe,

5

___ F.3d ___, 2014 WL 211814, *9 (9th Cir. Jan 21, 2014) (“Under Supreme Court

6

precedent, the remedy for allegations of juror misconduct is a prompt hearing in

7

which the trial court determines the circumstances of what transpired, the impact

8

on the jurors, and whether or not the misconduct was prejudicial.”) (citing Smith,

9

455 U.S. at 216–17). If the state court elected to “ignor[e] the factual dispute” and

10

endorse respondent’s speculation without an evidentiary hearing, it would have

11

unreasonably applied clearly established federal law under section 2254(d)(1).

12

Fanaro, 2012 WL 1854313, at *3. Moreover, it would also have unreasonably

13

determined the facts under section 2254(d)(2). See Plummer v. Jackson, 491 F.

14

App’x 671, 680-81 (6th Cir. 2012) (holding that the state court unreasonably

15

denied petitioner’s claim without an evidentiary hearing despite the parties’ factual

16

disputes).

17

Third, respondent contends that the state court correctly rejected the claim

18

because Mr. Jones supported it with hearsay declarations. Opp. at 139. Had the

19

California Supreme determined that Mr. Jones failed to produce sufficient detailed

20

allegations or provide readily available documentary materials to support the

21

claim, it would have so indicated in its order.

22

Moreover, absent the ordering of an evidentiary hearing, the California Supreme

23

Court necessarily considers habeas corpus petitions with supporting declarations

24

containing out-of-court statements in deciding whether a petitioner has presented a

25

prima facie claim for habeas relief warranting the issuance of an order to show

26

cause. See In re Fields, 51 Cal. 3d 1063, 1070 n.2, 275 Cal. Rptr. 384 (1990)

27

(“Declarations attached to the petition and traverse may be incorporated into the

28

allegations, or simply serve to persuade the court of the bonafides of the
205
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

See section II.A.2., supra.

Case No. CV-09-2158-CJC

1

allegations.”). This is because the initial petition is a preliminary showing, and the

2

court may ultimately require petitioner to prove his claim with admissible evidence

3

at a hearing. See, e.g., In re Scott, 29 Cal. 4th 783, 822, 129 Cal. Rptr. 2d 605

4

(2003) (describing hearsay declarations submitted by petitioner in support of

5

habeas petition and holding that after the issuance of an order to show cause and

6

evidentiary hearing, it then becomes proper for the fact-finder to consider the

7

testimony and credibility of live witnesses rather than hearsay declarations); see

8

also In re Miranda, 43 Cal. 4th 541, 574, 76 Cal. Rptr. 3d 172 (2008); In re

9

Marquez, 1 Cal. 4th 584, 599, 3 Cal. Rptr. 2d 727 (1992) (permitting consideration

10

of unopposed hearsay declarations even by referee conducting reference hearing).

11

Indeed, respondent fails to explain how petitioner could present a prima facie claim

12

for habeas relief prior to the granting of an evidentiary hearing, except through

13

allegations supported by sworn declarations.

14

Critically, the California Supreme Court could not have relied on

15

respondent’s reasoning because California Evidence Code section 1150 permits

16

jurors to testify about “statements made ... either within or without the jury room.”

17

Cal. Evid. Code § 1150.

18

testimony is admissible so long as the “very making of the statement” would itself

19

constitute misconduct and the statement is not a reflection of the juror’s mental

20

processes. In re Stankewitz, 40 Cal. 3d 391, 398, 220 Cal. Rptr. 382 (1985).

21

“Thus, jurors may testify to ‘overt acts’ - that is, such statements, conduct,

22

conditions, or events as are ‘open to sight, hearing, and the other senses and thus

23

subject to corroboration’ - but may not testify to ‘the subjective reasoning

24

processes of the individual juror.’” Stankewitz, 40 Cal. 3d at 398 (quoting People

25

v. Hutchinson, 71 Cal. 2d 342, 349-50, 78 Cal. Rptr. 196 (1969)); see also id.

26

(Among the overt acts that are admissible and to which jurors are competent to

27

testify are statements. Section 1150, subdivision (a), expressly allows proof of

28

“statements made . . . either within or without the jury room”). Thus, parties may
206

The California Supreme Court has held that such

Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

submit declarations containing otherwise inadmissible hearsay when they relate to

2

statements heard by jurors. See, e.g., People v. Pierce, 24 Cal. 3d 199, 208, 155

3

Cal. Rptr. 657 (1979) (“The prosecution also presented investigative reports

4

reciting that each of the 11 other jurors had signed declarations asserting that at no

5

time during the trial or deliberations did Seymour mention he knew a police officer

6

or had any information other than that presented in court. If the declarations

7

themselves had been offered (see Evid. Code, § 1500), they would have been

8

admissible under Evidence Code section 1150 to prove the fact asserted.”); People

9

v. Hutchinson, 71 Cal. 2d 342, 348, 78 Cal. Rptr. 196 (1969) (holding that juror

10

affidavits may be used “to show that a juror was mentally incompetent at the time

11

of trial and to show that a juror did not intend to follow the court’s instructions on

12

the law and had concealed that intention on voir dire”) (citations omitted); People

13

v. Castaldia, 51 Cal. 2d 569, 572, 335 P.2d 104 (1959) (holding that affidavit from

14

juror Charles Eddy was “properly received in evidence to show that jurors

15

Kennedy and Russell had given false answers to questions on their voir dire

16

examination”; “Affidavits of jurors may be used to set aside a verdict where the

17

bias or disqualification of a juror was concealed by false answers on voir dire

18

examination.”); People v. Hord, 15 Cal. App. 4th 711, 724, 19 Cal. Rptr. 55 (1993)

19

(“Juror affidavits may be used to prove that one or more of the jurors concealed

20

bias or prejudice on voir dire.”).88

21

3) Mr. Jones’s mental functioning.

22

The issue of Mr. Jones’s need for psychiatric medication while in custody

23

awaiting trial was a central feature of the defense presented at both phases of his

24
25
26
27
28

88

Given this well-established case law, it is not surprising that respondent
cites to no cases – published or unpublished – from any California court that
prohibits the use of declarations from jurors containing hearsay statements from
other jurors.
207
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

trial. During the guilt phase, Dr. Eugene Kunzman, a psychiatrist with the Los

2

Angeles County Jail, testified about the antipsychotic and antidepressant

3

medications that jail medical staff prescribed to Mr. Jones following his arrest for

4

the capital crime. Dr. Kunzman testified about the therapeutic purposes and effects

5

of the medication and various consequences on a person’s functioning, behavior,

6

and appearance while testifying if incorrect dosage levels were prescribed.

7

Opening Br. at 97-98. Trial counsel presented the testimony to bolster a defense

8

that Mr. Jones lacked the mens rea for the capital crime and to explain Mr. Jones’s

9

appearance and performance while testifying. Opening Br. at 98. The prosecutor

10

disputed the Mr. Jones’s defense, arguing that jail mental health staff would have

11

prescribed antipsychotic medication to inmates if they had so requested, without

12

any medical necessity. Opening Br. at 98, n.34. During the penalty phase, the

13

defense presented Dr. Claudewell Thomas, who also discussed the effects of Mr.

14

Jones’s prescription medications to support his diagnosis and conclusions about

15

Mr. Jones’s mental functioning. Opening Br. at 98.

16

During trial, juror Omar Muhammad drew upon his medical training and

17

experience as a physician’s assistant at the Metropolitan Federal Prison in Los

18

Angeles, to make conclusions about Mr. Jones’s mental functioning and

19

appearance. In the declaration that Mr. Jones submitted to the California Supreme

20

Court, Mr. Muhammad concluded from his observations of Mr. Jones that he

21

appeared to be “medicated with anti-depressants.”

22

importantly, Mr. Muhammad discussed his knowledge of “the anti-depressants that

23

Mr. Jones was taking” with “other jurors.” Ex. 138 at 2689; see also Ex. 122 at

24

2475 (the jurors discussed Mr. Jones’s “possible mental illness” during penalty

25

phase deliberations). Opening Br. at 98-99.

Ex. 138 at 2689.

Most

26

The California Supreme Court’s determination that Mr. Jones failed to allege

27

a prima facie case that the jury was improperly exposed to Mr. Muhammad’s

28

specialized knowledge of psychiatric medications and prison mental health
208
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

services was an unreasonable application of controlling federal law.

2

extraneous influence of Mr. Muhammad’s training and experience tainted the jury’s

3

deliberations.

4

“communicates objective extrinsic facts regarding the defendant or the alleged

5

crimes to other jurors, the juror becomes an unsworn witness within the meaning of

6

the Confrontation Clause.” Jeffries v. Wood, 114 F.3d 1484, 1490 (9th Cir. 1997)

7

(partially overruled on other grounds); see also Mach v. Stewart, 137 F.3d 630, 634

8

(9th Cir. 1997) (granting relief where potential juror with specialized experience in

9

child sexual abuse cases stated before jury venire that she had never been involved

10

in a case where a child made untrue accusations); Kemp, 706 F. Supp. at 1560.

11

Given the undisputed facts that Mr. Muhammad shared his particularized

12

knowledge with the other jurors in violation of the court’s instructions and the

13

constitutional requirements that the jurors consider only the evidence presented at

14

trial, the California Supreme Court was obligated to order an evidentiary hearing.

15

See, e.g., Tanner, 483 U.S. at 117; Remmer, 347 U.S. at 229.

See, e.g., Tanner, 483 U.S. at 117, 120.

The

When a juror

16

In the state court, respondent’s sole argument was that Mr. Jones’s showing

17

was insufficient to establish a substantial likelihood of prejudice, because there was

18

no evidence that Mr. Muhammad stated – or any juror considered – materially

19

different information than what was presented at trial. Inf. Resp. at 46. Had the

20

state court relied on this reasoning, it would have satisfied section 2254(d)(1), as

21

an unreasonable application of clearly established federal law mandating that the

22

court may not dismiss allegations of juror exposure to extrinsic evidence on the

23

pleadings, but instead must hold an evidentiary hearing at which the government

24

bears the “heavy burden” to establish the harmlessness of the exposure to the

25

defendant. Remmer, 347 U.S. at 229; see also Tanner, 483 U.S. at 120. Perhaps in

26

recognition of this, respondent abandoned such a contention before this Court.

27

Respondent presents two new arguments in federal court that it did not

28

present to the state court. Respondent first contends that because a juror’s past
209
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

personal experiences may be relevant to their deliberations, it was permissible for

2

Muhammad to share his knowledge of Mr. Jones’s medications even if it was

3

“perhaps not ordinarily a matter of general knowledge.” Opp. at 145. Had the

4

state court relied on this reasoning, it would have satisfied section 2254(d)(1) as an

5

unreasonable application of clearly established federal law mandating that jurors

6

must not be exposed to extrinsic evidence. See, e.g., Tanner, 483 U.S. at 117;

7

Gardner, 430 U.S. at 362; Irvin, 366 U.S. at 722; Parker, 385 U.S. at 264-65.

8

Moreover, the California Supreme Court did not rely upon this theory because it

9

would have acted contrary to its own precedents. See, e.g., People v. Malone, 12

10

Cal. 4th 935, 963, 50 Cal. Rptr. 2d 281 (1996) (“Jurors’ views of the evidence . . .

11

are necessarily informed by their life experiences, including their education and

12

professional work. A juror, however, should not discuss an opinion explicitly

13

based on specialized information obtained from outside sources. Such injection of

14

external information in the form of a juror’s own claim to expertise or specialized

15

knowledge of a matter at issue is misconduct.”).

16

Respondent also speculates that Mr. Muhammad’s comments may have been

17

merely cumulative to the evidence that the jury heard from the defense’s experts,

18

rendering Mr. Jones’s declaratory support insufficient to establish the substantial or

19

injurious effect of Muhammad’s misconduct.

20

speculation created a factual dispute between the parties. If the state court elected

21

to “ignor[e] the factual dispute” and endorse respondent’s speculation without an

22

evidentiary hearing, it would have unreasonably applied clearly established federal

23

law under section 2254(d)(1). Fanaro, 2012 WL 1854313 at *3. Moreover, it

24

would also have unreasonably determined the facts under section 2254(d)(2). See

25

Plummer, 491 F. App’x at 680-81.

26
27
28

Opp. at 145.

Respondent’s

c. Mr. Jones Made a Prima Facie Showing That Jurors Improperly
Believed That Mr. Jones Would Not Be Executed.
The jurors voted for the death sentence “because regardless of our verdict,
210
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

we knew that Ernest would end up getting life. We talked about how his drug use

2

would save him from ever being executed.” Ex. 9 at 96. It is unclear whether the

3

jurors considered Mr. Jones’s medications in jail (including Mr. Muhammad’s

4

opinions), his substance use on the streets, or both, in improperly concluding based

5

on extrinsic knowledge that Mr. Jones would be sentenced to life. Opening Br. at

6

99.

7

The jurors’ discussion and consideration of the belief that Mr. Jones would

8

not actually be executed if they sentenced him to death violated Mr. Jones’s Sixth

9

Amendment, Due Process, and Eighth Amendment rights. See, e.g., Caldwell v.

10

Mississippi, 472 U.S. 320, 328-29, 105 S. Ct. 2633, 86 L. Ed. 2d 231 (1985) (“it is

11

constitutionally impermissible to rest a death sentence on a determination made by

12

a sentencer who has been led to believe that the responsibility for determining the

13

appropriateness of the defendant’s death rests elsewhere”); Marino v. Vasquez, 812

14

F.2d 499, 505 (9th Cir. 1987) (“When a jury considers facts that have not been

15

introduced in evidence … [i]t is impossible to offer evidence to rebut it, to offer a

16

curative instruction, to discuss its significance in argument to the jury, or to take

17

other tactical steps that might ameliorate its impact.”).

18

Respondent contended in state court that Mr. Jones’s claim fails because it

19

related to the jurors’ mental or subjective reasoning processes and that the jurors’

20

reliance on their belief that an execution would not be carried out is “not the kind

21

of discussion that constitutes juror misconduct.” Inf. Resp. at 47; see also Opp. at

22

147. However, had the state court relied on this reasoning, its decision would have

23

satisfied section 2254(d)(1) as an unreasonable application of clearly established

24

federal law: the jurors’ consideration of extrinsic information was presumptively

25

prejudicial. See, e.g., Remmer, 347 U.S. at 229; Marino, 812 F.2d 499, 505 (9th

26

Cir. 1987).

27

In federal court, respondent engaged in unsubstantiated speculation,

28

contending that there was no evidence that the jurors failed to follow the court’s
211
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

instructions and that the state court could reasonably have construed Mr. Ruotolo’s

2

declaration as an offhand remark that Mr. Jones would die from drug use before he

3

could be executed.

4

contentions to the state court, and thus the state court did not deny Mr. Jones’s

5

claim for these reasons. The resolution of Mr. Jones’s juror misconduct claim

6

“necessarily require[d] a credibility determination between competing factual

7

assertions.”

8

“ignor[e] the factual dispute” and endorse respondent’s speculation without an

9

evidentiary hearing, it would have unreasonably applied clearly established federal

10

law under section 2254(d)(1). Id. Moreover, it would also have unreasonably

11

determined the facts under section 2254(d)(2). Plummer, 491 F. App’x at 680-81.

Opp. at 147.

First, respondent did not present these

Fanaro, 2012 WL 1854313 at *3.

If the state court elected to

12

Clearly established federal law provides that a presumption of bias exists as

13

to each of the four above-described instances in which Mr. Jones’s jurors were

14

exposed to extrinsic evidence. A court may not dismiss such allegations of juror

15

exposure to extrinsic evidence on the pleadings, but instead must hold an

16

evidentiary hearing at which the government bears the “heavy burden” to establish

17

the harmlessness of the exposure to the defendant. Remmer, 347 U.S. at 229; see

18

also Tanner, 483 U.S. at 120. Instead, because the state court prematurely denied

19

his petition, Mr. Jones was not able to access the fact-development mechanisms

20

that would have fully developed his claim including juror depositions and

21

subpoena power necessary to present each juror’s testimony at an evidentiary

22

hearing. Cf. Wellons, 130 S. Ct. at 729-30 (reversing where diligent petitioner was

23

not permitted discovery and an evidentiary hearing to support his jury misconduct

24

claim factually, either in state or federal court). Thus, as set forth in the Opening

25

Brief, the state court’s summary denial of Mr. Jones’s prima facie juror misconduct

26

claim satisfied section 2254(d) either because it was contrary to and an

27

unreasonable application of Supreme Court precedent that requires fact

28

development and an evidentiary hearing prior to resolving juror misconduct claims
212
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

or because the state court made factual findings at an inappropriate stage of the

2

proceedings. Opening Br. at 102-05. Notably, respondent’s Opposition does not

3

dispute this conclusion. Opp. at 138-41.

4
5

d. Mr. Jones Made a Prima Facie Showing That a Juror Slept
During the Defense’s Penalty Phase Presentation.

6

Juror Emil Ruotolo slept during the testimony of the defense’s sole mental

7

health expert, Dr. Thomas: “His testimony was impossible to pay attention to, and I

8

kept falling asleep.” Ex. 9 at 95. Mr. Ruotolo’s belief that the defense presented

9

no relevant testimony on the critical issue of Mr. Jones’s mental illness (Ex. 9 at

10

95), flows from his admission that he slept through substantial portions of Dr.

11

Thomas’s testimony in which addressed this precise issue. Opening Br. at 100.

12

Because litigants are constitutionally entitled to “complete, thoughtful

13

consideration of the merits of their cases,” the “duty to listen carefully during the

14

presentation of evidence at trial is among the most elementary of a juror’s

15

obligations.” Hasson v. Ford Motor Co., 32 Cal. 3d 388, 410-11, 185 Cal. Rptr.

