Ernest DeWayne Jones v. Robert K. Wong

Filing 84

BRIEF filed by Petitioner Ernest DeWayne Jones. Opening 2254(d) Brief on Evidentiary Hearing Claims (Laurence, Michael)

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Michael Laurence (Bar No. 121854)
Barbara Saavedra (Bar No. 191628)
Cliona Plunkett (Bar No. 256648)
Bethany Lobo (Bar No. 248109)
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

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UNITED STATES DISTRICT COURT

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FOR THE CENTRAL DISTRICT OF CALIFORNIA

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ERNEST DEWAYNE JONES,
Petitioner,

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DEATH PENALTY CASE

v.

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Case No. CV-09-2158-CJC

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

PETITIONER’S OPENING 2254(D)
BRIEF ON EVIDENTIARY
HEARING CLAIMS

Respondent.

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Petitioner’s Opening 2254(d) Evidentiary Hearing Claims

Case No. CV-09-2158-CJC

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TABLE OF CONTENTS
Table of Authorities ................................................................................................... ii 

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

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I. 

Applicable Legal Framework ........................................................................... 5 

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A.  Overview of 28 U.S.C. Section 2254(d). ................................................... 5 

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B.  Section 2254(d) Applications Common To All Claims. ............................. 6 

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II. 

Mr. Jones’s Claims Satisfy Section 2254(d) ................................................... 13 
A.  Mr. Jones Received Ineffective Assistance of Counsel During
the Guilt Phase of His Trial. ..................................................................... 13 
B.  The State Withheld Material Exculpatory Evidence. ............................... 43 

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C.  Mr. Jones Received Ineffective Assistance of Counsel During
The Penalty Phase of His Trial. ................................................................ 58 
D.  Mr. Jones Was Denied His Right to an Impartial Jury and a
Fair Trial. .................................................................................................. 87 
E.  Mr. Jones’s Constitutional Rights Were Violated when the
State Inappropriately and Involuntarily Medicated Him. ...................... 105 
F.  Mr. Jones’s Due Process Rights Were Violated Because No
Hearing Was Held To Determine His Competence and He Was
Incompetent to Stand Trial. .................................................................... 110 

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G.  Mr. Jones Is Ineligible For The Death Penalty. ...................................... 121 
H.  California’s Death Penalty Statute Does Not Fulfill the
Constitutional Mandate to Narrow the Class of Death-Eligible
Defendants. ............................................................................................. 129 

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I.  Considered Cumulatively, the Constitutional Errors in Mr.
Jones’s Case Require the Granting of Relief. ......................................... 141 

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Conclusion ............................................................................................................. 146 

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TABLE OF AUTHORITIES

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Page(s)
Federal Cases
Angel v. Bullington,
330 U.S. 183, 67 S. Ct. 657, 91 L. Ed. 832 (1947)........................................... 7, 8
Antoniu v. SEC,
877 F.2d 721 (8th Cir. 1989) .............................................................................. 94
Arave v. Creech,
507 U.S. 463, 113 S. Ct. 1534, 123 L. Ed. 2d 188 (1993) .......................131, 142
Ashmus v. Wong,
No. 3:93-cv-00594-TEH (N.D. Cal. Mar. 14, 2001) ........................................ 137
Atkins v. Virginia,
536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002) ..........................passim
Ballinger v. Prelesnik,
844 F. Supp. 2d 857 (E.D. Mich. 2012) .................................................10, 38, 42

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Baylor v. Estelle,
94 F.3d 1321 (9th Cir. 1996) .............................................................................. 27
Bean v. Calderon,
163 F.3d 1073 (9th Cir. 1998) ...................................................................... 22, 66
Beck v. Alabama,
447 U.S. 625, 100 S. Ct. 2382, 65 L. Ed. 2d 392 (1980) ................................. 142
Benn v. Lambert,
283 F.3d 1040 (9th Cir. 2002) ............................................................................ 53
Bloom v. Calderon,
132 F.3d 1267 (9th Cir. 1997) ............................................................................ 22
Brady v. Maryland,
373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963) ................................passim

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27

Brown v. Borg,
951 F.2d 1011 (9th Cir. 1991) ...................................................................... 50, 54

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Browning v. Workman,
No. 07-CV-16, 2011 WL 2604744 (N.D. Ok. June 30, 2011) ........................... 57

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Brumfield v. Cain,
854 F. Supp. 2d 366 (M.D. La. 2012)...........................................................38, 86
Brumley v. Wingard,
269 F.3d 629 (6th Cir. 2001) ............................................................................ 140
Caldwell v. Mississippi,
472 U.S. 320, 105 S. Ct. 2633, 86 L. Ed. 2d 231 (1985) ................................... 99
Caliendo v. Warden of California Men’s Colony,
351 F.3d 691 (9th Cir. 2004) ............................................................................ 104
Caro v. Woodford,
280 F.3d 1247 (9th Cir. 2002) ............................................................................ 66
Carriger v. Stewart,
132 F.3d 463 (9th Cir. 1997) .............................................................................. 51

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Carter v. Texas,
177 U.S. 442, 20 S. Ct. 687, 44 L. Ed. 839 (1900)............................................... 8
Cash v. Culver,
358 U.S. 633, 79 S. Ct. 432, 3 L. Ed. 2d 557 (1959) ........................................... 8
Chambers v. Mississippi,
410 U.S. 284, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973) ...................142, 144, 145
Clabourne v. Lewis,
64 F.3d 1373 (9th Cir. 1995) .............................................................................. 66
Coe v. Bell,
161 F.3d 320 (6th Cir. 1998) .............................................................................. 97
Cone v. Bell,
556 U.S. 449, 129 S. Ct. 1769, 173 L. Ed. 2d 701 (2009) ................................. 49
Cooper v. Oklahoma,
517 U.S. 348, 116 S. Ct. 1373, 134 L. Ed. 2d 498 (1996) ............................... 111
Crotts v. Smith,
73 F.3d 861 (9th Cir. 1996) ................................................................................ 35

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Cullen v. Pinholster,
__ U.S. __, 131 S. Ct. 1388, 179 L. Ed. 2d 557 (2011) ..............................passim

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Daniels v. Woodford,
428 F.3d 1181 (9th Cir. 2005) ...................................................................... 22, 26
Davis v. Wechsler,
263 U.S. 22, 44 S. Ct. 13, 68 L. Ed. 143 (1923)................................................... 8
Drope v. Missouri,
420 U.S. 162, 95 S. Ct. 896, 43 L. Ed. 2d 103 (1975).................................passim
Duncan v. Ornoski,
528 F.3d 1222 (9th Cir. 2008) ............................................................................ 27
Dusky v. United States,
362 U.S. 402, 80 S. Ct. 788, 4 L. Ed. 2d 824 (1960) ...............111, 118, 119, 120
Earp v. Ornoski,
431 F.3d 1158 (9th Cir. 2005) .......................................................................... 141

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Edwards v. Lamarque,
475 F.3d 1121 (9th Cir. 2007) ............................................................................ 11
Enmund v. Florida,
458 U.S. 782, 102 S. Ct. 3368, 73 L. Ed. 2d 1140 (1982) .......................122, 128
Evans v. Raines,
800 F.2d 884 (9th Cir. 1986) ............................................................................ 121
Fanaro v. Pineda,
No. 2:10-CV-1002, 2012 WL 1854313 (S.D. Ohio May 21, 2012) ............10, 43
Ferrell v. Hall,
640 F.3d 1199 (11th Cir. 2011) .......................................................................... 11
Ford v. Wainwright,
477 U.S. 399, 106 S. Ct. 2595, 91 L. Ed. 2d 335 (1986) ................................. 8, 9
Frye v. Goughnour,
No. 2:99-cv-00628-LKK-KJM (E.D. Cal. filed July 27, 2004) ....................... 138
Furman v. Georgia,
408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972) ..............................passim

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Gapen v. Bobby,
No. 08-280, 2011 WL 5166566 (S.D. Oh. Oct. 31, 2011) ............................... 103

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Gardner v. Florida,
430 U.S. 349 (1977) ......................................................................................89, 96
Gibson v. Berryhill,
411 U.S. 564, 93 S. Ct. 1689, 36 L. Ed. 2d 488 (1973) ..................................... 88
Giglio v. United States,
405 U.S. 150, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972)........................................ 44
Godfrey v. Georgia,
446 U.S. 420, 100 S. Ct. 1759, 64 L. Ed. 2d 398 (1980) ............................passim
Goodman v. Bertrand,
467 F.3d 1022 (7th Cir. 2006) ............................................................................ 41
Green v. White,
232 F.3d 671 (9th Cir. 2000) .............................................................................. 93

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Gregg v. Georgia,
428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976) ...........129, 130, 135, 137
Harrington v. Richter,
__ U.S. __, 131 S. Ct. 770, 178 L. Ed. 2d 624 (2011) ...................................9, 10
Hart v. Gomez,
174 F.3d 1067 (9th Cir. 1999) ............................................................................ 22
Pennsylvania ex rel. Herman v. Claudy,
350 U.S. 116, 76 S. Ct. 223, 100 L. Ed. 126 (1956)............................................. 8
Hurles v. Ryan,
650 F.3d 1301 (9th Cir. 2011) .....................................................................passim
Irvin v. Dowd,
366 U.S. 717, 81 S. Ct. 1639, 6 L. Ed. 2d 751 (1961)............................88, 89, 93
Jackson v. Brown,
513 F.3d 1057 (9th Cir. 2008) ...................................................................... 48, 53
Jeffries v. Wood,
114 F.3d 1484 (9th Cir. 1997) (en banc) ......................................................89, 98

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Jennings v. Woodford,
290 F.3d 1006 (9th Cir. 2002) ................................................................21, 22, 27

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Johnson v. Mississippi,
486 U.S. 578, 108 S. Ct. 1981, 100 L. Ed. 2d 575 (1988) ............................... 142
Jones v. Kemp,
706 F. Supp. 1534 (N.D. Ga. 1989) ........................................................96, 97, 99
Jordan v. Massachusetts,
225 U.S. 167, 32 S. Ct. 651, 56 L. Ed. 1038 (1912)...................................88, 101
Killian v. Poole,
282 F.3d 1204 (9th Cir. 2002) .......................................................................... 145
Kim v. Villalobos,
799 F.2d 1317 (9th Cir. 1986) ....................................................................55, 102
Kyles v. Whitley,
514 U.S. 419, 115 S. Ct. 1555, 131 L. Ed. 2d 490 (1995) ..........................passim

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Lawson v. Borg,
60 F.3d 608 (9th Cir. 1995) .............................................................................. 100
Leonard v. United States,
378 U.S. 544, 84 S. Ct. 1696, 12 L. Ed. 2d 1028 (1964) ................................... 88
Lockhart v. Fretwell,
506 U.S. 364, 113 S. Ct. 838, 122 L. Ed. 2d 180 (1993) .............................40, 41
Lopez-Umanzor v. Gonzales,
405 F.3d 1049 (9th Cir. 2005) ............................................................................ 94
Lor v. Felker,
No. CIV S-08-2985 GEB,
2012 WL 1604519 (E.D. Cal. May 7, 2012) ........................................12, 58, 105
Lord v. Wood,
184 F.3d 1083 (9th Cir. 1999) ............................................................................ 29
Lowenfield v. Phelps,
484 U.S. 231, 108 S. Ct. 546, 98 L. Ed. 2d 568 (1988) ................................... 131

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Mach v. Stewart,
137 F.3d 630 (9th Cir. 1997) .............................................................................. 98

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Marino v. Vasquez,
812 F.2d 499 (9th Cir. 1987) .............................................................................. 99
Marino v. Vasquez,
812 F.3d 499 (9th Cir. 1987) .............................................................................. 89
Mattox v. United States,
146 U.S. 140, 13 S. Ct. 50, 36 L. Ed. 917 (1892).................................90, 96, 104
Maxwell v. Roe,
606 F.3d 561 (9th Cir. 2010) ............................................................................ 120
Maxwell v. Roe,
628 F.3d 486 (9th Cir. 2010) .............................................................................. 56
McDonough Power Equip v. Greenwood,
464 U.S. 548, 104 S. Ct. 845, 78 L. Ed. 2d 663 (1984) ..................................... 88

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McMurtrey v. Ryan,
539 F.3d 1112 (9th Cir. 2008) .......................................................................... 114
McNair v. Campbell,
416 F.3d 1291 (11th Cir. 2005) .......................................................................... 97
McNeal v. Culver,
365 U.S. 109, 81 S. Ct. 413, 5 L. Ed. 2d 445 (1961) ........................................... 7
Miller v. Fenton,
474 U.S. 104, 106 S. Ct. 445, 88 L. Ed. 2d 405 (1985) ................................... 120
Moore v. United States,
464 F.2d 663 (9th Cir. 1972) ............................................................................ 114
Moormann v. Schriro,
672 F.3d 644 (9th Cir. 2012) ............................................................................ 123
Morales v. Woodford,
388 F.3d 1159 (9th Cir. 2004) .......................................................................... 134
Mosley v. Atchison,
689 F.3d 838 (7th Cir. 2012) ..................................................................10, 38, 86

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Napue v. Illinois,
360 U.S. 264, 79 S. Ct. 1173, 3 L. Ed. 2d 1217 (1959) ..................................... 48

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Neder v. United States,
527 U.S. 1, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999) ....................................... 90
Nunes v. Mueller,
350 F.3d 1045 (9th Cir. 2003) .............................................................................. 9
Odle v. Woodford,
238 F.3d 1084 (9th Cir. 2001) .......................................................................... 118
Oliver v. Quarterman,
541 F.3d 329 (5th Cir. 2008) .............................................................................. 97
Palazzolo v. Burt,
778 F. Supp. 2d 805 (E.D. Mich. 2011) ............................................................. 12
Panetti v. Quarterman,
551 U.S. 930, 127 S. Ct. 2842, 168 L. Ed. 2d 662 (2007) ..........................passim

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Parker v. Gladden,
385 U.S. 363, 87 S. Ct. 468, 17 L. Ed. 2d 420 (1966)......................88, 89, 90, 95
Parle v. Runnels,
505 F.3d 922 (9th Cir. 2007) ............................................................................ 145
Pate v. Robinson,
383 U.S. 375, 86 S. Ct. 836, 15 L. Ed. 2d 815 (1966).................................passim
Peters v. Kiff,
407 U.S. 493, 92 S. Ct. 2163, 33 L. Ed. 2d 83 (1972)................................88, 101
Plummer v. Jackson,
No. 09-2258, 2012 WL 3216779 (6th Cir. Aug. 8, 2012) ....................39, 42, 105
Porter v. McCollum,
558 U.S. 30, 130 S. Ct. 447, 175 L. Ed. 2d 398 (2009) ..................................... 18
Pulley v. Harris,
465 U.S. 37, 104 S. Ct. 871, 79 L. Ed. 2d 29 (1984)........................138, 139, 140
Remmer v. United States,
347 U.S. 227, 74 S. Ct. 450, 98 L. Ed. 654 (1954)......................................passim

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Riel v. Goughnour,
No. 2:01-cv-00507-LKK-KJM (E.D. Cal. filed July 27, 2004) ....................... 138

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Riggins v. Nevada,
504 U.S. 127, 112 S. Ct. 1810, 118 L. Ed. 2d 479 (1992) .......106, 108, 109, 110
Rivera v. Quarterman,
505 F.3d 349 (5th Cir. 2007) ........................................................................9, 128
Rock v. Arkansas,
483 U.S. 44, 107 S. Ct. 2704, 97 L. Ed. 2d 37 (1987)........................................ 19
Rompilla v. Beard,
545 U.S. 374, 125 S. Ct. 2456, 162 L. Ed. 2d 360 (2005) ..........................passim
Roper v. Simmons,
543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005) ...................121, 122, 128
Rose v. Clark,
478 U.S. 570, 106 S. Ct. 3101, 92 L. Ed. 2d 460 (1986) ................................... 90

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Sandoval v. Calderon,
241 F.3d 765 (9th Cir. 2000) .............................................................................. 96
Sears v. Upton,
130 S. Ct. 3259, 177 L. Ed. 2d 1025 (2010) ....................................................... 34
Seidel v. Merkle,
146 F.3d 750 (9th Cir. 1998) .............................................................................. 18
Sell v. United States,
539 U.S. 166, 123 S. Ct. 2174, 156 L. Ed. 2d 197 (2003) .......107, 108, 109, 110
Smith v. Phillips,
455 U.S. 209, 102 S. Ct. 940, 71 L. Ed. 2d 78 (1982) ................................passim
Stanley v. Cullen,
633 F.3d 852 (9th Cir. 2011) ............................................................................ 114
Strickland v. Washington,
466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) ............................passim
Strickler v. Greene,
527 U.S. 263, 119 S. Ct. 1936, 144 L. Ed. 2d 286 (1999) ................................. 44

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

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Taylor v. Kentucky,
436 U.S. 478, 98 S. Ct. 1930, 56 L. Ed. 2d 468 (1978) .............................95, 142
Taylor v. Maddox,
366 F.3d 992 (9th Cir. 2004) ............................................................................ 141
Taylor v. Workman,
554 F.3d 879 (10th Cir. 2009) .......................................................................... 140
Tuilaepa v. California,
512 U.S. 967, 114 S. Ct. 2630, 129 L. Ed. 2d 750 (1994) .......131, 138, 139, 140
United States v. Agurs,
427 U.S. 97, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976) .................................44, 48
United States v. Bagley,
473 U.S. 667, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985) .......................44, 49, 53

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United States v. Barrett,
703 F.2d 1076 (9th Cir. 1982) .......................................................................... 101
United States v. Cronic,
466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984) ................................... 30
United States v. Davenport,
753 F.2d 1460 (9th Cir. 1985) ............................................................................ 44
United States v. Resko,
3 F.3d 684 (3d Cir. 1993) ................................................................................... 93
United States v. Swanson,
943 F.2d 1070 (9th Cir. 1991) ...................................................................... 28, 30
United States v. Wood,
299 U.S. 123, 57 S. Ct. 177, 81 L. Ed. 78 (1936)............................................... 88
Walker v. Martin,
__ U.S. __, 131 S. Ct. 1120, 179 L. Ed. 2d 62 (2011) ....................................... 13
Webster v. Ornoski,
No. 2:93-cv-0306-LKK-DAD (E.D. Cal. filed July 27, 2006)......................... 138

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Wellons v. Hall,
558 U.S. 220, 130 S. Ct. 727, 175 L. Ed. 2d 684 (2010) ................................. 103

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Wiggins v. Smith,
539 U.S. 510, 123 S. Ct. 2527, 156 L. Ed. 2d 471 (2003) ..........................passim
Williams v. Taylor,
529 U.S. 362, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000) ..........................passim
Williams v. Woodford,
859 F. Supp. 2d 1154 (E.D. Cal. 2012) .......................................................passim
Wilson v. Workman,
577 F.3d 1284 (10th Cir. 2009) (en banc) .......................................................... 10
Winston v. Pearson,
592 F.3d 535 (4th Cir. 2010) .............................................................................. 10
Winston v. Pearson,
683 F.3d 489 (4th Cir. 2012) .............................................................................. 10

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Zant v. Stephens,
462 U.S. 862, 103 S. Ct. 2733, 77 L. Ed. 2d 235 (1983) .........................129, 131
California Cases
People v. Anderson,
43 Cal. 3d 1104, 240 Cal. Rptr. 585 (1987) ..................................................... 134
People v. Arias,
13 Cal. 4th 92, 51 Cal. Rptr. 2d 770 (1996) .......................................34, 138, 139
In re Avena,
12 Cal. 4th 694, 49 Cal. Rptr. 2d 413 (1996) ..................................................... 41
People v. Bacigalupo,
6 Cal. 4th 457, 24 Cal. Rptr. 2d 808 (1993) .............................................131, 134
People v. Bennett,
45 Cal. 4th 577, 88 Cal. Rptr. 3d 131 (2009) ..................................................... 16
In re Brown,
17 Cal. 4th 873, 952 P.2d 715 (1998) ................................................................. 51

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People v. Cain,
10 Cal. 4th 1, 40 Cal. Rptr. 2d 481 (1995) ......................................................... 27

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People v. Chavez,
37 Cal. 2d 656, 234 P.2d 632 (1951) ................................................................ 133
People v. Cobb,
45 Cal. 2d 158, 287 P.2d 752 (1955) ................................................................ 104
People v. Cortes,
192 Cal. App. 4th 873, 121 Cal. Rptr. 3d 605 (2011) ........................................ 20
People v. Cowan,
50 Cal. 4th 401, 236 P.3d 1074 (2010) ............................................................. 104
In re Crew,
52 Cal. 4th 126, 127 Cal. Rptr. 3d 285 (2011) ................................................... 41
People v. Crittenden,
9 Cal. 4th 83, 36 Cal. Rptr. 2d 474 (1994) ...............................................138, 139

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In re Cudjo,
20 Cal. 4th 673, 85 Cal. Rptr. 2d 436 (1999) ..................................................... 41
In re Curtis Price,
No. S018328, Order (Cal. Jan. 29, 1992) ........................................................... 55
People v. Davenport,
41 Cal. 3d 247, 710 P.2d 861 (1985) .................................................................. 16
People v. Dillon,
34 Cal. 3d 441, 194 Cal. Rptr. 390 (1983) ...............................................132, 133
People v. Dunkle,
36 Cal. 4th 861, 116 P.3d 494 (2005) ............................................................... 119
People v. Duvall,
9 Cal. 4th 464, 37 Cal. Rptr. 2d 259 (1995) ...................................................6, 41
People v. Ewoldt,
7 Cal. 4th 380, 867 P.2d 757 (1994) ................................................................... 31
People v. Guerrero,
16 Cal. 3d 719 (1976) ......................................................................................... 31

28
xii
Petitioner’s Opening 2254(d) Evidentiary Hearing Claims

Case No. CV-09-2158-CJC

1

In re Hardy,
41 Cal. 4th 977, 63 Cal. Rptr. 3d 845 (2007) ..................................................... 41

2
3
4
5
6
7
8
9
10
11
12

In re Harris,
5 Cal. 4th 813, 21 Cal. Rptr. 2d 373 (1993) ....................................................... 41
Hasson v. Ford Motor Co.,
32 Cal. 3d 388, 185 Cal. Rptr. 654 (1982) ....................................................... 100
In re Hawthorne,
35 Cal. 4th 40, 105 P.3d 552 (2005) ................................................................. 123
People v. Jackson,
152 Cal. App. 3d 961, 199 Cal. Rptr. 848 (1984) .............................................. 20
People v. Jones,
29 Cal. 4th 1229, 131 Cal. Rptr. 2d 468 (2003) ..........................................passim
People v. Kelly,
1 Cal. 4th 495, 3 Cal. Rptr. 2d 677 (1992) ......................................................... 27

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

People v. Morales,
48 Cal. 3d 527, 257 Cal. Rptr. 64 (1989) ......................................................... 134
People v. Perez,
2 Cal. 4th 1117, 9 Cal. Rptr. 2d 577 (1992) ..................................................... 132
In re Robbins,
18 Cal. 4th 770, 77 Cal. Rptr. 2d 153 (1998) .............................................42, 144
People v. Rodrigues,
8 Cal. 4th 1060, 885 P.2d 1 (1994) ................................................................... 120
People v. Romero,
8 Cal. 4th 728, 35 Cal. Rptr. 2d 270 (1994) ..................................................... 2, 6
People v. Ruiz,
44 Cal. 3d 589, 244 Cal. Rptr. 200 (1988) ....................................................... 132
People v. Sakarias,
22 Cal. 4th 596, 94 Cal. Rptr. 2d 17 (2000) ..................................................... 139
People v. Sanchez,
12 Cal. 4th 1 47 Cal. Rptr. 2d 843 (1995) ........................................................ 141

28
xiii
Petitioner’s Opening 2254(d) Evidentiary Hearing Claims

Case No. CV-09-2158-CJC

1

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

2
3
4
5
6
7
8
9
10
11
12

People v. Super. Ct. (Vidal),
40 Cal. 4th 999, 155 P.3d 259 (2007) .......................................................124, 128
In re Swain,
34 Cal. 2d 300, 209 P.2d 793 (1949) ..........................................................55, 102
People v. Taylor,
47 Cal. 4th 850, 220 P.3d 872 (2010) ............................................................... 119
In re Valdez,
49 Cal. 4th 715, 111 Cal. Rptr. 3d 647 (2010) ................................................... 41
In re Visciotti,
14 Cal. 4th 325, 58 Cal. Rptr. 2d 801 (1996) ..................................................... 41
People v. Webb,
143 Cal. App. 2d 402, 300 P.2d 130 (1956) .................................................19, 20

13
14
15
16
17
18
19
20

People v. Webster,
54 Cal. 3d 411, 285 Cal. Rptr. 31 (1991) ......................................................... 134
Federal Statutes
28 U.S.C.,
§ 2254(d) ......................................................................................................passim
28 U.S.C.,
§ 2254(d)(1) .................................................................................................passim

21

28 U.S.C.,
§ 2254(d)(2) .................................................................................................passim

22

U.S. Const. amend. VI ......................................................................................passim

23
24
25
26
27

U.S. Const. amend. VIII....................................................................................passim
U.S. Const. amend. XIV ...................................................................................passim
California Statutes
1977 Cal. Stat. 316. ................................................................................................ 134

28
xiv
Petitioner’s Opening 2254(d) Evidentiary Hearing Claims

Case No. CV-09-2158-CJC

1

1977 Cal. Stat. 1255-66. ........................................................................................ 133

2

Cal. Evid. Code § 400 ............................................................................................. 28

3

Cal. Evid. Code § 802 .............................................................................................. 19

4

Cal. Evid. Code § 1101 ......................................................................................30, 31

5

Cal. Penal Code § 28 ................................................................................................ 20

6
7

Cal. Penal Code § 189 ......................................................................................passim

8

Cal. Penal Code § 190.2 ...................................................................................passim

9

Cal. Penal Code § 190.3 ......................................................................................... 139

10

Cal. Penal Code § 1054.9 ......................................................................................... 46

11

Cal. Penal Code § 1367 .......................................................................................... 119

12

Cal. Penal Code § 1376 ......................................................... 123, 124, 128, 124, 128

13
14
15

Other Authorities
Judge Arthur Alarcon, California’s Death Row Deadlock, 80 S. Cal. L. Rev. 697,
740-41, 749 (2007) ............................................................................................. 13

16
17
18

American Bar Association, Guidelines for the Appointment and Performance of
Counsel in Death Penalty Cases (1989) .................................................18, 22, 31
Cal. Comm’m on the Fair Admin. of Justice, Final Report 125 (2008) .................. 13

19
20
21
22
23
24
25

Suzanne Mounts, Premeditation and Deliberation in California: Returning to a
Distinction Without a Difference, 36 U.S.F. L. Rev. 261, 308 (2001) ............. 132
Steven F. Shatz, The Eighth Amendment, the Death Penalty, and Ordinary
Robbery-Burglary Murderers: A California Case Study, 59 Fla. L. Rev. 719,
730-32 (2007)............................................................................................133, 136
Steven F. Shatz & Nina Rivkind, The California Death Penalty Scheme: Requiem
for Furman? 72 N.Y.U. L. Rev. 1283, 1320-21 (1997) ...................133, 135, 136

26
27
28
xv
Petitioner’s Opening 2254(d) Evidentiary Hearing Claims

Case No. CV-09-2158-CJC

INTRODUCTION

1
2

Mr. Jones filed his Petition for Writ of Habeas Corpus in this Court on

3

March 10, 2010, and Respondent filed an Answer on April 6, 2010. ECF Nos. 26

4

& 28. Pursuant to the parties’ stipulation and the Court’s order, ECF Nos. 30 & 31,

5

Mr. Jones thereafter filed a Motion for an Evidentiary Hearing on February 17,

6

2011, ECF No. 59. On April 4, 2011, the United States Supreme Court issued its

7

opinion in Cullen v. Pinholster, __ U.S. __, 131 S. Ct. 1388, 179 L. Ed. 2d 557

8

(2011), holding that the bar to federal habeas corpus relief set forth in 28 U.S.C.

9

section 2254(d)(1) must be evaluated solely by reference to “the record that was

10

before the state court that adjudicated the claim on the merits.” Id. at 1398. In

11

response to the opinion, this Court vacated the remaining briefing schedule for Mr.

12

Jones’s Motion for Evidentiary Hearing and ordered the parties to brief Mr. Jones’s

13

entitlement to an evidentiary hearing in light of Pinholster, which they completed.

14

See ECF Nos. 62, 68, 71, & 74. In an order denying Mr. Jones’s Motion for an

15

Evidentiary Hearing without prejudice, this Court ordered the parties to conduct

16

merits briefing to “set forth how each claim satisfies section 2254(d)(1) and/or

17

section 2254(d)(2) on the basis of the record that was before the state court that

18

adjudicated the claim on the merits.” ECF No. 75.1

19
20
21
22
23
24
25
26
27
28

1

This Court subsequently directed Mr. Jones to limit his Opening Merits
Brief on Section 2254(d) to 100 pages. See ECF No. 81. In an Ex Parte
Application to File Petitioner’s Opening Brief on Section 2254(d) in Excess of
Page Limits, Mr. Jones explained that he was unable to complete merits briefing
within the Court’s page limitation, even for the claims contained in his Motion for
Evidentiary Hearing. See ECF No. 83. Indeed, the state briefing, which set forth
the factual and legal bases for the claims without briefing federal habeas
procedural requirements, was almost 1200 pages; Mr. Jones’s briefing in the
automatic appeal comprised 357 pages, and the petitions filed October 21, 2002,
and October 16, 2007, and replies to Respondent’s informal responses comprised
838 pages. Given these restraints, Mr. Jones has not attempted to also brief the
remaining claims from his Petition for Writ of Habeas Corpus, including claims
that first were presented in the direct appeal in state court. Mr. Jones anticipates
continued…

1
Petitioner’s Opening 2254(d) Evidentiary Hearing Claims

Case No. CV-09-2158-CJC

1

Mr. Jones fully presented the claims addressed in this Opening Brief to the

2

California Supreme Court, submitting comprehensive and detailed allegations and

3

supporting them with additional factual proffers in 3,414 pages of documentary

4

material, including seventy-three declarations from lay witnesses, experts, trial

5

team members, and jurors. The state court was required to accept these allegations

6

as true to determine whether Mr. Jones presented a prima facie case for relief and,

7

if so, to issue an order to show cause to permit Mr. Jones to engage in factual

8

development, prove his claims, and allow the court to resolve factual disputes.

9

See, e.g., In re Serrano, 10 Cal. 4th 447, 454-56, 41 Cal. Rptr. 2d 695 (1995);

10

People v. Romero, 8 Cal. 4th 728, 737, 35 Cal. Rptr. 2d 270 (1994).

11

Central to Mr. Jones’s case, and to the claims of constitutional error he raised

12

in state court, is that his mental functioning throughout his life, and in particular at

13

the time of the crime and trial, was severely impaired due to his life-long mental

14

illness, brain damage, and intellectual disabilities.

15

dysfunction—which

16

paranoia—was evident not only throughout his troubled history, but also in the

17

capital crime itself, which involved a bizarre and disorganized sexual assault, with

18

evidence that sexual contact with the victim occurred after her death.

19

Hallucinating and distraught following the crime, Mr. Jones attempted suicide by

20

shooting himself in the chest.

included

hallucinations,

Mr. Jones’s mental

delusions,

dissociation,

and

21

During the guilt phase, Mr. Jones’s impaired mental state was trial counsel’s

22

only defense. As detailed in Claim One, trial counsel was ineffective for failing to

23

investigate or present any of the readily available mental state evidence available

24
25
26
27

that following this Court’s determination whether to conduct an evidentiary
hearing, and proceedings consistent with that determination, the parties will return
to merits briefing for all remaining claims, including the application of 28 U.S.C.
section 2254(d) for each claim on which Mr. Jones seeks relief.

28
2
Petitioner’s Opening 2254(d) Evidentiary Hearing Claims

Case No. CV-09-2158-CJC

1

to support Mr. Jones’s testimony about events on the day of the crime. Although

2

trial counsel retained an expert who concluded that Mr. Jones suffered a psychotic

3

break at the time of the crime and was not capable of controlling his actions, trial

4

counsel did not present that or any other expert testimony during the guilt phase.

5

Declarations from trial counsel, the defense paralegal, the defense expert, and

6

numerous other witnesses and documentary evidence supported these and other

7

allegations establishing trial counsel’s prejudicially deficient performance.