16

654 (1982) (finding prima facie improper conduct where some jurors did

17

crossword puzzles and another read a book). Mr. Ruotolo’s sleeping during the

18

testimony of the sole mental health expert rendered him constructively absent,

19

violating Mr. Jones’s Sixth Amendment and Due Process rights. See, e.g., Jordan

20

v. Massachusetts, 225 U.S. at 176; Peters v. Kiff, 407 U.S. 493, 501, 92 S. Ct. 2163,

21

33 L. Ed. 2d 83 (1972); United States v. Barrett, 703 F.2d 1076, 1082-83 (9th Cir.

22

1982) (finding abuse of discretion and remanding for evidentiary hearing where

23

juror admitted to sleeping during trial, but trial court failed to hold hearing on

24

misconduct). Mr. Ruotolo’s inattention is further evidence of the prejudice that Mr.

25

Jones suffered based on the jurors’ prejudgment of Mr. Jones’s penalty and

26

resulting refusal to deliberate. Mr. Jones is entitled to an evidentiary hearing to

27

establish Mr. Ruotolo’s misconduct and the resulting prejudice. See Remmer, 347

28

U.S. at 229; Tanner, 483 U.S. at 120; Barrett, 703 F.2d at 1082-83.
213
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

Before the state court, respondent contended that evidence that Mr. Ruotolo

2

was sleeping cannot be used to impeach the verdict because it relates to his mental

3

processes. Inf. Resp. at 46-47; see also Opposition at 146 (contending that a

4

sleeping juror is an internal rather than an improper external influence on the jury).

5

Respondent is simply incorrect, and had the state court relied on this reasoning, it

6

would have satisfied section 2254(d)(1) as being an unreasonable application of

7

clearly established federal law providing that due process requires a “mentally

8

competent” tribunal. Jordan, 225 U.S. at 176; see also Petters v. Kiff, 407 U.S. at

9

501.

Because it defies reason that a “mentally competent” tribunal could be

10

composed of jury members who are asleep as evidence is presented, it is an abuse

11

of discretion for a court to deny an evidentiary hearing where a juror himself

12

admits to sleeping during trial. See Barrett, 703 F.2d at 1082-83.

13

Respondent also contended that Mr. Ruotolo’s declaration was vague

14

because he did not state how long or how many times he slept, and there was no

15

indication that he slept during favorable testimony. Inf. Resp. at 47; see also Opp.

16

at 146-47. As set forth above, the state court did not deny the claim because it was

17

inadequately alleged or lacked documentary support, or based on reasons or

18

inferences that neither party presented to the state court. See sections II.A.2,

19

II.A.4., supra. Moreover, to the extent that respondent urged the state court to

20

draw the adverse inference that Ruotolo did not sleep during favorable testimony,

21

the state court’s reliance on this reasoning would have satisfied section 2254(d)(2).

22

See section II.A.3., supra. This is particularly true because Mr. Ruotolo explicitly

23

admitted to sleeping during the testimony of a critical defense expert, Ex. 9 at 95,

24

so by definition, he slept through testimony that would have been favorable to the

25

defense.

26

Clearly established federal law supports the conclusions that Mr. Jones (1)

27

had a Sixth Amendment and due process right to a jury that was fully present and

28

available to listen to the testimony he presented in his defense, Jordan, 225 U.S. at
214
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

176; Peters, 407 U.S. at 501; and (2) was entitled to an evidentiary hearing to

2

establish Mr. Ruotolo’s misconduct and the resulting prejudice, Remmer, 347 U.S.

3

at 229; Tanner, 483 U.S. at 120. Accordingly, as set forth in the Opening Brief, the

4

state court’s summary denial of Mr. Jones’s prima facie juror misconduct claim

5

satisfies section 2254(d) either because it is contrary to and an unreasonable

6

application of Supreme Court precedent that requires fact development and an

7

evidentiary hearing prior to resolving juror misconduct claims or because the state

8

court made factual findings at an inappropriate stage of the proceedings. Opening

9

Br. at 102-05. Notably, respondent’s Opposition does not dispute this conclusion.

10

Opp. at 146-47.

11

Accordingly, the state court’s summary denial of Mr. Jones’s juror

12

misconduct claim satisfies section 2254(d). None of respondent’s contentions

13

entitle the state court’s decision to deference.

14

evidentiary hearing and to ultimate habeas relief.

Mr. Jones is entitled to an

15

2. Section 2254(d) Is Satisfied by the State Court’s Summary Denial of

16

Mr. Jones’s Adequately Pled Claim That He Was Denied His Right

17

to an Impartial Jury and Fair Trial.

18

In his Opening Brief, Mr. Jones detailed the ways in which the state court’s

19

summary denial of Mr. Jones’s juror bias and misconduct claim satisfies section

20

2254(d).

21

Supreme Court’s refusal to hear Mr. Jones’s adequately pled claims of

22

constitutional error is contrary to clearly established federal law that prohibits state

23

courts from creating “unreasonable obstacles” to the resolution of federal

24

constitutional claims that are “plainly and reasonably made.” Davis v. Wechsler,

25

263 U.S. at 24-25; see also Opening Br. at 7-11. Specifically, in light of Mr.

26

Jones’s extensive factual allegations and supporting materials in the state court –

27

which the state court was obligated to accept as true – the state court’s ruling that

28

Mr. Jones failed to make any prima facie showing of entitlement to relief
215

Opening Br. at 5-13, 87-105.

Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

As a general matter, the California

Case No. CV-09-2158-CJC

1

constitutes an unreasonable application of clearly established federal law and is

2

based on state law that is contrary to clearly established federal law. See, e.g.,

3

Caliendo v. Warden of California Men’s Colony, 365 F.3d 691, 698 (9th Cir. 2004)

4

(holding state court ruling satisfied section 2254(d) because California state law

5

failure to presume prejudice is contrary to federal law).

6

S.

Claim Twenty: Mr. Jones’s Constitutional Rights Were Violated by the

7

Introduction of Irrelevant and Inflammatory Photographs.

8

In state court, Mr. Jones alleged that his death sentence was rendered in

9

violation of his right to a reliable, rational, non-arbitrary determination of guilt and

10

penalty as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to

11

the United States Constitution because of the introduction of irrelevant and highly

12

inflammatory photographs of the victim. State Pet. at 277-78; Inf. Reply at 248-

13

51. Specifically, the prosecution introduced numerous enlarged photographs of the

14

crime scene and the victim.

15

photographs showed the victim lying on the ground with knives protruding from

16

both sides of her neck. See, e.g., III Supp. 1 CT 3, 5 (People’s Exhibits 5A, 5C:

17

photographs of victim with knives protruding from her neck); III Supp. 1 CT 8, 10

18

(People’s Exhibits 5F, 5H: photographs of victim’s body). The photographs were

19

neither relevant to the crime charged nor an aid in proving an element of the crime.

20

They shed no light on any factual issues relevant to the disputed issue of intent;

21

and added nothing to the prosecution’s case regarding the victim’s cause of death

22

that had not been testified to by Dr. Scholtz (see 17 RT 2774 et seq.) or the manner

23

in which the victim had been found (see 17 RT 2682 et seq. (testimony of

24

Detective Rosemary Sanchez); 18 RT 2837 et seq, testimony of coroner’s

25

investigator Dan Anderson).

The most disturbing, prejudicial, and irrelevant

26

Rather than form their decision based on a dispassionate review of the

27

evidence, the jurors were induced to make a decision on a purely emotional basis.

28

See, e.g, Ex. 9 at 94 (“[t]he crime scene photos were absolutely horrifying. . . .
216
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

[One photograph displayed] a close-up of the victim with knives sticking out of her

2

neck; it was absolutely awful. The picture was directly in my line of vision and

3

many times I had to close my eyes to escape it.”); Ex. 138 at 2690 (“[t]he pictures

4

were kept up on a bulletin board next to us. We talked about how horrifying those

5

pictures were.”); (Ex. 138 at 2690; Ex. 23 at 239 (alternate juror stated “[a]s soon

6

as I saw the photographs of Mrs. Miller it was set in my mind that he deserved the

7

death penalty.”). “[T]he only conceivable reason for placing [the photographs] in

8

evidence was to inflame the jury against” Mr. Jones. Ferrier v. Duckworth, 902

9

F.2d 545, 548 (7th Cir. 1990) (finding photographs, in color and enlarged to 12

10

square feet, showing victim’s blood splattered on floor, were irrelevant to any issue

11

in murder trial, and were inadmissible; killing was not denied, and the only issues

12

were whether defendant had been drunk or insane when he killed victim.); see also

13

Gomez v. Ahitow, 29 F.3d 1128, 1139 (7th Cir. 1994) (holding that the district court

14

erred in admitting “gruesome” photographs of victim’s body).

15

The California Supreme Court did not adjudicate the claim on the merits

16

because it did not review the gruesome photographs. Mr. Jones requested that the

17

California Supreme Court take judicial notice of the record on appeal (State Pet. at

18

10), which pursuant to California Rule of Court Rule 8.320(e), included the

19

exhibits. The California Supreme Court, however, did not request transmittal of

20

the photographs as required by Rule 8.320(e) – Cal. R. Ct. 8.320(e) (“Exhibits

21

admitted in evidence, refused, or lodged are deemed part of the record, but may be

22

transmitted to the reviewing court only as provided in rule 8.224.”) or by Rule

23

8.224(d), which provides that “the reviewing court may direct the superior court or

24

a party to send it an exhibit.” Moreover, although absent an order to show cause,

25

Mr. Jones was unable to invoke California Rule of Court 8.224. Cal. R. Ct. 8.224

26

(limiting party’s right to request transmittal of exhibits to cases in which

27

respondent’s brief has been or could have been filed). Therefore, review of this

28

claim is not barred by 28 U.S.C. section 2254(d). Section 2254(d) applies only to
217
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

claims that were “adjudicated on the merits in State court proceedings.” 28 U.S.C.

2

§ 2254(d); see also Cullen v. Pinholster, ___ U.S. ___, 131 S. Ct. 1388, 1398, 179

3

L. Ed. 2d 557 (2011) (explaining that section 2254(d) applies to claims previously

4

“adjudicated on the merits in state court proceedings”) (quoting 28 U.S.C. §

5

2254(d)); Harrington v. Richter, ___ U.S. ___, 131 S. Ct. 770, 780, 178 L. Ed. 2d

6

624 (2011) (same).

7

Moreover, even had the state court reviewed the photographs, its ruling that

8

Mr. Jones failed to make any prima facie showing of entitlement to relief

9

constitutes an unreasonable application of controlling federal law. Admission of

10

the inflammatory and irrelevant photographs of the victim, individually and

11

cumulatively, had a substantial and injurious influence on the jury’s determination

12

of the verdicts at the guilt and penalty phases of Mr. Jones’s trial and deprived the

13

proceedings of fundamental fairness. See Ferrier v, 902 F.2d at 548; see also

14

Mann v. Oklahoma, 488 U.S. 877, 109 S. Ct. 193, 102 L. Ed. 2d 163 (1988)

15

(Marshall, J., dissenting from denial of certiorari.) (“the photographic evidence

16

created an impermissible risk that his death sentence was based on considerations

17

that are ‘totally irrelevant to the sentencing process’”) (quoting Zant v. Stephens,

18

462 U.S. 862, 885, 103 S. Ct. 2733, 2747, 77 L. Ed. 2d 235 (1983)).

19

T.

Claim Twenty-One: The Jury Received Inadequate and Insufficient

20

Penalty Phase Instructions.

21

Mr. Jones satisfied state pleading requirements on his claim that the jury was

22

inadequately instructed during the penalty phase by presenting the California

23

Supreme Court with sufficient detail to establish a prima facie showing that he was

24

entitled to relief. See, e.g., Duvall, 9 Cal. 4th at 474. Mr. Jones established that his

25

sentence of death was unlawfully obtained because the instructions given to the

26

jury at the penalty phase were insufficient and permitted the jury to consider

27

mitigating factors as aggravation, in violation of his constitutional rights. State

28

Pet. at 326-32; Inf. Reply at 299-306. The California Supreme Court’s summary
218
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

denial of this claim decision satisfies section 2254(d) because it was an

2

unreasonable application of clearly established federal law.

3

1. Mr. Jones’s Claim Is Not Procedurally Defaulted.

4

The state court’s summary denial declared this claim procedurally barred,

5

with citations to In re Harris, 5 Cal. 4th 813, 824 n.3, 21 Cal. Rptr. 2d 373 (1993),

6

and In re Dixon, 41 Cal. 2d 756, 759, 264 P.2d 513 (1953), “[t]o the extent [the

7

claim] was not raised on appeal, and except insofar as [the claim] allege[d]

8

ineffective assistance of counsel.” Order Denying Case No. S110791, NOL at C.7.

9

As discussed above, see section III, supra, the Dixon bar is not adequate to

10

preclude federal habeas review. Thus, the procedural default doctrine does not bar

11

this Court’s review of the merits of Mr. Jones’s claim.

12

The state court’s application of the Dixon bar to this claim also was

13

inappropriate because the application is contrary to state law requirements for

14

preservation of instructional errors. The California Supreme Court has stated that

15

“a party may not complain on appeal that an instruction correct in law and

16

responsive to the evidence was too general or incomplete unless the party has

17

requested appropriate clarifying or amplifying language.” People v. Andrews, 49

18

Cal. 3d 200, 218, 260 Cal. Rptr. 583 (1989), overruled on other grounds in People

19

v. Trevino, 26 Cal. 4th 237, 109 Cal. Rptr. 2d 567 (2001); see also People v.

20

Castaneda, 51 Cal. 4th 1292, 1347-48, 127 Cal. Rptr. 3d 200 (2011) (holding that

21

because CALJIC 8.85 was a “correct statement of the law and defendant did not

22

request different language, he has forfeited his claim that the instruction should

23

have been modified” by deleting descriptions of inapplicable mitigating factors).

24

Mr. Jones’s claim rests on the insufficiency of the standard CALJIC instructions

25

(i.e., CALJIC 8.85 and 8.88) and the failure of the trial court to provide appropriate

26

guidance to the jury in light of the prosecutor’s misstatements about the law in his

27

closing argument. Thus, because this claim of error was not raised at trial, it could

28

not have been raised on direct appeal, and the state court acted contrary to its own
219
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

decisions when it barred the claim under Dixon in the habeas corpus proceeding.

2

Simply, Mr. Jones did not violate the Dixon procedural rule, and federal review of

3

his claim is not precluded. See Sivak v. Hardison, 658 F.3d 898, 907 (9th Cir.

4

2011) (“While it is unusual to reject a state court’s use of a procedural bar on the

5

ground that it was erroneously applied, ‘[t]he procedural default doctrine self-

6

evidently is limited to cases in which a “default” actually occurred i.e., cases in

7

which the prisoner actually violated the applicable state procedural rule.’

8

[Citation.] Here, the state court applied the state’s procedural rule to [petitioner’s]

9

case in an erroneous and arbitrary manner. Thus, we follow the Supreme Court

10

and our sister circuits in holding that an erroneously applied procedural rule does

11

not bar federal habeas review.”).

12

2. Mr. Jones Established His Entitlement to Relief in the State Court,

13

and Section 2254(d) Does Not Preclude Relief.

14

a. The Jury Was Misinformed That Mitigation Had to Be Related

15

to the Crime.

16

As Mr. Jones pointed out to the state court, the prosecutor repeatedly made

17

statements during his penalty phase closing argument telling the jury that it should

18

weigh as mitigation only evidence that directly related to Mr. Jones’s conduct at

19

and around the time of the crime. State Pet. at 326-28; Inf. Reply at 300-02; see

20

also Fed. Pet. at 376-68. The prosecutor argued, “[o]n the other hand, a mitigating

21

circumstance is any fact, condition or event which as such does not constitute a

22

justification or excuse for the crime in question, but may be considered as an

23

extenuating circumstance in determining the appropriateness of the death penalty.”

24

31 RT 4635. The prosecutor continued, impermissibly and repeatedly defining the

25

mitigating evidence advanced by Mr. Jones as relating only to the crime. With

26

respect to sympathy, the prosecutor stated, “I would suggest to you that you show

27

the same sympathy to the defendant that he showed to [the victim] if you are going

28

to think about sympathy in this case.” 31 RT 4643. In discussing Mr. Jones’s
220
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

mental health evidence, the prosecutor stated, “if you accept that he has a mental

2

problem, even if you accept that based upon the doctor’s testimony, I asked the

3

doctor does schizophrenic, schizoaffective patients have a greater likelihood of

4

committing violent acts than a normal person? And he says no.” 31 RT 4648. The

5

prosecutor continued, “if you accept that he is telling you the truth, that he truly

6

has the schizophrenic, schizoaffective psychosis that led to this delusional state that

7

led to the killing, does that mitigate?” 31 RT 4653.

8

In the state court, respondent noted that the trial court’s instruction on

9

subdivision (k) of Penal Code section 190.3 (commonly referred to as “Factor (k)”

10

or the “catchall” mitigation provision) included language broadly encompassing

11

mitigation “whether or not related to the offense for which [the defendant] is on

12

trial.” Inf. Resp. at 50; 2 CT 411. In the Opposition, respondent also quoted a

13

portion of the prosecutor’s argument wherein he mentioned the definition of Factor

14

(k). Opp. at 154. Respondent’s quotation of the prosecutor’s argument, however,

15

supports Mr. Jones’s point about the prosecutor’s intent and effort during his

16

closing argument to mislead the jury into not considering relevant mitigating

17

evidence. When the prosecutor recited for the jury the instruction on Factor (k), he

18

left out the above-quoted language delineating that Factor (k) mitigation need not

19

be related to the crime to be considered when making the decision between life and

20

death. Compare 31 RT 4642 with 2 CT 411.

21

No nexus between the crime and the mitigation offered by a defendant is

22

required in a capital case. Smith v. Texas, 543 U.S. 37, 45, 125 S. Ct. 400, L. Ed.

23

2d 303 (2004) (explaining that the Supreme Court “never countenanced” and

24

“unequivocally rejected” a “nexus” requirement for mitigation); Tennard v. Dretke,

25

542 U.S. 274, 284-87, 124 S. Ct. 2562, 159 L. Ed. 2d 384 (2004).

26

consideration of evidence that mitigates against the death penalty is essential if the

27

jury is to give a reasoned moral response to the defendant’s background, character,

28

and crime.” Penry v. Lynaugh (Penry I), 492 U.S. 302, 328, 109 S. Ct. 2934, 106
221
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

“[F]ull

Case No. CV-09-2158-CJC

1

L. Ed. 2d 256 (1989) (quotation omitted), abrogated on other grounds by Atkins v.

2

Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002). Instructions

3

that prevent the jury from considering a capital defendant’s mitigating evidence as

4

it bears on his or her personal culpability violate the defendant’s constitutional

5

rights under the Eighth and Fourteenth Amendments. Penry I, 492 U.S. at 328; see

6

also Abdul-Kabir v. Quarterman, 550 U.S 233, 263-64, 127 S. Ct. 1654, 167 L. Ed.

7

2d 585 (2007) (“Our line of cases in this area has long recognized that before a

8

jury can undertake the grave task of imposing a death sentence, it must be allowed

9

to consider a defendant’s moral culpability and decide whether death is an

10

appropriate punishment for that individual in light of his personal history and

11

characteristics and the circumstances of the offense.”); Brewer v. Quarterman, 550

12

U.S. 286, 289, 127 S. Ct. 1706, 167 L. Ed. 2d 622 (2007) (“In more recent years,

13

we have repeatedly emphasized that a Penry violation exists whenever a statute, or

14

a judicial gloss on a statute, prevents a jury from giving meaningful effect to

15

mitigating evidence that may justify the imposition of a life sentence rather than a

16

death sentence.”).

17

When reviewing jury instructions, “[t]he critical question . . . is whether

18

petitioner’s interpretation of the sentencing process is one a reasonable jury could

19

have drawn from the instructions given by the trial judge.” Mills v. Maryland, 486

20

U.S. 367, 375, 108 S. Ct. 1860, 100 L. Ed. 2d 384 (1988); see also Boyde v.

21

California, 494 U.S. 370, 380, 110 S. Ct. 1190, 108 L. Ed. 2d 316 (1990) (“the

22

proper inquiry . . . is whether there is a reasonable likelihood that the jury has

23

applied the challenged instruction in a way that prevents the consideration of

24

constitutionally relevant evidence”).

25

Though a jury is presumed to follow the court’s instructions, Weeks v.

26

Angelone, 528 U.S. 225, 234, 120 S. Ct. 727, 145 L. Ed. 2d 727 (2000), the

27

presumption that the jury understood and followed the trial court’s direction is

28

overcome in this case by the pervasive mischaracterization of mitigation
222
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

undertaken by the prosecutor in the face of the minimal and imprecise instruction

2

concerning the consideration of mitigation that is not directly tethered to the crime.

3

As the United States Supreme Court has noted, “the arguments of counsel, like the

4

instructions of the court, must be judged in the context in which they are made.”

5

Boyde, 494 U.S. at 385. The trial court’s guidance to the jury on this crucial issue

6

amounted to only thirteen words in a recitation of instructions that spanned

7

seventeen pages of the reporter’s transcript. See 31 RT 4629, 4616-33. Defense

8

counsel made no effort in his feeble closing argument to explain further the trial

9

court’s instruction or counter the prosecutor’s misleading definition of mitigation.

10

See 31 RT 4663-92. Moreover, juror Emil Ruotolo recounted:

11

During deliberations, the jurors talked about how surprised we were

12

that the defense did not present testimony that explained why

13

someone might do the things that Mr. Jones did.

14

evidence would have been helpful, because without it, we had no

15

reason to vote for anything but death. We thought that the testimony

16

should have been presented at the guilt trial. We all talked about how

17

we already decided that he was guilty, and we did not understand

18

how to view the evidence in light of our guilt verdicts.

19

That kind of

Ex. 9 at 95.

20

The combination of the insufficient instructions and the prosecutor’s

21

misleading comments about the scope of mitigation makes it reasonably likely that

22

the jury applied the instruction in a way that prevented the consideration of

23

constitutionally relevant evidence. See Mills, 486 U.S. at 384 (finding a substantial

24

probability that the jurors may well have thought they were precluded from

25

considering mitigating evidence unless they unanimously agreed on existence of

26

particular mitigating circumstance).

27
28
223
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1
2

b. The Trial Court Failed to Prohibit the Consideration of
Mitigating Factors as Aggravation.

3

The jury instructions also provided only broad definitions for an

4

“aggravating factor” and a “mitigating circumstance.” See 2 CT 405. The trial

5

court did not tell the jury which factors could be considered only as mitigating

6

factors under the controlling law. The prosecutor stepped into this void with

7

arguments that Mr. Jones’s mental illness and supposed failure to take advantage of

8

purportedly available mental health treatment were aggravating factors.

9

detailed in the State Petition, State Pet. at 328-30, see also Fed. Pet. at 369-70, the

10

prosecutor told the jurors that if they accepted that Mr. Jones was mentally ill, that

11

fact should be weighed in aggravation, e.g., “if you accept the psychotic killer that

12

the doctor put forth . . . that fact in itself might be an aggravating factor if you so

13

decide as far as putting him to death,” 31 RT 4644, and that Mr. Jones’s failure to

14

take advantage of purported treatment opportunities in the face of “wake up calls”

15

was a “factor in aggravation.” 31 RT 4642.

As

16

In Zant v. Stephens, 462 U.S. 862, 103 S. Ct. 2733, 77 L. Ed. 2d 235 (1983),

17

the Supreme Court held that “due process of law would require that the jury’s

18

decision to impose death be set aside” if the jury were told to consider as

19

aggravation “conduct that actually should militate in favor of a lesser penalty, such

20

as perhaps the defendant’s mental illness.” Id. at 885. Moreover, the Eighth

21

Amendment mandates that “sentencers may not be given unbridled discretion in

22

determining the fates of those charged with capital offenses. The Constitution

23

instead requires that death penalty statutes be structured so as to prevent the

24

penalty from being administered in an arbitrary and unpredictable fashion.”

25

California v. Brown, 479 U.S. 538, 541, 107 S. Ct. 837, 93 L. Ed. 2d 934 (1987)

26

(citing Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976),

27

and Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972)).

28

In this case, the jury instructions, when analyzed in the context of the
224
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

prosecutor’s improper arguments, unconstitutionally and prejudicially failed to

2

delineate for the jury the factors that could be considered aggravating and those

3

that could be considered only as mitigating, thereby failing to provide the

4

constitutionally mandated guidance and allowing the jury to consider evidence in

5

aggravation that may only constitutionally be considered in mitigation.

6

Espinosa v. Florida, 505 U.S. 1079, 1081, 112 S. Ct. 2926, 120 L. Ed. 2d 854

7

(1992) (“Our cases establish that, in a State where the sentencer weighs

8

aggravating and mitigating circumstances, the weighing of an invalid aggravating

9

circumstance violates the Eighth Amendment.”).

See

10

Respondent’s assertion that Cullen v. Pinholster, 131 S. Ct. 1388, 179 L. Ed.

11

2d 557 (2011), supports the proposition that “some evidence can be a ‘two-edged’

12

sword that can be both aggravating and mitigating” is incorrect and inapposite.

13

Opp. at 155. In the passage from Pinholster cited by respondent, the Supreme

14

Court clearly states its view that the new mitigation presented in that case was of

15

limited mitigating value; not that the mitigation evidence could have been

16

considered by the jury as an aggravating factor, as respondent implies. Pinholster,

17

131 S. Ct. at 1410 (“To the extent the state habeas record includes new factual

18

allegations or evidence, much of it is of questionable mitigating value. . . . The new

19

evidence relating to Pinholster’s family—their more serious substance abuse,

20

mental illness, and criminal problems—is also by no means clearly mitigating, as

21

the jury might have concluded that Pinholster was simply beyond rehabilitation.”)

22

(citations omitted).

23

The trial court’s vague instructions failed to cure the prosecutor’s

24

misconduct because they were not specific enough to provide the constitutionally

25

required guidance to the jurors to limit their discretion when deciding whether to

26

impose a death sentence on Mr. Jones.

27

concerning the nexus between mitigation and the crime, trial counsel did not say

28

anything in his closing argument that might have corrected the prosecutor’s
225
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Moreover, as with the claim above

Case No. CV-09-2158-CJC

1

misleading comments. See 31 RT 4663-92.

2

The state court’s summary denial of Mr. Jones claim amounted to an

3

unreasonable application of clearly established federal law set forth above. In its

4

Informal Response in the state court, respondent cited People v. Frye, 18 Cal. 4th

5

894, 1026, 77 Cal. Rptr. 2d 25 (1998), for the proposition that “the trial court need

6

not identify any of the sentencing factors as aggravating or mitigating.” Inf. Resp.

7

at 50-51. In Frye, the California Supreme Court cited Tuilaepa v. California, 512

8

U.S. 967, 979, 114 S. Ct. 2630, 129 L. Ed. 2d 750 (1994), and included a

9

parenthetical explaining that a “capital sentencer need not be instructed how to

10

weigh sentencing factors.” Frye, 18 Cal. 4th at 1026. Respondent also cites

11

Tuilaepa in its Opposition, arguing that the “Supreme Court has held that a capital

12

sentencer need not be instructed on how to weigh sentencing factors.” Opp. at 155.

13

Respondent’s arguments in the state court and in this Court are beside the point,

14

and do not render the state court’s denial of Mr. Jones’s claim reasonable. As

15

detailed in the State Petition and reiterated in the Informal Reply, Mr. Jones’s claim

16

is not that the jury instructions broadly failed to label the sentencing factors of

17

California Penal Code section 190.3 as aggravating and mitigating. Rather, his

18

claim is that the prosecutor’s misleading arguments about the treatment of the

19

mitigation as an aggravating factor rendered otherwise arguably valid instructions

20

inadequate to provide the constitutionally required guidance to the jury for it

21

sentencing determination. The United States Supreme Court has recognized that,

22

without appropriate guidance, reasonable jurors may infer, contrary to governing

23

law, that mitigating circumstances such as mental vulnerabilities are aggravating.

24

See Atkins v. Virginia, 536 U.S. 304, 320-21, 122 S. Ct. 2242, 153 L. Ed. 2d 335

25

(2002) (noting that “[m]entally retarded defendants may be less able to give

26

meaningful assistance to their counsel and are typically poor witnesses, and their

27

demeanor may create an unwarranted impression of lack of remorse for their

28

crimes”). Thus, the state court’s refusal to consider Mr. Jones’s claim in light of
226
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

the clearly established federal law was unreasonable under section 2254(d).

2

Accordingly, there is no prohibition on this Court reviewing Mr. Jones’s claim de

3

novo and granting relief.

4
5

U.

Claim Twenty-Two: Mr. Jones Was Deprived of His Right to a Jury
Determination of Facts Necessary to Sentence Him to Death.

6

In the state court, Mr. Jones alleged that his death sentence was rendered in

7
8
9
10
11
12
13
14
15
16
17

violation of the his right to a reliable, rational, non-arbitrary determination of guilt
and penalty as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments
to the United States Constitution because the trial court failed to instruct the jury
on the proper burden of proof regarding facts necessary to sentence him to death.
State Pet. at 333-46; Inf. Reply at 308-20; see also Jones v. United States, 526 U.S.
227, 119 S. Ct. 1215, 143 L. Ed. 2d 311 (1999); Apprendi v. New Jersey, 530 U.S.
466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000); Ring v. Arizona, 536 U.S. 584, 122
S. Ct. 2428, 153 L. Ed. 2d 556 (2002). Specifically, Mr. Jones alleged that this
controlling federal law required the jury to be instructed that before it could impose
a sentence of death, it must, beyond a reasonable doubt:
(1) unanimously find the existence of each aggravating factor, 2 CT

18

409 (CALJIC 8.87 specifically instructs “[i]t is not necessary for all

19

jurors to agree. If any juror is convinced beyond a reasonable doubt

20

that such criminal activity occurred, that juror may consider” it as an

21

aggravating);89

22

(2) find the aggravating factors outweigh the mitigating factors, 2 CT

23

406 (CALJIC 8.88 merely requires aggravating factor to be “so

24

substantial” in relation to the mitigating factors); and,

25
26
27
28

89

Respondent correctly notes that is subclaim was presented on direct appeal.
Opp. at 155.
227
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

(3) find that death is the appropriate punishment, 2 CT 406 (CALJIC

2

8.88 requires no finding that death is the appropriate punishment).

3

Mr. Jones satisfied state pleading requirements on his claim that the jury was

4

inadequately instructed during the penalty phase by presenting the state court with

5

sufficient detail and supporting factual material to establish a prima facie showing

6

that he was entitled to relief. See, e.g., Duvall, 9 Cal. 4th at 474. The state court’s

7

summary denial satisfies section 2254(d) because it was an unreasonable

8

application of clearly established federal law.

9

In California, before sentencing a person to death, the jury must be

10

persuaded that “the aggravating circumstances outweigh the mitigating

11

circumstances,” Cal. Penal Code § 190.3, and that aggravation is so substantial

12

compared to mitigation that a verdict of death is appropriate. The jury was so

13

instructed in this case. 2 CT 406 (CALJIC 8.88); 31 RT 4699 (instructing the jury

14

that “[t]o return a judgment of death each of you must be persuaded that the

15

aggravating circumstances are so substantial in comparison with the mitigating

16

circumstances that it warrants death, instead of life without parole.”). The trial

17

court, however, did not instruct the jury on the proper burden of proof for each of

18

their tasks. Mr. Jones’s jury was not instructed that, before it could impose a

19

sentence of death, it must, beyond a reasonable doubt: unanimously find the

20

existence of each aggravating factor; find the aggravating factors outweigh the

21

mitigating factors; and find that death is the appropriate punishment.

22

Three years before the state court decided Mr. Jones’s direct appeal, the

23

United States Supreme Court held that a state may not impose a sentence greater

24

than that authorized by the jury’s verdict of guilt unless the facts supporting an

25

increased sentence, other than a prior conviction, were submitted to the jury and

26

proved beyond a reasonable doubt. Apprendi, 530 U.S. at 478. Two years later,

27

the Court applied these principles to Arizona’s death penalty scheme, under which

28

a judge makes factual findings necessary to impose the death penalty, and held that
228
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

the scheme violated the defendant’s constitutional right to have a jury determine,

2

unanimously and beyond a reasonable doubt, any fact that might increase the

3

maximum punishment.

4

California, the Court, in rejecting California’s Determinate Sentencing law,

5

expressly held that circumstances in aggravation are facts that might increase the

6

maximum punishment. Cunningham v. California, 549 U.S. 270, 280, 289, 127 S.

7

Ct. 856, 166 L. Ed. 2d 856 (2007) (holding that facts that expose a defendant to a

8

greater potential sentence must be unanimously found by a jury beyond a

9

reasonable doubt and determining that the Determinate Sentencing Law was

10

unconstitutional because it violated Apprendi’s “bright-line rule” that any fact

11

increasing the maximum penalty for a crime must be submitted to a jury and

12

proven beyond a reasonable doubt).

13

applicable to the jury’s findings at the penalty phase, and a jury must conclude

14

beyond a reasonable that the aggravating circumstances outweigh those in

15

mitigation and that death is the appropriate penalty to sentence a defendant to

16

death. The court’s failure to instruct the jury in this regard was in error.

Ring, 536 U.S. at 609.

Finally, in Cunningham v.

Thus, a reasonable doubt standard is

17

With respect to whether the jury was required to unanimously find the

18

existence of each aggravating factor, the state court denied this claim by noting that

19

it had rejected such claims in the past, and quoting a 1990 decision in which the

20

court stated, “We have consistently held that unanimity with respect to aggravating

21

factors is not required by statute or as a constitutional procedural safeguard.”

22

Jones, 29 Cal. 4th at 1267 (quoting People v. Taylor, 52 Cal. 3d 719, 749, 276 Cal.

23

Rptr. 391 (1990).90 The state court’s summary denial of the two other subclaims

24

did not provide any reasoning for its decision, but the court has explained it

25
26
27
28

90

The court cited to People v. Seaton, 26 Cal. 4th 598, 688, 110 Cal. Rptr. 2d
441 (2001), and People v. Taylor, 52 Cal. 3d 719, 749, 276 Cal. Rptr. 391 (1990),
in support.
229
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

reasoning in other published decisions.

With respect to the Apprendi-Ring

2

argument, the California Supreme Court has held in People v. Snow, 30 Cal. 4th 43,

3

126 n.32, 132 Cal. Rptr. 2d 271, 331 n.32 (2003), in which it concluded that

4

because at the penalty phase, death is no more than the statutory maximum, and the

5

only alternative is life without parole, “facts which bear upon, but do not

6

necessarily determine, which of the two alternative penalties is appropriate do not

7

come within the holding of Apprendi.” Snow, 30 Cal. 4th at 126 n.32. The court

8

decided that Ring does not change this analysis because “[t]he final step in

9

California capital sentencing is a free weighing of all the factors relating to the

10

defendant’s culpability, comparable to a sentencing court’s traditionally

11

discretionary decision to, for example, impose one prison sentence rather than

12

another. . . . [and] [n]othing in Apprendi or Ring suggests the sentencer in such a

13

system constitutionally must find any aggravating factor true beyond a reasonable

14

doubt.” Id.

15

The state court’s interpretation is contrary to clearly established federal law

16

under section 2254(d)(1). First, the Supreme Court made clear in Cunningham that

17

Apprendi applies to circumstances in aggravation. Cunningham, 549 U.S. at 289.

18

Second, the Supreme Court rejected in Ring the analysis adopted by the California

19

Supreme Court that death is no more than the statutory maximum. The Court in

20

Ring rejected the identical argument made by Arizona, explaining that the

21

argument, “overlooks Apprendi’s instruction that the relevant inquiry is one not of

22

form, but of effect. In effect, the required finding of an aggravated circumstance

23

exposed Ring to a greater punishment than that authorized by the jury’s guilty

24

verdict.”