8

As Claim Three established, the jury further was deprived of critical

9

information about Mr. Jones’s mental impairments by the prosecutor’s failure to

10

comply with his constitutional obligation to disclose exculpatory material. In

11

particular, the prosecutor unlawfully withheld records that documented Mr. Jones’s

12

prior emergency psychiatric care and treatment in jail with antipsychotic

13

medication, at the same time that the prosecution repeatedly argued that Mr.

14

Jones’s claimed mental illness was fabricated. Critically, although Mr. Jones’s

15

identity as the perpetrator was not in dispute, and without the benefit of a

16

minimally adequate defense or the withheld records, the jury deliberated for

17

several days before finally arriving at the guilt verdicts.

18

As demonstrated by Claim Sixteen, trial counsel’s performance at the

19

penalty phase similarly was prejudicially deficient. Delegating preparation for the

20

penalty phase defense to the paralegal, trial counsel utterly failed to discover or

21

present a wealth of information about Mr. Jones’s history of being sexually abused

22

by his mother, physically abused, and exposed to life-threatening and terrifying

23

violence that regularly occurred between his alcoholic parents. Trial counsel did

24

not investigate clear indications of Mr. Jones’s intellectual disabilities and brain

25

damage, or his dramatically deteriorating mental health prior to the crime. As trial

26

counsel acknowledged, he considered Mr. Jones’s mental illness the most

27

important issue in the case, but failed to retain a mental health expert until very late

28

in the trial, did not follow the expert’s recommendations, failed to provide the
3
Petitioner’s Opening 2254(d) Evidentiary Hearing Claims

Case No. CV-09-2158-CJC

1

expert with necessary background information, and neglected to prepare him to

2

testify.

3

declarations from trial counsel, the defense paralegal, the defense expert, two new

4

experts able to fully and competently evaluate Mr. Jones, and the lengthy

5

statements of many people who knew Mr. Jones throughout his life and

6

compellingly described its many tragedies.

7

supported his allegations that jurors were not impartial with the declarations by

8

jurors describing their discussions about imposing a death sentence before the

9

penalty phase began, their exposure to prejudicial extrinsic evidence, and the fact

10

In support of this claim, Mr. Jones presented the state court with

In Claim Eighteen, Mr. Jones

that one juror slept during critical portions of the penalty phase.

11

In Claim Four, Mr. Jones alleged that his due process rights were violated

12

because he was subject to an involuntary and inappropriate medication regimen

13

that concealed and altered his presentation before the jury and impaired his ability

14

to participate in the trial and his defense.

15

medicated with Haldol, a potent antipsychotic medication, as well as

16

antidepressants and other medications, some with significant side effects. In the

17

middle of the guilt phase, this medication was abruptly discontinued and later

18

restarted. Mr. Jones’s clinical need for this medication, a mental health expert’s

19

conclusion that Mr. Jones was incompetent to stand trial, and Mr. Jones’s unusual

20

and irrational behavior, all compelled the trial court to conduct a hearing to

21

determine his competence to stand trial.

During the trial, Mr. Jones was

22

In Claim Five, Mr. Jones alleged that his due process rights were violated by

23

the trial court’s failure to hold a competency hearing and by his having to stand

24

trial when he was, in fact, incompetent. Mr. Jones supported these allegations with

25

the opinion of the defense expert who evaluated Mr. Jones at the time of the trial,

26

lay witnesses who observed Mr. Jones at the time, and the corroborating opinions

27

of additional experts.

28

impairments and his intellectual disability—established by his subaverage

In Claim Twenty-three, Mr. Jones alleged that these
4

Petitioner’s Opening 2254(d) Evidentiary Hearing Claims

Case No. CV-09-2158-CJC

1

intelligence and deficits in adaptive functioning—render him ineligible for the

2

death penalty.

3

documentation never considered by the state court in support of his claim that the

4

death penalty statute in California unconstitutionally fails to narrow the class of

5

those eligible for the death penalty.

Finally, in Claim Twenty-four, Mr. Jones presented factual

6

In compliance with this Court’s order and to establish his entitlement to an

7

evidentiary hearing on these compelling claims, Mr. Jones submits this briefing

8

explaining why 28 U.S.C. section 2254(d) does not bar this Court from granting

9

him habeas relief. Section I sets out analysis under section 2254(d)(1) and (d)(2)

10

that applies to each of Mr. Jones’s claims, demonstrating why the state court’s

11

failure to conduct a hearing to resolve Mr. Jones’s claims and engage in adequate

12

procedures before denying them satisfies section 2254(d)(1), and why the state

13

court likely resolved factual questions without a hearing, thus also satisfying

14

section 2254(d)(2). In Section II, Mr. Jones presents controlling Supreme Court

15

precedent for each claim, summarizes the prima facie showing he made in state

16

court and Respondent’s contentions presented in response, and discusses additional

17

claim-specific bases on which section 2254(d)(1) and (d)(2) are satisfied.

18
I. APPLICABLE LEGAL FRAMEWORK

19
20

A.

Overview of 28 U.S.C. Section 2254(d).

21

A habeas petitioner may receive relief on a claim “adjudicated on the merits”

22

in state court whenever the last reasoned state decision either was (1) contrary to,

23

or involved an unreasonable application of, clearly established federal law as

24

determined by the United States Supreme Court, 28 U.S.C. § 2254(d)(1); or (2)

25

based on an unreasonable determination of the facts given the evidence presented

26

in state court, id. at § 2254(d)(2). A state court decision is “contrary to” clearly

27

established federal law when it (1) applies a legal rule that contradicts prior

28

Supreme Court precedent; or (2) reaches a different result from a Supreme Court
5
Petitioner’s Opening 2254(d) Evidentiary Hearing Claims

Case No. CV-09-2158-CJC

1

case despite confronting indistinguishable facts. See, e.g., Williams v. Taylor, 529

2

U.S. 362, 405, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000) (O’Connor, J.,

3

concurring). A state court’s decision is an “unreasonable application” of clearly

4

established federal law when it is “objectively unreasonable.” Id. at 409-10. In

5

applying section 2254(d)(1), a federal habeas court “is limited to the record that

6

was before the state court that adjudicated the claim on the merits.” Cullen v.

7

Pinholster, __ U.S. __, 131 S. Ct. 1388, 1398, 179 L. Ed. 2d 557 (2011).

8

B.

Section 2254(d) Applications Common To All Claims.

9

The California Supreme Court summarily denied all of Mr. Jones’s state

10

habeas corpus claims on the merits.2 The state court was required to accept all of

11

Mr. Jones’s allegations as true in ruling that Mr. Jones failed to make any prima

12

facie showing that he was entitled to relief. See, e.g., People v. Duvall, 9 Cal. 4th

13

464, 474-75, 37 Cal. Rptr. 2d 259 (1995). Because of its summary denial, the state

14

court did not (1) require Respondent to formally respond to Mr. Jones’s claims or

15

present evidence in support of any factual disputes; (2) authorize Mr. Jones to

16

conduct depositions or other discovery to fully develop his claims; (3) permit Mr.

17

Jones to present any evidence in support of his allegations; or (4) engage in any

18

fact finding to resolve Mr. Jones’s claims.3 Because Mr. Jones’s habeas corpus

19
20
21
22
23
24
25
26
27
28

2

See 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.”
3

It is through the return and the traverse that the issues are joined in a habeas
corpus proceeding. People v. Romero, 8 Cal. 4th 728, 739, 883 P.2d 388 (1994).
The informal response is not a substitute for the formal return and traverse,
because it “is not a pleading, does not frame or join issues, and does not establish
a ‘cause’ in which a court may grant relief.” Id. at 741. Rather, the informal
response serves a screening function similar to that of a demurrer in a civil action.
Id. at 742 n.9. For a more complete description of the limitations of resolving a
capital habeas petition informally, see Petitioner’s Supplemental Reply Brief on
continued…

6
Petitioner’s Opening 2254(d) Evidentiary Hearing Claims

Case No. CV-09-2158-CJC

1

claims were denied on the same basis, the 2254(d) analysis that follows is

2

applicable to all of them.

3

At the core of Mr. Jones’s 2254(d) arguments, and discussed in detail in

4

Section II, is that he successfully established a prima facie case for relief for each

5

of his claims in state court. The state court’s summary denial of the claims

6

therefore indicates that it required a showing to advance beyond the pleading stage

7

that is greater than, or significantly different from, that mandated by federal law.

8

This results in a state court decision that satisfies sections 2254(d)(1) and (d)(2) for

9

each of Mr. Jones’s claims at the outset. First, the decision is contrary to Supreme

10

Court precedent because the state court rejected constitutional claims that were

11

adequately pled as a matter of federal law and failed to engage in fact finding to

12

resolve them. Relatedly, declining to conduct a hearing on claims that present a

13

prima facie showing for relief constitutes an unreasonable application of the

14

constitutional law underlying each of them.

15

constitutional claims on the basis of informal factual disputes raised by

16

Respondent—at the pleading stage and without providing Mr. Jones an opportunity

17

to rebut or present evidence—is an unreasonable determination of the facts and

18

allegations presented in the state habeas petition.

19
20

Second, the resolution of

1. The State Court’s Summary Denial Is Contrary To Federal Pleading
Burdens and an Unreasonable Application of Federal Law.

21

When federal constitutional claims are “plainly and reasonably made,” the

22

Supreme Court has long held that a state court must engage in meaningful fact-

23

finding to resolve them. Angel v. Bullington, 330 U.S. 183, 188, 67 S. Ct. 657, 91

24

L. Ed. 832 (1947); see also McNeal v. Culver, 365 U.S. 109, 110, 81 S. Ct. 413, 5

25

L. Ed. 2d 445 (1961) (state court must hold hearing to determine facts when

26
27

the Effect of Cullen v. Pinholster on the Court’s Power to Grant an Evidentiary
Hearing, filed Oct. 28, 2011, ECF No. 74 (“Supp. Br. on Pinholster”) at 6-9.

28
7
Petitioner’s Opening 2254(d) Evidentiary Hearing Claims

Case No. CV-09-2158-CJC

1

petition alleged constitutional violation “with reasonable clarity”); Davis v.

2

Wechsler, 263 U.S. 22, 24-25, 44 S. Ct. 13, 68 L. Ed. 143 (1923) (states may not

3

create “unreasonable obstacles” to resolution of federal constitutional claims that

4

are “plainly and reasonably made”). As the Court explained, “[t]he power of a

5

state to determine the limits of the jurisdiction of its courts and the character of the

6

controversies which shall be heard in them is, of course, subject to the restrictions

7

imposed by the Federal Constitution.” Angel, 330 U.S. at 188. Moreover, “the

8

question whether a right or privilege, claimed under the Constitution or laws of the

9

United States was distinctly and sufficiently pleaded and brought to the notice of a

10

state court, is itself a Federal question.” Carter v. Texas, 177 U.S. 442, 447, 20 S.

11

Ct. 687, 44 L. Ed. 839 (1900). The Court therefore has invalidated state decisions

12

made without adequate fact-finding where constitutional claims were supported by

13

“factual allegations not patently frivolous or false.” See Pennsylvania ex rel.

14

Herman v. Claudy, 350 U.S. 116, 118-19, 76 S. Ct. 223, 100 L. Ed. 126 (1956); see

15

also Cash v. Culver, 358 U.S. 633, 638, 79 S. Ct. 432, 3 L. Ed. 2d 557 (1959)

16

(allegations of the habeas petition “made it incumbent upon the Florida courts to

17

determine what the true facts were”).4

18

The Supreme Court also has reversed state court decisions that purport to

19

resolve federal constitutional claims but fail to provide adequate procedures for

20

doing so. In Ford v. Wainwright, 477 U.S. 399, 106 S. Ct. 2595, 91 L. Ed. 2d 335

21

(1986), for example, the Court held that the state’s failure to permit adversarial

22

proceedings for a competency determination and related constitutional claims

23

created “a much greater likelihood of an erroneous decision.” Id. at 414-15 (a

24

decision based on inadequate proceedings “will be distorted”). The Court therefore

25

rejected the state’s resolution of the constitutional issue, concluding that state

26
27

4

For more discussion of this precedent, see Supp. Br. on Pinholster at 12-17.

28
8
Petitioner’s Opening 2254(d) Evidentiary Hearing Claims

Case No. CV-09-2158-CJC

1

proceedings were “inadequate to … protect the federal interests.” Id. at 416.

2

In Panetti v. Quarterman, 551 U.S. 930, 127 S. Ct. 2842, 168 L. Ed. 2d 662

3

(2007), the Court held that this type of deficiency constitutes an unreasonable

4

application of federal law. Id. at 954 (section 2254(d)(1) is satisfied when the “fact

5

finding procedures upon which the court relied were ‘not adequate for reaching

6

reasonably correct results’ or, at a minimum, resulted in a process that appeared to

7

be ‘seriously inadequate for the ascertainment of the truth.’”) (quoting Ford v.

8

Wainwright, 477 U.S. at 423-24 (Powell, J., concurring)); cf. Wiggins v. Smith, 539

9

U.S. 510, 527, 123 S. Ct. 2527, 156 L. Ed. 2d 471 (2003) (state court decision was

10

an unreasonable application of Strickland for resolving claim without conducting

11

assessment of the facts to determine whether counsel’s investigation was

12

adequate). In a case applying Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242,

13

153 L. Ed. 2d 335 (2002), the Fifth Circuit held that “[t]he lesson we draw from

14

Panetti is that, where a petitioner has made a prima facie showing of retardation as

15

Rivera did, the state court’s failure to provide him with the opportunity to develop

16

his claim deprives the state court’s decision of the deference normally due.”

17

Rivera v. Quarterman, 505 F.3d 349, 358 (5th Cir. 2007) (ruling that section

18

2254(d)(1) was satisfied); see also Nunes v. Mueller, 350 F.3d 1045, 1054-55 (9th

19

Cir. 2003) (section 2254(d)(1) satisfied; where petitioner made prima facie

20

showing of ineffective assistance of counsel but state court denied hearing, state

21

court appears unreasonably to require more than the prima facie showing required

22

by Strickland).

23

Recent case law confirms that application of section 2254(d) under Panetti

24

has not changed following the Supreme Court’s decisions in Cullen v. Pinholster,

25

__ U.S. __, 131 S. Ct. 1388, 179 L. Ed. 2d 557 (2011), and Harrington v. Richter,

26

__ U.S. __, 131 S. Ct. 770, 178 L. Ed. 2d 624 (2011). For example, prior to

27

Pinholster and Richter, the Fourth Circuit held that when the state court refused

28

petitioner discovery and an evidentiary hearing, the state court adjudication “was
9
Petitioner’s Opening 2254(d) Evidentiary Hearing Claims

Case No. CV-09-2158-CJC

1

materially incomplete” and its decision was not an “adjudication on the merits”

2

subject to 2254(d) limitations. Winston v. Pearson (Winston I), 592 F.3d 535, 555-

3

58 (4th Cir. 2010).5 Following the Supreme Court’s decisions in Pinholster and

4

Richter, the Fourth Circuit recently reexamined Winston I. Winston v. Pearson

5

(Winston II), 683 F.3d 489 (4th Cir. 2012).

6

In Winston II, the court declined to overrule Winston I, because neither

7

Richter nor Pinholster were contrary controlling authority: neither case resolved

8

the contours of a state court’s “adjudication on the merits.” Id. at 498-500. In

9

Pinholster, the parties did not dispute the existence of a state court “adjudication.”

10

Id. at 501-02. In Richter, the Court only decided that a decision’s summary nature

11

did not preclude its characterization as a merits adjudication. The Fourth Circuit

12

held that Richter did not address other possible defects in state court decisions and

13

therefore did not govern a case in which the petitioner contests the state court’s

14

unreasonable denial of his request for an evidentiary hearing. Id. at 502. Other

15

courts have reached similar conclusions. See, e.g., Mosley v. Atchison, 689 F.3d

16

838, 849 (7th Cir. 2012) (summary denial of ineffectiveness claim unreasonable

17

without a fully developed factual record); Fanaro v. Pineda, No. 2:10-CV-1002,

18

2012 WL 1854313 (S.D. Ohio May 21, 2012) (state court decision unreasonable

19

for rejecting prima facie showing of ineffectiveness without hearing); Ballinger v.

20

Prelesnik, 844 F. Supp. 2d 857, 867 (E.D. Mich. 2012).

21

In the discussion of claims that follows in Section II, Mr. Jones demonstrates

22

that his allegations and supporting exhibits in state court established a prima facie

23

case for relief under each of the constitutional violations alleged. As such, he was

24
25
26
27

5

Cf. Wilson v. Workman, 577 F.3d 1284, 1292 (10th Cir. 2009) (en banc)
(“When the state court relies solely upon the record evidence, and denies both the
claim itself and an evidentiary hearing on the proffered non-record evidence
without any alternative holding based upon the proffered evidence, there is no
adjudication on the merits that would warrant deferential review.”).

28
10
Petitioner’s Opening 2254(d) Evidentiary Hearing Claims

Case No. CV-09-2158-CJC

1

entitled to have the state court hear and resolve his claims. The state court’s failure

2

to do so was contrary to clearly established federal law. By rejecting Mr. Jones’s

3

prima facie claims for relief without any hearing, the state court decision was an

4

unreasonable application of the federal constitutional law governing each of his

5

claims. As the Court in Panetti held, “[w]hen a state court’s adjudication of a

6

claim is dependent on an antecedent unreasonable application of federal law, the

7

requirement set forth in § 2254(d)(1) is satisfied.”

8
9

2. The

State

Court’s

Summary

Denial

Is

an

Unreasonable

Determination of Facts.

10

As described for each of the claims in Section II, infra, Respondent raised

11

numerous factual disputes in response to Mr. Jones’s state habeas petition.

12

Respondent did not argue in state court that Mr. Jones’s allegations, taken as true,

13

failed to establish a prima facie case for relief. Instead, Respondent urged the state

14

court to reject Mr. Jones’s factual allegations. For example, Respondent urged the

15

state court to disbelieve Mr. Jones’s allegations about trial counsel failing to

16

investigate and present evidence for the penalty phase. See Informal Response to

17

Petition for Writ of Habeas Corpus, NOL at C.5. (“Inf. Resp.”) at 22-25.

18

Respondent suggested that, contrary to Mr. Jones’s allegations, trial counsel could

19

have made tactical decisions to limit mitigating evidence for a variety of reasons,

20

including: (1) the jury would become “desensitized” and “alienated” by additional

21

mitigation; (2) the mitigation had little relevance; and (3) expert testimony about

22

Mr. Jones’s history of mental illness would not be helpful. Id. Needless to say,

23

each of these contentions required the state court to make factual determinations.

24

See Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (whether trial

25

counsel’s actions are tactical is a question of fact); Ferrell v. Hall, 640 F.3d 1199,

26

1223 (11th Cir. 2011) (same).

27

In response to each of Mr. Jones’s claims, Respondent thus invited the state

28

court to assume adverse facts to reject Mr. Jones’s allegations and summarily deny
11
Petitioner’s Opening 2254(d) Evidentiary Hearing Claims

Case No. CV-09-2158-CJC

1

his claims. Without a reasoned opinion from the state court on most of Mr. Jones’s

2

claims, it is not possible to establish definitively that this occurred. It is apparent,

3

however, that the California Supreme Court’s appellate review improperly

4

encompasses such factual determination in some instances. See, e.g., People v.

5

Jones, 29 Cal. 4th 1229, 1254-55, 131 Cal. Rptr. 2d 468 (2003) (attributing tactical

6

decision to Mr. Jones’s counsel to reject ineffectiveness claim on appeal where no

7

evidence of tactical decision making appeared in the record).

8

because Mr. Jones’s allegations taken as true did make a prima facie showing for

9

relief, a plausible interpretation of the state court ruling is that it necessarily

10

resolved some factual issues as suggested by Respondent in determining that no

11

prima facie showing was made. This would be an unreasonable determination of

12

the facts under section 2254(d)(2). See, e.g., Hurles v. Ryan, 650 F.3d 1301, 1312

13

(9th Cir. 2011) (“We have repeatedly held that where a state court makes factual

14

findings without an evidentiary hearing or other opportunity for the petitioner to

15

present evidence, the fact-finding process itself is deficient and not entitled to

16

deference”); Williams v. Woodford, 859 F. Supp. 2d 1154, 1159 (E.D. Cal. 2012)

17

(section 2254(d)(2) is satisfied where “the court made assumptions of fact without

18

giving Williams an opportunity to present evidence, conduct discovery or

19

otherwise develop the record”); id. at 1161 (“Pinholster isn’t relevant where, as

20

here, petitioner surmounts section 2254(d) because he was not allowed to develop

21

the record in state court”); Lor v. Felker, No. CIV S-08-2985 GEB, 2012 WL

22

1604519 (E.D. Cal. May 7, 2012) (section 2254(d)(2) satisfied where the state

23

court’s “failure to conduct an evidentiary hearing violated petitioner’s right to a fair

24

process for developing the record supporting his claim”); Palazzolo v. Burt, 778 F.

25

Supp. 2d 805, 811 (E.D. Mich. 2011) (same).6

Furthermore,

26
27
28

6

The California Supreme Court’s inability to provide adequate process for
these claims may be the result of being overburdened with more than 3,000 habeas
continued…

12
Petitioner’s Opening 2254(d) Evidentiary Hearing Claims

Case No. CV-09-2158-CJC

1

In the section that follows, Mr. Jones highlights some—but by no means

2

all—of the allegations he made in state court that established a prima facie case for

3

relief on his claims that require an evidentiary hearing. This showing, together

4

with the controlling Supreme Court precedent for each claim, Respondent’s

5

contentions in state court, and additional analysis under section 2254(d)(1) and

6

(d)(2), demonstrates that section 2254(d) is satisfied for each of Mr. Jones’s claims.

7
II. MR. JONES’S CLAIMS SATISFY SECTION 2254(D)

8
9

A.

Mr. Jones Received Ineffective Assistance of Counsel During the Guilt

10

Phase of His Trial.

11

Mr. Jones presented the California Supreme Court with a prima facie claim

12

of ineffective assistance of counsel, alleging that he was prejudiced by trial

13

counsel’s unreasonable actions and omissions during the guilt phase of his trial.7

14
15
16
17
18
19
20
21
22
23
24
25
26
27

cases per year. Walker v. Martin, __ U.S. __, 131 S. Ct. 1120, 1126 n.2, 179 L. Ed.
2d 62 (2011). From 1978 to 2007, in capital habeas cases, the state court denied an
order to show cause (which formally commences a habeas proceeding and is a
prerequisite to an evidentiary hearing) in 92 percent of cases and granted
evidentiary hearings in only 4 percent of cases. See Judge Arthur Alarcon,
Remedies for California’s Death Row Deadlock, 80 S. Cal. L. Rev. 697, 740-41,
749 (2007). Yet 70 percent of California capital petitioners prevail in federal court
on claims denied in state court. See Cal. Comm’m on the Fair Admin. of Justice,
Final
Report
125
(2008),
available
at
http://www.ccfaj.org/
documents/CCFAJFinalReport.pdf.
7
Mr. Jones’s state ineffective assistance of counsel claim, Claim Four,
alleged prejudicial deficient performance in both the guilt and penalty phases of
trial. Petition for Writ of Habeas Corpus, Notice of Lodging, filed Apr. 6, 2010,
ECF No. 29 (“NOL”) at C.1. (“State Pet.”) at 66-239; Reply to the Informal
Response, NOL at C.6. (“Reply”) at 53-199. Mr. Jones also raised a record-based
portion of this claim on direct appeal. Appellant’s Opening Brief, NOL at B.1.
(“AOB”) at 126-42. In his federal briefing, Mr. Jones’s ineffective assistance of
counsel allegations are divided into guilt phase (Claim One) and penalty phase
(Claim Sixteen) allegations. Petition for Writ of Habeas Corpus by a Prisoner in
State Custody, filed Mar. 10, 2010, ECF No. 26 (“Fed. Pet.”) at 21-91, 223-338.

28
13
Petitioner’s Opening 2254(d) Evidentiary Hearing Claims

Case No. CV-09-2158-CJC

1

The only defense that counsel pursued at trial was that Mr. Jones’s mental

2

illness and substance use on the day of the crime kept him from forming the

3

specific intent necessary for a capital conviction.

4

investigation to support this defense, however, counsel relied solely on Mr. Jones’s

5

testimony, which the trial court curtailed and the prosecutor successfully attacked.

6

Had counsel investigated adequately, he would have made two critical discoveries.

7

First, a wealth of expert and lay testimony and record evidence existed to support

8

the mental state defense. Second, substantial evidence supported a second defense:

9

there was a reasonable doubt whether Mr. Jones had pre-mortem sexual contact

10

with the victim, Mrs. Miller. This was a complete defense to rape and the capital

11

charges based on rape, and also was consistent with the mental state defense.

Instead of conducting

12

During the guilt phase, the prosecution also sought to admit Mr. Jones’s

13

prior conviction for the rape of Doretha Harris to prove identity and intent in the

14

capital case. The prosecutor stated that admitting the Harris crime would be

15

unnecessary if counsel conceded that Mr. Jones raped Mrs. Miller. Although

16

counsel made this concession, he nonetheless withdrew his objection to the

17

introduction of the Harris prior at the guilt phase, did not investigate the

18

circumstances of that crime, and therefore was unprepared to counter introduction

19

of the Harris prior with compelling evidence of Mr. Jones’s mental illness and

20

deteriorating mental state.

21

1. Controlling U.S. Supreme Court Precedent.

22

The test for determining whether trial counsel provided constitutionally

23

effective representation is set out in Strickland v. Washington, 466 U.S. 668, 104 S.

24

Ct. 2052, 80 L. Ed. 2d 674 (1984). Strickland involves a two-part inquiry into

25

whether (1) counsel’s performance was deficient and (2) the deficient performance

26

prejudiced the defense. Id. at 687. Deficient performance is representation that

27

falls “below an objective standard of reasonableness,” where “reasonableness” is

28

determined by “prevailing professional norms” that are “reflected in American Bar
14
Petitioner’s Opening 2254(d) Evidentiary Hearing Claims

Case No. CV-09-2158-CJC

1

Association standards and the like.” Id. at 688-89; see also, e.g., Wiggins v. Smith,

2

539 U.S. 510, 524, 123 S. Ct. 2527, 156 L. Ed. 2d 471 (2003) (ruling that ABA

3

guidelines are “well-defined norms” to which the Court has long referred as guides

4

for determining reasonableness).

5

Counsel’s “strategic choices made after less than complete investigation” are

6

reasonable only to the extent that limitations on investigation are reasonable.

7

Strickland, 466 U.S. at 690-91; see also id. at 688 (ruling that “the performance

8

inquiry must be whether counsel’s assistance was reasonable considering all the

9

circumstances”). At a minimum, trial counsel must thoroughly investigate the

10

circumstances of the case and the defendant’s background. See, e.g., Rompilla v.

11

Beard, 545 U.S. 374, 387, 125 S. Ct. 2456, 162 L. Ed. 2d 360 (2005); Williams v.

12

Taylor, 529 U.S. 362, 396, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000). Similarly,

13

counsel must investigate the circumstances of a defendant’s prior crimes when the

14

prosecution seeks to introduce those crimes. Rompilla, 545 U.S. at 385-86.

15

Prejudice is established when there is a reasonable probability that, but for

16

counsel’s deficient performance, the result of the proceeding would have been

17

different. Strickland, 466 U.S. at 694. In making the prejudice determination, a

18

court “must consider the totality of the evidence” before the finder of fact: a

19

verdict “only weakly supported by the record is more likely to have been affected

20

by errors than one with overwhelming record support.” Id. at 695-96.

21

2. Prima Facie Allegations Before the State Court.

22

At trial, the prosecution sought to establish the first-degree murder charge

23

against Mr. Jones based solely on a felony-murder theory:

24

committed in the course of a robbery, burglary, and/or rape.8 1 CT 98-99; Cal.

25

Penal Code § 189. The jury found Mr. Jones guilty of felony murder based on

26
27

that murder was

8

The prosecution introduced two prior crimes against Mr. Jones: battery of
Kim Jackson in 1984 and rape of Doretha Harris in 1985. 14 RT 2380, 2406-07.

28
15
Petitioner’s Opening 2254(d) Evidentiary Hearing Claims

Case No. CV-09-2158-CJC

1

rape, but not guilty of robbery or burglary. 2 CT 365. For Mr. Jones to be eligible

2

for the death penalty, the jury also had to find him guilty of a special circumstance.

3

Cal. Penal Code § 190.2(a). The jury found Mr. Jones guilty of the rape special

4

circumstance. 2 CT 366-68. The intent requirement for either felony murder or

5

the special circumstance was specific intent to commit the rape. People v. Bennett,

6

45 Cal. 4th 577, 597-98, 88 Cal. Rptr. 3d 131 (2009); see also People v. Davenport,

7

41 Cal. 3d 247, 262, 710 P.2d 861 (1985) (specific intent describes “a state of mind

8

in which a defendant acts for the purpose or with the desire of causing a particular

9

result”). As counsel explained, “[M]y sole defense to the capital murder charge”

10

was to “demonstrate that [Mr. Jones] was incapable of forming the specific intent

11

required” due to mental illness. Ex. 12 at 107.9

12

In his detailed allegations presented to the state court, Mr. Jones established

13

that counsel failed to investigate and effectively present this mental state defense,

14

did not investigate or present a persuasive defense to the rape charges, and did not

15

oppose the unnecessary introduction of the Harris prior to prove rape during the

16

guilt phase. Mr. Jones’s state pleadings further illustrated how each of these

17

categories of deficient performance significantly prejudiced Mr. Jones.

18

a. Failure to investigate and effectively present mental state

19

defense.

20

Mr. Jones alleged that his trial counsel was prejudicially deficient for failing

21

to develop and present a mental state defense because he: (1) failed to conduct

22

necessary investigation; and (2) did not present lay and expert witnesses to support

23

the defense. State Pet. at 92-164; Reply at 86-127. Mr. Jones presented, inter alia,

24
25
26
27

9

All citations to exhibits refer to the Exhibits to Petition of Writ of Habeas
Corpus, NOL at C.2.

28
16
Petitioner’s Opening 2254(d) Evidentiary Hearing Claims

Case No. CV-09-2158-CJC

1

the following allegations and supporting facts to the state court.10

2

1) Trial counsel unreasonably failed to investigate.

3

In a declaration presented to the state court, trial counsel stated, “As a result

4

of reviewing the reports of Mr. Jones’s two prior offenses, I became convinced that

5

his offense[s] were the result of his serious mental illness. . . . Very early on, I

6

realized that Mr. Jones’s obvious mental illness had to be the crux of the defense to

7

the charged crimes.” Ex. 12 at 107; see also id. at 109. The reports on Mr. Jones’s

8

prior offenses contained, inter alia, the following:
 An officer who investigated the 1985 offense against Doretha Harris

9
10

concluded that Mr. Jones was mentally ill;

11

 Following his 1985 arrest, Mr. Jones reported that he had periods in

12

which he engaged in activities without later knowing what he was doing,

13

had blank spells, often felt as if things were not real, had strange and

14

peculiar thoughts, and felt possessed by evil spirits; and

15

 A prison psychological evaluation in 1986 determined that Mr. Jones was

16

raised in an environment of domestic violence, had a low IQ, had a

17

history of drug and alcohol abuse, was suicidal, and was uncertain of his

18

motivation for the charged crime.

19

Ex. 87; Ex. 104 at 2179-85.

20

Trial counsel assigned defense investigator Daniel Bazan responsibility for

21
22
23
24
25
26
27

10

Mr. Jones provided the state court with substantial extra-record evidence
supporting this subclaim, including: declarations of his counsel, paralegal,
penalty phase mental health expert at trial, habeas neuropsychologist, and habeas
educational psychologist (Exs. 12, 19, 125, 150, 154, 175, 178); juror declarations
(Exs. 9, 138, 140); declarations of lay witnesses who could have testified to his
mental health in 1992, the year of the capital crime (Exs. 10, 21, 124, 135, 149);
and lay witness and record evidence of his family’s and his own extensive history
of mental illness, mental impairments, and abuse (Exs. 1-4, 6, 8, 10-11, 13-14, 16,
18, 21, 25, 27, 42, 48, 50-51, 59, 69, 88, 97, 119, 122-26, 128-32, 134-35).

28
17
Petitioner’s Opening 2254(d) Evidentiary Hearing Claims

Case No. CV-09-2158-CJC

1

the guilt phase investigation, directing him to investigate the extent of pretrial

2

publicity and the robbery and burglary charges. Ex. 12 at 105-06. Although Mr.

3

Bazan at times made initial contact with penalty phase witnesses, he did not

4

conduct investigation into Mr. Jones’s background in preparation for the guilt

5

phase. Id. Particularly given the triggering facts concerning Mr. Jones’s mental

6

illness contained in the prior offense reports and counsel’s view that a mental state

7

defense was the only defense to the charged crimes, counsel was unreasonable for

8

failing to conduct investigation into Mr. Jones’s background in preparation for the

9

guilt phase of trial. See, e.g., Porter v. McCollum, 558 U.S. 30, 130 S. Ct. 447,

10

453, 175 L. Ed. 2d 398 (2009) (counsel “ignored pertinent avenues for

11

investigation of which he should have been aware”); Wiggins, 539 U.S. at 525 (“In

12

assessing the reasonableness of an attorney’s investigation … a court must consider

13

not only the quantum of evidence already known to counsel, but also whether the

14

known evidence would lead a reasonable attorney to investigate further.”); Seidel v.

15

Merkle, 146 F.3d 750, 755 (9th Cir. 1998) (counsel performed deficiently where he

16

was on notice of client’s mental illness but did not investigate mental state

17

defense); American Bar Association, Guidelines for the Appointment and

18

Performance of Counsel in Death Penalty Cases (1989) (“ABA Guidelines”)

19

11.4.1 (counsel must expeditiously conduct independent guilt and penalty phase

20

investigations immediately upon appointment).

21
22

2) Trial counsel unreasonably failed to present lay and expert
testimony.

23

Without investigating Mr. Jones’s background or his mental state leading up

24

to the crime, counsel based his entire mental state defense on Mr. Jones’s

25

testimony. Ex. 12 at 109; 22 RT 3297-309, 3314-46. On the day of the crime, Mr.

26

Jones used cocaine, smoked marijuana, and drank beer prior to his encounter with

27

Mrs. Miller. 22 RT 3299-301, 3318. He testified that while he was at Mrs.

28

Miller’s house, she threatened him with a knife and a rifle. He heard a voice say
18
Petitioner’s Opening 2254(d) Evidentiary Hearing Claims

Case No. CV-09-2158-CJC

1

“give it to me” and had a flashback of seeing his mother in bed with another man.

2

He wielded a knife, blacked out, and awoke crying, curled up in the fetal position

3

next to Mrs. Miller. 22 RT 3333-35. Later that evening, he heard voices telling

4

him, “[T]hey’re going to kill you,” and shot himself in the chest in a suicide

5

attempt. 22 RT 3344-45; see also Ex. 178 at 3150. Mr. Jones could not recall or

6

explain anything further about his encounter with Mrs. Miller. 22 RT 3335-36.

7

In the middle of trial, the court ruled that Mr. Jones could not testify about

8

his dissociative episodes and other mental health symptoms preceding the 1992

9

timeframe of the crime—including flashbacks, blackouts, hallucinations, and

10

hearing voices—unless counsel presented expert testimony on those topics.11 22

11

RT 3358-60. Counsel explained that he was “blind-sided” by this ruling, which

12

“eviscerated” and “gutted my only defense to the charge of capital murder,” and he

13

correctly anticipated that the prosecution would capitalize on the absence of an

14

expert on this critical issue. Ex. 12 at 109-10 (also describing that counsel was not

15

aware of any evidence of mental impairment close to the time of the crime that he

16

could have presented in keeping with the court’s time limitation).

17
18
19
20
21
22
23
24
25
26
27

Counsel stated that, “I did not consider putting lay witnesses on the stand to
11

The court’s holding was in error. State law permits lay witnesses to give
mental health testimony within their personal knowledge. Cal. Evid. Code §§
351, 802; People v. Webb, 143 Cal. App. 2d 402, 410-12, 300 P.2d 130 (1956)
(trial court erred in excluding lay testimony about defendant’s mental illness
symptoms relevant to his ability to form specific intent). The California Supreme
Court’s conclusion that the exclusion of such testimony was not in error or
harmful is contrary to and an unreasonable application of clearly established
federal law. Exclusion of this testimony denied Mr. Jones his right to present a
defense and testify in his own defense. See, e.g., Rock v. Arkansas, 483 U.S. 44,
51-52, 107 S. Ct. 2704, 97 L. Ed. 2d 37 (1987). Had Mr. Jones been permitted to
testify about his mental health history, he could have provided evidence that he
had suffered a lengthy history of dissociative episodes, flashbacks, blackouts, and
hearing voices, thus assisting the jury to understand that the capital crime was a
consequence of the untreated mental illness from which he had long suffered.

28
19
Petitioner’s Opening 2254(d) Evidentiary Hearing Claims

Case No. CV-09-2158-CJC

1

testify to Mr. Jones’s background and to previous instances in which Mr. Jones had

2

entered a similar trance-like state.” Ex. 12 at 107-08. Thus, counsel did not

3

investigate or present lay witness testimony and records corroborating Mr. Jones’s

4

mental illness and impaired functioning. Id. at 107-08, 110. Although counsel

5

retained a psychiatrist for the penalty phase, Dr. Claudewell Thomas, counsel

6

lacked any strategic reason for his failure to use a mental health expert during the

7

guilt phase:

8

Based on Dr. Thomas’s professional medical opinion, I believed that

9

Mr. Jones’s mental state rendered him incapable of forming the

10

intent required for the rape-murder special circumstance . . . . I

11

determined that Dr. Thomas’s testimony was critical to the jury’s

12

understanding of the crime, and I decided to have him testify at the

13

penalty phase . . . I did not present a mental health expert during the

14

guilt phase in addition to Mr. Jones’s testimony in spite of the court’s

15

severe, and crucial curtailment of his testimony regarding his mental

16

state during the sexual assault. I argued I had no legal obligation to

17

do so. . . . I had no strategic reason for failing to have a second

18

mental health expert ready to testify in the guilt phase.

19

Ex. 150 at 2731-32; see also Ex. 12 at 110.12 Even when Dr. Thomas provided

20
21
22
23
24
25
26
27

12

It is well-established that expert and lay testimony on a defendant’s mental
illness where a specific intent crime is charged may be critical to the defense.
Cal. Penal Code § 28(a); People v. Jackson, 152 Cal. App. 3d 961, 964-66, 968,
970, 199 Cal. Rptr. 848 (1984) (holding, in an attempted murder (specific intent)
case, that trial court properly permitted two defense psychiatrists to testify that
defendant’s conduct during stabbing was a nearly involuntary consequence of his
mental illness); People v. Webb, 143 Cal. App. 2d at 410-12 (lay testimony
admissible on this issue); see also People v. Cortes, 192 Cal. App. 4th 873, 904,
909-11, 121 Cal. Rptr. 3d 605 (2011) (defense expert should have been permitted
to testify that defendant entered dissociative state while stabbing victim).

28
20
Petitioner’s Opening 2254(d) Evidentiary Hearing Claims

Case No. CV-09-2158-CJC

1

counsel with critical conclusions about Mr. Jones’s mental state, counsel did not

2

consider using guilt phase experts, partly because it was too late. Ex. 150 at 2732.

3

Although counsel began representing Mr. Jones in late 1992, shortly after the

4

capital crime, he unreasonably delayed in retaining any mental health expert until

5

nearly the start of trial. State Pet. at 158; Reply at 88-90; 1 CT 3. Counsel retained

6

Dr. Thomas in August 1994, only three months before jury selection. Ex. 150 at

7

2731; Ex. 154 at 2748; 1 CT 2141; 23 Supp II CT 6386-88.

8

interviewed Mr. Jones three times, in September and December 1994 and February

9

1995. Ex. 154 at 2749; 30 RT 4413, 4427, 4435, 4529. Following the second

10

interview in December, Dr. Thomas informed counsel that Mr. Jones suffered from

11

schizoaffective disorder and an extreme dissociative disorder that prevented him

12

from predicting in advance, planning, or controlling his dissociative episodes. Ex.

13

150 at 2731 (counsel recalls, “I was impressed when Dr. Thomas explained that he

14

had seen this kind of major dissociation only four times in his career, and that it

15

was not the kind of diagnosis he readily made.”). Dr. Thomas concluded that this

16

had a critical impact on Mr. Jones’s state of mind during his encounter with Mrs.

17

Miller. Id. Dr. Thomas also recommended thorough neuropsychological testing.

18

Based on Dr. Thomas’s recommendation, trial counsel retained neuropsychologist

19

William Spindell, Ph.D. Ex. 150 at 2732. However, counsel did not provide Dr.

20

Spindell with sufficient time or information to evaluate Mr. Jones adequately. Id.

21

As a result, Dr. Spindell completed only a partial test battery before the guilt phase

22

began. Id.; 30 RT 4429.

Dr. Thomas

23

Trial counsel’s exclusive reliance on Mr. Jones’s testimony for the mental

24

state defense was not based on reasonable investigation. See, e.g., Wiggins, 539

25

U.S. at 523, 529 (deficient performance question is “whether the investigation

26

supporting counsel’s decision not to introduce [additional evidence] was itself

27

reasonable”; finding deficient performance where counsel’s investigation “began

28

and ended with” the records in his possession); Jennings v. Woodford, 290 F.3d
21
Petitioner’s Opening 2254(d) Evidentiary Hearing Claims

Case No. CV-09-2158-CJC

1

1006, 1015 (9th Cir. 2002); Hart v. Gomez, 174 F.3d 1067, 1070 (9th Cir. 1999).

2

He unreasonably failed to retain a guilt phase mental health expert, as was

3

necessary to the defense and to rebut the prosecution’s case. See, e.g., Daniels v.

4

Woodford, 428 F.3d 1181, 1207 (9th Cir. 2005); cf. Bloom v. Calderon, 132 F.3d

5

1267, 1278 (9th Cir. 1997) (where defense was based on mental state, “[e]ven the

6

third-year law student [assisting counsel] knew the defense needed a psychiatric

7

expert witness.”); see also id. at 1272, 1277. Nor did he provide the experts he

8

retained, Drs. Thomas and Spindell, with sufficient information and time to

9

examine Mr. Jones. See Bean v. Calderon, 163 F.3d 1073, 1077 (9th Cir. 1998)

10

(finding ineffective assistance where counsel delayed in following mental health

11

expert’s recommendation to retain neuropsychologist); Daniels, 428 F.3d at 1205

12

(finding ineffective assistance where counsel failed to investigate and present

13

evidence of client’s brain damage).

14

Counsel also failed to investigate and present readily available lay witness

15

testimony and Mr. Jones’s mental health records that would have demonstrated Mr.

16

Jones’s mental illness and corroborated his testimony. See, e.g., Williams, 529 U.S.

17

at 396 (“trial counsel did not fulfill their obligation to conduct a thorough

18

investigation of the defendant’s background”); Wiggins, 539 U.S. at 524 (counsel

19

performed deficiently where they “abandoned their investigation of petitioner’s

20

background after having acquired only rudimentary knowledge of his history from

21

a narrow set of sources.”); Rompilla, 545 U.S. at 390 (counsel performed

22

deficiently where, if they “had looked in the file on [defendant’s] prior conviction

23

… they would have found a range of mitigation leads that no other source had

24

opened up.”); Jennings, 290 F.3d at 1013 (finding ineffective assistance where

25

counsel did not interview witnesses with mental state information or request

26

medical records); Daniels, 428 F.3d at 1204 (finding ineffective assistance where

27

counsel did not review reports describing client’s mental illness); see also ABA

28

Guidelines 11.4.1(D)(2)(B) (counsel should “explore the existence of other
22
Petitioner’s Opening 2254(d) Evidentiary Hearing Claims

Case No. CV-09-2158-CJC

1

potential sources of information relating to . . . the client’s mental state”),

2

11.4.1(D)(3)(B) (counsel should consider interviewing potential witnesses

3

“familiar with aspects of the client’s life history that might affect the likelihood

4

that the client committed the charged offense(s)”); Ex. 183 at 3178-80.

5

3) Trial counsel’s deficient performance was prejudicial.

6

Had trial counsel provided effective representation, the jury would have had

7

ample evidence to conclude that Mr. Jones’s mental illness and substance use on

8

the day of the crime prevented him from forming the specific intent necessary for

9

felony murder and a special circumstance based on rape. See State Pet. at 152-62;

10

Reply at 86-103.

11

A reasonable investigation of Mr. Jones’s background before the guilt phase

12

would have yielded substantial relevant information from many witnesses. See

13

generally, section II.C.2.c., infra; State Pet. at 93-147; Reply at 88-92, 135-84. For

14

example, a reasonable investigation would have furnished counsel with lay

15

witnesses to describe Mr. Jones’s history of impaired functioning, including his

16

paranoia, delusions, hallucinations, depression, and dissociative episodes.13 State

17

Pet. at 92; Reply at 91-95. Numerous witnesses could have described Mr. Jones’s

18

personal and family history of physical and sexual abuse, mental impairment, and

19

substance abuse that were relevant to his mental state during the crime. See State

20

Pet. at 94-147; Reply at 88-92, 172-84. Trial counsel also would have discovered

21

lay witnesses who could have testified to Mr. Jones’s mental condition

22
23
24
25
26
27

13

In addition to this background, a qualified neuropsychologist with
sufficient time and information to complete a full evaluation would have provided
additional information and testified, inter alia, that Mr. Jones had markedly
subaverage intelligence and severe neuropsychological dysfunction, and that his
brain damage resulted in disinhibition regarding aggression and sexual behavior,
misperception of social expectations, and impaired ability to plan, organize, or
regulate his behavior. Ex. 175 at 3063-69; see also Ex. 125 at 2552.

28
23
Petitioner’s Opening 2254(d) Evidentiary Hearing Claims

Case No. CV-09-2158-CJC

1

deteriorating after his release from prison in 1991 and his irrational behavior

2

leading up to the crime. See, e.g., Ex. 10; Ex. 21 at 226-27; Ex. 124 at 2543-44.

3

Lay witnesses could have testified that prior to the capital crime, Mr. Jones

4

was depressed, expressed suicidal thoughts, and experienced dissociative trances.

5

Ex. 10 at 99-100; Ex. 124 at 2544. After his release from prison in 1991, Mr. Jones

6

was unable to maintain employment and had trouble interacting with others. Ex.

7

10 at 97; Ex. 21 at 226-27. His uncle gave him part-time work at his transmission

8

shop, but did not offer him full-time work because he lacked the mental capacity to

9

repair cars and the shop employees thought he was too strange. Ex. 21 at 226-27.

10

At times his voice was flat and his eyes had a glazed, faraway look. Ex. 10 at 97.

11

He became increasingly worried about what others thought of him and was

12

convinced that people were out to get him. Id. Mr. Jones also behaved bizarrely,

13

recording phone conversations, speaking in a deep, strange voice, and staring with

14

“blank scary eyes.” Ex. 124 at 2544. Mr. Jones needed mental health treatment,

15

but lacked the skills to access it. Ex. 135 at 2666.

16

In the days leading up to his arrest, Mr. Jones’s “speech did not make sense,

17

and he was literally talking nonsense. He was convinced that people were talking

18

about him behind his back. . . . He looked disturbed and unfocused.” Ex. 21 at

19

227. One acquaintance recalled that the day before his arrest, Mr. Jones “started

20

talking about trees. He was mumbling to himself about how people were out to get

21

him and that he did not want to go on. . . . From the look in his eyes and his

22

babbling speech, it seemed like he was talking to someone other than me, but I was

23

the only one there.” Ex. 10 at 99-100.

24

Even with the limited information he received, Dr. Thomas could have

25

explained to the jury during the guilt phase that Mr. Jones “suffered a psychotic

26

break at the time of the incident, dissociating from external reality and rational

27

consciousness, and responding instead only to an unconscious, internal world of

28

memories and messages over which he had no control.” Ex. 154 at 2750. Dr.
24
Petitioner’s Opening 2254(d) Evidentiary Hearing Claims

Case No. CV-09-2158-CJC

1

Thomas concluded that Mr. Jones suffered from a Schizoaffective Disorder that

2

had been worsening over time. Id. “Outwardly, Mr. Jones was a polite, respectful,

3

and ethical young man, loyal to friends and family.

4

overwhelmed by an extremely stressful or emotional situation, however, another

5

self emerged as he experienced a severe state of dissociation.” Id. at 2750-51. Dr.

6

Thomas would have testified that Mr. Jones “was not in control of any of his

7

actions during this incident; at best, he was a spectator, watching someone else act,

8

as if watching a movie of himself. He was therefore not in a position to appreciate

9

the moral quality of his behavior, or distinguish right from wrong in those

10

When Mr. Jones was

moments.” Id. at 2755; see also Ex. 178 at 3156-57.

11

If he had been provided the results of a reasonable investigation, Dr. Thomas

12

would have recognized that “[s]exuality was a frequent trigger for brutal and

13

violent domestic strife when [Mr. Jones was] little.” Ex. 154 at 2757. He would

14

have learned that Mr. Jones’s mother was the victim of physical and sexual abuse,

15

suffered from mental illness, and was tested with an IQ of 61. Id. at 2758-59.

16

Background information would have revealed that the “pattern of sexual abuse and

17

mental illness in the family is multi-generational.

18

maternal and paternal families were both victims and perpetrators of sexual abuse.”

19

Id. at 2759.

20

discovered, Dr. Thomas stated that “Against this backdrop of domestic, sexualized

21

violence, and in particular the demonization of his mother by his father, Mr.

22

Jones’s childhood memory of his mother in bed at a moment of great stress with

23

Mrs. Miller makes even more sense to me, and I would have done a much better

24

job conveying that connection to the jury.” Id. at 2761.

Members of Mr. Jones’s

Considering the background information that could have been

25

Counsel’s reliance on Mr. Jones’s uncorroborated testimony was damning.

26

The prosecutor argued that counsel’s failure to present a guilt phase mental health

27

expert proved that Mr. Jones did not suffer from a mental disorder:

28
25
Petitioner’s Opening 2254(d) Evidentiary Hearing Claims

Case No. CV-09-2158-CJC

1

He only blacks out the times he can’t—he has no other explanation

2

for . . . There’s nobody who can come in and say, well, I saw Mr.

3

Jones talking to someone else. He is hearing these voices and he is

4

responding to them. It’s only his word that that is so, and you

5

shouldn’t believe it. . . . Is it possible that he is thinking about what

6

his defense might be in this case, and that a psychiatric defense is

7

probably his best bet[?] . . . If there was a psychiatrist to support this

8

mental disorder, wouldn’t he be here? Ask yourself that. If there

9

was really a mental disorder that lessened the criminal culpability,

10

wouldn’t that person be here? There is none.

11

27 RT 3969-72; see also 26 RT 3905-06. As one juror observed, “The prosecution

12

differed from the defense in that they actually presented evidence to back up their

13

theory of what happened that night.” Ex. 140 at 2695. For his part, counsel told

14

the jury, “And I quite frankly feel some guilt because maybe I should have put on

15

the psychiatrist.” 31 RT 4681.

16

Importantly, although it was undisputed that Mr. Jones was the perpetrator,

17

the jury deliberated for four days before reaching a verdict. 2 CT 247-48, 251,

18

377. The jury also asked about the intent instructions, indicating that it was

19

grappling with this issue. 27 RT 4013. Thus, the additional evidence that counsel

20

unreasonably failed to investigate and present surely would have affected the trial

21

outcome.

22

investigate and present lay and expert evidence prejudicial when case based on

23

adequate investigation “bears no relation to the few naked pleas” that were

24

“actually put before the jury”); Wiggins, 539 U.S. at 526 (ruling counsel’s

25

presentation of a “halfhearted” case was prejudicial); Daniels, 428 F.3d at 1205

26

(holding ineffective assistance prejudicial at guilt phase; had counsel undertaken a

27

thorough investigation of Mr. Daniels’s mental state, the jury would have heard

28

evidence that he suffered from a mental disorder at the time he committed the

See, e.g., Rompilla, 545 U.S. at 393 (holding counsel’s failure to

26
Petitioner’s Opening 2254(d) Evidentiary Hearing Claims

Case No. CV-09-2158-CJC

1

murders); Jennings, 290 F.3d at 1019 (counsel’s failure to investigate and present

2

mental state defense was prejudicial where evidence of guilt was overwhelming,

3

yet the jury deliberated for two days).
b. Failure to investigate and defend against the rape charges.

4
5

Mr. Jones alleged that his trial counsel was unreasonable when he (1) failed

6

to investigate or consult an expert about a defense to the rape charges; and (2)

7

conceded that Mr. Jones was guilty of rape. Mr. Jones presented, inter alia, the

8

following allegations and supporting facts to the state court.14

9

1) Counsel unreasonably failed to investigate or consult expert.

10

Felony murder and a special circumstance based on rape both require a

11

finding that the victim was alive at the time of the sexual contact. People v. Kelly,

12

1 Cal. 4th 495, 524, 526, 3 Cal. Rptr. 2d 677 (1992); see also People v. Cain, 10

13

Cal. 4th 1, 43, 40 Cal. Rptr. 2d 481 (1995). Counsel understood that it therefore

14

was crucial to determine whether Mr. Jones’s sexual contact with the victim

15

preceded her death. II Supp. 1 CT 83 (counsel moves to strike rape special

16

circumstance because the victim must be alive for rape to occur). Mr. Jones could

17

not assist counsel because he did not remember having sexual contact with Mrs.

18

Miller. 22 RT 3336. Despite recognizing this defense, counsel explained, “I do not

19

recall investigating whether the victim may have died prior to the sexual contact. I

20

did not . . . have an independent medical expert explore this theory.” Ex. 181 at

21

3161; see also Rompilla, 545 U.S. at 387 (ruling that trial counsel was deficient for

22

failing to thoroughly investigate the circumstances of the case); Duncan v. Ornoski,

23

528 F.3d 1222, 1236 (9th Cir. 2008); Baylor v. Estelle, 94 F.3d 1321, 1324 (9th Cir.

24
25
26
27

14

Mr. Jones provided the state court with substantial extra-record evidence
supporting this subclaim, including declarations of trial counsel and a forensic
pathologist (Exs. 12, 150, 177, 181); a juror declaration (Ex. 138); and the
autopsy, coroner’s investigator, and criminalist lab reports (Exs. 103, 171-72.)

28
27
Petitioner’s Opening 2254(d) Evidentiary Hearing Claims

Case No. CV-09-2158-CJC

1

1996); ABA Guideline 11.4.1(D)(7) (counsel should retain and use experts

2

necessary to rebuttal of prosecution’s case and to presentation of a defense).

3

2) Trial counsel unreasonably conceded rape.

4

Without reasonably investigating the available physical evidence, trial

5

counsel believed, “Because we had no defense to the rape charge, I needed Mr.

6

Jones to admit the rape,” which “would be consistent with the scientific evidence,

7

and make Mr. Jones more credible overall.” Ex. 12 at 107; see also Ex. 150 at

8

2730. Counsel’s reasoning was inconsistent with the flashback and subsequent

9

blackout that Mr. Jones experienced, which were critical to his mental state

10

defense. Mr. Jones testified that he had no memory of sexual contact with Mrs.

11

Miller, “but I know it had to be me, though.” 22 RT 3336. Even though Mr. Jones

12

never testified to pre-mortem sexual contact with Mrs. Miller, the prosecutor asked

13

him, “Do you remember raping her?” and “Did you rape her before or after you

14

stabbed her?” 23 RT 3484. Instead of objecting, counsel conceded the rape and

15

mischaracterized Mr. Jones’s testimony, stating that “Mr. Jones . . . said, ‘. . . I

16

must have forced her to have sex with me.’” 26 RT 3928; see also id. at 3927

17

(“And there is no doubt in this case Mr. Jones is guilty of the rape”).

18

surprisingly, the prosecutor immediately told the jury that counsel “conceded the

19

rape.” 27 RT 3963. Counsel performed deficiently by conceding rape without

20

investigating the physical evidence or considering that his concession was

21

inconsistent with Mr. Jones’s testimony. See, e.g., Strickland, 466 U.S. at 690-91;

22

Wiggins, 539 U.S. at 525 (“any reasonably competent attorney would have realized

23

that pursuing these leads was necessary to making an informed choice among

24

possible defenses”); Cal. Evid. Code §§ 400-03; United States v. Swanson, 943

25

F.2d 1070, 1071 (9th Cir. 1991) (counsel ineffective for conceding client’s guilt

26

during closing argument).

Not

27

3) Trial counsel’s deficient performance was prejudicial.

28

The prosecution theorized that Mr. Jones bound the victim to prevent her
28
Petitioner’s Opening 2254(d) Evidentiary Hearing Claims

Case No. CV-09-2158-CJC

1

from struggling, raped her, and then killed her. 26 RT 3902-03. The state of the

2

victim’s clothing, her bindings, and her rapid death, instead created a reasonable

3

doubt whether she experienced pre-mortem sexual contact. A qualified expert

4

would have so testified. See generally Ex. 177 (medical examiner, Dr. Thomas

5

Rogers, describing the evidence as most consistent with post-mortem sexual

6

penetration and binding).

7

coroner’s investigator’s reports and crime scene photos with this information, and

8

he easily could have consulted an expert. 1 Supp. III-CT 3-4, 8; Ex. 171 at 3031-

9

34, 3046; Ex. 103 at 2125.

Furthermore, counsel had the police, autopsy, and

10

Mr. Jones provided the state court with a detailed description of the evidence

11

supporting a defense that sexual contact occurred post-mortem. See State Pet. at

12

86-90; Reply at 76-80. Indeed, counsel regarded this evidence of post-mortem

13

sexual contact as compatible with his psychiatric defense: “If I had the findings of

14

Dr. Rogers, which offered a reasonable possibility that the victim was dead at the

15

time of the sexual contact, I could have presented this evidence, which was also

16

compatible with my psychiatric defense, to defend against the rape and felony-

17

murder rape charges and the special circumstance rape allegation.” Ex. 181 at

18

3161. If he had, it is reasonably probable that Mr. Jones would have received a

19

more favorable outcome. Mr. Jones also was presumptively prejudiced by counsel

20

conceding the rape during his closing argument, which the prosecutor immediately

21

emphasized. 26 RT 3927-28; 27 RT 3963; see also Ex. 138 at 2690 (juror stating,

22

“[W]e heard nothing about the rape charge except that he did it”).

23

Counsel performed ineffectively because he had at his “fingertips

24

information that could have undermined the prosecution’s case” that Mrs. Miller

25

was raped, yet chose not to develop and use this evidence at trial. Rompilla, 545

26

U.S. at 388; see also Lord v. Wood, 184 F.3d 1083, 1096 (9th Cir. 1999).

27

Moreover, the Ninth Circuit has held that where, as here, counsel concedes his

28

client’s guilt during closing argument, counsel violates the right to due process by
29
Petitioner’s Opening 2254(d) Evidentiary Hearing Claims

Case No. CV-09-2158-CJC

1

“abandon[ing] his client at a critical stage of the proceedings” and “caus[ing] a

2

breakdown in our adversarial system of justice.” Swanson, 943 F.3d at 1071, 1073,

3

1075. Under Swanson, this form of egregious ineffectiveness triggers the Cronic

4

exception to Strickland, which presumes prejudice due to a breakdown in the

5

adversarial process. Id. at 1072 (citing United States v. Cronic, 466 U.S. 648, 104

6

S. Ct. 2039, 80 L. Ed. 2d 657 (1984)).

7

c. Failure to investigate and defend against the prior conviction.

8

The prosecutor sought to admit Mr. Jones’s 1986 conviction for the rape of

9

Doretha Harris, the mother of his ex-girlfriend. The prosecutor moved to introduce

10

the Harris prior under California Evidence Code section 1101(b) to establish Mr.

11

Jones’s identity, intent, and common plan or scheme for the rape charges

12

underlying the felony murder and special circumstances. 1 Supp. II CT 1-9. In

13

state habeas corpus proceedings, Mr. Jones alleged that his trial counsel was

14

ineffective in defending against the admission of the Harris crime at the guilt phase

15

by failing to (1) investigate the circumstances of the crime; (2) oppose its

16

admission during the guilt phase of trial; and (3) mitigate the evidence once it was

17

presented. State Pet. at 158-59; Reply at 105-06. In support of this claim, Mr.

18

Jones presented, inter alia, the following allegations and supporting facts to the

19

state court.15

20

1) Trial counsel unreasonably failed to investigate.

21

Counsel acknowledged that he had “no strategic reason” for his failure to

22

interview lay witnesses who could have supported mental health and mitigation

23

themes, including those with knowledge of the Harris crime. Ex. 150 at 2732-33.

24
25
26
27

15

Mr. Jones provided the state court with substantial extra-record evidence
supporting this subclaim, including: declarations of his trial counsel, habeas
psychiatrist, and habeas neuropsychologist (Exs. 12, 150, 175, 178); the Harris
crime police report and court file (Exs. 104, 136); and declarations of lay
witnesses who observed his mental deterioration before the crime (Exs. 8, 14, 21).

28
30
Petitioner’s Opening 2254(d) Evidentiary Hearing Claims

Case No. CV-09-2158-CJC

1

Forgoing this investigation fell well below the standard of care and was plainly

2

unreasonable. Ex. 183 at 3178, 3185; see Rompilla, 545 U.S. at 383 (failure to

3

investigate prior conviction was deficient performance); ABA Guidelines

4

11.4.1(D)(2)(B), (D)(2)(C), & (D)(3)(B) (counsel should investigate client’s prior

5

crimes, client’s mental state, and lay witnesses with mitigating information).
2) Trial counsel unreasonably withdrew his opposition to the

6

admission of the prior crime evidence.

7
8

In pretrial proceedings, the judge deferred ruling on the admissibility of the

9

Harris prior. The trial court, however, prohibited the prosecutor from referring to

10

the prior in his opening statement and noted, “I don’t believe you can use the

11

[Harris crime] to show identity, common plan, or design or intent.” 1 RT 689.

12

When the trial court later revisited the admissibility of the prior, it ruled that it

13

came within the exception to section 1101(b), but deferred balancing its prejudicial

14

effect and probative value until further development of the evidence at trial. 14 RT

15

2378-79.

16

conviction coming in . . . that happened several years ago.” 14 RT 2379.

The court expressed “some real concerns obviously about a prior

17

When first seeking to admit the Harris prior, the prosecutor stated that the

18

foremost reason to admit it was to prove identity. 1 RT 686-87. By the time the

19

trial court revisited the issue, Mr. Jones’s identity was undisputed: the court had

20

ruled admissible the DNA evidence identifying Mr. Jones as the perpetrator. Id.;

21

see also People v. Ewoldt, 7 Cal. 4th 380, 406, 867 P.2d 757 (1994) (if

22

perpetrator’s identity is undisputed, prior crime evidence is cumulative: its

23

prejudicial effect will outweigh its probative value); Guerrero, 16 Cal. 3d at 724.

24

The prosecution had also argued that it needed the prior crime evidence to

25

prove that Mrs. Miller was raped, but stated that if the defense conceded the rape,

26

admission of the Harris prior would be unnecessary. 1 RT 679-81. By the time the

27

trial court reconsidered introduction of the Harris prior, counsel had settled on this

28

concession, explaining that, “I did not envision a defense to the rape charge and the
31
Petitioner’s Opening 2254(d) Evidentiary Hearing Claims

Case No. CV-09-2158-CJC

1

rape felony-murder charge once the DNA evidence was admitted.” Ex. 12 at 106,

2

107; see also Ex. 150 at 2730 (“I believed the court’s ruling on this [DNA]

3

evidence foreclosed any other possible defense.”); 1 RT 696.

4

Despite these powerful reasons not to admit the Harris prior, and the trial

5

court’s hesitance to admit it, trial counsel withdrew his opposition and the prior

6

crime was admitted on the critical issue of intent underlying the felony murder and

7

special circumstance charges. 14 RT 2382-83. Counsel explained, “I knew that

8

Mr. Jones’s last prior conviction for raping Mrs. Harris was an evidentiary time

9

bomb . . . When [the pretrial judge] deferred his ruling, I withdrew my objection to

10

admission . . . because the evidence would have been admissible at the penalty

11

phase and I needed to plan for the jury hearing it.” Ex. 12 at 108. Trial counsel’s

12

actions were unreasonable not only because of the state of the evidence, but also

13

because counsel had not conducted investigation into the crime and was

14

unprepared to counter it with evidence that mitigated its impact. See, e.g., Ex. 150

15

at 2732-33.