25

omitted); see also id. (explaining that “[i]f Arizona prevailed on its opening

26

argument, Apprendi would be reduced to a ‘meaningless and formalistic’ rule of

27

statutory drafting.”). The issue of Ring’s applicability hinges on whether as a

28

practical matter, the sentencer must make additional fact-findings during the
230

Ring, 536 U.S. at 604 (internal citations, quotations, and brackets

Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

penalty phase before determining whether or not the death penalty can be imposed.

2

In both Arizona and California, this is true. Accordingly, Ring is applicable to

3

California’s sentencing scheme, and the state court’s conclusion to the contrary

4

dictates de novo review, as Mr. Jones satisfies section 2254(d)(1).

5

Garrus v. Secretary of Pennsylvania Dept. of Corrections, 694 F.3d 394, 405-06

6

(3d Cir. 2012) (holding state court’s objectively unreasonable application of

7

Apprendi satisfies section 2254(d)); Estrella v. Ollison, 668 F.3d 593 (9th Cir.

8

2011) (finding California state court’s decision permitting the imposition of upper

9

term sentence contrary to Apprendi); Wilson v. Knowles, 638 F.3d 1213 (9th Cir.

10

2011) (same).

11

V.

See, e.g.,

Claim Twenty-Three: Mr. Jones Is Ineligible for the Death Penalty.

12

Mr. Jones satisfied state pleading requirements by presenting this claim in

13

state court with sufficient detail and supporting factual material to establish a prima

14

facie showing that he was entitled to relief. See, e.g., Duvall, 9 Cal. 4th at 474.

15

Among other things, Mr. Jones presented declarations by qualified experts and

16

numerous lay witnesses that demonstrated that he is constitutionally ineligible for

17

the death penalty because he is intellectually disabled and suffers from other

18

mental impairments that diminish his culpability. This claim was not procedurally

19

defaulted, and respondent did not present factual materials or legal argument in

20

state court to establish that Mr. Jones’s prima facie showing should not be taken as

21

true or that it otherwise lacked merit. Under these circumstances, the state court

22

was required to issue an order to show cause and allow Mr. Jones access to state

23

processes to develop and present evidence to prove his claim. See, e.g., In re

24

Hawthorne, 35 Cal. 4th 40, 49, 24 Cal. Rptr. 3d 189 (2005); Duvall, 9 Cal. 4th at

25

475; Romero, 8 Cal. 4th at 742. By instead summarily denying Mr. Jones’s claim,

26

the California Supreme Court’s decision satisfies section 2254(d) as set forth in Mr.

27

Jones’s prior briefing and in the sections that follow.

28
231
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

1. There Is No Reasonable Basis for the State Court Ruling That Mr.

2

Jones Failed to Make a Prima Facie Showing for Relief.

3

Mr. Jones’s allegations and supporting factual material in state court

4

established that Mr. Jones suffers from significantly subaverage intellectual

5

functioning that has existed concurrently with deficits in adaptive behavior since

6

before the age of eighteen. Mr. Jones also established he is ineligible for the death

7

penalty because he is morally less culpable as a result of his mental impairments.

8

These allegations made a prima facie showing that Mr. Jones is ineligible for the

9

death penalty under Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed.

10

2d 335 (2002), as well as broader Eighth Amendment prohibitions on cruel and

11

unusual punishment. State Pet. at 347-70; Inf. Reply at 320-30.

12

a. Mr. Jones Made a Prima Facie Showing That He Is Intellectually

13

Disabled.

14

The California Supreme Court has held that an order to show cause should

15

issue for claims brought under Atkins when a qualified expert’s declaration has “set

16

forth a factual basis for finding the petitioner has significantly subaverage

17

intellectual functioning and deficiencies in adaptive behavior” that manifested

18

prior to the age of eighteen. Hawthorne, 35 Cal. 4th at 48. The state court adopted

19

clinical definitions for adaptive functioning deficits established by the American

20

Association on Mental Retardation and the American Psychiatric Association,

21

which were based on “limitations in two or more of the following applicable

22

adaptive skill areas: communication, self-care, home living, social skills,

23

community use, self-direction, health and safety, functional academics, leisure, and

24

work.” Hawthorne, 35 Cal. 4th at 47-48.91 The California Supreme Court noted

25
26
27
28

91

In 2012, the California Legislature replaced the phrase “mental retardation”
in several state statutes, including California Penal Code section 1376, with the
term
“intellectual
disability.”
MENTALLY
RETARDED AND
DEVELOPMENTALLY DISABLED PERSONS – CLASSIFICATION –
232
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

continued…
Case No. CV-09-2158-CJC

1

that an IQ of 75 or lower “is typically considered the cutoff IQ for the intellectual

2

prong” of a showing of intellectual disability, but held that the necessity of holding

3

an evidentiary hearing for claims raised under Atkins “reflects the consensus that

4

mental retardation is a question of fact. It is not measured according to a fixed

5

intelligence test score or a specific adaptive behavior deficiency, but rather

6

constitutes an assessment of the individual’s overall capacity based on a

7

consideration of all the relevant evidence.” Hawthorne, 35 Cal. 4th at 49 (internal

8

citations omitted).

9

Mr. Jones’s factual allegations and supporting materials, taken as true,

10

established a prima facie showing that he is intellectually disabled within the

11

meaning of Atkins, and the state law interpretations of its prohibitions. Mr. Jones

12

submitted

13

neuropsychology and neuropsychological assessment, Natasha Khazanov, Ph.D.,

14

who concluded that, with an overall IQ of 77, Mr. Jones has markedly subaverage

15

intelligence. Ex. 175 at 3063. Mr. Jones also submitted a declaration from a

16

psychiatrist specializing in adolescent psychiatry, Zakee Matthews, M.D., who

17

documented Mr. Jones’s history of “intelligence testing in the mentally retarded

18

range of functioning” (Ex. 178 at 3132) and “significantly compromised adaptive

19

functioning.” Ex. 178 at 3155; see also Inf. Reply at 321-22 (detailing expert

20

testing and evaluation demonstrating Mr. Jones’s intellectual disability).

a

declaration

from

a

clinical

psychologist

specializing

in

21

On the basis of his review of extensive material documenting Mr. Jones’s

22

medical, social, economic, educational, and family background (Ex. 178 at 3091),

23
24
25
26
27
28

MEDICAL CARE AND TREATMENT, 2012 Cal. Legis. Serv. Ch. 448 (A.B.
2370); Cal. Penal Code § 1376. This is in keeping with a change of terminology
adopted by the American Association on Intellectual and Developmental
Disabilities, formerly the American Association on Mental Retardation. See
AAIDD, INTELLECTUAL DISABILITY: DEFINITION, CLASSIFICATION,
AND SYSTEMS OF SUPPORT, 11th Ed. (2010) at 3.
233
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

Dr. Matthews described a number of areas of Mr. Jones’s deficient functioning in

2

detail. Dr. Matthews discussed and provided examples of Mr. Jones’s significant

3

limitations in processing information, difficulty understanding and responding to

4

what was being said in conversations, and inability to follow basic instructions.

5

Ex. 178 at 3132. Dr. Matthews also recounted Mr. Jones’s “tremendous difficulty

6

in school” (Ex. 178 at 3133), including his placement in special education

7

throughout his schooling, obvious cognitive impairments, inability to master even

8

the simplest academic skills throughout elementary school, placement in high

9

school in the Educationally Handicapped Program, and failure to graduate from

10

high school. Ex. 178 at 3132-35. Dr. Matthews also detailed the observations of

11

Mr. Jones’s family members, and noted that they realized from their experiences

12

with Mr. Jones that his “intellectual functioning was seriously compromised.” Ex.

13

178 at 3135.

14

In addition to documenting Mr. Jones’s deficits in communication and

15

academic functioning, Dr. Matthews also observed from Mr. Jones’s history that as

16

he grew older, he “lacked the capacity to live independently or manage his own

17

affairs.” Ex. 178 at 3155. These deficits also were reflected in the declarations of

18

educational experts who evaluated school records documenting Mr. Jones’s

19

intellectual disability and severely impaired academic functioning (Ex. 125; Ex.

20

130) and in numerous lay witness declarations that Mr. Jones submitted in support

21

of his allegations. See, e.g., Ex. 16 at 147-48; Ex. 19 at 207,;Ex. 123 at 2491-92;

22

Ex. 124 at 2541; Ex. 132 at 2637-38; Ex. 143 at 2703 (describing Mr. Jones’s

23

immaturity and communication and interpersonal difficulties); Ex. 16 at 145; Ex.

24

155 at 2766 (describing Mr. Jones’s inability to accomplish simple errands and

25

count and use money); Ex. 10 at 97; Ex. 14 at 136; Ex. 16 at 150, 166. 174-75; Ex.

26

21 at 226; Ex. 124 at 2539; Ex. 142 at 2698-99; Ex. 147 at 2723; Ex. 189 at 3400

27

(describing Mr. Jones’s inability to live independently and maintain employment);

28

See also Inf. Reply at 321-26 (detailing adaptive functioning deficits).
234
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

In state court, respondent questioned whether Mr. Jones was raising a claim

2

under Atkins, but argued that any such claim was without merit. Inf. Resp. at 54

3

n.26.92 In support of this contention, respondent cited to the cross-examination of

4

the defense expert, Dr. Thomas, during the penalty phase of trial, in which Dr.

5

Thomas agreed with the prosecutor’s suggestion that Mr. Jones’s IQ had been

6

tested between 79 and 87, “depending upon which reports we have.” 30 RT 4534.

7

Inf. Resp. at 54 n.26. Respondent suggested that this passage of the transcript

8

established that Mr. Jones’s IQ was “above the cutoff IQ score for mental

9

retardation.” Inf. Resp. at 54 n.26.

10

Respondent’s assertion could not have provided the basis for the state court

11

to deny Mr. Jones’s claim. First, the prosecutor’s representation of the range of IQ

12

scores Mr. Jones had obtained on intelligence testing was inaccurate. Mr. Jones’s

13

factual allegations during state habeas proceedings established that prior

14

intelligence testing included a score of 68 (see, e.g., Ex. 130 at 2599), that the

15

limited neuropsychological evaluation done at the time of trial was incomplete and

16

unreliable (see, e.g., Ex. 150 at 2732), and that testing during postconviction

17

proceedings established Mr. Jones’s IQ at 77. Ex. 175 at 3063. Second, the

18

prosecutor’s inaccurate reference to Mr. Jones’s intelligence testing could not have

19

provided a reason why Mr. Jones’s extensive factual allegations should not be

20

accepted as true. Duvall, 9 Cal. 4th at 475; Romero, 8 Cal. 4th at 742. Finally,

21

respondent’s assertion that an IQ “cutoff” is the sole requirement for a finding of

22

intellectual disability is contrary to the state and federal law governing Mr. Jones’s

23

claim.93

At most, respondent’s assertions created factual disputes that the state

24
25
26
27
28

92

In keeping with the state court’s procedures, in his Informal Reply, Mr.
Jones expressly stated that he was raising an Atkins claim and further detailed the
elements of that aspect of his claim. Inf. Reply at 320-26.
93

Before this Court, respondent incorrectly interprets Mr. Jones’s allegations
as a claim that he is incompetent to be executed, an issue not raised in this claim.
235
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

continued…
Case No. CV-09-2158-CJC

1

court could not have resolved without issuing an order to show cause. Duvall, 9

2

Cal. 4th at 475; Romero, 8 Cal. 4th at 742.

3

b. Mr. Jones Made a Prima Facie Showing That He Suffers From

4

Other Mental Impairments That Diminish His Culpability.

5

Mr. Jones not only established that his is ineligible for the death penalty

6

because he is intellectually disabled, but also that he suffers from additional mental

7

impairments that diminish his culpability and eligibility for the death penalty

8

pursuant to broader Eighth Amendment prohibitions. See State Pet. at 347-70; Inf.

9

Reply at 328-30.

Mr. Jones’s allegations and supporting factual material

10

established that Mr. Jones suffers from dissociative episodes, psychotic breaks,

11

depression, auditory and visual hallucinations, and brain damage, among other

12

impairments that seriously impair his mental functioning and lessen his culpability.

13

See Opening Br. at 125-27.

14

In state court, respondent did not challenge Mr. Jones’s claim that mental

15

impairment made him ineligible for the death penalty on legal grounds; rather,

16

respondent contested the “factual predicate” of the claim.

17

Respondent asserted that a jury finding Mr. Jones guilty of a specific intent crime

18

refuted Mr. Jones’s showing that he suffered from impaired mental functioning that

19

diminished his culpability. Inf. Resp. at 53-54. Respondent’s factual contentions

20

could not have provided a reasonable basis for the state court’s denial of this aspect

21

of Mr. Jones’s claim because, among other reasons, the factual material that Mr.

22

Jones presented during his state habeas proceedings to demonstrate his impaired

23

functioning was not before the jury when it rendered its verdicts.

Inf. Resp. at 53.

At most,

24
25
26
27
28

Opp. at 156-57; see Ford v. Wainwright, 477 U.S. 399, 410, 106 S. Ct. 2595, 91 L.
Ed. 2d 335 (1986). Respondent’s focus on the proper timing of a claim alleging
incompetence to be executed therefore is not applicable to any portion of this
claim.
236
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

respondent’s assertion created a factual dispute that the state court could not have

2

resolved without issuing an order to show cause. Duvall, 9 Cal. 4th at 475;

3

Romero, 8 Cal. 4th at 742.

4

2. Section 2254(d) Is Satisfied by the State Court’s Summary Denial of

5

Mr. Jones’s Adequately Pled Claim That He Is Ineligible for the

6

Death Penalty.

7

In his Opening Brief, Mr. Jones detailed the ways in which the state court’s

8

summary denial of Mr. Jones’s prima facie showing that he is ineligible for the

9

death penalty satisfies section 2254(d). Opening Br. at 128-29. As a general

10

matter, the California Supreme Court’s refusal to hear Mr. Jones’s adequately pled

11

claims of constitutional error is contrary to clearly established federal law that

12

prohibits state courts from creating “unreasonable obstacles” to the resolution of

13

federal constitutional claims that are “plainly and reasonably made.” Davis v.

14

Wechsler, 263 U.S. 22, 24-25, 44 S. Ct. 13, 14, 68 L. Ed. 143 (1923); see also

15

Opening Br. at 7-11.

16

allegations and supporting materials in the state court–which the state court was

17

obligated to accept as true–the state court’s ruling that Mr. Jones failed to make any

18

prima facie showing of entitlement to relief, and refusal to initiate proceedings to

19

take evidence and assess the claim, constitutes an unreasonable application of

20

Atkins and other Eighth Amendment authority. See, e.g., Rivera v. Quarterman,

21

505 F.3d 349, 357 (5th Cir. 2007) (holding state court unreasonably rejected prima

22

facie showing of intellectual disability and stating, “Faced only with the threshold

23

question of whether to allow Rivera’s claim to proceed, it was unreasonable on the

24

record before the CCA to reject Rivera’s Atkins claim as failing to even establish a

25

prima facie case – especially when viewed through the prism of Atkins’ command

26

that the Constitution places a substantive restriction on the State’s power to take

27

the life of a mentally retarded offender.”) (internal quotations omitted).

28

Specifically, in light of Mr. Jones’s extensive factual

Respondent’s failure to respond to these arguments constitutes consent to a
237
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

ruling in favor of Mr. Jones on these bases. See, e.g., Stichting, 802 F. Supp. 2d at

2

1132; In re Teledyne, 849 F. Supp. at 1373; Local Civil Rules, L.R. 7-9. Given Mr.

3

Jones’s showing before the state court, he is entitled to an evidentiary hearing in

4

this Court in which he has an opportunity, for the first time, to develop and present

5

evidence to prove his claim and obtain relief.

6

W.

Claim Twenty-Four: California’s Death Penalty Statute Does Not Fulfill

7

the Constitutional Mandate to Narrow the Class of Death-Eligible

8

Defendants.

9

Mr. Jones satisfied state pleading requirements by presenting his claim that

10

the California death-penalty statute fails to meaningfully narrowing the categories

11

of person eligible for a death sentence with sufficient detail and supporting factual

12

material to establish a prima facie showing that he was entitled to relief. See, e.g.,

13

Duvall, 9 Cal. 4th at 474. In the state court, Mr. Jones presented comprehensive

14

studies examining the application of the California death-penalty statute and

15

legislative history materials demonstrating that, far from narrowing the scope of

16

capital punishment, the death-penalty statute applies to virtually all first-degree

17

murders and thus permits the imposition of death sentences in an arbitrary and

18

capricious manner. State Pet. at 383-408. Rather than address the legal and factual

19

issues raised in the claim, the California Supreme Court denied the claim based on

20

its mistaken assumption that the United States Supreme Court previously rejected

21

such a challenge. Opening Br. at 138-40.

22

Respondent concedes that “for a capital sentencing scheme to pass

23

constitutional muster, it must perform a narrowing function with respect to the

24

class of persons eligible for the death penalty.” Opp. at 157. Respondent further

25

does not contest the factual presentation presented in the California Supreme Court

26

and this Court. Instead, respondent’s sole argument why 28 U.S.C. section 2254(d)

27

bars merits review of this claim is his assertion that the United States Supreme

28

Court “has never held that there is a constitutional limit on the number and scope
238
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

of special circumstances that can be included in a death penalty statute. Therefore,

2

the California Supreme Court reasonably rejected Petitioner’s claim that

3

California’s death penalty is insufficiently narrow.” Opp. at 157-58. In so doing,

4

respondent fails to offer any reasoning underlying the California Supreme Court’s

5

decision or contest the analysis contained in the Opening Brief regarding the basis

6

for the state court’s decision.

7

As detailed in the Opening Brief, the California Supreme Court denied Mr.

8

Jones’s narrowing claim because it mistakenly believed that the United States

9

Supreme Court fully resolved the constitutionality of the Briggs Initiative in Pulley

10

v. Harris, 465 U.S. 37, 104 S. Ct. 871, 79 L. Ed. 2d 29 (1984), and Tuilaepa v.

11

California, 512 U.S. 967, 973, 114 S. Ct. 2630, 129 L. Ed. 2d 750 (1994).