16
17

3) Trial counsel unreasonably failed to mitigate the details of
the prior crime.

18

At trial, counsel addressed the Harris prior through direct examination of Mr.

19

Jones and cross-examination of Mrs. Harris, both of which elicited few mitigating

20

details. 20 RT 3175-79 (Harris cross-examination, in which counsel elicits that Mr.

21

Jones broke into the house, was very upset, and asked Mrs. Harris to kill him after

22

the assault); 22 RT 3289-91, 3294, 3370-72 (Jones direct examination, in which

23

counsel primarily elicits from Mr. Jones that the “incident . . . did occur” and he

24

pled guilty to “those charges,” was incarcerated, and was released on parole); see

25

also 24 RT 3600, 3602. Counsel also incorrectly argued that Mr. Jones went to the

26

Harris household intending to burglarize Mrs. Harris. 26 RT 3925. Instead, Mr.

27

Jones had testified that he entered the house to talk to the grandmother of his son.

28

22 RT 3371. Counsel’s erroneous concession allowed the prosecutor to argue that
32
Petitioner’s Opening 2254(d) Evidentiary Hearing Claims

Case No. CV-09-2158-CJC

1

even Mr. Jones’s attorney thought he was lying about the Harris prior. 27 RT 3976.

2

4) Trial counsel’s deficient performance was prejudicial.

3

Had trial counsel conducted a reasonable investigation, he would have

4

learned that prior to the Harris crime, Mr. Jones was homeless, his mental health

5

was deteriorating, and his drug use was increasing. Ex. 8 at 88; Ex. 14 at 136; see

6

also section II.C.2.c, infra. Mr. Jones went to Mrs. Harris’s home because she was

7

the mother of his ex-girlfriend, and his paranoia led him to believe that they would

8

never allow him to see his son again. Ex. 178 at 3147. Prior to the incident, Mr.

9

Jones used LSD for the first time; he also used alcohol, marijuana, and cocaine.

10

Ex. 104 at 2179; 22 RT 3294. He “felt an overwhelming force driving him to go

11

into the house” and felt that he was watching a movie where he could view but not

12

control his actions. He entered the residence unarmed and in a trance-like state,

13

hearing voices. Ex. 178 at 3147, 3154-55. He smashed and crawled through a

14

bedroom window in the early morning. 20 RT 3162-63. Mrs. Harris was in the

15

kitchen, preparing her lunch for later that day. Ex. 136 at 2669. She picked up a

16

nine-inch kitchen knife, which she was holding when she encountered Mr. Jones.

17

Ex. 178 at 3147. Due to his deteriorating mental state, paranoia, significant drug

18

use, and the knife, Mr. Jones felt that his life was threatened, dissociated, and

19

engaged in a disjointed assault on Mrs. Harris. 20 RT 3163-69; see also Ex. 178 at

20

3152, 3155-56 (Mr. Jones’s dissociative episodes are triggered by stressful events

21

he perceives as threatening).

22

After the assault, Mr. Jones picked up the knife Mrs. Harris had dropped,

23

pressed it to his chest, and begged her to kill him. Ex. 136 at 2670. He fell asleep

24

on her bed instead of leaving. Id.; 20 RT 3169. When he woke up, he sat with her

25

and cried, looking at a picture of his ex-girlfriend, son, and himself. 20 RT 3171.

26

He was remorseful about her injuries, which he cleaned with alcohol and cotton. 1

27

Supp. II CT 19. Mr. Jones’s jail record and a 1986 psychiatric report prepared after

28

this crime reflect that an officer investigating the crime believed Mr. Jones was
33
Petitioner’s Opening 2254(d) Evidentiary Hearing Claims

Case No. CV-09-2158-CJC

1

mentally ill; Mr. Jones did not know what motivated him to commit the Harris

2

crime and he described blank spells and engaging in activities without knowing

3

what he was doing. Ex. 87; Ex. 104 at 2179-85. Had counsel conducted a

4

reasonable investigation, he could have mitigated the Harris prior as the chaotic,

5

disturbed result of Mr. Jones’s paranoia, psychosis, and fear-induced dissociation,

6

which demonstrated his inability to plan. Ex. 178 at 3154-56; 30 RT 4428, 4442;

7

Ex. 154 at 2755. This would have been consistent with the mental state defense,

8

which described how the capital crime was similarly the result of Mr. Jones’s

9

mental illness, substance use, and dissociative episodes.

10

Moreover, the prosecutor seized on counsel’s errors to use evidence of the

11

Harris prior as improper propensity evidence. The prosecutor repeatedly argued

12

that the jury should infer that Mrs. Miller was raped due to the mere existence of

13

the Harris prior. 26 RT 3902; 27 RT 3977, 3991. The prosecutor asked the jury

14

during closing argument “to accept that [Mr. Jones] formed the specific intent to

15

rape the same way he did it with Mrs. Harris, and to come back with first degree

16

murder.” 27 RT 3991-92; see also id. at 3978, 3976 (prosecutor arguing, “[P]eople

17

who do similar acts often harbor similar intents when they commit those acts.”).

18

Under these circumstances, it is evident that counsel’s failure to seek

19

exclusion of the Harris prior or mitigate it prejudiced Mr. Jones. Jones, 13 Cal. 4th

20

at 581-82 (counsel ineffective for allowing the prosecution to introduce evidence

21

of his client’s involvement in an unrelated shooting incident). Counsel’s sole

22

defense to felony murder and the special circumstance was Mr. Jones’s inability to

23

form the specific intent for rape. Allowing the jury to hear about the Harris crime

24

at the guilt phase without explaining Mr. Jones’s mental impairment fatally tipped

25

the balance towards conviction. See, e.g., Sears v. Upton, 130 S. Ct. 3259, 3264,

26

177 L. Ed. 2d 1025 (2010) (deficient performance where counsel failed to

27

introduce evidence of petitioner’s mental functioning, because it “might well have

28

helped the jury understand” petitioner and his acts); Rompilla, 545 U.S. at 385
34
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1

(trial counsel was obligated, inter alia, to “discover any mitigating evidence” about

2

the prior crime); Crotts v. Smith, 73 F.3d 861, 866 (9th Cir. 1996).

3

3. Respondent Disputed Key Facts in State Court.

4

The state’s Informal Response to Mr. Jones’s state habeas petition raised

5

numerous factual disputes as to Mr. Jones’s allegations on Strickland’s deficient

6

performance and prejudice prongs, but did not substantiate those disputes with any

7

documentary or other factual support. See Inf. Resp. at 8-26.

8

First, on direct appeal and state habeas, Respondent contended that there was

9

a “plausible tactical reason” that counsel did not call Dr. Thomas to testify at the

10

guilt phase: the prosecutor could have elicited evidence from Dr. Thomas about

11

the rape of Kim Jackson and early statements that Mr. Jones made about

12

consensual sex with Mrs. Miller, which would have weakened Mr. Jones’s defense

13

by suggesting it was fabricated. Respondent contended that Mr. Jones was not

14

prejudiced by counsel’s failure to call Dr. Thomas. Inf. Resp. at 15; Resp. Brief at

15

95. Respondent also argued that Mr. Jones was not prejudiced by counsel’s failure

16

to present lay testimony about his mental illness symptoms because the trial court

17

would have excluded that testimony unless counsel presented an expert. Inf. Resp.

18

at 14-15, 18.

19

Second, Respondent contended that counsel’s concession regarding the rape

20

charge was reasonable in light of Mr. Jones’s testimony and the DNA evidence

21

linking Mr. Jones to the crime. Id. at 10. Respondent asserted that counsel may

22

have determined that there was insufficient evidence to support a post-mortem

23

sexual contact defense. Id. at 11. Respondent engaged in rampant speculation in

24

proposing a theory of pre-mortem rape based on the physical evidence—an

25

argument that was not raised at trial or established in post-conviction proceedings

26

with any expert or other factual support.

27

contended, in conclusory fashion, that counsel made a reasonable strategic decision

28

not to object to the introduction of the Harris prior during the guilt phase. Id. at 16.

Id. at 12-13.

Finally, Respondent

35
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1

4. The California Supreme Court’s Decision.

2

In 2009, the California Supreme Court summarily denied Mr. Jones’s habeas

3

claim for failing to state a prima facie case for relief on any issue raised. The state

4

court therefore did not require Respondent to respond formally to Mr. Jones’s

5

allegations or present evidence to support Respondent’s factual contentions. The

6

state court ruling also denied Mr. Jones the opportunity to present evidence,

7

subpoena witnesses, and prove his allegations. See section I.B.2, supra.

8

The state court had previously rejected two of Mr. Jones’s ineffectiveness

9

sub-claims on direct appeal. People v. Jones, 29 Cal. 4th 1229 (2003). In the first

10

appellate claim, Mr. Jones alleged that his counsel ineffectively failed to call Dr.

11

Thomas at the guilt phase to testify that Mr. Jones could not form the specific

12

intent to rape Mrs. Miller. Id. at 1254. The state court concluded that there was no

13

deficient performance. First, the state court ruled that Dr. Thomas’s diagnosis of

14

Mr. Jones relied, inter alia, upon information in Mr. Jones’s police report that he

15

had raped and threatened to kill Ms. Jackson. The state court speculated that

16

counsel could have decided that the prosecution would have been entitled to cross-

17

examine Dr. Thomas about the foundation for his opinion and that the benefit of

18

introducing Dr. Thomas’s testimony was outweighed by the damage from

19

introducing the Jackson crime at the guilt phase. Id. at 1254-55. The state court

20

also speculated that counsel may not have called Dr. Thomas to avoid revealing

21

that Mr. Jones initially told Dr. Thomas that he had consensual sex with Mrs.

22

Miller. Id. at 1255.

23

In the second appellate claim, Mr. Jones alleged that counsel ineffectively

24

withdrew his objection to admitting the Harris prior. Id. at 1255. The state court

25

again ruled that counsel did not perform deficiently. The court credited as tactical

26

counsel’s statement on the record: if the jury first heard about the prior crime

27

during the penalty phase, it might have a devastating effect on counsel’s chances of

28

securing a sentence of life without the possibility of parole. Id.
36
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1

5. Section 2254 Does Not Bar Relief on This Claim.

2

Although Mr. Jones must show only one basis upon which either section

3

2254(1) or (d)(2) is satisfied, multiple bases exist.

4

unreasonably applied Strickland under section 2254(d)(1) by denying Mr. Jones’s

5

habeas claim as failing to plead a prima facie case for relief and denying him a

6

hearing and rejecting the ineffectiveness sub-claims on direct appeal. Second, the

7

state court reviewed Mr. Jones’s ineffectiveness claim according to legal standards

8

contrary to Strickland under section 2254(d)(1). Third, alternatively, the state court

9

unreasonably determined the facts under section 2254(d)(2) by finding facts and

10
11
12

First, the state court

resolving disputes without an adjudicative process.
a. The state court unreasonably applied Strickland under section
2254(d)(1).

13

In state habeas proceedings, Mr. Jones raised numerous allegations about

14

counsel’s guilt phase ineffectiveness that were not raised on appeal. As detailed in

15

section II.A.2., supra, these included: (1) failure to investigate Mr. Jones’s mental

16

state defense; (2) failure to support the defense with lay witnesses; (3) failure to

17

support the defense with a guilt phase expert other than Dr. Thomas; (4)

18

unreasonable exclusive reliance on Mr. Jones’s testimony for the defense; and (5)

19

failure to investigate and defend against the rape charges. Mr. Jones also made

20

allegations about the Harris prior that were not raised on appeal, including counsel

21

(1) failing to investigate the prior; (2) acting unreasonably by withdrawing his

22

objection; and (3) failing to mitigate the crime once introduced. Additional habeas

23

allegations concerned counsel’s failure to retain Dr. Thomas in a timely fashion

24

and present his testimony at the guilt phase.

25

Taken as true, Mr. Jones’s allegations established a prima facie case that trial

26

counsel’s performance was deficient in a variety of ways: (1) though counsel

27

settled on a mental state defense, he did not investigate it, consult with an expert

28

about it in a timely fashion, or present lay and expert testimony to support it, see
37
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1

section II.A.2.a., supra; (2) though rape charges formed the basis for the first-

2

degree murder charge and the special circumstance, counsel did not investigate the

3

physical circumstances of the rape, consult with an expert, or defend against it, see

4

section II.A.2.b., supra; and (3) though counsel had conceded that Mrs. Miller was

5

raped, he withdrew his objection to the introduction of the Harris prior to prove

6

that rape occurred, did not investigate the Harris prior, and had no plan for

7

effectively mitigating it once it was introduced, see section II.A.2.c., supra.

8

Mr. Jones also made a prima facie showing that he was prejudiced by

9

counsel’s deficient performance. See, e.g., Sections II.A.2.a.3, b.3, c.5, supra. The

10

specific allegations of prejudice in this case also must be viewed in the context of

11

the jury deliberations: in a case in which Mr. Jones’s identity as the perpetrator

12

was not disputed, the jury deliberated for four days before arriving at a guilt verdict

13

and raised questions about the specific intent instructions during deliberations,

14

which was the key issue before them. See, e.g., section II.A.2.a.3.

15

In light of this pleading and the extensive supporting facts, the state court’s

16

ruling that Mr. Jones failed to plead any prima facie entitlement to relief is an

17

objectively unreasonable application of Strickland. See, e.g., Wigginsh, 539 U.S. at

18

527 (holding that state court application of Strickland was unreasonable when it

19

did not conduct an assessment of whether counsel’s limited investigation was

20

reasonable); Mosley v. Atchison, 689 F.3d 838, 848 (7th Cir. 2012) (holding that

21

state court summary ruling on limited record was unreasonable application of

22

Strickland); Ballinger, 844 F. Supp. 2d at 867 (same); Brumfield v. Cain, 854 F.

23

Supp. 2d 366, 376-77 (2012) (same, in Atkins context). The state court’s ruling

24

also was contrary to clearly established federal law requiring a state court to

25

provide fair adjudicative procedures for adequately presented federal claims. See

26

section I.B., supra.

27

On direct appeal, the California Supreme Court’s opinion was objectively

28

unreasonable for resolving facts about counsel’s performance that did not appear in
38
Petitioner’s Opening 2254(d) Evidentiary Hearing Claims

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1

the record and failing to assess key elements of the claim.

The state court

2

dismissed Mr. Jones’s claim that counsel was unreasonable for withdrawing his

3

objection to the introduction of the Harris prior, due to counsel’s statement that it

4

was better for the jury to hear about the prior before the penalty phase. Jones, 29

5

Cal. 4th at 1255. The state court credited this statement as a reasonable strategic

6

decision, without considering all the circumstances of the case, assessing whether

7

the decision was the result of reasonable investigation, determining whether the

8

failure to investigate before making the decision was reasonable, and considering

9

whether counsel’s actions were in keeping with prevailing professional norms. See

10

section II.A.2.c., supra.

This ruling was objectively unreasonable under

11

Strickland. See. e.g., Wiggins, 539 U.S. at 527 (holding state court unreasonably

12

applied Strickland when it assumed counsel’s decision was reasonable without

13

assessing whether investigation underlying the decision demonstrated reasonable

14

professional judgment); Strickland, 466 U.S. at 688 (ruling that “the performance

15

inquiry must be whether counsel’s assistance was reasonable considering all the

16

circumstances”) (emphasis added).

17

On appeal, the state court also speculated that counsel failed to call Dr.

18

Thomas during the guilt phase because of a reasonable tactical decision to avoid

19

the possibility of the jury hearing about the Jackson prior. 29 Cal. 4th at 1254-55.

20

There was no record evidence of counsel’s reasoning other than his statement to

21

the jury that he felt guilty for not presenting a guilt phase mental health expert. 31

22

RT 4681. Also, the state court’s speculative reasoning was internally inconsistent:

23

the court ruled that it was reasonable for counsel to agree to introduction of the

24

Harris prior and also reasonable for counsel to make decisions on the basis of

25

trying to keep out prior crimes. Id. at 1255. It was unreasonable for the state court

26

to invent and ratify a trial “strategy” that counsel never acknowledged and in fact

27

contradicted on the record. See Plummer v. Jackson, No. 09-2258, 2012 WL

28

3216779, *5-7 (6th Cir. Aug. 8, 2012) (when the state court’s factual reasons for its
39
Petitioner’s Opening 2254(d) Evidentiary Hearing Claims

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1

conclusion that counsel did not perform deficiently lack adequate record support,

2

the state court unreasonably applied Strickland under § 2254(d)(1)). The state

3

court also unreasonably credited counsel’s single statement as a reasonable trial

4

strategy, again without assessing whether the decision was the result of reasonable

5

investigation or was in keeping with prevailing professional norms. See section

6

II.A.2.a.; Ex. 150 at 2732 (trial counsel admitting that he did not have a strategic

7

reason for failing to present expert testimony during the guilt phase).16

8

b. The state court’s prejudice standards are contrary to Strickland

9

under section 2254(d)(1).

10

Strickland prejudice requires a single showing from petitioner: a reasonable

11

probability that counsel’s ineffective assistance affected the outcome of the

12

proceeding. 466 U.S. at 496. In Williams, the Supreme Court addressed the

13

application of section 2254(d)(1) when the state court interpreted Lockhart v.

14

Fretwell, 506 U.S. 364, 113 S. Ct. 838, 122 L. Ed. 2d 180 (1993), to require a

15

second Strickland prejudice element: that counsel’s ineffectiveness resulted in a

16

fundamentally unfair proceeding. 529 U.S. at 393-94, 397, 413-14. The Court

17

held that state court’s analysis was contrary to Strickland, and “inasmuch as the

18

[state court] relied on the inapplicable exception recognized in Lockhart, an

19

‘unreasonable application of’ the clear law as established by this Court.” Id. at

20

397.

21

Like the state court in Williams, the California Supreme Court holds that the

22

Strickland prejudice prong “is not solely one of outcome determination,” but

23
24
25
26
27

16

The state court also speculated that trial counsel did not want Dr. Thomas
to testify to avoid cross-examination about Mr. Jones initially claiming that he
had consensual sex with Mrs. Miller. Jones, 29 Cal. 4th at 1264. If Dr. Thomas
had testified, he could have explained that Mr. Jones’s initial belief was further
evidence of his delusional thinking and mental illness—testimony that would
have strengthened Mr. Jones’s mental state defense. Ex. 154 at 2751.

28
40
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1

requires inquiry into whether counsel’s deficient performance rendered the

2

proceeding “fundamentally unfair.” In re Harris, 5 Cal. 4th 813, 833, 21 Cal. Rptr.

3

2d 373 (1993). In subsequent cases, the state court has invoked Fretwell to deny

4

relief on ineffectiveness claims and has consistently applied this incorrect prejudice

5

standard at least through 2010. See, e.g., In re Valdez, 49 Cal. 4th 715, 729, 111

6

Cal. Rptr. 3d 647 (2010); In re Hardy, 41 Cal. 4th 977, 1019, 63 Cal. Rptr. 3d 845

7

(2007); In re Cudjo, 20 Cal. 4th 673, 687, 85 Cal. Rptr. 2d 436 (1999); In re

8

Visciotti, 14 Cal. 4th 325, 352, 58 Cal. Rptr. 2d 801 (1996); In re Avena, 12 Cal.

9

4th 694, 721-22, 49 Cal. Rptr. 2d 413 (1996). Section 2254(d)(1) therefore is

10

satisfied, because this erroneous standard was in effect when the state court denied

11

Mr. Jones’s direct appeal in March 2003 and his state habeas petition in March

12

2009. See Goodman v. Bertrand, 467 F.3d 1022, 1027-28 (7th Cir. 2006) (holding

13

that section 2254(d)(1) was satisfied where state court relied on Fretwell to deny

14

petitioner’s ineffectiveness claim).

15

In addition to erroneously requiring an additional prejudice showing, the

16

California Supreme Court imposes another hurdle on all claims of constitutional

17

error in habeas proceedings, including ineffectiveness claims:

18

petitioners must overcome a presumption of the “truth, accuracy, and fairness of

19

the conviction and sentence.” People v. Duvall, 9 Cal. 4th 464, 474, 476 n.3, 37

20

Cal. Rptr. 2d 259 (1995). The principle that criminal judgments are presumed final

21

and fairly obtained on collateral review, however, does not apply to ineffectiveness

22

claims. Strickland, 466 U.S. at 697-98 (rejecting usual presumption of finality and

23

ruling that “no special standards ought to apply to ineffectiveness claims made in

24

habeas proceedings”). Mr. Jones satisfies section 2254(d)(1) because, contrary to

25

Strickland’s rejection of additional presumptions, the state court applied Duvall’s

26

fairness presumption to habeas petitions raising ineffectiveness claims both before

27

and after its summary denial of Mr. Jones’s claim. See, e.g., In re Crew, 52 Cal.

28

4th 126, 149-50, 127 Cal. Rptr. 3d 285 (2011); In re Avena, 12 Cal. 4th at 710.

all habeas

41
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Case No. CV-09-2158-CJC

1

Finally, Mr. Jones also satisfies section 2254(d)(1) because the state court’s

2

ineffectiveness prejudice rulings are contrary to Strickland’s mandate that a court

3

hearing such a claim “must consider the totality of the evidence before the judge or

4

jury.” 466 U.S. at 695. Where, as here, a petitioner identifies multiple instances of

5

deficient performance, the California Supreme Court considers prejudice

6

separately for each instance rather than considering prejudice from all instances of

7

deficient performance cumulatively. In re Robbins, 18 Cal. 4th 770, 820-21, 77

8

Cal. Rptr. 2d 153 (1998) (Kennard, J., dissenting) (explaining the state court’s

9

practice and concluding that the court should consider prejudice cumulatively).

10
11

c. The state court unreasonably determined the facts under section
2254(d)(2).

12

Although the state court was obligated to take Mr. Jones’s allegations as

13

true, the state court may have made factual findings to decide that counsel’s

14

actions, omissions, and decisions were reasonable, or that they were not

15

prejudicial, thus crediting Respondent’s informal responses to the allegations. See

16

section II.A.3., supra. Resolution of Mr. Jones’s claim in this manner at the

17

pleading stage is unreasonable under section 2254(d)(2), and is a violation of basic

18

rights to confront and rebut evidence that formed the basis for a decision against

19

him. See generally Section I.B., supra; see also Plummer v. Jackson, 2012 WL

20

3216779 at *9 (state court unreasonably denied petitioner’s ineffectiveness claim

21

without an evidentiary hearing despite the parties’ factual disputes concerning

22

counsel’s performance).

23

An evidentiary hearing is usually required to adjudicate ineffectiveness

24

claims—to determine whether counsel acted strategically or performed deficiently

25

and prejudicially. See, e.g., Ballinger, 844 F. Supp. 2d at 867. Accordingly, the

26

California Supreme Court’s rejection of a prima facie ineffectiveness claim without

27

fact-finding is an unreasonable determination of the facts under § 2254(d)(2),

28

because the state court should have made a finding of fact but neglected to do so.
42
Petitioner’s Opening 2254(d) Evidentiary Hearing Claims

Case No. CV-09-2158-CJC

1

Hurles, 650 F.3d at 1312 (§ 2254(d)(2) satisfied where state court made factual

2

findings without an evidentiary hearing); see also Fanaro v. Pineda, No. 2:10-CV-

3

1002, 2012 WL 1854313, *3 (S.D. Oh. May 21, 2012); Williams, 859 F. Supp. 2d

4

at 1160. The state court’s summary denial in this case is similarly unreasonable.

5

B.

The State Withheld Material Exculpatory Evidence.

6

Mr. Jones presented the California Supreme Court with a prima facie

7

showing that the state withheld material, exculpatory evidence during his trial in

8

violation of Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215

9

(1963).17 He alleged that the prosecution did not disclose two forms of favorable

10

evidence material to a central issue in the case: that Mr. Jones’s long-standing

11

mental impairments prevented him from forming the necessary intent for the

12

charged felony murder and special circumstances.

13

included: (1) a 1984 emergency room report documenting Mr. Jones’s pre-existing

14

mental illness; and (2) jail medical records describing the circumstances under

15

which jail medical personnel legitimately prescribed Mr. Jones with antipsychotic

16

medication shortly after his arrest for the capital crime. This evidence would have

17

powerfully countered the prosecution’s repeated insistence that Mr. Jones

18

fabricated his mental state defense, falsely testified that he blacked out during his

19

encounter with Mrs. Miller, and faked mental illness to receive antipsychotic

20

medication in jail.

The withheld evidence

21

1. Controlling U.S. Supreme Court Precedent.

22

Constitutional due process is violated where favorable exculpatory or

23

impeachment evidence was suppressed or undisclosed by the state and the

24
25
26
27

17

This Brady claim was Claim Seven in state court and is Claim Three in
federal court. State Pet. at 262; Supplemental Allegations in Support of Petition
for Writ of Habeas Corpus, NOL at D.1. (“Supp. Pet.”) at 5-10; Fed. Pet. at 98107.

28
43
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1

evidence was material, i.e., the defendant was prejudiced by its absence. See, e.g.,

2

Strickler v. Greene, 527 U.S. 263, 281-82, 119 S. Ct. 1936, 144 L. Ed. 2d 286

3

(1999); Giglio v. United States, 405 U.S. 150, 155, 92 S. Ct. 763, 31 L. Ed. 2d 104

4

(1972); Brady, 373 U.S. at 87. If the evidence is known to any member of the

5

prosecutor’s office, that knowledge is attributed to the government. Giglio, 405

6

U.S. at 154. The prosecution also has a duty to ascertain and divulge favorable

7

evidence known to other governmental entities, including the police. Kyles v.

8

Whitley, 514 U.S. 419, 432-33, 115 S. Ct. 1555, 131 L. Ed. 2d 490 (1995).

9

A Brady violation exists whether the prosecution acted in good or bad faith

10

and whether or not the defense requested the evidence. See, e.g., United States v.

11

Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985); Brady, 373

12

U.S. at 87. Critically, the prosecution must disclose favorable evidence in time to

13

be of value to the accused. United States v. Agurs, 427 U.S. 97, 107, 96 S. Ct.

14

2392, 49 L. Ed. 2d 342 (1976), overruled on other grounds by United States v.

15

Bagley, 473 U.S. 667 (1985) (constitutional right to fair trial obligates the

16

prosecutor to decide what evidence must be disclosed prior to trial, and perhaps

17

during trial); United States v. Davenport, 753 F.2d 1460, 1462 (9th Cir. 1985).

18

Favorable evidence is “material” where there is a reasonable probability that

19

it would have affected the jury’s determination. See, e.g., Kyles, 514 U.S. at 434.

20

As the Court in Kyles explained, materiality “is not a sufficiency of evidence test.”

21

Id.

22

insufficient evidentiary basis to convict;” the materiality inquiry considers whether

23

“favorable evidence could reasonably be taken to put the whole case in such a

24

different light as to undermine confidence in the verdict.” Id. at 435; see also

25

Bagley, 473 U.S. at 676, 678, 682.

“The possibility of an acquittal on a criminal charge does not imply an

26

“[I]f the verdict is already of questionable validity, additional evidence of

27

relatively minor importance might be sufficient to create a reasonable doubt.”

28

Agurs, 427 U.S. at 113. The only Brady “prejudice” analysis is materiality: once
44
Petitioner’s Opening 2254(d) Evidentiary Hearing Claims

Case No. CV-09-2158-CJC

1

suppression of material, exculpatory evidence is established, it is not subject to

2

harmless error analysis. Kyles, 514 U.S. at 436. Brady errors are considered

3

cumulatively: if multiple pieces of evidence taken cumulatively would lead to a

4

reasonable probability of a different outcome, then the prosecution must disclose

5

each of them. Id. at 437.

6

2. Prima Facie Allegations Before the State Court.

7

Mr. Jones demonstrated to the California Supreme Court that the withheld

8

1984 medical record and jail medical records were favorable and material to his

9

mental state defense during the guilt phase and to his case in mitigation during the

10
11

penalty phase of trial. State Pet. at 262-66; Supp. Pet. at 5-10.
a. The 1984 medical record.

12

On May 29, 1984, at 12:30 a.m., police arrested Mr. Jones as a suspect in the

13

sexual assault of Kim Jackson. Ex. 179. During the booking process, the police

14

observed that Mr. Jones exhibited severe psychiatric symptoms requiring

15

immediate medical attention and transported him to the Beverly Hills Medical

16

Center emergency room. Dr. Strom examined Mr. Jones at 1:50 a.m. and prepared

17

a medical report (“Report”) that noted his history of “transient memory loss” and

18

diagnosed him as suffering from “transient memory lapse.” Ex. 180.

19

1) The Report was favorable to Mr. Jones.

20

At the guilt phase of his capital trial, Mr. Jones testified that during his

21

encounter with Mrs. Miller, “I kind of slipped back into my childhood. In my

22

mind, I was visioning when I was little, when I walked into a room with my

23

mother who was with another man that wasn’t my father.” 22 RT 3335. Mr. Jones

24

did not remember killing Mrs. Miller or having sexual contact with her. 22 RT

25

3335-36. Based on this evidence, trial counsel argued that Mr. Jones’s lack of

26

memory was a symptom of his mental illness that prevented him from forming the

27

specific intent to rape Mrs. Miller. 26 RT 3928. The Report would have been

28

favorable to demonstrate that Mr. Jones previously experienced a dissociative
45
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Case No. CV-09-2158-CJC

1

episode and arresting officials recognized his need for emergency psychiatric care.

2

It also would have alerted trial counsel to the need to investigate the specific

3

mental health issues described in the Report and to explore the possibility of

4

calling Dr. Strom as a witness. Supp. Pet. at 8-10; Reply to the Informal Response,

5

NOL at D.5. (“Supp. Reply”) at 9-10.

6

At the penalty phase, the prosecution introduced the assault of Kim Jackson

7

as aggravating evidence. 28 RT 4175. Although Mr. Jones was referred for mental

8

health care following the incident, the prosecution argued that Mr. Jones “didn’t

9

really have a problem, and … [the mental health treatment] was something that he

10

went along with in order to get a reduced sentence.” 31 RT 4640-41. The Report,

11

and evidence developed in response to it, would have mitigated the circumstances

12

of the crime and rebutted the prosecution’s argument. Furthermore, the defense

13

expert, Dr. Thomas, testified that Mr. Jones suffered from a dissociative disorder,

14

dissociated during his encounter with Mrs. Miller, and was unaware of and unable

15

to control his actions. 30 RT 4435. Mr. Jones’s documented behavior during the

16

Jackson crime was consistent with Dr. Thomas’s conclusions presented in the

17

penalty phase. 30 RT 4414, 4435.

18

The Report would have corroborated Mr. Jones’s testimony describing

19

symptoms of his mental illness, including memory loss, thus supporting both his

20

guilt phase mental state defense and Dr. Thomas’s penalty phase testimony. See

21

Brady, 373 U.S. at 84, 87-91 (finding seminal Brady violation where prosecution

22

suppressed extra-record evidence that corroborated defendant’s testimony about his

23

actions during the crime).

24

2) The state did not disclose the Report to trial counsel.

25

The prosecution did not disclose Dr. Strom’s Report to the defense. The

26

prosecution first disclosed the Report in August 2004, during post-conviction

27

discovery proceedings pursuant to Penal Code section 1054.9. Supp. Pet. at 2, 10.

28

Until that time, the Report had been among documents in the District Attorney’s
46
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1

file that were labeled as privileged and not previously provided to counsel. Id. at

2

7. Trial counsel explained that if he had received a copy of the Report at the time

3

of trial, it would have been in his file and among the materials he provided to Dr.

4

Thomas. However, the Report was in neither location. Ex. 181 at 3161-62.

5

3) The Report was material.

6

During the guilt phase, there was no evidence presented to corroborate Mr.

7

Jones’s testimony that he experienced a blackout or flashback during the crime. As

8

a result, the prosecution asked the jury: “What evidence is there here of a mental

9

disorder other than the defendant saying I flashed back to my childhood?” 26 RT

10

3905; see also 27 RT 3969 (prosecution arguing that “He only blacks out the times

11

that he . . . has no other explanation for.”). The prosecution urged the jury to

12

believe that “a defense story has been concocted in order—in the hopes that you

13

will give him some lesser offense.” 26 RT 3906. The jury struggled to reach a

14

verdict—guilt phase deliberations lasted for four days, and the jury submitted a

15

question to the judge on specific intent, 2 CT 247-48, 251, 377—and the resolution

16

of this mental state question was “the crux of the defense to the charged crimes.”

17

Ex. 12 at 107; see also section II.A.2.a, supra (describing the centrality of mental

18

state issues to the case).

19

Given the prosecutor’s repeated assertion that Mr. Jones’s mental health

20

symptoms were contrived, see 26 RT 3905-06; 27 RT 3969, 3971-72; 31 RT 4645,

21

4652-53, a Report documenting the long-standing nature of his mental illness and

22

“transient memory lapse[s]” was critical, Ex. 180; see also Supp. Reply at 9-10.

23

The Report existed because trained law enforcement officers reacted to address his

24

severe psychiatric symptoms. Supp. Reply at 10. It would have further explained

25

and lent credibility to Mr. Jones’s testimony. Timely disclosure of the Report also

26

would have alerted trial counsel to the need to investigate Mr. Jones’s blackouts,

27

including by consulting an expert. A qualified and adequately prepared expert

28

alerted to Mr. Jones’s need for emergency psychiatric care following his 1984
47
Petitioner’s Opening 2254(d) Evidentiary Hearing Claims

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1

arrest and prior diagnosis of transient memory loss would have been able to

2

explain to the jury the basis and effect of Mr. Jones’s long-standing dissociative

3

disorder. See Ex. 178 at 3156-57; see also section II.A.2.a.3, supra. Counsel also

4

could have interviewed Dr. Strom and presented his testimony in conjunction with

5

the Report. Supp. Reply at 10. Indeed, during state habeas proceedings, trial

6

counsel recognized that the Report was “strong evidence, which would have

7

supported my guilt phase defense,” Ex. 181 at 3162, stating that “[i]f I had

8

possessed this medical record, I would have introduced it into evidence and used it

9

in my direct examinations of Mr. Jones and Dr. Claudewell Thomas,” id. at 3163.

10

Especially given the importance of the mental state evidence, the

11

prosecutor’s attacks on Mr. Jones’s credibility, and the jury’s lengthy guilt phase

12

deliberations, it is impossible to “be confident that the jury’s verdict would have

13

been the same” had the prosecution disclosed the corroborating Report.18 Kyles,

14

514 U.S. at 453; see also Agurs, 427 U.S. at 113 (where verdict is of questionable

15

validity, even “evidence of relatively minor importance” could create that

16

reasonable probability); cf. Napue v. Illinois, 360 U.S. at 269 (“The jury’s estimate

17

of the truthfulness and reliability of a given witness may well be determinative of

18

guilt or innocence[.]”); Jackson v. Brown, 513 F.3d 1057, 1070, 1075-79 (9th Cir.

19

2008) (granting penalty phase relief where undisclosed Brady evidence was

20

material to capital special circumstances that required a specific intent showing).

21
22
23
24
25
26
27

18

Withholding the Report allowed the prosecution repeatedly and falsely to
assert in both cross-examination and argument that Mr. Jones was lying. Unlike a
Brady violation, misconduct involving a prosecutor’s presentation of false
evidence requires a showing that the prosecution knowingly engaged in deceit.
Napue v. Illinois, 360 U.S. 264, 269, 79 S. Ct. 1173, 3 L. Ed. 2d 1217 (1959). A
reasonable inference about the Report’s location -- in a file marked “privileged” -is that the prosecutor recognized its importance and took steps to ensure its nondisclosure. As Mr. Jones requested in state court, he needed access to discovery
procedures to further develop and present this aspect of his claim.

28
48
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1

Accordingly, there is a reasonable probability of a different outcome, sufficient to

2

undermine confidence in the trial’s outcome.19 See, e.g., Bagley, 473 U.S. at 678.

3

During the penalty phase, Dr. Thomas testified about Mr. Jones’s mental

4

problems without the benefit of historical mental health evidence such as the

5

Report. Supp. Reply at 13. The state court’s view of the evidence in the direct

6

appeal powerfully describes the materiality of this information: “[I]f defendant

7

had a history of flashbacks and blackouts, Dr. Thomas should have been aware of it

8

. . . the fact that [he] . . . failed to mention any such history suggests that

9

defendant’s proposed testimony concerning such a history would have been a

10

recent fabrication.” Jones, 29 Cal. 4th at 1253. The prosecutor’s argument that

11

Mr. Jones did not have a mental health problem involving flashbacks and

12

blackouts, 31 RT 4640-41, highlighted this issue as critical to the penalty phase

13

considerations. During penalty phase closing arguments, the prosecutor argued

14

that Dr. Thomas’s diagnosis of Mr. Jones was medically questionable because it

15

lacked a sufficient basis: “[T]o what extent can somebody interview [Mr. Jones] in

16

December or October of ’94 and tell us what he is thinking in August of ’92. . . .

17

ask the doctor what basis, where’s the science that supports [his conclusions], there

18

is none.” 31 RT 4645.

19

The Report was evidence of Mr. Jones’s history of dissociative episodes and

20

mental impairment that provided independent mitigating evidence as well as a

21

convincing basis for and critical corroboration of Dr. Thomas’s conclusions. See

22

Cone v. Bell, 556 U.S. 449, 475, 129 S. Ct. 1769, 173 L. Ed. 2d 701 (2009) (ruling

23

that suppressed evidence of mental impairment might have been material to rebut

24
25
26
27

19

As counsel notes, by substantiating the long-standing nature of Mr. Jones’s
mental illness, the Report might also have alleviated the trial court’s concerns
underlying his erroneous ruling that Mr. Jones could not testify to pre-1992
symptoms of his mental illness. Ex. 181 at 3162.

28
49
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1

prosecution’s suggestion that defendant manipulated expert into believing he was a

2

drug addict and to jury’s assessment of the proper punishment in capital case;

3

holding that a full review of the suppressed evidence and its effect was warranted);

4

Brown v. Borg, 951 F.2d 1011, 1015 (9th Cir. 1991) (murder conviction overturned

5

where prosecutor advanced a robbery-murder theory due to the victim’s missing

6

wallet and jewelry while failing to disclose that hospital personnel had found these

7

items and returned them to the victim’s family).

8

b. Los Angeles County Jail medical records.

9

After his August 1992 arrest, Mr. Jones was detained in the custody of the

10

Los Angeles County Sheriff’s Department. 1 CT 89. Prior to and during his trial,

11

the Sheriff’s Department was solely responsible for providing him with, and

12

maintaining records of, his psychiatric care. The prosecution disclosed partial

13

records reflecting that jail personnel prescribed Mr. Jones with the strong

14

antipsychotic medication Haldol and that he received Haldol at least in June 1993

15

and later. See generally Ex. 33. As the jail psychiatrist testified, critical records

16

were missing: “There was a gap in the record that specifically did not mention

17

when and how the Haldol was prescribed.” 23 RT 3562.

18
19

1) The missing jail medical records would have been favorable
to the defense.

20

Mr. Jones testified that shortly after he was detained, in November or

21

December 1992, jail medical staff prescribed Haldol to treat his mental health

22

symptoms. 24 RT 3587, 3619-20. Counsel also presented the testimony of a jail

23

psychiatrist, Dr. Kunzman, who did not prescribe the Haldol, but treated Mr. Jones

24

after he already was receiving it. Dr. Kunzman was not able to establish the timing

25

or clinical necessity of the medication. See, e.g., 23 RT 3562. The medical records

26

thus would have been favorable to corroborate Mr. Jones’s testimony and support

27

the mental state defense, establishing that in the judgment of trained medical

28

professionals, Mr. Jones had a mental illness that required strong antipsychotic
50
Petitioner’s Opening 2254(d) Evidentiary Hearing Claims

Case No. CV-09-2158-CJC

1
2

medication shortly after the crime.
2) The medical records have not been disclosed by the state.

3

The prosecution disclosed some of Mr. Jones’s jail medical records to trial

4

counsel. Ex. 33. However, it did not disclose records describing the jail mental

5

health staff’s evaluation of Mr. Jones’s mental functioning, including when jail

6

personnel first prescribed Mr. Jones with Haldol, what dosage they deemed

7

medically necessary, and what symptoms of psychosis he exhibited that led to the

8

prescription. State Pet. at 265-66; Reply at 232-33; 23 RT 3562. The Los Angeles

9

County District Attorney’s Office was responsible for ensuring that these

10

exculpatory jail medical records were disclosed. Kyles, 514 U.S. at 437-38 (the

11

prosecutor has a duty to learn of any favorable evidence known to others acting on

12

the government’s behalf); Brady, 373 U.S. at 84, 87-91 (finding violation where

13

prosecution suppressed corroborating exculpatory evidence); Carriger v. Stewart,

14

132 F.3d 463, 480-81 (9th Cir. 1997) (finding Brady violation although it was not

15

clear whether individual prosecutors possessed the withheld corrections file); In re

16

Brown, 17 Cal. 4th 873, 880-83, 952 P.2d 715 (1998) (prosecution had duty to

17

review files from other governmental entities to disclose exculpatory information).

18

3) The undisclosed jail medical records are material.

19

Mr. Jones testified that he blacked out during the attack on Mrs. Miller and

20

that when he regained consciousness after the crime, “I was hearing certain little

21

things in my head telling me to do certain things. I guess you could call it

22

paranoia, thinking someone was coming to kill me.” 22 RT 3338; see also 22 RT

23

3344 (testifying that voices telling him “they’re going to kill you” after the crime

24

“had to come from inside of my head, I guess”). He also testified that when he

25

sought treatment in the county jail in 1992, shortly after his arrest, the doctor

26

recommended that he take Haldol; Mr. Jones did not request this medication. 24

27

RT 3587, 3619-20.

28

In support of the mental state defense, trial counsel argued as to the night of
51
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Case No. CV-09-2158-CJC

1

the capital crime that “In these kinds of circumstances, people don’t always act

2

rationally . . . I mean he wasn’t thinking very clearly at this point.” 26 RT 3950.

3

Trial counsel acknowledged that “Now, the district attorney says, well, we didn’t

4

hear from any psychiatrist. Well, don’t blame Mr. Jones, you know, for maybe a

5

witness that I didn’t put on, but what do we know? What do we know about him?”

6

26 RT 3951. Counsel went on to argue that Mr. Jones was not “normal,” pointing

7

in part to Mr. Jones’s medication with Haldol in jail; he asked the jury to consider

8

Mr. Jones’s behavior during the Harris prior, stating “I mean do you need a

9

psychiatrist to tell you that is not normal?” 26 RT 3952. Therefore, aside from Mr.

10

Jones’s testimony, his treatment in jail with antipsychotic medication was the only

11

source of evidence for the mental state defense.

12

(describing the centrality of mental state issues to the case).

See section II.A.2.a, supra

13

In response, the prosecutor argued during both the guilt and penalty phases

14

that Mr. Jones faked his mental illness. He argued that in June 1993, months after

15

Mr. Jones was incarcerated, Mr. Jones first received Haldol at his own request.

16

Without evidence, he speculated that Mr. Jones was not suffering from a

17

continuing mental illness, but requested Haldol allegedly because “talking to the

18

other inmates in the pill module” revealed “that a psychiatric defense is probably

19

his best bet.” 27 RT 3971-72 (guilt closing); see also 31 RT 4652-53 (penalty

20

closing). He further claimed without evidence that jail doctors were “fooled” into

21

prescribing antipsychotic medicine and that Mr. Jones might be “getting these pills

22

and palming them or giving them to another inmate.”20 27 RT 3970-72; 31 RT

23

4652.

24

Without the relevant jail records, counsel was unable conclusively to rebut

25
26
27

20

Although counsel believed that his only guilt phase defense was based on
Mr. Jones’s mental health, he unreasonably and prejudicially left these false
remarks unchallenged. Ex. 12 at 107, 109; Ex. 150 at 2730-31.

28
52
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1

the prosecution’s fabrication argument. Instead, he could only ask the jury to infer

2

that Mr. Jones’s behavior was consistent with genuine mental illness and that the

3

jail medical records were incomplete:

4

Now, the District Attorney says, well, he asked for medication …

5

Well, most people do. I mean the county jail, if you don’t ask for

6

something, you’re probably not going to get it, but he didn’t ask for

7

Haldol … What he asked for was for something to help him and

8

what did he get? Well, we don’t know if the records are complete

9

because remember, Dr. Kunzman … said, “Well, I can’t tell from

10
11

these records when he got [Haldol] first or whom he got it from[.]”
26 RT 3952-53.

12

With complete jail medical records, counsel could have conclusively

13

rebutted the prosecution’s argument and compensated for not presenting a mental

14

health expert to explain Mr. Jones’s behavior in clinical terms. The records would

15

have illustrated that jail doctors recognized the need to treat Mr. Jones’s symptoms

16

of psychosis, and legitimately prescribed appropriate medication for his condition.

17

The records would have corroborated Mr. Jones’s testimony concerning when he

18

began to receive Haldol and illustrated that his mental state defense was not

19

fabricated. Moreover, the records would have yielded the name of the jail doctor

20

who first prescribed Haldol to Mr. Jones; counsel could have interviewed the

21

doctor and presented his or her testimony. As such, the missing jail records were

22

both material and exculpatory.

23

The prosecutor’s failure to disclose this material exculpatory evidence

24

undermines confidence in the trial outcome. See, e.g., Bagley, 473 U.S. at 678;

25

Jackson, 513 F.3d at 1070, 1075-79 (Brady violation where prosecution failed to

26

disclose exculpatory evidence as to whether the defendant had the specific intent

27

necessary for a true special circumstance finding); Benn v. Lambert, 283 F.3d 1040,

28

1062 (9th Cir. 2002) (granting relief where defense received records that supported
53
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1

the prosecution’s theory of the case, but the prosecution did not disclose other

2

records that would support exactly the opposite conclusion); Ex. 9 at 95 (evidence

3

of the medications Mr. Jones was receiving was important to the jury). The state’s

4

failure to disclose Mr. Jones’s complete jail medical records rendered its case much

5

stronger, and the defense case much weaker, than the full facts would have

6

supported. See, e.g., Kyles, 514 U.S. at 429. Finally, the prosecution’s repeated

7

exploitation of this second Brady violation in closing arguments also supports a

8

determination of materiality. Brown, 951 F.2d at 1017.

9

c. Cumulative prejudice

10

In state court, Mr. Jones also alleged cumulative prejudice due to the

11

prosecution’s multiple Brady violations. Reply at 247-48; Kyles, 514 U.S. at 437.

12

The defense could have used the Report coupled with Mr. Jones’s full jail medical

13

records powerfully to counter the prosecutor’s argument that Mr. Jones was lying

14

about his mental illness.

15

required medical attention for his mental illness beginning years before the capital

16

crime and continuing after his arrest for that crime.

17

demonstrated entitlement to relief on the basis of each individual Brady violation

18

but also that relief is warranted where, as here, the cumulative effect of the

19

undisclosed favorable evidence places the whole case in such a different light as to

20

undermine confidence in the verdict. Kyles, 514 U.S. at 429.

21

3. Respondent Disputed Key Facts in State Court.

22

In response to Mr. Jones’s allegations about the withheld Report,

23

Respondent stated that Mr. Jones did not present the state court with sufficient

24

factual support for his claim because he did not present a declaration from the

25

doctor who prepared the Report or “other documentation that supports the basis or

26

the reliability of the statements in the report.” Informal Response to Petition for

27

Writ of Habeas Corpus, NOL at D.4. (“Supp. Inf. Resp.”) at 5. Respondent also

28

objected to Mr. Jones’s allegations about the Report, contending that evidence that

Together, these documents illustrate that Mr. Jones

Mr. Jones not only

54
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Case No. CV-09-2158-CJC

1

the police referred Mr. Jones for emergency psychiatric care and the resulting

2

clinical observations about Mr. Jones’s psychiatric symptoms while in emergency

3

care would not have been admissible evidence regarding Mr. Jones’s mental

4

condition. Id. In response to Mr. Jones’s allegations about withheld jail records,

5

Respondent contended that Mr. Jones’s “own medical records were presumably

6

available to him if he had made reasonable efforts to acquire them” and that Mr.

7

Jones’s mental condition in jail was immaterial to his mental condition during the

8

crime. Inf. Resp. at 30.

9

4. Section 2254 does not bar relief on this claim.

10

In 2009, the state court summarily denied Mr. Jones’s Brady habeas claim as

11

failing to state a prima facie case for relief. To the extent the state court’s ruling

12

reflects its determination that Mr. Jones failed to plead sufficient facts that, if

13

proven, would entitle him to Brady relief, the state court’s decision is (1) contrary

14

to clearly established federal law and (2) an unreasonable application of Brady

15

under section 2254(d)(1).

16

determined the facts under section 2254(d)(2) by finding facts and resolving

17

disputes without any adjudicative procedure.

18

In the alternative, the state court unreasonably

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

19

Although Respondent argued that Mr. Jones had not presented sufficient

20

documentary material in support of the claim, the California Supreme Court did

21

not deny Mr. Jones’s claim pursuant to In re Swain, 34 Cal. 2d 300, 303-04, 209

22

P.2d 793 (1949), to which the court cites when claims have not been alleged with

23

sufficient particularity. See Kim v. Villalobos, 799 F.2d 1317, 1319 (9th Cir. 1986)

24

(“Swain is cited by the California Supreme Court to indicate that claims have not

25

been alleged with sufficient particularity. That deficiency, when it exists, can be

26

cured in a renewed petition.”). Nor did the state court deny the claim because of

27

inadequate evidentiary support. See, e.g., In re Curtis Price, No. S018328, Order

28

(Cal. Jan. 29, 1992) (rejecting claim because petitioner failed to provide copy of
55
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Case No. CV-09-2158-CJC

1

competency report generated at trial).21 Moreover, had the California Supreme

2

Court found that Mr. Jones failed to provide readily available documentary

3

support, stating this in its order would have permitted him to modify and cure any

4

such deficiency. 22

5

Taken as true, Mr. Jones’s allegations established a prima facie Brady

6

violation, demonstrating two categories of favorable records that were withheld

7

and material to Mr. Jones’s mental state defense and penalty phase mitigation. See

8

section II.B.2, supra. By summarily denying the claim, the state court did not

9

require Respondent to respond formally to Mr. Jones’s allegations or present

10

evidence to support Respondent’s factual contentions. The state court ruling also

11

denied Mr. Jones the opportunity to present evidence, subpoena witnesses, and

12

prove his allegations. See section I.B.2, supra. The state court’s summary denial

13

of this claim therefore was contrary to federal law requiring a state court to

14

ascertain facts reliably before denying adequately presented federal claims. See

15

section I.B.1., supra; Reply Br. on Pinholster at 12-17.

16

To the extent that the California Supreme Court determined that Mr. Jones

17

did not state a prima facie case, its determination was an unreasonable application

18

of Brady.

19

(independently reviewing record to hold that California Supreme Court

20

unreasonably applied Brady in silently denying petitioner’s prima facie claim that

21
22
23
24
25
26
27

See Maxwell v. Roe, 628 F.3d 486, 508-12 (9th Cir. 2010)

21

The text of the order is available on the California Supreme Court website
at http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=0&doc_id
=1750119&doc_no=S018328.
22

Contrary to Respondent’s assertions, Mr. Jones provided the state court
with significant, extra-record evidence that was available to support this claim,
including: the police report on the Jackson crime associated with the emergency
room record, Ex. 179; the favorable emergency room report, Ex. 180; Mr. Jones’s
incomplete jail medical records, Exs. 33, 34; and trial counsel’s declarations, Exs.
12, 150, 181.

28
56
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1

the state failed to disclose impeachment evidence); Browning v. Workman, No. 07-

2

CV-16, 2011 WL 2604744, *3-9 (N.D. Ok. June 30, 2011) (granting writ based on

3

state court’s unreasonable application of Brady, where prosecution failed to

4

disclose exculpatory material evidence to capital defendant concerning an

5

eyewitness’s severe mental illness).

6
7
8

b. Section 2254(d)(2) is satisfied.
Alternatively, the state court’s summary denial could be based on its
resolution of key factual issues, such as whether:

9

 the Report, which documented Mr. Jones’s previous mental illness

10

symptoms similar to those raised in his mental state defense, was

11

favorable, contained reliable statements, or could have led to admissible

12

evidence;

13

 the Report’s evidence that Mr. Jones received emergency psychiatric care

14

for a dissociative episode and other mental illness symptoms was

15

material to either the guilt or penalty phases, where the prosecutor argued

16

that Mr. Jones’s mental illness was fabricated and the only evidence of

17

his mental illness was his own testimony;

18

 complete jail medical records that would have established that Mr. Jones

19

received antipsychotic medication in 1992—and the clinical basis for that

20

prescription—were favorable to Mr. Jones, where the prosecutor

21

speculated before the jury that Mr. Jones received medication only in

22

mid-1993 after fabricating a mental state defense on the advice of other

23

inmates;

24

 the legitimacy of Mr. Jones’s treatment for psychosis shortly after the

25

crime was material in a case where auditory hallucinations, paranoia, and

26

dissociation were the sole trial defense; and

27

 Mr. Jones’s own medical records were presumably available to him if he

28

had made reasonable efforts to get them, as respondent contends, when
57
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Case No. CV-09-2158-CJC

the defense was not given full records despite multiple requests.

1
2

If the state court denied Mr. Jones’s Brady claim on any of these or other

3

factual bases at the pleading stage, it unreasonably determined the facts under

4

section 2254(d)(2) by failing to provide Mr. Jones either with (1) process to

5

develop and present supporting evidence; or (2) notice of and an opportunity to be

6

heard on the factual issues that the state court intended to resolve. Lor, 2012 WL

7

1604519 at *4-5 (citing Hurles, 650 F.3d at 1312) (a state court determination of

8

factual issues not supported by the record, without an evidentiary hearing on those

9

issues, is per se a § 2254(d)(2) unreasonable determination of the facts); Williams,

10

859 F. Supp. 2d at 1160 (same).

11

C.

Mr. Jones Received Ineffective Assistance of Counsel During The

12

Penalty Phase of His Trial.

13

Mr. Jones presented the California Supreme Court with a prima facie

14

showing of ineffective assistance of counsel, alleging that, as a result of trial

15

counsel’s failures, the jury never heard critical mitigating details about Mr. Jones’s

16

life that would have changed the outcome of the penalty phase.23 Mr. Jones grew

17

up with alcoholic and physically violent parents who attacked each other and

18

regularly beat Mr. Jones and his siblings. He was sexually abused by his mother.

19

He suffered brain damage and low intellectual functioning due, at least in part, to

20

his mother’s drinking during pregnancy and the numerous beatings and head

21

injuries he received at the hands of his parents and other relatives. Left virtually

22

homeless as a young boy, Mr. Jones’s mental health deteriorated significantly in the

23

years preceding his arrest. In spite of numerous family members, friends, and

24
25
26
27

23

Mr. Jones’s state ineffectiveness claim, Claim Four, alleged prejudicial
deficient performance in both the guilt and penalty phases of trial. State Pet. at
66-239; Reply at 53-199. In his federal briefing, Mr. Jones’s ineffectiveness
allegations are divided into guilt phase (Claim One) and penalty phase (Claim
Sixteen) allegations. Fed. Pet. at 21-91, 223-338.

28
58
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1

neighbors knowledgeable about Mr. Jones and his family and readily available to

2

testify about this background, trial counsel did not discover or present their

3

testimony to the jury.

4

Trial counsel effectively conceded most of the guilt phase. This heightened

5

the importance of mitigating evidence related to Mr. Jones’s impaired mental

6

functioning, which trial counsel considered the most important issue in the case.

7

Nonetheless, trial counsel failed to investigate Mr. Jones’s history of sexual abuse,

8

mental illness and deteriorating mental health, brain damage, and low intellectual

9

functioning, all of which were indicated in the reports he consulted. Trial counsel

10

also failed to investigate Mr. Jones’s assault of Kim Jackson, which he knew the

11

prosecution would introduce as aggravating evidence. Trial counsel retained an

12

expert at the last minute to address some of these issues, but the expert largely was

13

discredited because trial counsel failed to provide him with critical information,

14

follow up on his expert’s recommendations, or prepare him adequately. Trial

15

counsel ultimately planned to introduce mitigating evidence about Mr. Jones’s

16

alcoholic, neglectful, and physically abusive parents, and the traumatic death of his

17

older brother. Trial counsel, however, did not conduct a reasonable investigation

18

into these issues, did not prepare the few relevant witnesses he presented to testify

19

about them, and only raised the topics in brief, superficial terms, if at all. Trial

20

counsel thus provided the jury a glimpse of Mr. Jones’s life that bore little

21

resemblance to the compelling mitigation that a reasonable investigation would

22

have uncovered and that would have caused the jury to spare Mr. Jones’s life.

23

1. Controlling U.S. Supreme Court Precedent.

24

The two-pronged inquiry of Strickland v. Washington, and its related

25

precedents discussed in section II.A.1, supra, are the controlling law for this claim.

26

In addition to general requirements for counsel’s performance in criminal trials, the

27

U.S. Supreme Court has held that counsel’s preparation for a capital trial’s penalty

28

phase “should comprise efforts to discover all reasonably available mitigating
59
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evidence and evidence to rebut any aggravating evidence that may be introduced

2

by the prosecutor.” Wiggins, 539 U.S. at 524 (addressing standards for 1988

3

crime). In cases where trial counsel knows that the prosecution will introduce a

4

prior crime against a defendant, trial counsel also has “a duty to make all

5

reasonable efforts to learn what they [can] about the offense,” and to “discover any

6

mitigating evidence the [State] would downplay” in its aggravating evidence.

7

Rompilla, 545 U.S. at 385-86.

8

“In assessing the reasonableness of an attorney’s investigation … a court

9

must consider not only the quantum of evidence already known to counsel, but also

10

whether the known evidence would lead a reasonable attorney to investigate

11

further.” Wiggins, 539 U.S. at 525. Counsel’s penalty phase preparation thus falls

12

below an objective standard of reasonableness when they “abandon[] their

13

investigation of petitioner’s background after having acquired only rudimentary

14

knowledge of his history from a narrow set of sources.” Id. at 524; see also id. at

15

526 (finding counsel unreasonable for putting on “a halfhearted mitigation case”).

16

To make a prejudice determination for claims of penalty phase ineffectiveness,

17

courts must “evaluate the totality of the available mitigation evidence—both that

18

adduced at trial, and the evidence adduced in the habeas proceeding in reweighing

19

it against the evidence in aggravation.” Williams, 529 U.S. at 397-98.

20

2. Prima Facie Allegations Before the State Court.

21

The state court pleadings alleged, inter alia, that trial counsel failed to

22

conduct a reasonable investigation of Mr. Jones’s background in preparation for the

23

penalty phase, effectively present the penalty phase witnesses he did call to testify,

24

and timely retain appropriate experts and adequately prepare and present expert

25

testimony. Mr. Jones made a prima facie showing that trial counsel’s deficient

26

performance was prejudicial. Trial counsel did not conduct a reasonable

27

investigation or effectively present penalty phase witnesses.

28

After reading reports of Mr. Jones’s prior offenses, trial counsel “became
60
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1

convinced” that Mr. Jones’s actions “were the result of his serious mental illness.”

2

Ex. 12 at 107. The reports described domestic violence, dissociative episodes, and

3

psychosis in Mr. Jones’s background, among other things. See, e.g., Ex. 104 at

4

2179-85. School records obtained by trial counsel documented Mr. Jones’s poor

5

academic performance and intellectual disability. State Pet. at 214; Exs. 50, 51.

6

Trial counsel also believed that “it was necessary to investigate the possibility of

7

brain damage.” Ex. 150 at 2731. Trial counsel therefore placed great importance

8

on Mr. Jones’s impaired mental functioning, and the indications he had of Mr.

9

Jones’s other problems. Ex. 12 at 108; Ex. 150 at 2731.

10

Despite awareness of this information, trial counsel failed adequately to

11

investigate and present evidence of the many abuses and traumas that Mr. Jones

12

suffered, including his parents’ alcoholism and violence against each other, regular

13

and brutal physical abuse and neglect of Mr. Jones and his siblings, and the murder,

14

suicide, and severe drug addiction of his loved ones. See State Pet. at 108-23;

15

Reply at 148-63. In spite of the disturbing and sexual nature of the capital crime,

16

and arrests for bizarre sexual assaults before that crime, counsel also failed to

17

investigate or present evidence of the sexual abuse that Mr. Jones suffered. State

18

Pet. at 102-08; Reply at 143-48. Though the records trial counsel possessed

19

indicated that Mr. Jones had symptoms of mental illness and low intellectual

20

functioning, counsel did not investigate or present evidence of those problems.

21

State Pet. at 93-102, 128-50; Reply at 136-43, 172-84. Finally, no investigation

22

was conducted into the circumstances leading up to the Jackson crime that the

23

prosecution introduced in aggravation. Ex. 12 at 105-06; Ex. 19 at 203.

24

Many immediate and extended family members; friends, neighbors, and co-

25

workers; and education personnel were available to provide mitigating background

26

information, but counsel did not ask them to do so. State Pet. at 170, 174-75.

27

Indeed, counsel acknowledged, “No one on my legal team, including myself,

28

interviewed these additional witnesses as part of our preparation for Mr. Jones’s
61
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trial. I had no strategic reason for not doing so.” Ex. 150 at 2733-34. Trial

2

counsel also failed to collect readily available documents and records relevant to

3

Mr. Jones’s background. State Pet. at 203-14.

4

Instead, trial counsel delegated to a paralegal the entire penalty phase

5

investigation of Mr. Jones’s background, including responsibility for conducting

6

witness interviews, without providing her any guidance about appropriate topics to

7

pursue. Ex. 12 at 105-06; Ex. 19 at 203. The paralegal obtained quite limited

8

information, Ex. 154 at 2750, and trial counsel’s resulting lack of preparation was

9

apparent at trial. In his penalty phase opening statement, trial counsel stated that

10

Mr. Jones’s mother, Joyce Jones, used the family’s welfare money to buy alcohol

11

and that Mr. Jones had been beaten with extension cords. 29 RT 4227. Trial

12

counsel also told the jury that the murder of Mr. Jones’s older brother Carl Jones

13

“was one of the things that had a big effect on Mr. Jones in his growing up.” 29 RT

14

4226. During the brief penalty phase, however, trial counsel did not present

15

evidence to support these claims or effectively elicit testimony from his mental

16

health expert to address them. Trial counsel presented only five witnesses who

17

knew Mr. Jones: Mr. Jones’s youngest sister, his father, an aunt, a school friend,

18

and an acquaintance. 29 RT 4236, 4251, 4345, 4354; 31 RT 4566.24 He failed to

19

ask these witnesses about many aspects of Mr. Jones’s background that they were

20

capable of addressing, instead perfunctorily covering only a few topics with each

21

of them. State Pet. at 186-203.

22

Trial counsel’s failure to conduct a thorough investigation of Mr. Jones’s

23

background prior to the penalty phase was particularly egregious given the

24

numerous indications he had of powerful mitigating evidence. See Williams, 529

25

U.S. at 396 (counsel unreasonable for failing to conduct investigation that would

26
27

24

The other defense witnesses, a psychiatrist and two witnesses from
corrections, did not know Mr. Jones personally. 29 RT 4262, 4270; 31 RT 4410.

28
62
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have uncovered evidence of petitioner’s severe and repeated beatings, neglect,

2

intellectual impairment, and academic problems); Wiggins, 539 U.S. at 525

3

(counsel unreasonable for failing to investigate indications that petitioner’s mother

4

was a chronic alcoholic who left him and his siblings alone for days without food;

5

“any reasonably competent attorney would have realized that pursuing these leads

6

was necessary to making an informed choice among possible defenses”). Trial

7

counsel also performed deficiently when he described details of Mr. Jones’s painful

8

upbringing to the jury during opening argument, but failed to substantiate his

9

description with witness testimony or other evidence. See Wiggins, 539 U.S. at

10

526 (counsel unreasonable when “she told the jury it would ‘hear that Kevin

11

Wiggins has had a difficult life,’ [but] . . . never followed up on that suggestion

12

with details of Wiggins’ history”). Moreover, trial counsel was deficient for failing

13

to investigate and present the “circumstances extenuating the behavior described

14

by the victim[s]” of Mr. Jones’s prior crimes. See Rompilla, 545 U.S. at 386.

15
16

a. Trial counsel did not timely retain, adequately prepare, or
effectively present expert testimony.

17

Trial counsel understood that testimony from a mental health expert was the

18

“cornerstone of the penalty phase defense.” Ex. 12 at 110. After meeting the

19

psychiatrist who ultimately testified, Dr. Thomas, trial counsel “became

20

increasingly convinced that his testimony would be instrumental in saving Mr.