12

Opening Br. at 138-40. The California Supreme Court repeatedly has relied on

13

these decisions in rejecting narrowing claims in published opinions before and

14

after its summary decision in Mr. Jones’s case. See, e.g., Opening Br. at 138-39

15

(collecting cases).94 Unquestionably, this was the reasoning used in Mr. Jones’s

16
17
18
19
20
21
22
23
24
25
26
27
28

94

See also People v. Jennings, 50 Cal. 4th 616, 648-49, 114 Cal. Rptr. 3d 133
(2010) (stating the United States Supreme Court “has held that California’s
requirement of a special circumstance finding ‘adequately limits the death
sentence to a small sub-class of capital-eligible cases’”) (quoting Harris, 465 U.S.
at 53)); People v. Beames, 40 Cal. 4th 907, 933-34, 55 Cal. Rptr. 3d 865 (2007)
(rejecting the defendant’s narrowing claim by citing to Tuilaepa, 512 U.S. at 97172, for the proposition that “the special circumstances listed in section 190.2
apply only to a subclass of murderers, not to all murderers . . . [thus] there is no
merit to defendant’s contention . . . that our death penalty law is impermissibly
broad”); People v. Bacigalupo, 6 Cal. 4th 457, 467, 24 Cal. Rptr. 2d 808 (1993)
(holding that “California’s 1978 death penalty statute is essentially identical to
California’s 1977 death penalty law the United States Supreme Court upheld in
Pulley v. Harris [citations omitted] in that it ‘requir[es] the jury to find at least one
special circumstance beyond a reasonable doubt,’ thereby ‘limit[ing] the death
sentence to a small subclass’ of murders.”); People v. Whitt, 51 Cal. 3d 620, 65960, 274 Cal. Rptr.252 (1990) (rejecting defendant’s claim there is no
“meaningful” distinction between capital and noncapital murderers because of
239
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

continued…
Case No. CV-09-2158-CJC

1

case because the California Supreme Court was bound by these published

2

decisions unless it issued an order to show cause and corrected the misstatement of

3

law in a published opinion.95 See section II.C., supra.

4

Deference under 28 U.S.C. section 2254(d) cannot be afforded to a state

5

court decision that fails to properly address the merits of a claim because it

6

mistakenly believes that the United States Supreme Court has foreclosed the issue.

7

See, e.g., Taylor v. Workman, 554 F.3d 879, 887 (10th Cir. 2009) (finding state

8

court decision “contrary to” federal law because its analysis was “inconsistent with

9

the inquiry demanded by” relevant precedent); Frantz v. Hazey, 533 F.3d 724, 734

10

(9th Cir. 2008) (“[M]istakes in reasoning or in predicate decisions of the type in

11

question here—use of the wrong legal rule or framework—do constitute error

12

under the ‘contrary to’ prong of § 2254(d)(1).”); Brumley v. Wingard, 269 F.3d 629,

13

638-39 (6th Cir. 2001) (finding section 2254(d) did not bar relief when “the

14

difficulty with the state courts’ decisions is not with their application of [Ohio v.

15
16
17
18
19
20
21
22
23
24
25
26
27
28

aggravating sentencing factors common to most murders by citing Harris and
stating “California’s statute satisfies the Eighth Amendment’s requirement that the
category of death-eligible murderers by suitably narrowed”).
95

Indeed, respondent urged the California Supreme Court to continue to
apply this line of reasoning in Mr. Jones’s case. In his Informal Response,
respondent argued that Court should reject the narrowing claim based on the
reasoning in People v. Bolden, 29 Cal. 4th 515, 567, 127 Cal. Rptr. 2d 802 (2002).
In Bolden, the state court simply relied on its previous decision in People v. Kipp,
26 Cal. 4th 1100, 113 Cal. Rptr. 2d 27 (2001), which in turn relied on the
reasoning in People v. Mendoza, 24 Cal. 4th 130, 191-92, 99 Cal. Rptr. 2d 485
(2000). The decision in Mendoza, 24 Cal. 4th at 191-92, relies on People v.
Crittenden, which expressly contains the misapplication of Harris. People v.
Crittenden, 9 Cal. 4th 83, 154-56, 36 Cal. Rptr. 2d 474 (1994) (reasoning that the
U.S. Supreme Court upheld the constitutionality of the 1977 Law’s special
circumstances in Pulley v. Harris and concluding that the 1978 Law’s special
circumstances play an “essentially identical” role in “thereby limiting the death
sentence to a small subclass of murders,” apparently despite the “greatly
expanded” number of special circumstances).
240
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

Roberts, 448 U.S. 56 (1980)], but rather their refusal to apply Roberts at all”).

2

Indeed, “[o]ne of the most obvious ways a state court may render a decision

3

‘contrary to’ the Supreme Court’s precedent is when it sets forth the wrong legal

4

framework.” Goodman v. Bertrand, 467 F.3d 1022, 1028 (7th Cir. 2006) (quoting

5

Van Patten v. Deppisch, 434 F.3d 1038, 1042 n.2 (7th Cir. 2006).

6

Moreover, respondent is incorrect in his unsupported assertion that the

7

United States Supreme Court has not established controlling law governing this

8

claim. The Supreme Court articulated the guiding principles that govern this claim

9

first in Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972),

10

and again in a series of cases in which the Court consistently held that to “pass

11

constitutional muster, a capital sentencing scheme must ‘genuinely narrow the

12

class of persons eligible for the death penalty and must reasonably justify the

13

imposition of a more severe sentence on the defendant compared to others found

14

guilty of murder.’” Tuilaepa, 512 U.S. at 982 (1994) (Stevens, J., concurring)

15

(quoting Lowenfield v. Phelps, 484 U.S. 231, 244, 108 S. Ct. 546, 98 L. Ed. 2d 568

16

(1988), and Zant v. Stephens, 462 U.S. 862, 877, 103 S. Ct. 2733, 77 L. Ed. 2d 235

17

(1983)); see also Arave v. Creech, 507 U.S. 463, 474, 113 S. Ct. 1534, 123 L. Ed.

18

2d 188 (1993). In Furman and the companion cases, the Court held that Georgia’s

19

and Texas’s death penalty statutes violated the Eighth and Fourteenth Amendment

20

proscriptions against cruel and unusual punishment. Furman, 408 U.S. at 239 (per

21

curiam); id. at 386 n.11 (Burger, C.J., dissenting). The opinions of several Justices

22

concurring in the judgment concluded that statutes that allowed the infrequent and

23

seemingly random imposition of the death penalty upon only a small percentage of

24

death-eligible criminal defendants violated the prohibition against cruel and

25

unusual punishment because they permitted the death penalty “to be so wantonly

26

and freakishly imposed.” Id. at 309-10 (Stewart, J., concurring), 313 (White, J.,

27
28
241
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

concurring).96

2

Furman and its progeny made clear that the Eighth Amendment demands

3

that the legislature set forth standards and criteria to regulate its state capital

4

sentencing system to avoid an unconstitutional pattern of arbitrary and capricious

5

sentences. See, e.g., Gregg v. Georgia, 428 U.S. 153, 189, 96 S. Ct. 2909, 49 L.

6

Ed. 2d 859 (1976) (plurality opinion) (“Furman mandates that where discretion is

7

afforded a sentencing body on a matter so grave as the determination of whether a

8

human life should be taken or spared, that discretion must be suitably directed and

9

limited so as to minimize the risk of wholly arbitrary and capricious action”). As

10

Justice Scalia has explained, these principles are well established:

11

Since the 1976 cases, we have routinely read Furman as standing for

12

the proposition that “channelling and limiting . . . the sentencer’s

13

discretion in imposing the death penalty” is a “fundamental

14

constitutional requirement,” and have insisted that States furnish the

15

sentencer with “‘clear and objective standards’ that provide ‘specific

16

and detailed guidance,’ and that ‘make rationally reviewable the

17

process for imposing a sentence of death[.]’”

18

Walton v. Arizona, 497 U.S. 639, 660, 110 S. Ct. 3047, 111 L. Ed. 2d 571 (1990)

19

(Scalia, J., concurring) (quoting Maynard v. Cartwright, 486 U.S. 356, 362, 108 S.

20

Ct. 1853, 100 L. Ed. 2d 372 (1988), and Godfrey v. Georgia, 446 U.S. 420, 428,

21

100 S. Ct. 1759, 64 L. Ed. 2d 398 (1980)), overruled on other grounds by Ring v.

22
23
24
25
26
27
28

96

The data before the Court in Furman was that “from 15% to 20% of those
convicted of murder are sentenced to death in States where it is authorized.”
Furman, 408 U.S. at 386 n.11 (Burger, C.J., dissenting). The Court considered
data regarding the ratio of cases in which death sentences were imposed to cases
in which death was a statutorily permissible punishment as well as data regarding
the ratio of cases in which death sentences were imposed to cases that were
charged capitally. See id. at 386 n.11 (Burger, C.J., dissenting), 435 n.19 (Powell,
J., dissenting).
242
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002).

2

Respondent cites to the Ninth Circuit’s decision in Mayfield v. Woodford,

3

270 F.3d 915, 924 (9th Cir. 2001), to support his view that the California statute is

4

immune from a narrowing challenge. Opp. at 158. Respondent’s reliance on

5

Mayfield, however, is unavailing.

6

In Mayfield, an en banc panel of the Ninth Circuit declined to grant a

7

certificate of appealability on the narrowing claim, thus reaffirming the three-judge

8

panel’s previous affirmance of the district court’s denial of habeas relief on this

9

ground. Mayfield, 270 F.3d at 919. Petitioner proffered no evidence in support of

10

his narrowing claim to the district court. See Mayfield v. Calderon, No. CV 94-

11

6001, 1997 WL 778685 at *23 (C.D. Cal. Oct. 27, 1997) (“The United States

12

Supreme Court and the Ninth Circuit have consistently upheld both the 1977 and

13

1978 versions of the California death penalty statute and, without presenting

14

additional facts or law, petitioner has failed to establish that he is entitled to relief

15

on this claim.”). As such, the Ninth Circuit had before it only a facial challenge to

16

the constitutionality of the statute, which the appellate court rejected. “The 1978

17

death penalty statute pursuant to which Mayfield was convicted and sentenced

18

narrows the class of persons eligible for the death penalty at both the guilt and

19

penalty phases.” Mayfield, 270 F.3d at 924. The Ninth Circuit supported this

20

determination with conclusory statements that California’s death penalty scheme

21

conformed to the narrowing requirements set forth in Jurek v. Texas, 428 U.S. 262,

22

270-71, 96 S. Ct. 2950, 49 L. Ed. 2d 929 (1976) (narrowing at guilt phase), and

23

Lowenfield v. Phelps, 484 U.S.at 246 (narrowing at penalty phase). Id. Nowhere

24

in its brief treatment of the claim did the Ninth Circuit address the constitutionality

25

of the statute in operation.

26

Unlike the facial challenge addressed by the Ninth Circuit in Mayfield, the

27

record before the California Supreme Court and this Court contains extensive

28

expert testimony about the broad scope of the California death penalty scheme, as
243
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

applied, as well as undisputed testimony concerning the lack of legislative

2

consideration of any narrowing requirement in its creation. Thus, the decision in

3

Mayfield is irrelevant to whether Mr. Jones stated a prima facie case and is entitled

4

to an evidentiary hearing. See Sanders v. Woodford, No. 01-99017 (9th Cir. July

5

30, 2002) (order) (granting certificate of appealability on narrowing claim despite

6

the decision in Mayfield); Order Denying Resp’t’s Mot. for Leave to File Mot. to

7

Reconsider Order Re: Evidentiary Hr’g, Doc. No. 315, Ashmus v. Martel, No.

8

3:93-cv-00594-TEH (Mar. 6, 2003) (holding that Mayfield did not bar evidentiary

9

hearing on narrowing claim).

10

X.

Claim Twenty-Five: Unconstitutional Discrimination Affected the

11

Charging and Prosecution of Mr. Jones.

12

In state court, Mr. Jones alleged that his death sentence was rendered in

13

violation of his right to a reliable, rational non-arbitrary determination of guilt and

14

penalty as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to

15

the United States Constitution because the Los Angeles District Attorney’s

16

(“District Attorney”) decision to charge him capitally and pursue the death penalty

17

was the result of invidious discrimination based on race, gender, and economic

18

status. State Pet. at 409-15; Inf. Reply at 363-65. Specifically, Mr. Jones alleged

19

that at the time of his trial, black defendants were prosecuted capitally at a

20

disproportionately higher rate compared to white defendants and that the ultimate

21

decision-maker in the office was white. State Pet. at 410-11. Mr. Jones also

22

alleged that the District Attorney had a pattern and practice of gender

23

discrimination between 1977 and 1995, including in this case; this pattern and

24

practice is consistent with empirical studies indicating the widespread presence of

25

constitutionally impermissible gender bias in charging decisions. State Pet. at 411-

26

12. In addition, Mr. Jones claimed that during the period 1977-95, the Los Angeles

27

County District Attorney’s Office used economic status as a criterion in its

28

charging decision regarding the identification of cases in which to seek a penalty of
244
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

death, including the decision to charge petitioner. State Pet. at 412-13.

2

The California Supreme Court’s ruling that Mr. Jones failed to make any

3

prima facie showing of entitlement to relief constitutes an unreasonable application

4

of controlling federal law. Mr. Jones established a denial of equal protection by

5

demonstrating that the District Attorney was selectively prosecuting people “based

6

on an unjustifiable standard” of race, gender, and “other arbitrary classification.”

7

Oyler v. Boles, 368 U.S. 448, 456, 82 S. Ct. 501, 7 L. Ed. 2d 446 (1962); see also

8

Wayte v. United States, 470 U.S. 598, 608, 105 S. Ct. 1524, 1531, 84 L. Ed. 2d 547

9

(1985) (same). It is well established that “the decision to prosecute may not be

10

deliberately based upon an unjustifiable standard such as race, religion, or other

11

arbitrary classification.” Wayte, 470 U.S. at 608 (internal quotations omitted); see

12

also United States v. Armstrong, 517 U.S. 456, 464, 116 S. Ct. 1480, 134 L. Ed. 2d

13

687 (1996). This equal protection violation is established by demonstrating that

14

the prosecution “had a discriminatory effect and that it was motivated by a

15

discriminatory purpose.” Armstrong, 517 U.S. at 465 (ruling that discriminatory

16

effect based on race may be established by a showing that “similarly situated

17

individuals of a different race were not prosecuted”); see also McCleskey v. Kemp,

18

481 U.S. 279, 292, 107 S. Ct. 1756, 95 L. Ed. 2d 262 (1987). Evaluating an equal

19

protection violation “demands a sensitive inquiry into such circumstantial and

20

direct evidence of intent as may be available.” Vill. of Arlington Heights v. Metro.

21

Hous. Dev. Corp., 429 U.S. 252, 266, 97 S. Ct. 555, 50 L. Ed. 2d 450 (1977).

22

Respondent asserts that the California Supreme Court’s summary denial of

23

this claim was reasonable because Mr. Jones’s statistical showing was not

24

sufficient to establish discrimination in his case. Opp. at 159 (quoting McCleskey,

25

481 U.S. at 297).

26

discriminatory charging, but rather one of discriminatory outcome in the entire

27

process. McCleskey, 481 at 292 (“In its broadest form, McCleskey’s claim of

28

discrimination extends to every actor in the Georgia capital sentencing process,
245

The decision in McCleskey did not involve a claim of

Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

from the prosecutor who sought the death penalty and the jury that imposed the

2

sentence, to the State itself that enacted the capital punishment statute and allows it

3

to remain in effect despite its allegedly discriminatory application.”). The Court’s

4

comments on the statistical evidence present in McCleskey, and cited by

5

respondent (Opp. at 159) must be “viewed in the context of his challenge.” 481

6

U.S. at 297. When a challenge is brought against specific decision makers – as in

7

this case with a challenge to the Los Angeles District Attorney – statistical

8

evidence is sufficient to establish a prima facie case. See, e.g., Armstrong, 517

9

U.S. at 464; People v. Ochoa, 165 Cal. App. 3d 885, 888, 212 Cal. Rptr. 4 (1985)

10

(“The best evidence of discriminatory prosecution would be a comparative

11

breakdown by race of inmates who are referred to the district attorney for

12

prosecution versus those who are actually prosecuted on weapons charges.”).97

13

Y.

Claim Twenty-Six: International Law Bars the Execution of Mentally

14

Disordered Individuals Such as Mr. Jones.

15

In state court, Mr. Jones alleged that customary international law and jus

16

cogens prohibit the imposition of the death penalty on mentally disordered

17

individuals. Such international law is part of United States federal law and is, thus,

18

the supreme law of the land under Article VI, section 2 of the Constitution of the

19

United States. Because Mr. Jones is mentally disordered, his execution would

20

violate international customary law and the obligations of the United States under

21
22
23
24
25
26
27
28

97

Respondent’s assertion that merits review of this claim is barred by the
procedural default doctrine is foreclosed for the reasons stated in Section III,
supra. In addition, trial counsel’s failure to object to invidious discrimination by
the prosecution constitutes ineffective assistance of counsel. See, e.g., Hollis v.
Davis, 941 F.2d 1471, 1478 (11th Cir. 1991); Williams v. Woodford, 396 F.3d
1059, 1070-72 (9th Cir. 2005) (Rawlinson, J., dissenting from denial of rehearing
en banc) (ineffective assistance of counsel was made out by counsel’s failure to
object to the prosecutor’s discriminatory strikes resulting in African-American
defendant’s being tried by an all-white jury).
246
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

that law. State Pet. at 416-24; Inf. Reply at 366-68. Specifically, the imposition of

2

a judgment of conviction and sentence of death on an individual suffering the

3

mental disorders that afflict Mr. Jones violates fundamental notions of due process

4

and human dignity, and offends any acceptable standard of civilized behavior.