21

Jones’s life.” Id. at 108. Dr. Thomas highlighted the importance of obtaining

22

background information about Mr. Jones, including his medical, mental health,

23

educational, and other social history. Ex. 154 at 2750. He also informed trial

24

counsel that thorough neuropsychological testing was necessary to evaluate Mr.

25

Jones adequately. Ex. 150 at 2732; Ex. 154 at 2761. Though trial counsel retained

26

a neuropsychologist, Dr. Spindell, Ex. 150 at 2732, he failed to retain an expert to

27

prepare Mr. Jones’s social history or specifically to describe the intellectual and

28

academic problems he knew Mr. Jones had in school. State Pet. at 156, 175, 237.
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In spite of Dr. Thomas’s importance to the case, trial counsel failed to retain

2

and consult with him in sufficient time to effectively prepare his testimony. See

3

section II.A.2.a.2, supra. Furthermore, because trial counsel did not conduct a

4

reasonable investigation into Mr. Jones’s background, he was unable to provide Dr.

5

Thomas with material necessary for his assessment or adequately prepare him to

6

testify. After his belated appointment, Dr. Thomas “noted several areas in which

7

information about Mr. Jones’s social history and functioning were lacking.

8

conveyed to Mr. Manaster the need to obtain this information, but at no time was

9

this information provided to me.” Ex. 154 at 2749; see also id. at 2750 (counsel

10

did not provide Dr. Thomas with requested “materials relating to Mr. Jones’s

11

medical, mental health, education, and other social history”). Trial counsel gave

12

Dr. Thomas summaries of interviews that the defense paralegal had conducted, but

13

“[a]lthough the summaries clearly indicated a difficult home environment, they

14

failed to elucidate the problems in much detail or discuss Mr. Jones with much

15

specificity.” Id. Dr. Thomas did not receive Mr. Jones’s family members’ school

16

and medical records, social service records, court records, or military records, all

17

of which would have allowed him to present “far more effective and compelling

18

testimony on Mr. Jones’s behalf.” Id.

I

19

Trial counsel did not retain an expert to review and explain Mr. Jones’s

20

social history to the jury. State Pet. at 237. Trial counsel asked Dr. Thomas only to

21

determine whether Mr. Jones was legally insane at the time of the offense, or

22

whether he was suffering “from some mental condition or defect which he could

23

not control and which might help explain his behavior.” Ex. 154 at 2748. “At no

24

time prior to my testifying did Mr. Manaster explain my role in the capital

25

sentencing context. He did not explain the scope of potential mitigation in a

26

capital trial or the importance that such information may have on a jury’s

27

decision.” Id. at 2755. As a result, Dr. Thomas was unable to “testify about even

28

the limited information I did have of the dysfunctional family life Mr. Jones had,
64
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1

and the impact it had on his growth and functioning.” Id.

2

Although Dr. Thomas advised trial counsel that a full battery of

3

neuropsychological testing was indicated, Ex. 150 at 2732, trial counsel did not

4

ensure its completion, State Pet. at 156. Instead, Dr. Spindell conducted very

5

limited neuropsychological testing, including superfluous testing that trial counsel

6

did not request. Ex. 150 at 2732. After trial counsel concluded that he would not

7

ask Dr. Spindell to testify due to dissatisfaction with his work, he failed to retain a

8

new neuropsychologist to perform a complete battery of neuropsychological

9

testing and testify as to his or her findings. Id. at 2732-33 (stating that “I did not

10

have any strategic reason for failing to hire another neuropsychologist to conduct

11

thorough testing on Mr. Jones; by the time I had finished working with Dr. Spindell

12

. . . Mr. Jones’s trial was beginning and there was no time to do so”). Though trial

13

counsel was troubled by multiple factual errors in Dr. Spindell’s report and his

14

failure to perform the testing requested, id., trial counsel provided the report to Dr.

15

Thomas and asked him to rely on it in reaching his conclusions, 30 RT 4429.

16

Despite the clear mitigating relevance of Mr. Jones’s school records that trial

17

counsel possessed, he did not consult education personnel, present testimony about

18

the records’ contents, or introduce the records. State Pet. at 175; Reply at 194.

19

Given time and the opportunity, Dr. Thomas also would have informed trial

20

counsel that Mr. Jones’s school records contained a tremendous amount of

21

important information the jury never heard, including the fact that Mr. Jones was in

22

an Educably Mentally Retarded program in elementary school. Ex. 154 at 2755.

23

Trial counsel’s performance in consulting and utilizing experts during the

24

penalty phase was professionally unreasonable. As trial counsel himself recalled,

25

“[a]lthough Dr. Thomas was the cornerstone of the penalty phase defense, he was

26

not adequately prepared to testify. . . . Dr. Thomas did not adequately convey to

27

the jury how mentally ill Mr. Jones really is.” Ex. 12 at 110. Numerous courts

28

have held such failure deficient under Strickland. For example, “When experts
65
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1

request necessary information and are denied it, when testing requested by expert

2

witnesses is not performed, and when experts are placed on the stand with virtually

3

no preparation or foundation, a capital defendant has not received effective penalty

4

phase assistance of counsel.” Bean v. Calderon, 163 F.3d 1073, 1079 (9th Cir.

5

1998); see also, e.g., Caro v. Woodford, 280 F.3d 1247, 1254-55 (9th Cir. 2002)

6

(“counsel has an affirmative duty to provide mental health experts with

7

information needed to develop an accurate profile of the defendant’s mental

8

health”); Clabourne v. Lewis, 64 F.3d 1373, 1385-85 (9th Cir. 1995) (counsel

9

ineffective for retaining expert with little time to prepare, failing to provide experts

10
11

with records, and failing to prepare them to testify).
b. Trial counsel’s deficient performance was prejudicial.

12

1) Lay witness testimony that could have been presented.

13

Mr. Jones’s life was dominated by the severe alcoholism and terrifying abuse

14

of his parents, Earnest Lee and Joyce Jones, in ways the jury never could have

15

imagined from the limited information they were provided. See generally State

16

Pet. at 108-21; Reply at 143-67. Trial counsel did identify several mitigating

17

themes, including: (1) Earnest Lee’s and Joyce’s alcoholism and their neglect of

18

Mr. Jones and his siblings; (2) physical violence between Earnest Lee and Joyce;

19

and (3) physical abuse of Mr. Jones. However, trial counsel failed to discover and

20

present powerful mitigating evidence that lay witnesses could have provided about

21

those topics; instead, trial counsel gave the jury the false impression that Mr.

22

Jones’s background was relatively unremarkable. Moreover, trial counsel wholly

23

failed to investigate and present additional, critical mitigating evidence, including

24

Mr. Jones’s (1) history of sexual abuse; (2) long-standing symptoms of

25

dissociation; (3) low intellectual and academic functioning; (4) homelessness as a

26

young boy; and (5) deteriorating mental health prior to the crimes he committed. A

27

brief summary of some of the available evidence trial counsel could have

28

presented, but failed to present, follows.
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Mr. Jones’s uncle, Thomas Jones, was one of many witnesses who could

2

have testified about the severity and deleterious effects of Earnest Lee and Joyce’s

3

drinking problems. He observed that:

4

By the time Meso25 was around nine or ten years old, both Earnest

5

Lee and Joyce were constantly drunk. Earnest Lee was mean and

6

violent when he got drunk. Both he and Joyce were either drunk or

7

on their way to being drunk again. As bad as their drinking had been

8

when Meso was younger, it somehow got worse. The worse their

9

drinking became, the more their children had to raise themselves.

10

Ex. 21 at 221. Other witnesses could have provided additional descriptions:

11

 Mr. Jones’s older sister Gloria stated that “my parents drank at the parties

12

they threw in our apartments, and they drank when there was no party.

13

They drank at all hours. The more they drank, the more they fought with

14

each other.” Ex. 124 at 2502;

15

 A neighbor observed that Joyce drank every day and “[w]hen she drank

16

she acted like a different person; she got loud, and vulgar and violent. …

17

When she was drinking she did not want to be bothered by her children.

18

Unfortunately, in that small apartment it was almost impossible for all

19

those children to stay out of their mother’s way.” Ex. 143 at 2702;

20

 A friend stated that “Earnest Lee lost at least three jobs because of

21

drinking. …[Eventually,] he could not hold a job at all because of his

22

drinking” and “[w]hen [Joyce] was drunk, any little thing set her off and

23

she would start fighting.” Ex. 145 at 2710.

24

Mr. Jones’s mother also drank while she was pregnant with him. Ex. 4 at 55; Ex.

25

18 at 195; Ex. 20 at 215.

26
27

25

Mr. Jones’s family gave him the nickname “Meso,” short for “measles,”
because he had red bumps on his face. Ex. 18 at 195.

28
67
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1

As his parents’ drinking intensified, so did their neglect of Mr. Jones and his

2

siblings. Mr. Jones’s sister Cassandra remembered, “When both Meso and I were

3

in elementary school, there were many days that we had to go to school with mis-

4

matched clothes and uncombed, wild looking hair because our mother was passed

5

out drunk and could not help us get ready for school.” Ex. 132 at 2628. The

6

family lived in at least six different homes when Mr. Jones was growing up, as they

7

were often kicked out of their previous home because of his parents’ fighting and

8

drinking. Id. During Mr. Jones’s early childhood in the late 1960s and 1970s, Mr.

9

Jones’s father could not hold down a job due to his drinking; the “electricity was

10

turned off more and more often and there was less and less food in the house. …

11

[the] children went without food or adequate clothing.” Ex. 25 at 251. When he

12

could, Mr. Jones turned to friends and neighbors to keep from going hungry. Id.

13

The brief testimony at trial did not convey the frequency and intensity of the

14

violence between Earnest Lee and Joyce. Mr. Jones’s older sister Gloria was one

15

of many witnesses who could have described it:

16

My parents did not simply yell or shout or even slap each other;

17

when they got going, they were at each other like they hated one

18

another. The scariest part about their fights, especially for little

19

children, was that they often acted like they were fighting to the

20

death. . . . My mother threw dishes, ashtrays or anything that was

21

handy. Numerous times, she would defend herself with knives from

22

the kitchen. . . . It was like living in a combat zone, and we never

23

knew what would set them off.

24

Ex. 124 at 2502. Once, when Mr. Jones was a little boy running to get out of the

25

way of his parents’ fighting, his father pushed him and he hit his head on a glass

26

table, began bleeding profusely, passed out, and had to be taken to the hospital. Id.

27

at 2512. As Mr. Jones’s sister Jean explained, their parents’ fighting was “much

28

worse when Meso was young, because our father lived at home more.” Ex. 16 at
68
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1
2
3

151. Examples of the abuse included the following:
 “It was common for [Joyce and Earnest Lee] to pull out knives and start
cutting each other.” Ex. 4 at 57;

4

 Joyce went to a relative’s house “with blood pouring from a gash in her

5

head where Earnest Lee had hit her with a heavy ashtray;” the children

6

regularly saw the fights and “would just scream and cry helplessly.” Ex.

7

25 at 250;

8

 An aunt recalled that after Earnest Lee found Joyce in bed with another

9

man, he beat her when he got home from work every day “just on

10

principle, as well as during arguments. … I am surprised that Joyce did

11

not commit suicide during that time.” Ex. 123 at 2485;

12

 A neighbor saw Earnest Lee beating Joyce in the head with a solid,

13

wooden table leg; “Meso and his older brother and sisters were in the

14

apartment screaming and crying as they watch (sic) what was happening.

15

Joyce was on the ground, . . . her head bloody, and her clothes nearly torn

16

off of her body.” Ex. 155 at 2767.

17

Police regularly were summoned, but they “would just make Earnest Lee leave the

18

apartment, but this never made anything better in the long run.” Ex. 147 at 2718.

19

Mr. Jones’s sister explained that their mother also beat her children

20

relentlessly, and “Meso got hit more by our mother” than the other children. Ex.

21

124 at 2513. As a young boy, Mr. Jones liked to take things apart but was unable

22

to put them back together; “[t]his made my mother very angry, and she would use

23

an excuse like that to beat him.” Id.; see also Ex. 1 at 2 (“Joyce beat Meso

24

repeatedly on the side of his head. Meso just seemed to take it. . . . Sometimes she

25

hit him so hard, she knocked him down.”); Ex. 18 at 197 (Joyce “gave [her

26

children] whippings for just about anything. She would hit them for being too

27

loud, spilling a crumb or not being able to do their homework”). Geraldine Jones

28

saw that “Joyce did not know how to regulate her behavior. When she got angry
69
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1

with her children she beat them like she was fighting her grown six feet tall

2

husband.” Ex. 123 at 2483. Mr. Jones’s father most often used a belt or extension

3

cord to beat him and his brother Carl; he “would make them strip naked, and then

4

beat them with the cord until they bled.” Ex. 16 at 155.

5
6

Mr. Jones’s uncle, Samuel Jones, who lived with Mr. Jones’s family for a
period of time beginning in 1972, witnessed even more horrific abuse:

7

There are several distressing things about Meso’s childhood . . . The

8

most upsetting is that his mother, Joyce, sexually abused him for

9

many years when he was a young boy. When she was drunk, she

10

went after Meso and made him have sex with her.

11

Ex. 128 at 2579. In addition, Mr. Jones’s mother “was wild and loose about having

12

sex with other men in the house” in front of Mr. Jones and his brothers and sisters.

13

Ex. 124 at 2516; see also Ex. 16 at 154 (Mr. Jones and his siblings “were routinely

14

exposed to our parents’ sex life,” including a time when Joyce threatened to cut off

15

Earnest Lee’s penis after they had sex). When he was younger, Mr. Jones also

16

spent a lot of time with his Uncle Carvis, who was considered “a pervert who does

17

not respect women.” Ex. 147 at 2723; see also Ex. 13 at 118 (Carvis hung the

18

underwear of women he had slept with on the wall of his house for decoration);

19

Ex. 3 at 31 (Carvis kept life-size nude pictures of himself that were visible to

20

anyone who walked in the house as well as photos of naked women and panties);

21

Ex. 135 at 2657 (same). Unlike other children, “[e]ven though he was a little boy,

22

Meso knew how to talk to my father about sex.” Ex. 124 at 2516.

23

Mr. Jones’s parents also had been sexually abused and/or exposed to sexual

24

abuse. See generally Reply at 143-48. Earnest Lee’s sister Bertha Mae Jones

25

described being sexually abused by their father, “Doc,” two or three times a week:

26

When I was little he would wait until my mother left the house to go

27

to town or visit friends. … When I was older, my father simply

28

called me into another room of the house and forced himself on me.
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1

He did not care if other people were there or not. If my mother was

2

home, he called me out to a field and did it there.

3

Ex. 4 at 51. A maternal uncle also abused Bertha Mae. Id. Earnest Lee knew

4

about the abuse, id. at 59, which happened to at least one other sister as well, id. at

5

52; Ex. 1 at 7. When Bertha Mae finally went to their mother and told her about

6

the abuse, their mother told Doc, who punished Bertha Mae by raping her and

7

severely beating her. Ex. 4 at 51. The sexual abuse was so blatant that in the

8

community, “[i]t was common knowledge that Doc had sex with his eldest

9

daughter Bertha Mae.” Ex. 6 at 66; see also Ex. 4 at 54 (Bertha Mae learned from

10

her second husband that “the whole town knew about Doc having sex with me …

11

[it] had been a town joke”). When Earnest Lee was an adult, his sister tried to

12

discuss their father’s sexual abuse with him, but he crawled under her bed yelling

13

and screaming because he could not bear to talk about it. Id. at 59.

14

Sexual abuse was so pervasive in Joyce’s family that her mother once

15

observed that beatings and sexual molestation are things that “happen to

16

everyone.” Ex. 129 at 2592. Joyce’s brother Carvis had sex with their sister

17

Vernice, who also was sexually abused by at least one of her uncles. Id. at 2584.

18

Joyce also was sexually molested as a young girl. Ex. 8 at 82. Particularly when

19

Joyce was drunk, “all the sadness” about those experiences came out. Id. Joyce’s

20

sister Vernice eventually worked as a prostitute. Ex. 129 at 2585. Joyce’s sister

21

Jackie was living with Vernice and her family when Vernice’s young son Reggie

22

told his family that Jackie had sexually molested him; she performed oral sex on

23

him several times. Id. at 2587; Ex. 135 at 2662. After news of the abuse surfaced,

24

Jackie was kicked out of the home and went to live with Joyce. Reggie’s father

25

reflected that, “I am ashamed to say that I did not say something to protect Joyce’s

26

young boys from Jackie. Of course, Joyce did not concern herself with whether or

27

not Carl, Meso, or Alvin were safe with her around.” Id.

28

In response to the violence and trauma in his life, Mr. Jones often “had this
71
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1

blank stare on his face. He just stood there like a statue and stared into space, as if

2

he was frozen and could not move.” Ex. 1 at 2. After witnessing his parents fight,

3

“we would find Meso shaking under a bed or in bed with a blanket pulled over his

4

head. Although he had tears running down his face, he acted like nothing out of

5

the ordinary had happened.” Ex. 16 at 153. One neighbor observed, “Meso was a

6

strange child. It seemed like no matter what happened to him he could not show

7

that he was upset or hurt. … [I found Meso] sitting on the bottom stairs by himself,

8

just staring into space. I even found him after dark in a parking lot, sitting by

9

himself between two parked cars, like he was trying to hide. No matter how many

10

times I asked that boy what was wrong, he could not talk about it.” Ex. 152 at

11

2741.

12

Mr. Jones also struggled with intellectual and academic limitations. His

13

sister explained that, “We all knew that, from an early age, my brother Meso had

14

trouble learning. Meso struggled with his schoolwork from the beginning and

15

despite assistance from others and me, he was unable to learn what the other

16

children his age learned.” Ex. 16 at 144. Mr. Jones could not write his name until

17

he was in the third grade. Id. at 145. When he was in the fifth grade, he still could

18

hardly read a complete sentence. Ex. 132 at 2636. Mr. Jones also struggled to

19

learn simple math and was not able to count money and make change. Ex. 16 at

20

145. Among other things, these difficulties prevented Mr. Jones from escaping his

21

abusive home life. His siblings often went to the library after school in order to

22

escape violence at home. Id. at 146. Because Mr. Jones could not read, he did not

23

join them and had nowhere to go but home. Id. As he got older, he had “so much

24

trouble in school with reading and writing” that he had difficulty filling out job

25

applications and could not find work. Ex. 14 at 136.26

26
27
28

26

In addition to describing Mr. Jones’s own problems, witnesses also could
have described the significant history of mental illness and intellectual disability
continued…

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1

When Mr. Jones was about fourteen years old, his father moved away from

2

California, sinking the family even deeper into crisis. Mr. Jones’s mother became

3

“the sloppiest street drunk in the neighborhood. She would stagger down the street

4

drunk at all hours, yelling and cursing at anyone. She drank constantly.” Id. at

5

132. “Joyce sometimes got so drunk that she passed out and urinated all over

6

herself,” and then her children had to try to clean her up. Ex. 123 at 2488; see also

7

Ex. 21 at 222 (it was common to see Joyce passed out drunk on the side of the

8

street). People who witnessed Joyce’s alcoholism believed that her drinking would

9

eventually kill her; one of Mr. Jones’s aunts recalled that, “On more than one

10

occasion, the children called me panicked and crying because they thought that

11

[Joyce] was dying or dead, and each time I rushed her to the emergency room.”

12

Ex. 135 at 2666.

13

During her decline, Joyce was evicted from her apartment and moved in

14

with a new boyfriend, Horace Jenkins. Id. at 2661. The two youngest children

15

eventually were taken in by others. Ex. 2 at 15-16; Ex. 131 at 2614-15. Mr. Jones,

16

however, did not find stable housing. His aunt recalled that after his father left,

17

“Meso, who was still a child, moved from place to place.” Ex. 135 at 2661; see

18

also Ex. 128 at 2579 (“I cannot remember where Meso lived during that time. It

19

was easy for Meso to get lost in the crowd.”); Ex. 21 at 223 (for a time, Meso lived

20

with his Uncle Thomas, who at the time was free basing cocaine and was heavily

21

addicted); Ex. 14 at 134 (“in the short time I knew him, [Ernest] lived at different

22

times with his mother, his Aunt Geraldine, his sister Gloria, his Uncle Thomas, his

23

mother’s boyfriend Horace, and in my mother’s garage.”); id. at 135 (“When

24

Ernest was staying with Horace there was no furniture or electricity and Ernest had

25
26
27

in Mr. Jones’s extended family. See generally State Pet. at 94-107; Reply at 136148. Readily available records provided further, extensive documentation of
these problems in the family’s history. State Pet. at 211-14.

28
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1
2
3

to sleep on the floor”).
In spite of the tremendous hardships in his life, things got worse for Mr.
Jones after his older brother Carl was murdered.

4

After Carl died, Meso’s behavior became really bizarre. . . . He had

5

shaved his head and his eyebrows and his entire demeanor had

6

changed. His eyes were blank. . . . He was the neighborhood ghost.

7

. . . Meso started yelling crazy things to people in the neighborhood,

8

just like a street person. He talked trash to people for no reason,

9

even to gang members who could have easily killed him. It made no

10

sense. Fortunately, people realized that Meso was off of his rocker,

11

so they left him alone.

12

Everyone knew that Meso had lost it.

Still, it was like he had a death wish.

13

Ex. 134 at 2651-52; see also Ex. 126 at 2563 (in the early 1980s, Meso “looked

14

like a different person . . . [he] was wearing all black and had shaved his head …

15

His eyes looked dead. . . . It was as if something had clicked in his head. He

16

walked around in a daze.”); Ex. 135 at 2665 (“No one took Carl’s death harder than

17

Meso. Meso looked up to his brother. He was his hero and protector. In the weeks

18

after Carl was killed, Meso stayed up all night and aimlessly roamed the streets.”).

19

Mr. Jones’s Aunt Jackie, to whom he had been close, committed suicide three years

20

earlier; he had her name tattooed on his arm after her death. Ex. 3 at 36.

21

By the time of his arrest for assaulting his friend, Kim Jackson, “Meso was

22

clearly having problems. He had gone through several family tragedies, including

23

the suicide death of his aunt, his older sister’s drug addiction, and the stabbing

24

death of his older brother.” Ex. 21 at 226. His then-girlfriend Glynnis said that he

25

became “moodier and his moods changed very quickly. He got upset so easily that

26

it was impossible to tell exactly what had upset him.” Ex. 14 at 134. His problems

27

got to the point that Glynnis noticed that “he would change, without warning, into

28

another person altogether. … [He became] this strange man who did not recognize
74
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1

his name when I yelled it at him … One time when he looked so different during a

2

fight, he said he was hearing other voices talking to him. No one else was in the

3

room.”

4

forgetting conversations after they happened and staying awake at night and sitting

5

silently in the dark, alone. Ex. 16 at 167-68. Mr. Jones called Glynnis after he

6

attacked Ms. Jackson: he “wanted to check himself in to the hospital. He felt he

7

needed help and did not know what else to do.” Ex. 14 at 135.27 Trial counsel

8

commented that Ms. Jackson had “testified that Mr. Jones had become a different

9

person during the incident. I was also impressed that she was more concerned with

10

Id. at 137.

Others recalled that Mr. Jones lived in his own world,

Mr. Jones getting treatment rather than punishment.” Ex. 12 at 107.

11

2) Expert testimony that could have been presented.

12

In addition to the witness testimony and record evidence that trial counsel

13

would have obtained from a reasonable investigation, adequately prepared expert

14

assessment of Mr. Jones and his background would have provided the jury with a

15

cohesive, compelling understanding of Mr. Jones’s significant intellectual,

16

neuropsychological, and mental health impairments, as described below.

17

If he had been provided with the results of a reasonable background

18

investigation, Dr. Thomas would have testified that Mr. Jones’s “opportunity for

19

appropriate social adjustment and development was compromised” by “mental and

20

physical abuse, malnutrition, neglectful parenting, constant and early childhood

21

exposure to substance abuse, and early and often confrontational exposure to

22

sexuality.”

23

descriptions many signs that Mr. Jones exhibited “a developing dissociative

24

process” from “as early as anyone could remember.” Id. at 2760. Moreover,

Ex. 154 at 2757.

He would have identified among the witness

25
26
27

27

As described in section II.A.2.a.3, supra, these problems continued in the
period after the Jackson crime, including the time leading up to Mr. Jones’s arrest
for the assault of Doretha Harris, and, later, the capital crime.

28
75
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Case No. CV-09-2158-CJC

1

witness descriptions of specific abuses and traumatic events in Mr. Jones’s life, the

2

extent of violence and substance abuse in Mr. Jones’s home, and Mr. Jones’s

3

mental health problems over time, would have been

4

critical to explain the full effect that Mr. Jones’s life experiences,

5

especially his cruelly dysfunctional family dynamics, had on his

6

behavior and functioning. Mr. Jones’s multiple impairments affected

7

his judgment and his actions throughout his life, and had particularly

8

insidious effects on his behavior and thought processes on the

9

evening of the [capital crime].

10

Id. at 2761; see also section II.A.2.a.3, supra (describing powerful conclusions Dr.

11

Thomas could have provided about Mr. Jones’s mental state at the time of the

12

crime).

13

Jones’s bizarre behavior, preoccupation, suspicions, habit of talking to people who

14

were not there, and unusual routines for trying to feel safe to further support his

15

clinical impressions about “Mr. Jones’s symptoms of psychosis, including

16

delusional and referential thinking, auditory and visual hallucinations, and

17

paranoia.” Id. at 2760.

Dr. Thomas also would have considered witness accounts about Mr.

18

A competent, adequately prepared expert with qualifications in family

19

dynamics and child abuse could have synthesized lay witness accounts, record

20

evidence, and other experts’ analyses to provide the jury with a compelling and

21

sympathetic description of Mr. Jones’s life and behavior. See generally Ex. 178;

22

State Pet. at 237. Among other things, such an expert acting as a social historian

23

would have explained to the jury that:

24

The impact of such devastating and numerous physical and

25

emotional assaults during his early childhood stunted Ernest Jones’s

26

normal development and adversely affected his mental functioning

27

from his earliest childhood through the time of the [capital] offenses.

28

. . . Emotionally intense or stressful situations triggered intrusive and
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1

dissociative mental states that further compromised his ability to

2

understand events and respond appropriately. … Ernest was often

3

overwhelmed by the violence and horror of his life. Confronted with

4

this life-threatening environment, Ernest’s mind reacted by allowing

5

him to dissociate . . . as a means of self-protection.

6

Id. at 3151-52. A social historian would have further explained that Mr. Jones

7

“developed an increasing and unfocused fear of the world in general.” Id. at 3153.

8

The symptoms of Mr. Jones’s mental illness progressed to increasing paranoia,

9

auditory and visual hallucinations, and depression. Mr. Jones also began to use

10

drugs and alcohol “as a way to cope with his problems, and to suppress the

11

overwhelming emotional responses he experienced as a result of the abuse and

12

trauma he had suffered.” Id. at 3153-54; see also Ex. 154 at 2762-64 (if he had

13

been provided with the results of a reasonable background investigation, Dr.

14

Thomas would have reached similar conclusions).

15
16

To address the impact of his brother Carl’s murder on Mr. Jones, a social
historian could have testified that:

17

Ernest’s guilt over his brother’s death overwhelms him at times.

18

Ernest continues to blame himself for Carl’s death. … For a long

19

time afterwards, he was acutely distressed as he tried to figure out

20

who had done this to his brother.

21

flashbacks. He saw Carl, dead, lying on the street in a pool of blood.

22

Ernest also experienced visual hallucinations after his brother’s

23

death. While he was out walking near his home, Ernest believed that

24

he saw someone that looked like his brother Carl and followed the

25

person into a local store. Inside, he did not find anyone except for

26

the storeowner who asked Ernest what was he looking for.

27
28

. . . Ernest suffered from

Ex. 178 at 3144.
A qualified social historian also could have testified about Mr. Jones’s
77
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1

increasing distress leading up to the Jackson crime and the specific circumstances

2

of the incident. On the day of the Jackson crime, shortly after Carl’s death, Mr.

3

Jones and Ms. Jackson smoked marijuana and talked about Carl. The topic was too

4

difficult for Mr. Jones, and he became more and more agitated, but could not do

5

anything about it. Ex. 178 at 3146. This expert would have explained:

6

That moment of great vulnerability and stress touched off for Ernest

7

an extreme dissociative reaction. Ms. Jackson could see this change

8

immediately. His entire face and demeanor changed, and he forced

9

her to have intercourse. Immediately after he came out of the ‘trance

10

like state,’ he saw her crying and slowly began to understand that

11

something bad had happened, and apologized to her profusely.

12

Id. (following the incident Mr. Jones called his girlfriend and talked to her for three

13

or four hours before turning himself into the police).

14

A competent neuropsychological evaluation would have revealed that in

15

addition to his mental health problems, “Mr. Jones suffers from such severe brain

16

damage that he is unable to function at the same level as 99 percent of those in his

17

age category.” Ex. 175 at 3072; see also id. at 3063 (testing also would have

18

confirmed Mr. Jones’s low IQ and impaired intellectual functioning). A qualified

19

and adequately prepared neuropsychologist could have testified that this brain

20

damage began even before Mr. Jones was born, when his mother drank alcohol and

21

smoked during her pregnancy with him. Id. at 3073. Damage to Mr. Jones’s brain

22

continued after birth, through numerous head injuries he received as a very young

23

child and childhood malnutrition and neglect.

24

neuropsychologist also could have explained that Mr. Jones’s organic brain damage

25

severely affected numerous aspects of his mental functioning, including memory,

26

concentration, and attention, and that the damage he suffered to his frontal lobes

27

alone can impair judgment, insight, control, the ability to plan and organize, and

28

overall self-regulation. Id. at 3065-66.

Id. at 3073-74.

A qualified

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1

Finally, an educational professional who had reviewed Mr. Jones’s school

2

records would have been able to testify about his cognitive impairment and

3

academic difficulties, and his enthusiasm and interest in school despite his

4

disability. See generally Exs. 125, 130. At an early age, Mr. Jones tested with an

5

IQ of 68, a score markedly below average, and was placed in the Educable

6

Mentally Retarded (“EMR”) program from the first through third grade. Ex. 125 at

7

2552-53. Mr. Jones’s low scores on some of the tests “indicated problems with

8

making appropriate decisions, caring for self, and responding age appropriately to

9

social situations.” Ex. 130 at 2599. After leaving the EMR in elementary school,

10

Mr. Jones “achieved virtually no academic success.” Id. at 2601. He did not earn

11

enough credits to graduate from junior high school. Ex. 125 at 2554. At the age of

12

sixteen, his academic achievement was “extremely poor, ranging from the second

13

to the sixth grade level.” Ex. 130 at 2601.

14

3) The picture presented to the jury.

15

Instead of the powerful and detailed mitigation that was available, trial

16

counsel presented the jury with only a glimpse of Mr. Jones’s life. The scant level

17

of detail about Mr. Jones that the jury heard during the penalty phase is

18

exemplified by trial counsel’s direct examination of the only sibling he called to

19

testify, Tanya Jones. 29 RT 4237-40. During her brief testimony, trial counsel

20

elicited the following description of Mr. Jones’s home life:

21

Q. Can you describe your home life when you were young?

22

A. Very, very violent. Our parents fought all the time. Constantly.

23

Q. Was that in front of you or away from you?

24

A. In front of us.

25

Q. What about drinking?

26

A. My mother and father drank very heavily, and it wasn’t hidden.

27

Everybody knew. It was in front of us. It was never a secrete (sic).

28
79
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Case No. CV-09-2158-CJC

1

Q.

Were you actually ever present when there were any fights

2

between your parents?

3

A. All the time.

4

29 RT 4237-38; see also id. at 4238-39 (describing an incident when her mother

5

stabbed her father).

6

Mr. Jones’s friend Herman Evans gave a similarly brief description of Mr.

7

Jones’s home environment: “The mother who would drink a lot. Sometimes the

8

home environment was kind of unstable, not always food there to eat, or, you

9

know, just a lot of instability there.” 29 RT 4253. During cross-examination of

10

both Ms. Jones and Mr. Evans, the prosecution suggested that there was no

11

physical abuse of Mr. Jones and his siblings: “Q. And when your father was not

12

around, your mother wasn’t violent towards anyone else, was she? . . . A. It was

13

not as bad, no.” 29 RT 4244 (questioning Ms. Jones); see also 29 RT 4160-61

14

(questioning Mr. Evans). Mr. Jones’s aunt, Geraldine Jones, testified that both of

15

Mr. Jones’s parents had drinking problems and fought with each other, and that Mr.

16

Jones’s father found his mother in bed with another man. 31 RT 4567-71. She also

17

testified that Mr. Jones’s sister Jean developed a drug problem and once tried to cut

18

her wrists with glass at a family barbeque. 31 RT 4572. On cross-examination,

19

she stated, without detail, that she witnessed Mr. Jones’s parents beating him. Id.

20

at 4578.

21

Mr. Jones’s father acknowledged that both Mr. Jones’s mother and he had

22

drinking problems and that when they moved to California “[T]his is when all of

23

the drinking and all of the problems started.” 29 RT 4362. Rather than follow up

24

on this testimony, trial counsel immediately asked, “All right, now, aside from the

25

drinking, were there other problems between you and your wife?” 29 RT 4362.

26

Mr. Jones’s father testified that he fought with his wife and found her in bed with

27

his friend, and she did not supervise the children adequately. 29 RT 4363, 4366,

28

4369. He also testified that he had two jobs and did his best to support the family;
80
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Case No. CV-09-2158-CJC

1

in spite of his wife’s transgressions, he stayed with her for their children’s sake. Id.

2

at 4360, 4365, 4369. Mr. Jones’s father testified that once he and his wife finally

3

split up, he made sure the children had a place to live and the electricity bills were

4

paid; “I was always there for the things that they needed for the school clothes,

5

their Christmas.” Id. at 4374.

6

Although lay witness testimony hinted at Mr. Jones’s troubled background, it

7

suggested to the jurors that Mr. Jones’s “father was a good man who did everything

8

that he could for his son, including taking him to church. It was not like Mr.

9

Jones’s childhood or life was that bad; he was never homeless or begging for food

10

and his father clearly took good care of his children.” Ex. 23 at 240; see also Ex.

11

139 at 2693 (“I felt sorry for Mr. Jones’s father. He was a poor man who did

12

everything he could to get his family together but it just did not work.”); Ex. 127 at

13

2565 (“There was some testimony about Mr. Jones’s childhood but I do not

14

remember thinking his life was all that bad”); Ex. 138 at 2690 (the jury “talked

15

about how we never had a picture of what growing up was really like for [Mr.

16

Jones]”).

17

Little that the witnesses said about Mr. Jones during their testimony

18

provided a logical connection to Dr. Thomas’s subsequent testimony that Mr. Jones

19

suffered from schizoaffective psychosis and schizophrenic dissociation. 30 RT

20

4433-35.

21

Thomas’s reliance on Mr. Jones’s own descriptions and highlighted the absence of

22

other, reliable sources to inform the doctor’s opinion. 30 RT 4472 (highlighting

23

the source of the doctor’s initial opinion as being based on one interview with Mr.

24

Jones); id. at 4473-74 (raising factual inaccuracies in information provided to Dr.

25

Thomas by Mr. Jones); id. at 4489-90 (citing need for objective criteria in mental

26

health evaluations); id. at 4497-99 (pointing out that testing conducted by Dr.

27

Spindell was not done according to professional standards, thus affecting its

28

reliability). The prosecution asked Dr. Thomas, “isn’t it true the literature in this

The prosecutor capitalized on this.

He repeatedly challenged Dr.

81
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Case No. CV-09-2158-CJC

1

area would also say that you should be careful on taking the word of somebody

2

who may be as [sic]—has raped and killed in the past and who is facing

3

consequences for that he may have a bias for presenting a certain history?” Id. at

4

4510; see also id. at 4532 (“Again, this is the only information you have on him

5

hearing voices is from the defendant himself?”). When the prosecution challenged

6

Dr. Thomas’s conclusion that Mr. Jones’s assault of Kim Jackson was the result of

7

an “emotional trigger,” Dr. Thomas did not have sufficient information to respond,

8

stating, “I’m not sure just what the series of incidents were.” Id. at 4520.

9

The prosecution described Dr. Thomas’s testimony as an “eclectic approach”

10

based solely on “the Dr. Thomas theory of what Mr. Jones has done.” Id. at 4515.

11

A juror summed it up this way: “Although he offered his professional opinion

12

about Mr. Jones’s conduct, there was no other evidence presented to support his

13

conclusions. It is a hard sell to convince twelve jurors that a person suffers from

14

flashbacks without any other evidence.” Ex. 140 at 2694.

15

4) The totality of mitigating evidence establishes prejudice.

16

In contrast to the anemic portrayal of Mr. Jones’s life during the penalty

17

phase, experts and lay witnesses could have provided compelling mitigation to

18

counter aggravating evidence from the prior crimes against Ms. Jackson and Ms.

19

Harris, as well as the capital crime. The U.S. Supreme Court has held that counsel

20

is prejudicially ineffective for failing to investigate and present the same types of

21

evidence as Mr. Jones’s counsel failed to present. In Rompilla, for example, the

22

Court found prejudicial the failure to present this information:

23

Rompilla’s parents were both severe alcoholics who drank

24

constantly. His mother drank during her pregnancy with Rompilla,

25

and he and his brothers eventually developed serious drinking

26

problems. His father, who had a vicious temper, frequently beat

27

Rompilla’s mother, leaving her bruised and black-eyed, and bragged

28

about his cheating on her. His parents fought violently, and on at
82
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Case No. CV-09-2158-CJC

1

least one occasion his mother stabbed his father. He was abused by

2

his father who beat him when he was young with his hands, fists,

3

leather straps, belts and sticks. All of the children lived in terror.

4

There were no expressions of parental love, affection or approval.

5

Instead, he was subjected to yelling and verbal abuse.

6

545 U.S. at 391-92. In Wiggins, the Court held that counsel ineffectively failed to

7

investigate and present “powerful” mitigating evidence, including “severe

8

privation and abuse” in the custody of an alcoholic mother, physical torment and

9

sexual molestation, homelessness, and diminished mental capacity. 539 U.S. at

10

534-35. In Williams, the Court ruled that counsel was ineffective for failing to

11

investigate and present evidence that “dramatically described mistreatment, abuse,

12

and neglect, during [Williams’s] early childhood, as well as testimony that he was

13

‘borderline mentally retarded,’ had suffered repeated head injuries, and might have

14

mental impairments organic in origin,” even though “not all of the additional

15

evidence was favorable to Williams.” 529 U.S. at 370, 396.

16

3. Respondent Disputed Key Facts in State Court.

17

Respondent’s Informal Response to Mr. Jones’s state habeas petition raised

18

factual disputes with Mr. Jones’s allegations, but did not substantiate those disputes

19

with any documentary or other factual support. See Inf. Resp. at 22-26. First,

20

Respondent argued, “Counsel may have reasonably determined that the evidence

21

he presented was appropriate and sufficient to create sympathy for petitioner.” Id.

22

at 23. Respondent further speculated that “the jurors may have concluded that

23

petitioner’s horrendous childhood caused him to become a desensitized and

24

incurable sociopath” and that counsel “may have determined that additional

25

evidence regarding petitioner’s childhood would have caused the jury to be

26

alienated from rather than sympathetic to petitioner.” Id. at 24.

27

Second, regarding expert testimony, Respondent asserted that “counsel may

28

have concluded that Dr. Thomas’s testimony was adequate to establish petitioner’s
83
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Case No. CV-09-2158-CJC

1

mental disease and evidence related to the extended family would not have been

2

particularly helpful in creating sympathy for petitioner.” Id. at 24. Respondent

3

also suggested that counsel may have reasonably chosen not to pursue evidence of

4

Mr. Jones’s academic failures and learning problems “on the ground that it would

5

have had relatively little mitigating value.”

6

deficient performance was not prejudicial because additional evidence may have

7

been harmful or had relatively little mitigating value. Id. at 25. Respondent

8

speculated that “the jury’s death sentence was likely based on the gruesome and

9

disturbing nature of petitioner’s attack on Mrs. Miller and petitioner’s history of

10

violent sexual assault, and it is unlikely the additional evidence regarding

11

petitioner’s childhood and family history would have affected the verdict.” Id.

Id.

Respondent argued that any

12

4. Section 2254 Does Not Bar Relief on This Claim.

13

In 2009, the state court summarily denied Mr. Jones’s ineffective assistance

14

of counsel claim as failing to state a prima facie case for relief. To the extent the

15

state court’s ruling reflects its determination that Mr. Jones failed to plead

16

sufficient facts that, if proven, would entitle him to relief, the state court’s decision

17

is (1) contrary to clearly established federal law, and (2) an unreasonable

18

application of Strickland under section 2254(d)(1). In the alternative, the state

19

court unreasonably determined the facts under section 2254(d)(2) by finding facts

20

and resolving disputes without any adjudicative procedure.

21

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

22

Taken as true, Mr. Jones’s allegations established a prima facie case that trial

23

counsel’s performance was deficient in a variety of ways, including, inter alia, the

24

following:

25
26

 counsel failed to conduct a reasonable investigation of Mr. Jones’s
background in preparation for the penalty phase;

27

 though counsel believed that the testimony of a mental health expert was

28

necessary to save Mr. Jones’s life, he did not retain an expert with
84
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Case No. CV-09-2158-CJC

1

sufficient time to work on the case, provide his expert with necessary and

2

requested materials, adequately prepare the expert to testify, or

3

effectively present his expert’s testimony;

4

 though counsel identified the alcoholism, neglect, and physical abuse as

5

themes to address during the penalty phase, he did not adequately

6

investigate these issues, prepare witnesses to testify about them, or

7

effectively elicit testimony about them; and

8

 though counsel knew or should have known that sexual abuse, mental

9

illness, brain damage, and low intellectual functioning were critical

10

penalty phase issues, he did not ask testifying witnesses about them or

11

otherwise investigate or present these aspects of Mr. Jones’s background.

12

See section II.C.2, supra. Mr. Jones also made a prima facie showing that he was

13

prejudiced by trial counsel’s deficient performance, demonstrating in detail the lay

14

witness testimony, documentary evidence, and expert testimony that could have

15

been presented that would have changed the penalty verdict. See section II.C.2.c.,

16

supra. Mr. Jones further supported his allegations with 63 lay witness, expert, and

17

defense team declarations, and nearly 100 social history records and exhibits.

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 section I.B., supra; Reply Br. on Pinholster at 12-

21

17.28

22

addressed facts that were “materially indistinguishable” from U.S. Supreme Court

23

decisions and nevertheless arrived at a result that differed from the Court’s

24

precedents.

25

Wiggins, and Williams held that counsel was ineffective for failing to investigate

26
27

The state court’s decision also was contrary to federal law because it

Williams, 529 U.S. at 406.

The Court’s decisions in Rompilla,

28

As discussed previously, the state court prejudice standards also are
contrary to Strickland under section 2254(d)(1). See section II.A.5.b, supra.

28
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1

and present the same types of mitigating evidence omitted in this case. See section

2

II.C.2.c.4, supra. In spite of sufficiently pleading a materially indistinguishable

3

basis for relief as that found meritorious in the Court’s cases, Mr. Jones’s claim

4

was summarily denied without a hearing. This also satisfies section 2254(d)(1).

5

Finally, the state court’s summary denial also constituted an unreasonable

6

application of Strickland. Although Mr. Jones made detailed factual allegations,

7

which, taken as true, would entitle him to relief, the state court did not require

8

Respondent to respond formally to Mr. Jones’s allegations or present evidence to

9

support Respondent’s factual contentions. The state court ruling also denied Mr.

10

Jones the opportunity to present evidence, subpoena witnesses, and prove his

11

allegations. See section I.B.2, supra. The state court therefore declined to engage

12

in any assessment of the factual allegations and fact finding before denying Mr.

13

Jones’s claims, thus satisfying section 2254(d)(1). See, e.g., Wiggins, 539 U.S. at

14

527 (holding that state court application of Strickland was unreasonable when it

15

did not conduct an assessment of whether counsel’s limited penalty phase

16

investigation was reasonable); Mosley, 689 F.3d at 848; Brumfield, 854 F. Supp. 2d

17

at 376-77.

18

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

19

Alternatively, the state court’s summary denial could be based on its

20

resolution of key factual disputes and mixed questions of fact and law, such as the

21

effect of trial counsel’s performance on the jury’s verdict and whether trial counsel:

22

 Was objectively unreasonable in his investigation of Mr. Jones’s

23

violent and dysfunctional home life, neglect, and physical abuse;

24

 Fell below an objective standard of reasonableness in failing to

25

investigate and present evidence of Mr. Jones’s history of sexual

26

abuse, his mental illness, and low intellectual functioning;

27

 Failed to adequately prepare and present expert testimony;

28

 Had tactical reasons for his actions and omissions; or
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 Prepared and presented witnesses according to prevailing professional

1

norms.

2
3

If the state court denied Mr. Jones’s claim on these or other factual bases at

4

the pleading stage, it unreasonably determined the facts under section 2254(d)(2)

5

by failing to provide Mr. Jones either with process to develop and present

6

supporting evidence; or notice of and an opportunity to be heard on the factual

7

issues that the state court intended to resolve. See sections I.B. and II.A.5.c, supra.

8

D.

Mr. Jones Was Denied His Right to an Impartial Jury and a Fair Trial.

9

Mr. Jones presented the state court with a prima facie claim that multiple

10

jurors were actually biased and committed misconduct during his trial.29 State Pet.

11

at 290-316; Reply at 275-99. Given two highly-publicized cases happening at the

12

same time as Mr. Jones’s trial—the O.J. Simpson and Heidi Fleiss trials—and juror

13

misconduct that occurred in one of them, the trial court repeatedly admonished Mr.

14

Jones’s jury not to discuss the case or penalty phase prematurely and to await full

15

presentation of evidence before forming any opinions.

16

manifested bias against Mr. Jones by disregarding these admonitions.

A number of jurors

17

Several jurors resolved to impose the death penalty before the penalty phase

18

began and regularly talked about this during guilt phase proceedings and while

19

socializing during lunch. The victim’s daughters’ regular courtroom outbursts

20

further compromised the jury’s impartiality. Jurors also improperly considered

21

extrinsic evidence, including: (1) Biblical teachings mandating imposition of the

22

death penalty for murder; (2) one juror’s specialized knowledge of evidence the

23

defense presented about Mr. Jones’s medications; and (3) information that Mr.

24

Jones would not likely be executed if sentenced to death. One juror slept during

25
26
27

29

This claim was pled as Claims Fourteen and Fifteen (state court) and
Claims Eighteen and Nineteen (federal court). State Pet. at 290-316; Fed. Pet. at
343-63.

28
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1

the critical testimony of the defense’s only penalty phase mental health expert.

2

Although the law plainly requires a hearing to determine the extent and effect of

3

this bias and misconduct, the state court never conducted one or provided Mr.

4

Jones any opportunity to prove his allegations.

5

1. Controlling U.S. Supreme Court Precedent.

6

The Sixth Amendment guarantees a defendant a fair trial by a panel of

7

impartial jurors. See, e.g., Parker v. Gladden, 385 U.S. 363, 364, 87 S. Ct. 468, 17

8

L. Ed. 2d 420 (1966). An impartial jury is “willing to decide the case solely on the

9

evidence before it.” McDonough Power Equip v. Greenwood, 464 U.S. 548, 554,

10

104 S. Ct. 845, 849, 78 L. Ed. 2d 663 (1984) (internal quotation omitted). Due

11

process also “implies a tribunal both impartial and mentally competent to afford a

12

hearing.” Jordan v. Massachusetts, 225 U.S. 167, 176, 32 S. Ct. 651, 56 L. Ed.

13

1038 (1912); see also Peters v. Kiff, 407 U.S. 493, 501, 92 S. Ct. 2163, 33 L. Ed.

14

2d 83 (1972).

15

Juror bias “may be actual or implied,” i.e., bias in fact or bias conclusively

16

presumed as a matter of law.” United States v. Wood, 299 U.S. 123, 133, 57 S. Ct.

17

177, 81 L. Ed. 78 (1936). “[E]xtreme situations … would justify a finding of

18

implied bias,” such as a juror’s employment with the prosecuting agency, close

19

relation to a participant in the trial or the crime, or role as a witness or other

20

involvement in the crime. Smith v. Phillips, 455 U.S. 209, 222, 102 S. Ct. 940, 71

21

L. Ed. 2d 78 (1982) (O’Connor, J., concurring); see also Leonard v. United States,

22

378 U.S. 544, 545, 84 S. Ct. 1696, 12 L. Ed. 2d 1028 (1964) (finding implied bias

23

where prospective jurors in second trial heard guilty verdict from first trial).

24

Thus, most misconduct cases involve a juror’s actual bias, such as by their

25

prejudgment of the facts. See, e.g., Phillips, 455 U.S. at 215, 221; Gibson v.

26

Berryhill, 411 U.S. 564, 578, 93 S. Ct. 1689, 36 L. Ed. 2d 488 (1973). “[A] trial

27

by jurors having a fixed, preconceived opinion of the accused’s guilt would be a

28

denial of due process.” Irvin v. Dowd, 366 U.S. 717, 724, 81 S. Ct. 1639, 6 L. Ed.
88
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1

2d 751 (1961). The test for actual bias is “whether the nature and strength of the

2

opinion formed” by the juror “necessarily raise[s] the presumption of partiality.”

3

Id. at 723. “Determining whether a juror is biased or has prejudged a case is

4

difficult, partly because the juror may have an interest in concealing his own bias

5

and partly because the juror may be unaware of it.” Phillips, 455 U.S. at 221

6

(O’Connor, J., concurring).

7

The Supreme Court “has long held that the remedy for allegations of juror

8

partiality is a hearing” to allow the defendant to prove actual bias; the hearing

9

serves as “a guarantee of a defendant’s right to an impartial jury.” Id. at 215-16. A

10

hearing inquires into the “juror’s memory, his reasons for acting as he did, and his

11

understanding of the consequences of his actions,” and permits “the trial judge to

12

observe the juror’s demeanor under cross-examination and to evaluate his answers”

13

in light of the facts. Id. at 222 (O’Connor, J., concurring); see also id. (“in most

14

instances a post-conviction hearing will be adequate to determine whether a juror

15

is biased,” but the implied bias doctrine is necessary where a hearing may not be

16

sufficient to protect a defendant’s rights).

17

Courts must also ensure that jurors are unaffected by “extraneous influence”

18

such as hearing or reading prejudicial information not admitted into evidence or

19

being exposed to the comments of outsiders.30 Tanner v. United States, 483 U.S.

20
21
22
23
24
25
26
27

30

Similarly, a juror’s consideration of extraneous facts violates due process
guaranteed by the Fifth and Fourteenth Amendments, because the death sentence
“[is] imposed, at least in part, on the basis of information which he had no
opportunity to deny or explain.” Gardner v. Florida, 430 U.S. 349, 362 (1977);
see also Irvin v. Dowd, 366 U.S. at 722. This also violates the Sixth
Amendment’s Confrontation Clause and Compulsory Process Clause: the juror
acts as an unsworn witness without confrontation or cross-examination. See, e.g.,
Parker v. Gladden, 385 U.S. 363 (1966); Jeffries v. Wood, 114 F.3d 1484, 1490
(9th Cir. 1997) (en banc), overruled on other grounds by Lindh v. Murphy, 521
U.S. 320 (1997); Marino v. Vasquez, 812 F.3d 499, 505 (9th Cir. 1987).

28
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1

107, 117, 107 S. Ct. 2739, 97 L. Ed. 2d 90 (1987). Extrinsic influences are “for

2

obvious reasons, deemed presumptively prejudicial.” Remmer v. United States,

3

347 U.S. 227, 229, 74 S. Ct. 450, 98 L. Ed. 654 (1954). “The presumption is not

4

conclusive, but the burden rests heavily upon the Government to establish, after

5

notice to and hearing of the defendant, that such contact with the juror was

6

harmless to the defendant.” Id. at 229. To resolve a claim of exposure to extrinsic

7

evidence, the court “should determine the circumstances, the impact thereof upon

8

the juror, and whether or not it was prejudicial, in a hearing with all interested

9

parties permitted to participate.” Id. at 230; see also Tanner, 483 U.S. at 120

10

(ruling that “[t]he Court’s holdings requir[e] an evidentiary hearing where extrinsic

11

influence or relationships have tainted the deliberations”); Mattox v. United States,

12

146 U.S. 140, 150, 13 S. Ct. 50, 36 L. Ed. 917 (1892) (holding that “[p]rivate

13

communications, possibly prejudicial, between jurors and third persons, or

14

witnesses, or the officer in charge, are absolutely forbidden, and invalidate the

15

verdict,” unless shown harmless).31

16

When a juror is not impartial, the resulting constitutional violations are not

17

subject to harmless error analysis, because they are structural errors that “infect the

18

entire trial process and necessarily render a trial fundamentally unfair.” Neder v.

19

United States, 527 U.S. 1, 8-9, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999); see also

20

Rose v. Clark, 478 U.S. 570, 578, 106 S. Ct. 3101, 92 L. Ed. 2d 460 (1986) (ruling

21

that harmless-error analysis presupposes a trial by impartial jury). This is true

22

regardless of the number of jurors affected: a defendant is “entitled to be tried by

23

12, not 9 or even 10, impartial and unprejudiced jurors.” Parker, 385 U.S. at 366.

24
25
26
27

31

Where the jury was tainted by courtroom disruptions, the Court also has
“held that the appropriate safeguard against such prejudice is the defendant’s right
to demonstrate that the [disruption] compromised” the jury’s ability to adjudicate
the case fairly. Phillips, 455 U.S. at 217 (internal quotation omitted).

28
90
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1
2

2. Prima Facie Allegations Before the State Court
a. Several jurors were biased.

3

Mr. Jones presented the state court with several allegations about the jurors’

4

actual bias: they (1) formed fixed opinions that Mr. Jones should be sentenced to

5

death prior to the penalty phase; (2) prematurely discussed these opinions during

6

the guilt phase and in social interactions; (3) in so doing, disobeyed the court’s

7

repeated admonitions and instructions; and (4) failed to report their misconduct to

8

the court. State Pet. at 296-308; Reply at 290-95.

9

During Mr. Jones’s trial, the courthouse was filled with spectators and media

10

associated with two high-profile cases involving defendants O.J. Simpson and

11

Heidi Fleiss. See, e.g. 13 RT 2331; Ex. 138 at 2689 (juror commenting that “I

12

could not get over how many people gathered at the courthouse to see the Simpson

13

trial, it was a circus”). Due to the circus-like atmosphere and misconduct in the

14

Fleiss trial, the trial court took the unusual precaution of repeatedly and thoroughly

15

instructing the jurors on four key obligations. First, the trial court consistently

16

admonished jurors not to discuss the case outside of deliberations. The pretrial

17

judge instructed them at the outset:

18

I am going to do something I have never done before but I feel compelled in

19

light of what happened next door in the Heidi Fleiss case; that is, I am ordering

20

each and every one of you not to discuss this case with anyone until the case is

21

actually submitted to the jury. When it’s submitted to the jury, you may discuss it

22

if you are a part of the deliberating 12 and only then when you are in the jury room

23

and all 12 deliberating jurors are present. You may not discuss it at any other time.

24

13 RT 2331-32. The trial judge consistently reiterated this admonition. See,

25

e.g., 16 RT 2546; 18 RT 2892; 23 RT 3457; 24 RT 3688; 26 RT 3820 (guilt phase

26

instructions); 2 CT 258, 337-38 (same); 29 RT 4287; 31 RT 4611-12 (penalty phase

27

instructions); 2 CT 427 (same). Similarly, the alternate jurors were admonished

28

not to discuss the case with other jurors. 2 CT 338; see also 16 RT 2546; 23 RT
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1

3457; 31 RT 4697.

2

Second, the jurors were forcefully instructed not to consider Mr. Jones’s

3

penalty until penalty phase deliberations: “[Y]ou are not to talk to anyone about

4

the case or the subject matter of penalty or punishment. That order is being made

5

under penalty of contempt of court if any of you violates that order.” 13 RT 2332;

6

see also 26 RT 3861, 3875 (guilt phase instructions).

7

instructed not to decide penalty issues before “discussing the evidence and

8

instructions with the other jurors” during deliberations. 31 RT 4693-94; 2 CT 331.

9

Third, the trial judge instructed the jurors to avoid extraneous information and

10

The jurors also were

underscored the instruction’s importance:

11

I don’t usually highlight an instruction, but I had two instances last

12

year, both homicide cases where one juror went and got a 1972 penal

13

code to look up something, and that juror didn’t remain. Another

14

case, some jurors brought a newspaper article in and used that in

15

their deliberations. Nobody told me about it until after the fact.

16

26 RT 3820; see also 31 RT 4611-12 (penalty phase instructions). Fourth, the

17

jurors were told to report misconduct promptly to the court: it was “imperative” to

18

“deal with it right away,” while possible to “remove the juror who’s involved in the

19

misconduct and substitute in one of the alternatives.” 13 RT 2332-33.

20

Several jurors blatantly disregarded the court’s repeated instructions. They

21

decided to vote for a death sentence prior to Mr. Jones’s penalty phase, then

22

discussed their decisions well before penalty phase deliberations—during guilt

23

phase proceedings and in their social interactions. No juror or alternate privy to

24

this misconduct reported it to the court. For example, from the start of guilt phase

25

deliberations, two male jurors were “extremely vocal … that Mr. Jones was guilty

26

of these crimes and therefore he should get the death penalty.” Ex. 138 at 2690

27

(emphasis added). Similarly, a male juror “always wanted to talk during the trial

28

and assert his opinion that Mr. Jones was guilty and deserved the death penalty.”
92
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1

Ex. 122 at 2475. After hearing the victim’s daughters’ outbursts during the guilt

2

phase, another juror resolved “right then and there … to vote for death,” and

3

shared his decision with the other jurors during guilt phase deliberations. Ex. 9 at

4

93. Prior to penalty phase deliberations, some jurors also discussed their decision

5

to sentence Mr. Jones to death over their lunchtime get-togethers. Ex. 23 at 240.

6

One of these jurors, alternate juror Virginia Suprenant, recalled their concerns

7

about another juror who obeyed the court’s admonition and refused to discuss the

8

case: “There was one juror in particular, an African American woman, who we

9

were worried about. She never shared her feelings, so we feared that she was

10

planning to vote for [life without parole.]” Ex. 23 at 240.

11

The jurors’ pervasive prejudgment of Mr. Jones’s sentence made them view

12

both the defense’s penalty phase presentation and their subsequent deliberations as

13

largely irrelevant. As Juror Muhammad explained, “We talked about how the case

14

was all about the guilt phase because once we decided that we knew we had to vote

15

for death … By the time the penalty phase came it was too late, our minds were

16

already made up.” Ex. 138 at 2690-91. Juror Ruotolo recalled that penalty phase

17

deliberations were meaningless to the point where the jury did not understand the

18

purpose of considering the defense’s mitigating evidence: “We all talked about

19

how we already decided that he was guilty, and we did not understand how to view

20

the [penalty phase] evidence in light of our guilt verdicts.” Ex. 9 at 95.

21

Mr. Jones thus alleged that jurors exhibited their actual bias against Mr.

22

Jones by prejudging Mr. Jones’s penalty, disregarding the trial court’s repeated

23

admonitions, and discussing their views with other jurors and third parties prior to

24

their deliberations. See 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
93
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1

the case with each other); cf. Lopez-Umanzor v. Gonzales, 405 F.3d 1049, 1056

2

(9th Cir. 2005) (finding due process violation due to biased decisionmaker, where

3

judge declined to hear relevant testimony due to prejudging the witness’s

4

credibility); Antoniu v. SEC, 877 F.2d 721 (8th Cir. 1989) (holding due process

5

violated when decisionmaker made statements about party’s guilt before case was

6

resolved). The “remedy for allegations of juror partiality is a hearing” to allow Mr.

7

Jones to prove the jurors’ actual bias. Phillips, 455 U.S. at 215.

8

b. The jurors were exposed to extrinsic evidence.

9

Mr. Jones also alleged that jurors were exposed to several extrinsic

10

influences, including the victim’s family’s outbursts, Biblical teachings, unsworn

11

opinions about Mr. Jones’s psychiatric medication, and factors that diminished

12

their responsibility in sentencing Mr. Jones to death. State Pet. at 303-05, 308-10;

13

Reply at 286-90, 296-97.

14

1) The victim’s daughters’ outbursts

15

Throughout trial, the victim’s daughters, Pamela Miller and Deborah Harris,

16

were vocally hostile towards Mr. Jones in the jury’s presence, calling him names

17

and launching prejudicial, inaccurate accusations at him. Ex. 23 at 239 (alternate

18

juror recalls that “the victim’s daughters carried on constantly, screaming and

19

yelling at Mr. Jones … and [were] unable to control themselves. The way they

20

behaved, they could have been on television”); Ex. 9 at 93 (juror recalls that Ms.

21

Miller “and her sister yelled out in court many times”).

22

During a witness’s testimony about the night of the crime, Ms. Harris sat in

23

the front row of the courtroom in clear view of the jury. Id. Her conduct was so

24

disruptive that the judge asked her to leave “because you keep gesturing with your

25

head, shaking your head, nodding up and down and shaking your head back and

26

forth and making comments.” 22 RT 3272-73. Her conduct was so extreme that

27

the judge refused to allow her to remain in the courtroom for the remainder of that

28

witness’s testimony and Mr. Jones’s testimony, even after she assured the judge she
94
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1

would stop gesturing and commenting. During trial, Ms. Miller “called Mr. Jones

2

names and screamed out that [he] had also caused the death of her father who died

3

of a heart attack a few months after her mother was killed.” Ex. 9 at 93. She was

4

“extremely vocal throughout her testimony and the entire trial.” Id.

5

The daughters’ disruptive conduct exposed the jurors to harmful extrinsic

6

information about the impact of Mrs. Miller’s death that was not introduced as

7

evidence.32 See, e.g., Ex. 9 at 93 (juror recalls, “During guilt deliberations, one of

8

the jurors told us … he could understand how upset the daughter was … He said

9

right then and there, after hearing the daughter, he knew he had to vote for death”).

10

It denied Mr. Jones his right to a fair trial by a panel of impartial jurors unaffected

11

by extraneous information. See, e.g., Parker, 385 U.S. at 364; Tanner, 483 U.S. at

12

117; Taylor v. Kentucky, 436 U.S. 478, 485, 98 S. Ct. 1930, 56 L. Ed. 2d 468

13

(1978) (a defendant is entitled to a jury verdict based solely on trial evidence, not

14

on “other circumstances not adduced as proof at trial”).

15

As in other contexts, where disruptions in the courtroom threaten the

16

impartiality of the jury, the U.S. Supreme Court has “held that the appropriate

17

safeguard against such prejudice is the defendant’s right to demonstrate that the

18

[disruption] compromised the ability of the particular jury that heard the case to

19

adjudicate fairly.” Phillips, 455 U.S. at 217 (internal quotation omitted).

20

2) Biblical teachings

21

Juror Youssif Botros improperly consulted with his priest about Mr. Jones’s

22

penalty and shared the priest’s comments and Biblical teachings on the death

23

penalty with the jurors. Mr. Botros was an Egyptian Coptic Christian. During

24

penalty phase deliberations, “each of the jurors took turns speaking [their] mind.”

25
26
27

32

This information also severely biased jurors against Mr. Jones and
contributed to their misconduct in freely discussing Mr. Jones’s penalty prior to
penalty phase deliberations, as described supra.

28
95
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1

Ex. 127 at 2565. Mr. Botros told the other jurors that he was “having a difficult

2

time sentencing someone to death,” so “he asked his priest for help.” Id. His

3

priest told him to read the Bible for guidance. Id. Mr. Botros told the other jurors

4

that he subsequently read the Biblical teaching requiring an “eye for an eye”

5

response to murder and was resultantly able to vote for death. Id.33

6

Exposure to the Bible’s teachings on the death penalty has a particularly

7

improper influence. “[D]elegation of the ultimate responsibility for imposing a

8

sentence to divine authority undermines the jury’s role in the sentencing process.”

9

Sandoval v. Calderon, 241 F.3d 765, 777 (9th Cir. 2000); see also Jones v. Kemp,

10

706 F. Supp. 1534, 1559 (N.D. Ga. 1989) (“To the average juror, Webster’s

11

Dictionary may be no more than a reference book, and The Reader’s Digest

12

nothing more than a diverting periodical; but the Bible is an authoritative religious

13

document and is different not just in degree, although this difference is

14

pronounced, but in kind”).