5

According to the Supreme Court, “International law is part of our law, and

6

must be ascertained and administered by the court of justice of appropriate

7

jurisdiction as often as questions of right depending upon it are duly presented for

8

their determination.” The Paquete Habana, 175 U.S. 677, 700, 20 S. Ct. 290, 44

9

L. Ed. 320 (1900); see also Restatement (Third) Of Foreign Relations Law Of The

10

United States § 111 (1987) (“International law and international agreements of the

11

United States are law of the United States and supreme over the law of the several

12

States.”); id. at § 702 cmt. c (“[T]he customary law of human rights is part of the

13

law of the United States to be applied as such by state as well as federal courts.”).

14

Furthermore, under the Supremacy Clause, customary law trumps state law. See

15

Zschernig v. Miller, 389 U.S. 429, 441, 88 S. Ct. 664, 19 L. Ed. 2d 683 (1968);

16

Clark v. Allen, 331 U.S. 503, 508, 67 S. Ct. 1431, 91 L. Ed. 1633 (1947); Missouri

17

v. Holland, 252 U.S. 416, 433-35, 40 S. Ct. 382, 64 L. Ed. 641 (1920). The states,

18

under the Articles of Confederation, had applied international law as common law,

19

but with the signing of the United States Constitution, “the law of nations became

20

preeminently a federal concern.” Filartiga v. Pena-Irala, 630 F.2d 876, 877-78 (2d

21

Cir. 1980). “[I]t is now established that customary international law in the United

22

States is a kind of federal law, and like treaties and other international agreements,

23

it is accorded supremacy over state law by Article VI of the Constitution.” Louis

24

Henkin, et al., International Law, Cases And Materials 164 (3d ed. 1993); see also

25

Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 425, 84 S. Ct. 923, 11 L. Ed.

26

2d 804 (1964) (finding international law to be federal law).

27

Citing to Rowland v. Chappell, 902 F. Supp. 2d 1296, 1339 (N.D. Cal.

28

2012), respondent asserts that Mr. Jones’s international law claim is not cognizable
247
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

on federal habeas corpus review. Opp. at 160. In that case, the petitioner alleged a

2

death sentence carried out via lethal gas or lethal injection constituted cruel and

3

unusual punishment under international law, specifically the International

4

Covenant of Civil and Political Rights. The court’s ruling in that case focused on

5

the petitioner’s inability “to demonstrate that the International Covenant of Civil

6

and Political Rights creates a form of relief enforceable in United States courts.”

7

Id. By contrast, Mr. Jones’s claim is that the imposition of the death penalty on

8

him as a mentally disordered offender is a violation of international law, which is

9

enforceable in habeas corpus proceedings.

10

As an initial matter, it is well established that a determination of the scope of

11

basic rights set forth in the state and federal constitutions must be informed by

12

international norms and consensus. See, e.g., Roper v. Simmons, 543 U.S. 551,

13

578, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005) (acknowledging, in holding that

14

capital punishment of juveniles under eighteen violates the Eighth Amendment’s

15

prohibition against cruel and unusual punishment, “the overwhelming weight of

16

international opinion against the juvenile death penalty” and stating the “opinion of

17

the world community, . . . does provide respected and significant confirmation of

18

our own conclusions”); Lawrence v. Texas, 539 U.S. 558, 572-73, 123 S. Ct. 2472,

19

156 L. Ed. 2d 508 (2003) (recognizing opinions expressed by European nations

20

and European Court of Human Rights opposing criminalization of sodomy as

21

important support for its decision that Texas law criminalizing sodomy violated

22

Due Process Clause of the Fourteenth Amendment); Gruter v. Bollinger, 539 U.S.

23

306, 344, 123 S. Ct. 2325, 156 L. Ed. 2d 304 (2003) (Ginsburg, J., concurring)

24

(citing Convention on the Elimination of All Forms of Racial Discrimination as

25

support for permitting use of affirmative action in law schools); Atkins v. Virginia,

26

536 U.S. 304, 316 n.21, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002) (explaining, in

27

determining that a “national consensus” had developed against execution of

28

mentally retarded and holding such executions unconstitutional under Eighth
248
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

Amendment, that Court was influenced by fact that “within the world community,

2

the imposition of the death penalty for crimes committed by mentally retarded

3

offenders is overwhelmingly disapproved”).

4

Nations throughout the world have adopted the norm that the execution of

5

mentally disordered individuals is morally intolerable.

At least 141 nations

6

presently prohibit the execution of the mentally disordered. Amnesty Int’l, Death

7

Penalty Facts 3 (May 2012), available at http://www.amnestyusa.org/pdfs/

8

DeathPenaltyFactsMay2012.pdf (lasted visited Jan. 27, 2014) The bodies and

9

agencies of the United Nations competent to make such determinations have

10

unanimously attested to this norm. In 1984, the United Nations Economic and

11

Social Council (ECOSOC) adopted standards relating to capital punishment that

12

state, inter alia, “nor shall the death sentence be carried out on pregnant women, or

13

on new mothers, or on persons who have become insane.” ECOSOC, Safeguards

14

Guaranteeing the Protection of the Rights of Those Facing the Death Penalty,

15

ECOSOC Res. 1984/50 U.N. Doc. E/1984/84 (May 15, 1984) (emphasis added).

16

The United Nations General Assembly endorsed these safeguards that same year.

17

See G.A. Res. 39/118 ¶¶ 2, 5, U.N. Doc. A/39/51 (Dec. 14, 1984). In 1989, the

18

ECOSOC expanded these standards and recommended that “Member States take

19

steps to implement the safeguards . . . where applicable by: eliminating the death

20

penalty for persons suffering from mental retardation or extremely limited mental

21

competence, whether at the stage of sentence or execution.”

22

Implementation of Safeguards Guaranteeing the Protection of the Rights of Those

23

Facing the Death Penalty, ¶ 1(d), ECOSOC Res. 1989/64, U.N. Doc. E/1989/91

24

(May 24, 1989).

ECOSOC,

25

Various international bodies around the world have endorsed this norm

26

through resolutions and protocols. On June 25, 2001, the Parliamentary Assembly

27

of the Council of Europe adopted a resolution condemning the execution of

28

mentally disordered persons, stating, “The Assembly condemns all executions,
249
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

wherever they are carried out.

However, it is particularly disturbed about

2

executions carried out in Observer states which have committed themselves to

3

respect human rights. The Assembly condemns the execution . . . of offenders

4

suffering from mental illness or retardation . . . .”

5

Council of Europe, Abolition of the Death Penalty in Council of Europe Observer

6

States, Resolution 1253 (June 25, 2001), available at http://assembly.coe.int/nw/

7

xml/XRef/Xref-XML2HTML-en.asp?fileid=16922& lang=en (last visited Jan. 27,

8

2014).98

Parliamentary Assembly,

9

The United Nations Commission on Human Rights has officially held that

10

the continued use of the death penalty against mentally disordered individuals in

11

the United States is a violation of international law. From 1999 until it was

12

replaced by the Human Rights Council in 2006, the United Nations Commission

13

on Human Rights specifically urged “all States that still maintain the death

14

penalty . . . [n]ot to impose the death penalty on a person suffering from any forms

15

of mental disorder or to execute any such person.” U.N. Human Rights Comm’n,

16

The Question of the Death Penalty, 61st Sess., Res. 2005/59, U.N. Doc. E/CN.4 /

17

2005/59 (2005); U.N. Human Rightss Comm’n, The Question of the Death

18

Penalty, 60th Sess., Res. 2004/67, U.N. Doc. E/CN.4/RES 2004/67 (2004); U.N.

19

Human Rights Comm’n, The Question of the Death Penalty, 59th Sess., Res.

20

2003/67, U.N. Doc. E/CN.4/RES/2003/67 (2003); U.N. Human Rights Comm’n,

21

The Question of the Death Penalty, 58th Sess., Res. 2002/77, U.N. Doc.

22

E/CN.4/2002/77 (2002); U.N. Human Rights Comm’n, The Question of the Death

23

Penalty, 57th Sess., Res. 2001/68, U.N. Doc. E/CN.4/RES/2001/68 (2001); U.N.

24

Human Rights Comm’n, The Question of the Death Penalty, 56th Sess., Res.

25
26
27
28

98

The Council of Europe is comprised of forty-seven countries from the
European continent. The United States is one of six countries currently enjoying
Observer status on the council. See http://hub.coe.int/ (last visited Jan. 27, 2014).
250
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

200/65, U.N. Doc. E/CN.4/RES/2000/65 (2000); U.N. Human Rights Comm’n,

2

The Question of the Death Penalty, 55th Sess., Res. 1999/61, U.N. Doc.

3

E/CN.4/RES/1999/61 (1999). Beginning in 2007, the United Nations General

4

Assembly called for a moratorium on the execution of all persons because of its

5

concern about consistency with international law. See Moratorium on the Use of

6

the Death Penalty, G.A. Assembly, 62d Sess., Res. 62/149, U.N. Doc.

7

A/RES/62/149 (2007).

8

As demonstrated throughout the state petition, Mr. Jones suffers from severe,

9

debilitating mental impairments to the extent that imposition of the death penalty

10

under these circumstance violates the Convention Against Torture and Other Cruel,

11

Inhuman, or Degrading Treatment or Punishment (CAT) (Articles 1, 2, 11, and 16);

12

the International Covenant on Civil and Political Rights (Articles 2, 4, 6, 7, 14, and

13

26); and the Universal Declaration of Human Rights (Articles 1, 2, 3, 5, 7, and 11).

14

His death sentence therefore violates binding customary international law and jus

15

cogens and is unlawful.

16

This claim was not procedurally defaulted, and respondent did not present

17

factual materials or legal argument in state court to establish that Mr. Jones’s prima

18

facie showing should not be taken as true or that it otherwise lacked merit. Under

19

these circumstances, the state court was required to issue an order to show cause

20

and allow Mr. Jones access to state processes to develop and present evidence to

21

prove his claim. See, e.g,. Duvall, 9 Cal. 4th at 475; Romero, 8 Cal. 4th at 742. By

22

instead summarily denying Mr. Jones’s claim, the California Supreme Court’s

23

decision satisfies section 2254(d).

24

Z.

Claim Twenty-Seven: Mr. Jones’s Constitutional Rights Would Be

25

Violated by Execution Following a Long Period of Confinement Under a

26

Sentence of Death.

27

In state court, Mr. Jones alleged that his death sentence was rendered in

28

violation of his right to a reliable, rational non-arbitrary determination of guilt and
251
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

penalty as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to

2

the United States Constitution because the California death penalty post-conviction

3

procedures failed to provide him with a constitutionally full, fair, and timely

4

review of his conviction and sentence. App. Opening Br. at 229-43; App. Reply

5

Br. at 100. Specifically, Mr. Jones was sentenced to death on February 16, 1995.

6

More than four years passed before the California Supreme Court appointed

7

counsel on April 13, 1999, to represent Mr. Jones on appeal. Mr. Jones’s Opening

8

Brief was filed more than two years later on June 19, 2001. Respondent’s Brief on

9

appeal was filed on November 6, 2001, and Appellant’s Reply Brief was filed on

10

February 26, 2002. Mr. Jones’s conviction and sentence were affirmed by the

11

California Supreme Court on March 17, 2003, and his petition for a writ of

12

certiorari to the United States Supreme Court was denied on October 14, 2003,

13

over eight years after he was sentenced to death. Mr. Jones’s state habeas petition

14

was filed on October 21, 2002. His state habeas petition was denied by the

15

California Supreme Court on March 11, 2009, fourteen years after he was

16

sentenced to death. Mr. Jones was received at San Quentin on April 24, 1995, and

17

assigned to Death Row, where he currently lives. Since Mr. Jones’s confinement at

18

San Quentin in 1995, fourteen men have been executed, twenty-three more

19

committed suicide, and sixty-eight more have died of natural causes or other

20

means.

21

unprecedented publicity has focused on the torturous nature of the method of

22

execution currently employed in California.

During this time, several of the executions have been botched, and

23

Respondent contends that Mr. Jones’s claim that the execution of a prisoner

24

after a lengthy period of confinement on death row violates the Eighth Amendment

25

prohibition against the imposition of cruel and unusual punishment is not grounded

26

in clearly established federal law as set forth by the United States Supreme Court

27
28
252
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

and therefore “the California Supreme Court reasonably rejected the claim.” Opp.

2

at 162.99 Respondent is incorrect, and the state court’s refusal to acknowledge, let

3

alone apply, well established Eighth Amendment jurisprudence is contrary to and

4

an unreasonable application of controlling federal law. See, e.g., Frantz v. Hazey,

5

533 F.3d 724, 734 (9th Cir. 2008) (“[M]istakes in reasoning or in predicate

6

decisions of the type in question here—use of the wrong legal rule or framework—

7

do constitute error under the ‘contrary to’ prong of § 2254(d)(1).”); Goodman v.

8

Bertrand, 467 F.3d 1022, 1028 (7th Cir. 2006) (“One of the most obvious ways a

9

state court may render its decision ‘contrary to’ the Supreme Court’s precedent is

10

when it sets forth the wrong legal framework.”).

11

Mr. Jones’s claim is clearly grounded in federal law interpreting the Eighth

12

Amendment’s prohibition on cruel and unusual punishment as established by the

13

United States Supreme Court. Lackey v. Texas, 514 U.S. 1045, 115 S. Ct. 1421,

14

131 L. Ed. 2d 304 (1995) (Stevens, J., memorandum respecting denial of certiorari)

15

(“petitioner’s claim is not without foundation”). Under firmly established federal

16

law, a death sentence passes constitutional muster under the Eighth Amendment

17

only when “it comports with the basic concept of human dignity at the core of the

18

Amendment.” Gregg v. Georgia, 428 U.S. 153, 182, 96 S. Ct. 2909, 49 L. Ed. 2d

19

859 (1976). “[P]unishments of torture, . . . and all others in the same line of

20

unnecessary cruelty, are forbidden” under the Eighth Amendment. Wilkerson v.

21

Utah, 99 U.S. 130, 134, 25 L. Ed. 345 (1879); see also id. at 135 (noting that

22

executions in which the condemned prisoner was “emboweled alive, beheaded, and

23

quartered” or “burn[ed] alive” are prohibited by the Eighth Amendment); cf. Baze

24
25
26
27
28

99

Respondent’s argument is that this claim is barred by Teague v. Lane, 489
U.S. 288, 109 S. Ct. 1060, 103 L .Ed. 2d. 334 (1989).” Opp. at 161. The Teague
doctrine limits this Court’s ability to grant relief apart from 28 U.S.C. section
2254(d) and thus it is not relevant to this stage of the proceedings. See n.1, supra.
253
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

v. Rees, 553 U.S. 35, 128 S. Ct. 1520, 170 L. Ed. 2d 420 (2008) (holding that a

2

method of execution that does not pose a “substantial risk of serious harm” does

3

not violate the Eighth Amendment).

4

constitutionally prohibited when the punishment is “so totally without penological

5

justification that it results in the gratuitous infliction of suffering.” Gregg, 428

6

U.S. at 183. In addition, under clearly established federal law, if a death sentence

7

does not serve a legitimate penological purpose, such as retribution or deterrence

8

of criminal behavior, it is “‘excessive’ and unconstitutional.” Coker v. Georgia,

9

433 U.S. 584, 592, 97 S. Ct. 2861, 53 L. Ed. 2d 982 (1977); see also, e.g., Atkins v.

10

Virginia, 536 U.S. 304, 318-19, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002) (barring

11

death penalty for mentally retarded offenders in part because “there is serious

12

question as to whether either [retribution or deterrence] applies to mentally

13

retarded offenders”); Roper v. Simmons, 543 U.S. 551, 572, 125 S. Ct. 1183, 161 L.

14

Ed. 2d 1 (2005) (barring death penalty for juveniles under eighteen because

15

“neither retribution nor deterrence provides adequate justification for imposing the

16

death penalty on juvenile offenders”).

17

dictates that death sentences that result in torture or that lack legitimate penological

18

justification are unconstitutional and cannot stand.

Imposition of a death sentence is

Thus, clearly established federal law

19

The United States Supreme Court has concluded that lengthy periods of

20

confinement can be torturous. In re Medley, 134 U.S. 160, 172, 10 S. Ct. 384, 33

21

L. Ed. 835 (1890) (describing the period between the sentence of death and the

22

execution – in that case a mere four weeks – as engendering “immense mental

23

anxiety”); see also Furman v. Georgia, 408 U.S. 238, 288-89, 92 S. Ct. 2726, 33 L.

24

Ed. 2d 346 (1972) (Brennan, J., concurring) (noting the “frightful toll” exacted

25

“between the imposition of sentence and the actual infliction of death”). Justices

26

of the United States Supreme Court have expressed no reluctance to apply these

27

well-established principles in individual cases, opining that protracted periods of

28

incarceration under sentence of death serve no legitimate penological purpose.
254
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

See, e.g., Johnson v. Bredesen, 558 U.S. 1067, 130 S. Ct. 541, 542, 175 L. Ed. 2d

2

552 (2009) (Stevens, J., dissenting) (noting that the petitioner had been confined

3

under sentence of death for 29 years, that the delay was at least in part attributable

4

to state action, and that “both the conditions of confinement and the nature of the

5

penalty itself” were “constitutionally significant”); Thompson v. McNeil, 556 U.S.

6

1114, 129 S. Ct. 1299, 1300 (2009) (Stevens, J., dissenting from denial of

7

certiorari) (“[O]ur experience during the past three decades has demonstrated that

8

delays in state-sponsored killings are inescapable and that executing defendants

9

after such delays is unacceptably cruel.”); Foster v. Florida, 537 U.S. 990, 123 S.

10

Ct. 470, 471, 154 L. Ed. 2d 359 (2002) (Breyer, J., dissenting) (“the combination

11

of uncertainty of execution and long delay is arguably ‘cruel.’”); Knight v. Florida,

12

528 U.S. 990, 120 S. Ct. 459, 461, 145 L. Ed. 2d 370 (1999) (Breyer, J.,

13

dissenting) (“Where a delay, measured in decades, reflects the State’s own failure

14

to comply with the Constitution’s demands, the claim that time has rendered the

15

execution inhuman is a particularly strong one.”); Elledge v. Florida, 525 U.S. 944,

16

944, 119 S. Ct. 366, 142 L. Ed. 2d 303 (1998) (Breyer, J., dissenting) (opining that

17

a death row confinement of 23 years is “unusual” and “may prove particularly

18

cruel” and that “[a]fter such a delay, an execution may well cease to serve the

19

legitimate penological purposes that otherwise provide a necessary constitutional

20

justification for the death penalty”). Thus, the state court could not reasonably

21

conclude that Mr. Jones was entitled to relief.

22

To the extent, however, that the factual bases for this claim continue to

23

develop, adjudication of the claim is premature.

24

AA. Claim Twenty-Eight: Mr. Jones Received Ineffective Assistance of

25

Counsel on Appeal.

26

In state court, Mr. Jones alleged that his death sentence was rendered in

27

violation of his right to a reliable, rational non-arbitrary determination of guilt and

28

penalty as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to
255
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

the United States Constitution due to appellate counsel’s prejudicially unreasonable

2

representation, which fell below minimally acceptable standards of competence by

3

counsel acting as a zealous advocate in a capital case. State Pet. at 375-77; Inf.

4

Reply at 352-54. The California Supreme Court appointed appellate counsel to

5

represent Mr. Jones in his automatic appeal on April 13, 1999. Appellate counsel

6

filed Mr. Jones’s direct appeal brief on June 19, 2001, and the reply brief on

7

February 26, 2002.

8

An indigent criminal appellant is entitled to constitutionally effective

9

assistance by his appointed counsel for his first appeal. Douglas v. California, 372

10

U.S. 353, 354, 356-57, 83 S. Ct. 814, 9 L. Ed. 2d 811 (1963); Evitts, 469 U.S. at

11

396; see also Martinez v. Ryan, 132 S. Ct. 1309, 1317 (2012) (where appellate

12

counsel is ineffective, “the prisoner has been denied fair process”). In a capital

13

case, ineffective assistance of appellate counsel undermines “the crucial role of

14

meaningful appellate review in ensuring that the death penalty is not imposed

15

arbitrarily or irrationally.” Parker v. Dugger, 498 U.S. 308, 321 (1991).

16

The Supreme Court’s decision in Strickland v. Washington, 466 U.S. 668

17

(1984) sets forth the standard for determining whether appellate counsel performed

18

ineffectively. See Smith v. Robbins, 528 U.S. 259, 285, 120 S. Ct. 746, 145 L. Ed.

19

2d 756 (2000). Strickland requires a two-part inquiry into whether (1) counsel’s

20

performance was deficient and (2) the deficient performance prejudiced the

21

defense. Strickland, 466 U.S. at 687. Deficient performance is representation that

22

falls “below an objective standard of reasonableness,” where “reasonableness” is

23

determined by “prevailing professional norms” that are “reflected in American Bar

24

Association standards and the like.” Id. at 688-89; American Bar Association,

25

Guidelines for the Appointment and Performance of Defense Counsel in Death

26

Penalty Cases (2003) (“2003 ABA Guidelines”) 10.15.1; American Bar

27

Association, Guidelines for the Appointment and Performance of Defense Counsel

28

in Death Penalty Cases (1989) (“1989 ABA Guidelines”), Guideline 11.2,
256
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

Commentary to Guideline 1.1; see also Wiggins v. Smith, 539 U.S. 510, 524 (2003)

2

(ruling that ABA Guidelines are “well-defined norms” to which the Court has long

3

referred as guides for determining reasonableness).

4

Prejudice is established where appellate counsel fails to raise an issue on

5

which there is a reasonable probability that the defendant would have prevailed.

6

Strickland, 466 U.S. at 694; Delgado v. Lewis, 223 F.3d 976, 980-81 (9th Cir.

7

2000) (partially overruled on other grounds); In re Smith, 3 Cal. 3d 192, 202-03

8

(1970) (finding prejudice where appellate counsel failed to raise several claims of

9

error “which arguably might have resulted in a reversal”). When this occurs, the

10

petitioner is entitled to habeas relief. Smith, 3 Cal. 3d at 202-03.

11

Omissions by appellate counsel, such as the failure to present all available

12

facts in support of legal claims, the failure to advance legal claims that could have

13

been raised on appeal because they fully appear on the certified record, or the

14

failure to advance every available legal basis for a litigated claim were not the

15

product of a reasonable – or any – tactical decision. See Reagan v. Norris, 279

16

F.3d 651, 656-58 (8th Cir. 2002) (where appellate counsel failed to raise and

17

preserve a viable claim on defendant’s behalf, appellate counsel provided

18

ineffective assistance); Claudio v. Scully, 982 F.2d 798, 804-05 (2d Cir. 1992)

19

(same); see also Gray v. Greer, 800 F.2d 644, 647 (7th Cir. 1985); see also 2003

20

ABA Guidelines, Commentary to Guideline 1.1 (“Appellate counsel must be

21

intimately familiar with technical rules of issue preservation and presentation[.]”);

22

1989 ABA Guidelines, Guideline 11.7.3. The following are meritorious issues for

23

which appellate counsel unreasonably and prejudicially failed to present in Mr.

24

Jones’s direct appeal, and for which the California Supreme Court rejected Mr.

25

Jones’s claim on habeas corpus purportedly because of a procedural bar:

26

 Portions of Claim Three (alleging the prosecution violated

27

petitioner’s federal constitutional rights by failing to disclose

28

material exculpatory evidence);
257
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

 Portions of Claim Seven (alleging trial court violated

2

petitioner’s federal constitutional rights when it abdicated its

3

responsibility to ensure an effective inquiry into prospective

4

juror biases);

5

 Portions of Claim Nine (alleging insufficiency of the evidence);

6

 Portions of Claim Ten (alleging improper admission of

7

propensity evidence);

8

 Claim Twelve (alleging the jury was given incomplete and

9

confusing jury instructions and verdict forms in the guilt

10

phase);

11

 Portions of Claim Fourteen (alleging prosecutorial misconduct);

12

 Portions of Claim Fifteen (alleging insufficient notice of

13
14
15
16
17

aggravators);
 Claim Seventeen (alleging admission of improper victim impact
evidence);
 Claim Twenty-One (alleging the jury was given incomplete and
confusing jury instructions in the penalty phase).

18

This claim was not procedurally defaulted, and respondent did not present

19

factual materials or legal argument in state court to establish that Mr. Jones’s prima

20

facie showing should not be taken as true or that it otherwise lacked merit. Under

21

these circumstances, the state court was required to issue an order to show cause

22

and allow Mr. Jones access to state processes to develop and present evidence to

23

prove his claim. See, e.g,. Duvall, 9 Cal. 4th at 475; Romero, 8 Cal. 4th at 742. By

24

instead summarily denying Mr. Jones’s claim, the California Supreme Court’s

25

decision satisfies section 2254(d). See, e.g., Farina v. Sec’y, 536 Fed. Appx 966,

26

976-77 (11th Cir. 2013) (finding “Florida Supreme Court’s rejection of Mr.

27

Farina’s ineffective assistance of appellate counsel claim was based on an

28

unreasonable determination of the facts under § 2254(d)(2)”); Shaw v. Wilson, 721
258
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

F.3d 908, 917-18 (7th Cir. 2013) (finding Indiana court’s denial of appellate

2

ineffective assistance of counsel claim to be “an unreasonable application of

3

Supreme Court precedent”). In addition, for the reasons set forth in the Opening

4

Brief, the California Supreme Court consistently has misapplied the Strickland

5

standard and thus its summary denial is not entitled to deference under 28 U.S.C.

6

section 2254(d). Opening Br. at 40-43.

7

BB. Claim Twenty-Nine: The State Court Failed to Create and Preserve an

8

Adequate and Reliable Record of the Proceedings That Resulted in Mr.

9

Jones’s Convictions and Death Sentence.

10

In state court, Mr. Jones alleged that his death sentence was rendered in

11

violation of his right to a reliable, rational non-arbitrary determination of guilt and

12

penalty as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to

13

the United States Constitution because the trial court refused to comply with

14

constitutional and statutory requirements that all significant proceedings be

15

conducted on the record and that the record compiled on appeal be complete.100

16

State Pet. at 11-19; Inf. Reply at 4-9. Specifically, on or about March 23, 2000, the

17

Los Angeles County Superior Court certified the record on appeal in People v.

18

Ernest Jones, Los Angeles Superior Court No. BA 063825. The certified record is

19

incomplete in numerous respects, for example:
 The Clerk’s Transcript on appeal does not include many

20
21

documents that are contained in the Los Angeles Superior Court

22

Clerk’s in this case. See State Pet. at 12-13;
 The Clerk’s Transcript on appeal is missing transcripts of pre-

23
24
25
26
27
28

100

Mr. Jones alleged also he was deprived of the effective assistance of
appellate counsel by their failure to ensure that a complete and accurate record on
appeal was provided to the California Supreme Court. See, e.g., Hardy v. United
States (1964) 375 U.S. 277, 279-80, 282 (anything short of a complete transcript
is incompatible with effective appellate advocacy).
259
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

trial proceedings held in the Los Angeles County Municipal

2

Court. State Pet. at 14;
 The clerk’s office misfiled documents from Mr. Jones’s capital

3
4

prosecution into the clerk’s file for his prior prosecutions,

5

resulting in their being omitted from the record on appeal. See

6

State Pet. at 15-16;

7

In addition, post-conviction counsel learned that, as a result of the Superior

8

Court’s failure to maintain an accurate record, the complete clerk’s file in this

9

matter cannot be located. State Pet. at 16-17.

10

The California Supreme Court’s summary denial of this claim was an

11

unreasonable application of controlling federal law because Mr. Jones stated a

12

prima facie case for relief.

13

complete and accurate transcript impairs the ability of appellate counsel to protect

14

his client’s basic rights.” United States v. Workcuff, 422 F.2d 700, 702 (D.C. Cir.

15

1970); see also Bergerco, U.S.A. v. Shipping Corp. of India, Ltd., 896 F.2d 1210,

16

1215 (9th Cir. 1990) (“the unavailability of a transcript itself becomes the problem

17

because it deprives the defendant of the opportunity to make a fair showing on

18

appeal of the gravity of the claimed error”). The United States Supreme Court has

19

recognized that accuracy in the record on appeal is compelled by the Eighth

20

Amendment prohibition against arbitrary or capricious imposition of the death

21

penalty. “We have emphasized repeatedly the crucial role of meaningful appellate

22

review in ensuring that the death penalty is not imposed arbitrarily or irrationally. .

23

. .

24

appellate court consider the defendant’s actual record.” Parker v. Dugger, 498

25

U.S. 308, 321, 111 S. Ct. 731, 112 L. Ed. 2d 812 (1991); see also Dobbs v. Zant,

26

506 U.S. 357, 113 S. Ct. 835, 122 L. Ed. 2d 103 (1993) (“We have emphasized

27

before the importance of reviewing capital sentences on a complete record.”);

28

Chessman v. Teets, 354 U.S. 156, 162, 77 S. Ct. 1127, 1 L. Ed. 2d 1253 (1957)
260

“There can be little doubt that the absence of a

It cannot be gainsaid that meaningful appellate review requires that the

Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

(petitioner denied due process when he was not represented in person or by counsel

2

in state court proceedings for settlement of trial transcript constituting appellate

3

record upon which his conviction was affirmed). As the Supreme Court held in

4

Gardner v. Florida, 430 U.S. 349, 360-61, 97 S. Ct. 1197, 51 L. Ed. 2d 393 (1977),

5

the failure to produce a full and accurate record renders the death sentence invalid:

6

Even if it were permissible to withhold a portion of the report from a

7

defendant, and even from defense counsel, pursuant to an express

8

finding of good cause for nondisclosure, it would nevertheless be

9

necessary to make the full report a part of the record to be reviewed

10

on appeal. Since the State must administer its capital-sentencing

11

procedures with an even hand, see Proffitt v. Florida, 428 U.S., at

12

250-53, 96 S. Ct., at 2966-67, it is important that the record on

13

appeal disclose to the reviewing court the considerations which

14

motivated the death sentence in every case in which it is imposed.

15

Without full disclosure of the basis for the death sentence, the

16

Florida capital-sentencing procedure would be subject to the defects

17

would resulted in the holding of unconstitutionality in Furman v.

18

Georgia.

19

Similarly, the United States Supreme Court has recognized that an

20

incomplete record affects a federal court’s ability to ascertain whether a state

21

court’s decision is entitled to deference pursuant to 28 U.S.C. section 2254(d). See

22

Pannetti v. Quarterman, 551 U.S. 930, 950, 127 S, Ct, 2842, 168 L. Ed. 2d 662

23

(2007) (“The state court refused to transcribe its proceedings, notwithstanding the

24

multiple motions petitioner filed requesting this process. To the extent a more

25

complete record may have put some of the court’s actions in a more favorable light,

26

this only constitutes further evidence of the inadequacy of the proceedings.”).

27

Respondent asserts that Mr. Jones has failed to explain “how the omission of

28

any of the materials from the record prevented proper consideration of his claims
261
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

on appeal.

Therefore, the California Supreme Court reasonably rejected

2

Petitioner’s claim that the record on appeal was constitutionally deficient.” Opp. at

3

164. As the above authority recognizes, the state bears the burden of producing

4

and maintaining the record; shifting the responsibility to the defendant to establish

5

the material that the state has lost presents an unreasonable burden. As the

6

Supreme Court has recognized with respect to Brady violations: “A rule thus

7

declaring “prosecutor may hide, defendant must seek,” is not tenable in a system

8

constitutionally bound to accord defendants due process.” Banks v. Dretke, 540

9

U.S. 668, 696, 124 S. Ct. 1256, 157 L. Ed. 2d 1166 (2004). Mr. Jones presented a

10

prima facie case for relief, the extent to which he was prejudiced by the lack of a

11

complete record would have required the California Supreme Court to make a

12

factual determination, one that it was unable to make prior to the issuance of an

13

order to show cause. See section II.A.3, supra.

14

The state court’s summary denial of Mr. Jones’s claim was both contrary to

15

and an unreasonable application of Supreme Court precedent. As a general matter,

16

the California Supreme Court’s refusal to hear Mr. Jones’s adequately pled claims

17

of constitutional error is contrary to clearly established federal law that prohibits

18

state courts from creating “unreasonable obstacles” to the resolution of federal

19

constitutional claims that are “plainly and reasonably made.” Davis v. Wechsler,

20

263 U.S. at 24-25; see also Opening Br. at 7-11. Specifically, in light of Mr.

21

Jones’s extensive factual allegations and supporting materials in the state court –

22

which the state court was obligated to accept as true – the state court’s ruling that

23

Mr. Jones failed to make any prima facie showing of entitlement to relief. See,

24

e.g., Williams, 529 U.S. at 405 (O’Connor, J., concurring). To the extent that the

25

state court settled these questions or other factual questions, its decision was an

26

unreasonable determination of facts. See Hurles v. Ryan, 650 F.3d at 1312.

27
28
262
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

CC. Claim Thirty: Considered Cumulatively, the Constitutional Errors in

2

Mr. Jones’s Case Require the Granting of Relief.

3

Mr. Jones satisfied state pleading requirements by presenting the California

4

Supreme Court with sufficient detail and supporting factual material to establish a

5

prima facie showing that he was entitled to relief because of the cumulative effect

6

of the constitutional errors. See, e.g., Duvall, 9 Cal. 4th at 474. In his habeas

7

corpus proceedings, Mr. Jones presented the California Supreme Court with a

8

prima facie claim that his conviction and death sentence are unconstitutional

9

because the constitutional errors that he identified on direct appeal and in his state

10

habeas proceedings, viewed cumulatively, prejudicially altered the outcomes of the

11

guilt phase and penalty phase of his trial. State Pet. at 425-26; Inf. Reply at 368-

12

69.

13

This claim was not procedurally defaulted, and respondent did not present

14

factual materials or legal argument in state court to establish that Mr. Jones’s prima

15

facie showing should not be taken as true or that it otherwise lacked merit. Under

16

these circumstances, the state court was required to issue an order to show cause

17

and allow Mr. Jones access to state processes to develop and present evidence to

18

prove his claim. See, e.g. Duvall, 9 Cal. 4th at 475; Romero, 8 Cal. 4th at 742. By

19

instead summarily denying Mr. Jones’s claim, the California Supreme Court’s

20

decision satisfies section 2254(d) as set forth in Mr. Jones’s prior briefing and in

21

the sections that follow. See, e.g., Parle v. Runnels, 505 F.3d 922, 928 (9th Cir.

22

2007) (“the Supreme Court has clearly established that the combined effect of

23

multiple trial errors may give rise to a due process violation if it renders a trial

24

fundamentally unfair, even where each error considered individually would not

25

require reversal”) (citing Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S. Ct.

26

1868, 40 L. Ed. 2d 431 (1974); Chambers v. Mississippi, 410 U.S. 284, 290 n.3,

27

298, 302–03, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973)),

28

Respondent’s sole argument is that the “[t]he California Supreme Court
263
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

reasonably rejected Petitioner’s cumulative error claim because it reasonably could

2

have determined that, to the extent there were any errors at Petitioner’s trial, they

3

were not prejudicial, either individually or cumulatively, given the overwhelming

4

evidence of Petitioner’s guilt and the overwhelming aggravating evidence

5

introduced at the trial.” Opp. at 165. In so arguing, respondent ignores, and thus

6

concedes, the arguments in the Opening Brief demonstrating that the California

7

Supreme Court (1) “analyzes cumulative error contrary to clearly established

8

Supreme Court law,” (2) failed to “engage in fact-finding to resolve” Mr. Jones’s

9

adequately pled claims, contrary to clearly established federal law; and (3)

10

“unreasonably applied “Chambers and its progeny.” Opening Br. at 144-45. These

11

mistakes in the state court’s reasoning render its analysis contrary to established

12

federal law within the meaning of § 2254(d)(1). See, e.g., Frantz v. Hazey, 533

13

F.3d 724, 734 (9th Cir. 2004); Parle v. Runnels, 505 F.3d 922, 934 (9th Cir. 2007)

14

(“in view of the unique symmetry of these errors–by which each so starkly

15

amplified the prejudice caused by the other–and their direct relation to the sole

16

issue contested at trial the California Court of Appeal’s contrary conclusion was an

17

objectively unreasonable application” of cumulative prejudice law). Similarly,

18

respondent ignores, and thus concedes, that 28 U.S.C. section 2254(d)(2) is

19

satisfied because the California Supreme Court made unreasonable factual

20

findings. Opening Br. at 145.

21

Finally, respondent concedes that, to the extent that this Court finds that the

22

state court’s resolution of one or more constitutional issues on direct appeal or

23

habeas was unreasonable under section 2254(d)(1), by definition the state court’s

24

cumulative error analysis was unreasonable under section 2254(d)(1), because the

25

cumulative error analysis depends on the correct identification of errors. See

26

Panetti v. Quarterman, 551 U.S. 930, 953, 127 S. Ct. 2842, 168 L. Ed. 2d. 662

27

(2007) (section 2254(d)(1) is satisfied when the state court’s adjudication of a

28

claim “is dependent on an antecedent unreasonable application of federal law”).
264
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

1

V. CONCLUSION

2

For the reasons set forth in the previous briefing before this Court and

3

herein, 28 U.S.C. section 2254(d) does not preclude this Court from reviewing the

4

merits of Mr. Jones’s claims in the Petition for Writ of Habeas Corpus.

5

Dated: January 27, 2014

6

Respectfully submitted,
HABEAS CORPUS RESOURCE CENTER

7
8
9
10
11
12

By: / s / Michael Laurence
Michael Laurence
Barbara Saavedra
Cliona Plunkett
Attorneys for Petitioner
ERNEST DEWAYNE JONES

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
265
Petitioner’s Reply Brief Regarding the Application of
28 U.S.C. § 2254(d)

Case No. CV-09-2158-CJC

EXHIBIT A

California Capital Habeas Summary Denials, From January 1, 2000 to
January 27, 2014, In Which Claims Were Procedurally Defaulted
and the Defaulted Claims Were Also Denied on the Merits
#

Petitioner

Case No.

Order Date

1

Schmeck, Mark

S131578

11/13/13

2

Hoyos, Jaime

S190357

10/30/13

3

Collins, Scott

S136461

09/25/13

4

Kennedy, Jerry

S138625

09/18/13

5

Bacigalupo, Miguel

S079656

09/11/13

6

Taylor, Freddie

S137164

09/11/13

7

Boyette, Maurice

S092356

08/28/13

8

Kraft, Randy

S172964

05/22/13

9

Marlow, James

S178166

05/22/13

10

Harris, Maurice

S139789

05/15/13

11

DePriest, Timothy

S171297

05/01/13

12

Payton, William

S209849

05/01/13

12

Catlin, Steven

S173793

03/27/13

13

Halvorsen, Arthur

S130342

02/20/13

14

Davis, Richard

S157917

01/23/13

15

Jurado, Robert

S181061

01/16/13

16

Roybal, Rudolph

S156846

01/03/13

17

Pinholster, Scott Lynn

S193875

10/31/12

1

#

Petitioner

Case No.

Order Date

18

Cook, Joseph, Lloyd

S160915

09/12/12

19

Ramos, William James

S175417

08/22/12

20

Williams, Dexter Winfred

S163977

08/08/12

21

Williams, Dexter Winfred

S128008

08/08/12

22

Crew, Mark Christopher

S107856

08/08/12

23

Fauber, Curtis Lynn

S134365

07/25/12

24

Howard, Alphonso

S144008

07/18/12

25

Combs, Michael Stephen

S134705

07/11/12

26

Monterroso, Christian Antonio

S120980

06/20/12

27

Dickey, Colin Raker

S165302

05/23/12

28

Bonilla, Steven Wayne

S129612

02/22/12

29

Martinez, Omar Fuentes

S198765

02/15/12

30

Clark, Royal

S142741

01/11/12

31

Jones, Michael Lamont

S132646

11/30/11

32

Maury, Robert Edward

S122460

11/16/11

33

Hart, Joseph William

S152912

09/28/11

34

Dykes, Ernest Edward

S126085

08/31/11

35

Clair, Kenneth

S169188

08/24/11

36

Navarette, Martin Anthony

S122097

08/17/11

37

Perry, Clifton

S138225

07/27/11

38

Carasi, Paul Joe

S129603

07/13/11

2

#

Petitioner

Case No.

Order Date

39

Alvarez, Manuel Machado

S146501

07/13/11

40

Smith, Robert Lee

S144019

06/15/11

41

Avila, Johnny Jr.

S116554

06/15/11

42

Pinholster, Scott Lynn

S113357

04/20/11

43

Price, Curtis Floyd

S069685

04/13/11

44

Panah, Hooman Ashkan

S155942

03/16/11

45

Lewis, John Irvin

S139017

01/19/11

46

Smith, Gregory Calvin

S186093

01/12/11

47

Ochoa, Sergio

S121184

12/21/10

48

Cook, Walter Joseph

S136687

12/15/10

49

Carrington, Celeste Simone

S142464

09/15/10

50

Danks, Joseph Martin

S121004

09/15/10

51

Hinton, Eric Lamont

S125276

09/01/10

52

Taylor, Robert Clarence

S166952

09/01/10

53

Wallace, Keone

S140077

09/01/10

54

Lewis, Albert

S120420

08/18/10

55

Oliver, Anthony Cedric

S122545

08/18/10

56

Richardson, Charles Keith

S148523

08/18/10

57

Beames, John Michael

S153603

07/28/10

58

Lewis, Raymond Anthony

S131322

07/21/10

59

Lewis, Raymond Anthony

S154015

07/21/10

3

#

Petitioner

Case No.

Order Date

60

Wilson, Lester Harland

S152074

06/30/10

61

Carter, Dean Phillip

S153790

06/17/10

62

Carter, Dean Phillip

S153780

06/17/10

63

Cox, Michael Anthony

S135128

06/09/10

64

Geier, Christopher Adam

S147393

06/09/10

65

Coddington, Herbert James

S107502

05/20/10

66

Horning, Danny Ray

S137676

05/12/10

67

Majors, James David

S117112

04/28/10

68

Samuels, Mary Ellen

S124998

03/10/10

69

Cornwell, Glen

S152880

02/10/10

70

Burney, Shaun Kareem

S133439

12/17/09

71

Dunkle, Jon Scott

S119946

12/02/09

72

Sapp, John

S130314

12/02/09

73

Turner, Richard Dean

S124851

09/17/09

74

Ayala, Hector Juan

S159584

09/09/09

75

Blair, James Nelson

S144759

09/09/09

76

Stevens, Charles

S119354

08/26/09

77

Weaver, Ward Francis

S115638

08/26/09

78

Holloway, Duane

S147749

08/19/09

79

Michaels, Kurt

S147647

08/19/09

80

Zambrano, Enrique

S116021

08/12/09

4

#

Petitioner

Case No.

Order Date

81

Reilly, Mark Anthony

S107844

07/08/09

82

Stanley, Darren Cornelius

S106165

07/08/09

83

Martinez, Omar Fuentes

S141480

06/29/09

84

Cornwell, Glen

S126032

06/24/09

85

Vieira, Richard John

S147688

06/24/09

86

Boyer, Richard Delmer

S101970

06/17/09

87

Burgener, Michael Ray

S093551

06/17/09

88

Bolden, Clifford Stanley

S099231

06/10/09

89

Harrison, Cedric Seth

S130762

06/10/09

90

Williams, Bob Russell

S137389

06/10/09

91

Salcido, Ramon Bojorquez

S091159

05/20/09

92

Cole, Stephen

S142889

03/25/09

93

Jones, Ernest Dwayne

S110791

03/11/09

94

Hoyos, Jaime Armando

S146472

02/18/09

95

Tafoya, Ignacio Arriola

S120020

01/28/09

96

Moon, Richard Russell

S126781

12/10/08

97

Marlow, James Gregory

S101172

10/22/08

98

Marlow, James Gregory

S135024

10/22/08

99

Marlow, James Gregory

S101171

10/22/08

100 Arias, Pedro

S114347

09/17/08

101 Demetrulias, Gregory Spiros

S136487

09/17/08

5

#

Petitioner

Case No.

Order Date

102 Griffin, Donald

S118650

09/17/08

103 Jurado, Robert J.

S136327

07/23/08

104 Hernandez, Francis Gerard

S153853

06/11/08

105 Lawley, Dennis Harold

S089463

06/11/08

106 Brown, Andrew Lamont

S125670

05/21/08

107 Brown, Andrew Lamont

S136785

05/21/08

108 Huggins, Michael James

S127630

01/30/08

109 Bell, Ronald Lee

S105569

01/03/08

110 Ramirez, Richard M.

S125755

01/03/08

111 Gutierrez, Isaac, Jr.

S106745

12/12/07

112 Alfaro, Maria del Rosio

S099569

11/28/07

113 Slaughter, Michael Corey

S113371

10/31/07

114 Lenart, Thomas Howard

S126851

10/10/07

115 Noguera, William Adolf

S116529

10/10/07

116 Noguera, William Adolf

S136826

10/10/07

117 Catlin, Steven David

S090636

09/25/07

118 Taylor, Robert Clarence

S102652

09/25/07

119 Gray, Mario Lewis

S113159

08/29/07

120 Bradford, Mark Alan

S119155

08/08/07

121 Lucky, Darnell

S080669

06/27/07

122 Jablonski, Phillip Carl

S136861

06/13/07

6

#

Petitioner

Case No.

Order Date

123 Webb, Dennis Duane

S080638

05/23/07

124 Hart, Joseph William

S134962

03/28/07

125 Burton, Andre

S034725

02/07/07

126 Steele, Raymond Edward

S147651

01/24/07

127 Adcox, Keith Edward

S074000

01/03/07

128 McDermott, Maureen

S130708

01/03/07

129 Wilson, Robert Paul

S121061

01/03/07

130 Hill, Michael

S072693

12/20/06

131 Staten, Deondre Arthur

S141678

12/20/06

132 Tuilaepa, Paul Palalaua

S065022

11/29/06

133 Millwee, Donald Ray

S120084

11/01/06

134 Coffman, Cynthia Lynn

S104807

10/18/06

135 Sturm, Gregory Allen

S122384

10/11/06

136 Young, Robert

S115318

10/11/06

137 Panah, Hooman Ashkan

S123962

08/30/06

138 Heard, James Matthew

S118272

08/16/06

139 San Nicolas, Rodney Jesse

S101300

07/12/06

140 Carter, Dean Phillip

S090230

06/28/06

141 Carter, Dean Phillip

S096874

06/28/06

142 Kipp, Martin James

S129115

06/28/06

143 Cleveland, Dellano Leroy

S143814

06/21/06

7

#

Petitioner

Case No.

Order Date

144 Hughes, Kristin William

S126775

06/21/06

145 Barnett, Lee Max

S120570

05/17/06

146 Cudjo, Armenia Levi

S128474

05/17/06

147 Thomas, Ralph International

S063274

04/12/06

148 Hart, Joseph William

S074569

03/01/06

149 Morales, Michael Angelo

S141074

02/15/06

150 Ervin, Curtis Lee

S119420

12/14/05

151 Williams, Stanley

S139526

12/11/05

152 Dickey, Colin Raker

S115079

11/30/05

153 Musselwhite, Joseph T.

S109288

11/16/05

154 Andrews, Jesse James

S120348

10/26/05

155 Turner, Melvin

S114479

10/12/05

156 Barnett, Lee Max

S096831

07/27/05

157 Staten, Deondre Arthur

S121789

07/13/05

158 Nakahara, Evan Teek

S116605

06/08/05

159 Pollock, Milton Ray

S117032

04/27/05

160 Waidla, Tauno

S102401

04/05/05

161 Cleveland, Dellano Leroy

S123149

03/30/05

162 Veasley, Chauncey Jamal

S121562

03/30/05

163 Marks, Delaney Geral

S110988

03/16/05

164 Samayoa, Richard Gonzales

S120249

03/16/05

8

#

Petitioner

Case No.

Order Date

165 Hernandez, Jesus Cianez

S107230

03/02/05

166 Bolin, Paul Clarence

S090684

01/19/05

167 Avena, Carlos Jaime

S076118

01/12/05

168 Walker, Marvin Pete

S070934

12/22/04

169 Lewis, Milton Otis

S114868

12/01/04

170 Beeler, Rodney Gene

S065016

11/10/04

171 Beeler, Rodney Gene

S127525

11/10/04

172 Hillhouse, Dannie

S126771

11/10/04

173 Martinez, Omar Fuentes

S112103

10/20/04

174 Seaton, Ronald Harold

S067491

09/29/04

175 Ayala, Hector Juan

S114371

09/01/04

176 Lucas, Larry Douglas

S050142

09/01/04

177 Steele, Raymond Edward

S114551

07/14/04

178 Coleman, Calvin

S117990

06/09/04

179 Scott, James Robert

S122167

06/09/04

180 Box, Christopher Clark

S087643

03/17/04

181 Farnam, Jack Gus

S081408

02/18/04

182 Jenkins, Daniel Steven

S068655

02/18/04

183 Cooper, Kevin

S122507

02/09/04

184 Cooper, Kevin

S122389

02/05/04

185 McDermott, Maureen

S092813

01/14/04

9

#

Petitioner

Case No.

Order Date

186 Michaels, Kurt

S071265

12/23/03

187 Williams, Barry Glenn

S100932

12/10/03

188 Cudjo, Armenia Levi

S090162

11/25/03

189 Lucero, Philip Louis

S104589

11/25/03

190 Fairbank, Robert Green

S091530

11/12/03

191 Fudge, Keith Tyrone

S063280

11/12/03

192 Kipp, Martin James

S093369

11/12/03

193 Whitt, Charles Edward

S051684

11/12/03

194 Branner, Willie

S092757

10/29/03

195 Cash, Randall Scott

S099616

10/29/03

196 Jones, Michael Lamont

S094239

10/29/03

197 Anderson, James Phillip

S066574

10/15/03

198 Lewis, Raymond Anthony

S083842

10/15/03

199 Jones, Jeffrey Gerard

S093647

09/24/03

200 Ayala, Ronaldo Medrano

S110094

09/10/03

201 Staten, Deondre Arthur

S107302

09/10/03

202 Mendoza, Manuel

S065595

08/13/03

203 Taylor, Freddie Lee

S062432

07/16/03

204 Davenport, John Galen

S089502

05/14/03

205 Koontz, Herbert Harris

S104295

05/14/03

206 Ray, Clarence

S057313

04/09/03

10

#

Petitioner

Case No.

Order Date

207 Ochoa, Lester Robert

S109925

03/26/03

208 Mayfield, Dennis

S081000

03/05/03

209 Mickle, Denny

S066487

02/25/03

210 Kipp, Martin James

S087490

02/19/03

211 Scott, James Robert

S059739

01/27/03

212 Scott, James Robert

S111112

01/27/03

213 Hughes, Kristin William

S089357

01/15/03

214 Carpenter, David Joseph

S110890

12/18/02

215 Dennis, William Michael

S099587

11/26/02

216 Ross, Craig Anthony

S076654

10/30/02

217 Hillhouse, Dannie

S102296

10/02/02

218 Andrews, Jesse James

S017657

08/26/02

219 Cunningham, Albert

S068133

08/21/02

220 Ochoa, Sergio

S095304

08/21/02

221 Stanley, Gerald Frank

S081120

07/17/02

222 Riel, Charles Dell

S105455

05/15/02

223 Cox, Tiequon Aundray

S082898

02/13/02

224 Proctor, William Arnold

S063535

02/13/02

225 Hawthorne, Anderson

S065934

01/29/02

226 Weaver, Ward Francis

S073709

11/14/01

227 Lewis, Milton Otis

S074511

10/24/01

11

#

Petitioner

Case No.

Order Date

228 Noguera, William Adolf

S068360

10/17/01

229 Majors, James David

S062533

09/19/01

230 Padilla, Alfredo Alvarado

S043733

09/12/01

231 Rodriguez, Jose Arnaldo

S068488

09/12/01

232 Bradford, Mark Alan

S084903

08/29/01

233 Silva, Mauricio Rodriguez

S070879

07/27/01

234 Musselwhite, Joseph T.

S063433

07/18/01

235 Johnson, Willie Darnell

S090040

06/13/01

236 Coddington, Herbert James

S085976

05/16/01

237 Jones, Ronald Anthony

S092494

03/28/01

238 Fauber, Curtis Lynn

S065139

03/14/01

239 Benson, Richard Allen

S094994

02/28/01

240 Riel, Charles Dell

S084324

02/28/01

241 Stansbury, Robert Edward

S066681

01/30/01

242 Nicolaus, Robert Henry

S060675

01/17/01

243 Turner, Melvin

S069718

12/13/00

244 Bittaker, Lawrence Sigmond

S052371

11/29/00

245 Wrest, Theodore John

S055279

11/21/00

246 Gates, Oscar

S060778

10/25/00

247 Bemore, Terry Douglas

S089272

10/17/00

248 Sully, Anthony John

S060756

10/03/00

12

#

Petitioner

Case No.

Order Date

249 Samayoa, Richard Gonzales

S058851

09/27/00

250 Williams, Barry Glenn

S050166

09/18/00

251 Jennings, Wilbur

S045495

08/30/00

252 Pensinger, Brett Patrick

S047895

07/26/00

253 Pensinger, Brett Patrick

S089959

07/26/00

254 Reilly, Mark Anthony

S058819

07/26/00

255 Cain, Tracy Dearl

S067172

06/28/00

256 Hines, Gary Dale

S077380

06/28/00

257 Earp, Ricky Lee

S060715

06/02/00

258 Waidla, Tauno

S076438

04/06/00

259 Jackson, Earl Lloyd

S055993

02/23/00

260 Jones, Earl Preston

S073227

02/23/00

261 Mattson, Michael Dee

S084320

01/19/00

262 Carpenter, David Joseph

S083246

01/13/00

13