15

Mr. Botros’s misconduct went to the very purpose of the penalty phase: to

16

decide whether Mr. Jones would be sentenced to death. He violated Mr. Jones’s

17

rights to a fair trial by impartial jury and to due process by exposing the jury to

18

“prejudicial information” from the Bible that was not presented at trial and to the

19

comments of others, specifically his priest. Tanner, 483 U.S. at 117; see also

20

Gardner, 430 U.S. at 362; Mattox, 146 U.S. at 149. Courts consistently find

21

constitutional error when jurors consult the Bible for the appropriate penalty for

22
23
24
25
26
27

33

Botros’s disobedience of the trial court’s instructions in consulting the
priest and his Bible also evinces his actual bias, particularly because it occurred
after the trial judge underscored to the jury the importance of not relying on
extrinsic sources. 26 RT 3820; see also 13 RT 2331-32 (pretrial); 16 RT 2546; 23
RT 3457; 26 RT 3816, 3819-20 (guilt phase instructions); 31 RT 4611-12, 4693,
4697 (penalty phase instructions); 2 CT 254, 258, 338 (text of jury instructions).
The remaining jurors committed misconduct in failing to follow the trial court’s
instruction to report misconduct immediately. 13 RT 2331-33.

28
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1

murder during penalty phase deliberations. See Oliver v. Quarterman, 541 F.3d

2

329, 339-40 (5th Cir. 2008) (noting that all but one circuit to consider the issue has

3

ruled that the Bible is an improper external influence on jury deliberations; “when

4

a juror brings a Bible into the deliberations and points out to her fellow jurors

5

specific passages that describe the very facts at issue … the juror has crossed an

6

important line”); McNair v. Campbell, 416 F.3d 1291, 1308 (11th Cir. 2005)

7

(presuming prejudice where juror read aloud from the Bible during deliberations

8

and led the other jurors in prayer); Coe v. Bell, 161 F.3d 320, 351 (6th Cir. 1998)

9

(acknowledging presence of a Bible in the jury room could be problematic); Kemp,

10

706 F. Supp. at 1558-60 (jury obligated to apply state law, “not … its own

11

interpretation of precepts of the Bible, in determining whether the petitioner should

12

live or die.”). Mr. Jones’s allegations entitle him to a hearing to discover and

13

present the details of Mr. Botros’s misconduct and its prejudicial effect. See, e.g.,

14

Remmer, 347 U.S. at 229; Tanner, 483 U.S. at 120.

15

3) Mr. Jones’s medications

16

During the guilt phase, the defense presented the testimony of Dr. Eugene

17

Kunzman, a psychiatrist with the Los Angeles County Jail. 23 RT 3558. Dr.

18

Kunzman testified about the antipsychotic and antidepressant medications, Haldol

19

and Sinequan, prescribed for Mr. Jones by jail staff after his arrest for the capital

20

crime. Id. at 3558-59. Dr. Kunzman explained the reasons such drugs would be

21

prescribed, their potency, and the effect on a person’s testimony if they were over-

22

or undermedicated. Id. at 3560-65. For example, Dr. Kunzman explained that an

23

undermedicated person’s symptoms, such as paranoia or hearing voices, could

24

persist; an overmedicated person might appear sleepy and sedated, with slurred

25

speech. Id. at 3564-65. This testimony was relevant to the jurors’ consideration of

26

Mr. Jones’s testimony and credibility and to the defense’s argument that Mr.

27
28
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Jones’s need for psychiatric medications shortly after the crime supported his

2

mental state defense. See, e.g., 26 RT 3952.34 During the penalty phase, the

3

defense expert Dr. Thomas also discussed the effects of Haldol and Sinequan

4

prescribed for Mr. Jones in jail. 30 RT 4453. This testimony served to bolster Dr.

5

Thomas’s diagnosis and conclusions about Mr. Jones’s mental functioning.

6

Juror Omar Muhammad was a physician’s assistant at the Metropolitan

7

Federal Prison in Los Angeles. He recalled, “During trial, Mr. Jones had a far

8

away look in his eyes … I know from my experience with psychiatric medications

9

that Mr. Jones looked like someone who was medicated with anti-depressants. I

10

recognized the names of the anti-depressants that Mr. Jones was taking and told the

11

other jurors what I knew about the medications.” Ex. 138 at 2689; see also Ex.

12

122 at 2475 (the jurors discussed Mr. Jones’s “possible mental illness” during

13

penalty phase deliberations).

14

psychiatric medications and prison mental health services improperly positioned

15

him to counter or authoritatively comment on defense testimony by Drs. Kunzman

16

and Thomas. The extraneous influence of his specialized knowledge tainted the

17

jury’s deliberations. Tanner, 483 U.S. at 117, 120; Mach v. Stewart, 137 F.3d 630,

18

634 (9th Cir. 1997) (granting relief where potential juror with specialized

19

experience in child sexual abuse cases stated before jury venire that she had never

20

been involved in a case where a child made untrue accusations); Jeffries v. Wood,

21

114 F.3d 1484, 1490 (9th Cir. 1997) (when “a juror communicates objective

22

extrinsic facts regarding the defendant or the alleged crimes to other jurors, the

23

juror becomes an unsworn witness within the meaning of the Confrontation

Mr. Muhammad’s specialized knowledge of

24
25
26
27

34

The prosecution vigorously challenged this testimony by trying to establish
that jail mental health staff would have given Mr. Jones or any other inmate
antipsychotic medication upon request, without any clinical verification of
psychiatric need. See section II.B.2.b, supra.

28
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1

Clause”), partially overruled on other grounds by Gonzalez v. Arizona, 677 F.3d

2

383, 388 (9th Cir. 2012); Kemp, 706 F. Supp. at 1560.

3

4) Other factors responsible for Mr. Jones’s actual sentence

4

The jurors felt it was “was not difficult … to vote for the death penalty,

5

because regardless of our verdict, we knew that Ernest would end up getting life.

6

We talked about how his drug use would save him from ever being executed.” Ex.

7

9 at 96. It is unclear whether the jurors considered Mr. Jones’s medication regimen

8

in jail (including Mr. Muhammad’s opinions), his substance use on the streets, or

9

both, in improperly relying on extrinsic knowledge that Mr. Jones would end up

10

with a life sentence. Their consideration of the belief that Mr. Jones would not

11

actually be executed even if they sentenced him to death violated Mr. Jones’s Sixth

12

Amendment, Due Process, and Eighth Amendment rights. See, e.g., Caldwell v.

13

Mississippi, 472 U.S. 320, 328-29, 105 S. Ct. 2633, 86 L. Ed. 2d 231 (1985) (“it is

14

constitutionally impermissible to rest a death sentence on a determination made by

15

a sentencer who has been led to believe that the responsibility for determining the

16

appropriateness of the defendant’s death rests elsewhere.”); Marino v. Vasquez, 812

17

F.2d 499, 505 (9th Cir. 1987) (“When a jury considers facts that have not been

18

introduced in evidence … [i]t is impossible to offer evidence to rebut it, to offer a

19

curative instruction, to discuss its significance in argument to the jury, or to take

20

other tactical steps that might ameliorate its impact.”).

21

A presumption of bias exists as to each of the four above-described instances

22

in which Mr. Jones’s jurors were exposed to extrinsic evidence. A court may not

23

dismiss such allegations of juror exposure to extrinsic evidence on the pleadings,

24

but instead must hold an evidentiary hearing. Remmer, 347 U.S. at 229; Tanner,

25

483 U.S. at 120. At the hearing, the government bears the “heavy burden” to

26

establish that the exposure was harmless to the defendant. Remmer, 347 U.S. at

27

229. The government must demonstrate that no jurors were affected by their

28

exposure to extrinsic evidence: “The number of jurors affected … does not weigh
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heavily in the prejudice calculus for even a single juror’s improperly influenced

2

vote deprives the defendant of an unprejudiced, unanimous verdict.” Lawson v.

3

Borg, 60 F.3d 608, 613 (9th Cir. 1995).

4

c. A juror slept during the defense’s penalty phase presentation.

5

Juror Emil Ruotolo slept during the testimony of the defense’s sole mental

6

health expert, Dr. Thomas: “His testimony was impossible to pay attention to, and

7

I kept falling asleep.” Ex. 9 at 95. Mr. Ruotolo’s belief that the defense presented

8

no relevant testimony on the critical issue of Mr. Jones’s mental illness further

9

illustrates that he slept through substantial portions of Dr. Thomas’s testimony.

10

For example, Mr. Ruotolo complained, “The doctor did not explain why Mr.

11

Jones did what he did. He talked about some mental problem that Mr. Jones had,

12

but he never said what the mental problem was.” Id. Dr. Thomas answered this

13

question, however, testifying that “Mr. Jones suffers from a major psychiatric

14

disorder of a psychotic nature … called schizoaffective schizophrenia.” 30 RT

15

4413-14; see also id. at 4419-20, 4424. He explained that the capital crime was a

16

“dissociative killing related to childhood socialization in areas of sex.” 30 RT

17

4461-62; see also id. at 4439-40 (Mr. Jones’s dissociation during the capital crime

18

was linked to multiple traumatic childhood experiences in which he saw his mother

19

in bed with another man). Dr. Thomas further explained that when triggered by

20

high emotionality, Mr. Jones “responds to an inner reality as if it were external

21

reality. The inner reality … being the world the way it was when he was growing

22

up and subjected to the sadistic punishment of a domineering and promiscuous and

23

alcoholic mother.” Id. at 4465; see also id. at 4444, 4438-39.

24

“The duty to listen carefully during the presentation of evidence at trial is

25

among the most elementary of a juror’s obligations … [O]therwise, litigants could

26

be deprived of the complete, thoughtful consideration of the merits of their cases to

27

which they are constitutionally entitled.” Hasson v. Ford Motor Co., 32 Cal. 3d

28

388, 410-11, 185 Cal. Rptr. 654 (1982) (citing Sixth and Seventh Amendments of
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U.S. Constitution and finding prima facie improper conduct where some jurors did

2

crossword puzzles and another read a book). Mr. Ruotolo’s sleeping during the

3

testimony of the sole mental health expert was a constructive absence during trial

4

that violated Mr. Jones’s Sixth Amendment and Due Process rights.35 See, e.g.,

5

Jordan v. Massachusetts, 225 U.S. at 176; Peters v. Kiff, 407 U.S. at 501; United

6

States v. Barrett, 703 F.2d 1076, 1082-83 (9th Cir. 1982) (finding abuse of

7

discretion and remanding for evidentiary hearing where juror admitted to sleeping

8

during trial, but trial court failed to hold hearing on misconduct). Mr. Jones is

9

entitled to an evidentiary hearing to establish Ruotolo’s misconduct and the

10

resulting prejudice. See Remmer, 347 U.S. at 229; Tanner, 483 U.S. at 120; United

11

States v. Barrett, 703 F.2d 1076, 1082-83 (9th Cir. 1982) (finding abuse of

12

discretion and remanding for hearing where juror admitted to sleeping during trial,

13

but trial court failed to hold hearing on misconduct).

14

3. Respondent disputed key facts in state court.

15

In response to Mr. Jones’s allegations that jurors prematurely discussed the

16

case and prematurely decided his penalty, Respondent contended that his claim was

17

insufficiently alleged. The allegations were “conclusory and unsupported, as there

18

are no facts establishing that the case was actually discussed by jurors

19

prematurely” and insufficient basis to believe that any juror refused to deliberate,

20

based their decision on extraneous evidence, or failed to consider all of the penalty

21

phase evidence and instructions. Inf. Resp. at 44-46.

22

In response to Mr. Jones’s allegations about Mr. Botros’s improper injection

23

of his priest’s comments and Biblical teachings into deliberations, Respondent

24

stated without citation to authority that there was no substantial likelihood of

25
26
27

35

Mr. Ruotolo’s inattention is further evidence of the prejudice that Mr. Jones
suffered from the jurors’ deciding their vote as to Mr. Jones’s penalty well before
the start of penalty phase deliberations and their resulting refusal to deliberate.

28
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1

prejudice or bias because the expression “an eye for an eye” was commonly used

2

outside the Biblical context, the Biblical reference appeared isolated, and it was

3

insufficiently alleged that the priest endorsed any particular Biblical passage. Inf.

4

Resp. at 44.

5

improperly shared his personal knowledge of Mr. Jones’s medications, Respondent

6

contended that there was no substantial likelihood of prejudice because it was

7

insufficiently alleged that Mr. Muhammad shared information with the other jurors

8

that was materially different than the trial evidence. Inf. Resp. at 46.

In response to Mr. Jones’s allegations that juror Muhammad

9

Finally, as to Mr. Jones’s allegations that Mr. Ruotolo admitted to sleeping

10

during Dr. Thomas’s penalty phase testimony, Respondent contended that Mr.

11

Ruotolo’s statement relates to his mental processes and cannot be used to impeach

12

the verdict, or alternatively, that the claim was insufficiently alleged because it

13

does not indicate how long Mr. Ruotolo slept, how many times he slept, or whether

14

he slept during testimony favorable to Mr. Jones. Inf. Resp. at 46-47.36

15

4. Section 2254 does not bar relief on this claim.

16

To the extent the state court’s summary denial reflects its determination that

17

Mr. Jones failed to plead sufficient facts that, if proven, would entitle him to a

18

hearing or relief, the state court’s decision is contrary to and an unreasonable

19

application of CEFL under section 2254(d)(1). In the alternative, the state court

20

unreasonably determined the facts under section 2254(d)(2) by finding facts and

21

resolving disputes without any adjudicative procedure.

22

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

23
24
25
26
27

Taken as true, Mr. Jones made a prima facie showing of juror misconduct,
36

The state court did not accept Respondent’s contention that certain
subclaims were insufficiently alleged. If it had, it would have denied the
subclaims pursuant to Swain, 34 Cal. 2d at 303-04, indicating that “claims have
not been alleged with sufficient particularity.” Swain denials are without
prejudice, Kim, 799 F.2d at 1319, so Mr. Jones could have cured any deficiency.

28
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1

alleging that jurors: (1) prejudged the sentence by deciding on the death penalty

2

before the penalty phase; (2) ignored the trial court’s repeated, forceful

3

admonitions; (3) discussed their decision to impose the death penalty throughout

4

guilt phase proceedings and during social gatherings; and (4) were exposed to

5

several extrinsic influences; and (5) slept during the penalty phase.37 See section

6

II.D.2, supra. The state court’s summary denial of this claim thus was contrary to

7

federal law requiring a state court to ascertain facts reliably before denying

8

adequately presented federal claims.

9

Pinholster at 12-17.

See section I.B.1, supra; Reply Br. on

10

Clearly established Supreme Court precedent also forbids denial of Mr.

11

Jones’s prima facie allegations at the pleading stage, prior to an evidentiary

12

hearing. Remmer, 347 U.S. at 229; Tanner, 483 U.S. at 120; Phillips, 455 U.S. at

13

215. Because the state court prematurely denied his petition, Mr. Jones was not

14

able to access the fact-development mechanisms that would have fully developed

15

his claim: juror depositions and subpoena power necessary to present each juror’s

16

testimony at an evidentiary hearing. Cf. Wellons v. Hall, 558 U.S. 220, 130 S. Ct.

17

727, 729-30, 175 L. Ed. 2d 684 (2010) (reversing where diligent petitioner was not

18

permitted—in state or federal court—discovery and an evidentiary hearing to

19

factually support his jury and judicial misconduct claims); Gapen v. Bobby, No.

20

08-280, 2011 WL 5166566, *3-4 (S.D. Oh. Oct. 31, 2011) (authorizing federal

21

depositions of jurors in capital habeas case where petitioner alleged that one juror

22

had researched Biblical teachings on the death penalty and shared his research with

23

other jurors). Accordingly, the state court’s summary denial was contrary to and an

24

unreasonable application of Supreme Court precedent that requires factual

25

development and an evidentiary hearing prior to resolving juror misconduct claims.

26
27

37

Mr. Jones provided the state court with supporting extra-record evidence,
including jurors’ and alternates’ declarations, Exs. 9, 23, 122, 127, 133, 138-40.

28
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Although the state court’s silent denial of Mr. Jones’s juror misconduct claim

2

deprives this Court of its reasoning, its resolution of claims concerning a juror’s

3

exposure to extrinsic influence is also contrary to federal law because it fails to

4

presume prejudice from such exposure, as required by the U.S. Supreme Court’s

5

decision in Mattox v. United States, 146 U.S. 140 (1892), and its progeny. Instead,

6

the state court holds that the “mere showing of [improper] communication does not

7

raise a presumption that the juror was improperly influenced”; a defendant must

8

show that the communication “related to the trial” before it will presume prejudice.

9

People v. Cobb, 45 Cal. 2d 158, 161, 287 P.2d 752, 753 (1955) (ruling that trial

10

court’s failure to inquire into juror’s communication with one of the defendant’s

11

family members was not error); see also People v. Cowan, 50 Cal. 4th 401, 507,

12

236 P.3d 1074, 1153 (2010) (relying on Cobb to rule that extrinsic contacts will not

13

be presumed prejudicial unless shown to relate to trial). The Ninth Circuit has

14

ruled that California state law is contrary to the “bright-line rule” established by

15

Mattox, which requires a presumption of prejudice following extrinsic contacts.

16

Caliendo v. Warden of California Men’s Colony, 351 F.3d 691, 697 (9th Cir. 2004)

17

(ruling that state court’s failure to presume prejudice in Cobb was contrary to

18

clearly established federal law under 28 U.S.C. § 2254(d)(1)).
b. Section 2254(d)(2) is satisfied.

19
20

Alternatively, the state court’s summary denial could be based on its

21

resolution of key factual disputes and mixed questions of fact and law, such as

22

whether jurors:

23



24

Prejudged the penalty phase and were firmly fixed in their opinions prior
to deliberations;

25

 Demonstrated bias by ignoring the trial court’s admonitions and

26

prematurely discussing their decisions on Mr. Jones’s penalty, including

27

the frequency and effect of those discussions;

28

 Demonstrated bias when one juror discussed Mr. Jones’s sentence with
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his priest, contrary to the trial court’s explicit instructions;

1
2

 Were exposed to Juror Botros’s descriptions of Biblical verses mandating

3

the death penalty and Juror Muhammad’s personal knowledge of Mr.

4

Jones’s medications, including the circumstances, extent of, and

5

prejudicial effect of the exposure;
 Were constructively absent by sleeping during significant portions of the

6

only defense expert’s penalty phase presentation; and

7

 Demonstrated bias by failing to report repeated instances of misconduct

8

to the trial court.

9
10

If the state court denied Mr. Jones’s juror misconduct claim on any of these

11

factual bases on the pleadings, it unreasonably determined the facts under section

12

2254(d)(2) by failing to provide Mr. Jones with (1) process to develop and present

13

supporting evidence; or (2) notice of and an opportunity to be heard on the factual

14

issues that the state court intended to resolve. Lor, 2012 WL 1604519 at *4-5; see

15

also Williams, 859 F. Supp. 2d at 1160; Plummer, 2012 WL 3216779 at *9.

16

E.

Mr. Jones’s Constitutional Rights Were Violated when the State

17

Inappropriately and Involuntarily Medicated Him.

18

Mr. Jones presented the California Supreme Court with a prima facie

19

showing that he was involuntarily and inappropriately medicated with potent

20

antipsychotic and antidepressant drugs that had serious side effects, including

21

psychosis, paranoia, slurred speech, drowsiness, stiff muscles, and restlessness.

22

Mr. Jones tried to refuse the medication, and certainly never consented to it being

23

abruptly started and stopped for a significant period of time in the middle of trial,

24

thus increasing the detrimental side effects. This inappropriate medication regimen

25

prejudicially interfered with Mr. Jones’s appearance during trial and his ability to

26
27
28
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participate in the trial and his defense. State Pet. at 254-61; Reply at 211-12.38

2

1. Controlling U.S. Supreme Court Precedent.

3

In Riggins v. Nevada, 504 U.S. 127, 112 S. Ct. 1810, 118 L. Ed. 2d 479

4

(1992), the Supreme Court held that a defendant’s “interest in avoiding involuntary

5

administration of antipsychotic drugs was protected under the Fourteenth

6

Amendment’s Due Process Clause.” Id. at 134. The Court ruled that interference

7

with a person’s liberty is “particularly severe” in the context of unwanted

8

antipsychotic medication.

9

(“[A]bsent an extraordinary showing by the State, the Due Process Clause

10

prohibits prosecuting officials from administering involuntary doses of

11

antipsychotic medicines”).

12

commands medication during the pretrial and trial phases of the case for the

13

avowed purpose of changing the defendant’s behavior, the concerns are much the

14

same as if it were alleged that the prosecution had manipulated material evidence.”

15

Id. at 139.

Id.; see also id. at 139 (Kennedy, J., concurring)

As Justice Kennedy explained, “[w]hen the State

16

The Court ruled that constitutional rights are impinged when a medication

17

regimen affects “not just [the defendant’s] outward appearance, but also the content

18

of his testimony on direct or cross-examination, his ability to follow the

19

proceedings, or the substance of his communication with counsel.” Id. at 137.

20

Improper impact from medication includes side effects that cause “drowsiness or

21

confusion.”

22

regimen may be constitutionally allowed under limited circumstances where “the

23

treatment is medically appropriate, is substantially unlikely to have side effects that

24

may undermine the fairness of the trial, and, taking account of less intrusive

25

alternatives, is necessary significantly to further important governmental trial-

26
27

Id.

The Court subsequently held that an unwanted medication

38

This claim was Claim Six in state court and is Claim Five in federal court.
State Pet. at 254-61; Fed. Pet. at 124-30.

28
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related interests.” Sell v. United States, 539 U.S. 166, 179, 123 S. Ct. 2174, 156 L.

2

Ed. 2d 197 (2003).

3

appropriate” administration of drugs requires that the medication administered is

4

“in the patient’s best medical interest in light of his medical condition,” and is

5

“substantially unlikely to have side effects that will interfere significantly with the

6

defendant’s ability to assist counsel in conducting a trial defense.” Id. at 181.

The Court in Sell further explained that “medically

7

2. Prima Facie Allegations Before the State Court.

8

During Mr. Jones’s trial, jail medical staff prescribed Atarax, an anti-anxiety

9

medication; Haldol, an antipsychotic medication; Sinequan, an antidepressant;

10

Theodrine, a barbiturate; and Cogentin, an anticholinergic medication used to

11

control extrapyramidal disorders caused by neuroleptic drugs. State Pet. at 254;

12

Reply at 211; Exs. 33, 34.

13

explained, Haldol may cause “distressing side effects, stiff muscles, restlessness

14

and the drooling, and the use of the Cogentin assists in counteracting those

15

particular side effect symptoms.” 23 RT 3549. Dr. Kunzman also described

16

Sinequan as “primarily an antidepressant that is very sedating that is used . . . to a

17

considerable extent as a sedative for sleeping.” Id. at 3550. Dr. Kunzman stated

18

that if medication was not properly titrated, an individual “would have slurred

19

speech, would be drowsy, would appear to be stiff, sleepy” or “might demonstrate

20

the paranoia and suspiciousness and may not be able to attend to what is going on

21

and appear to responding [sic] to voices from someplace else.” Id.

As one of the jail psychiatrists, Dr. Kunzman,

22

Jail medical records demonstrated that Mr. Jones received Atarax daily from

23

at least June 1993 through December 1994. State Pet. at 255; Exs. 33, 34. Mr.

24

Jones also received Haldol and Cogentin daily from at least June 1993 until

25

November 1, 1994, at which point they were abruptly discontinued until January

26

24, 1995, the day that Mr. Jones concluded his testimony in the guilt phase of the

27

trial. State Pet. at 255; Exs. 33, 34. Mr. Jones received the Sinequan from at least

28

November 5, 1992, through trial and sentencing and until April 15, 1995. State
107
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1

Pet. at 256. Jail records contain several notations indicating that Mr. Jones tried to

2

refuse his medication. See, e.g., Ex. 33 at 595 (“Refused meds w out reason”), 603

3

(“refused AM meds”), 607 (“refused meds”), 621 (“‘don’t want the Cogentin &

4

Haldol’”).39 Medication logs, however, indicate that they were administered with

5

only periodic interruption in spite of Mr. Jones’s complaints. See, e.g., id. at 596,

6

600, 602. Though medication continued, Mr. Jones missed scheduled doses at

7

random times due to lockdowns or because he was absent at the time medication

8

was distributed. See, e.g., id. at 595, 597, 601, 615.

9

The medication regimen apparent in Mr. Jones’s jail records thus was

10

inconsistently carried out, abruptly stopped in the middle of trial and then started

11

again, and continued against Mr. Jones’s wishes. In addition to implicating the

12

many prejudicial effects recognized in Riggins and Sell, it is also apparent that such

13

haphazard administration of powerful drugs with serious side effects was not in

14

Mr. Jones’s “best medical interest in light of his medical condition.” Sell, 539 U.S.

15

at 181. Mr. Jones’s trial counsel observed that Mr. Jones “seemed more than

16

normally tired, and had more trouble responding to the district attorney’s questions

17

than one would expect.”

18

Thomas, explained, “it was extremely important for someone with Mr. Jones’s

19

mental impairments to receive regular and proper medications, particularly to

20

decrease psychotic symptoms as much as possible. Haldol is a difficult drug to

21

take, and often has significant side effects.”

22

Theodrine also can produce psychosis). Mr. Jones’s medication regime, however,

23

was inappropriately administered and not based on his medical needs. As a result,

24

Mr. Jones experienced deleterious effects of the medication and the improper drug

Ex. 150 at 2733. As the defense psychiatrist, Dr.

Ex. 154 at 2754 (adding that

25
26
27

39

Mr. Jones also alleged that even if he agreed to take the medication, he was
incapable of “voluntarily” assenting to the medication because his mental illness
prevented him from validly consenting. Reply at 213.

28
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1

regimen he was forced to follow. As Justice Kennedy observed in Riggins, “[a]t all

2

stages of the proceedings, the defendant’s behavior, manner, facial expressions, and

3

emotional responses, or their absence, combine to make an overall impression on

4

the trier of fact, an impression that can have a powerful influence on the outcome

5

of the trial.” 504 U.S. at 142.

6

3. Respondent Disputed Key Facts in State Court.

7

In response to Mr. Jones’s claim, Respondent contended that there was no

8

evidence that Mr. Jones “was ever given the medications against his will.” Inf.

9

Resp. at 28. Respondent also stated that Mr. Jones’s claim that the medications

10

“negatively affected his appearance before the jury is speculative and unsupported.

11

Nothing indicates that petitioner received an improper dosage of the medications,

12

that that his mental state was impaired rather than improved by the medications, or

13

that the medications adversely rather than beneficially affected his demeanor.” Id.

14

Respondent also asserted that Mr. Jones failed to show that the “medications

15

adversely affected his ability to understand the proceedings or assist in his

16

defense.” Id. at 29.

17

4. Section 2254 Does Not Bar Relief on This Claim.

18

In 2009, the state court summarily denied Mr. Jones’s habeas claim as failing

19

to state a prima facie case for relief. This decision was contrary to federal law

20

because Mr. Jones’s allegations that his rights were violated by the unwanted and

21

medically inappropriate regimen of drugs he received during trial are “materially

22

indistinguishable” from those set out in Riggins and Sell, and yet the state court

23

determined that he did not sufficiently plead a claim for relief. See, e.g., Williams,

24

529 U.S. at 405 (O’Connor, J., concurring). The state court’s failure to engage in

25

fact finding to resolve Mr. Jones’s sufficiently pled claim is contrary to federal law

26

that obligates state courts to resolve properly presented federal constitutional

27

claims. See section I.B.1, supra. By failing to engage in any fact finding or

28

adversarial proceeding to resolve Mr. Jones’s claim, the state court decision also
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1

was an unreasonable application of Riggins and Sell. See Panetti, 551 U.S. at 954;

2

section I.B.1, supra.

3

Alternatively, the state court may have resolved key factual issues, such as

4

whether Mr. Jones was medicated involuntarily, the effect of starting and stopping

5

Haldol and Cogentin, the impact of medication on Mr. Jones’s appearance and

6

participation in trial and his defense, or whether the medication regimen was

7

medically appropriate. To the extent that the state court settled these questions or

8

other factual questions, its decision was an unreasonable determination of facts.

9

See Hurles v. Ryan, 650 F.3d at 1312; Williams v. Woodford, 859 F. Supp. 2d at

10

1159; section I.B.2, supra.

11

F.

Mr. Jones’s Due Process Rights Were Violated Because No Hearing Was

12

Held To Determine His Competence and He Was Incompetent to Stand

13

Trial.

14

Mr. Jones presented the California Supreme Court with a prima facie

15

showing that the trial court failed to hold a hearing to determine his competence in

16

spite of substantial evidence that it was warranted, including (1) his treatment by

17

jail mental health staff with antipsychotic and antidepressant medication; (2) the

18

defense psychiatrist’s conclusion that Mr. Jones suffered from a psychotic disorder

19

and opinion that Mr. Jones was not competent to stand trial; (3) the opinion of a

20

second defense expert that Mr. Jones suffered from schizophrenia; (4) Mr. Jones’s

21

unusual behavior in court and irrational interactions with trial counsel; and (5) Mr.

22

Jones’s history of irrational and disturbed behavior before, during, and after the

23

capital crime, including his attempted suicide. Mr. Jones also made a prima facie

24

showing that he was, in fact, incompetent to stand trial, submitting the declaration

25

of the defense psychiatrist who so concluded and the declarations of additional

26

experts and lay witnesses confirming and corroborating that opinion. State Pet. at

27
28
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240-53; Reply at 202-08.40

2

1. Controlling U.S. Supreme Court Precedent.

3

The Supreme Court has “repeatedly and consistently recognized that the

4

criminal trial of an incompetent defendant violates due process.”

Cooper v.

5

Oklahoma, 517 U.S. 348, 354, 116 S. Ct. 1373, 134 L. Ed. 2d 498 (1996). The test

6

for competence is whether a defendant has (1) “sufficient present ability to consult

7

with his lawyer with a reasonable degree of rational understanding,” and (2) “a

8

rational as well as factual understanding of the proceedings against him.” Dusky v.

9

United States, 362 U.S. 402, 402, 80 S. Ct. 788, 4 L. Ed. 2d 824 (1960); see also

10

Drope v. Missouri, 420 U.S. 162, 171, 95 S. Ct. 896, 43 L. Ed. 2d 103 (1975)

11

(competence requires a defendant “to understand the nature and object of the

12

proceedings against him, to consult with counsel, and to assist in preparing his

13

defense”). The right “is sufficiently important to merit protection even if the

14

defendant has failed to make a timely request for a competency determination.”

15

Cooper v. Oklahoma, 517 U.S. at 369.

16

A defendant’s right to a fair trial is violated when the state court fails to

17

invoke “procedures adequate to protect a defendant’s right not to be tried or

18

convicted while incompetent to stand trial.” Drope, 420 U.S. at 172; see also Pate

19

v. Robinson, 383 U.S. 375, 86 S. Ct. 836, 15 L. Ed. 2d 815 (1966). Conducting a

20

constitutionally adequate inquiry is required, for example, when the defendant has

21

a “long history of disturbed behavior.” Pate, 383 U.S. at 378. In Pate, the Court

22

held that Mr. Robinson’s history of mental disturbance was sufficient to require a

23

competency hearing even though the expert who evaluated him, Dr. Haines, found

24

him sane. Id. at 386. As the Court explained, “Dr. Haines’ testimony was some

25

evidence of Robinson’s ability to assist in his defense. But . . . on the facts

26
27

40

This claim was Claim Five in state court and is Claim Four in federal court.
State Pet. at 240-53; Fed. Pet. at 107-23.

28
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presented to the trial court it could not properly have been deemed dispositive.”

2

Id. (recounting Robinson’s history of unusual behavior, prior irrational crime, and

3

suicide attempt); see also Drope, 420 U.S. at 180 (“evidence of a defendant’s

4

irrational behavior, his demeanor at trial, and any prior medical opinion on

5

competence to stand trial are all relevant in determining whether further inquiry is

6

required, but [] even one of these factors standing alone may, in some

7

circumstances, be sufficient”).

8
9
10

2. Prima Facie Allegations Before the State Court.
a. The trial court violated Mr. Jones due process rights by failing to
conduct a competency hearing.

11

Throughout the proceedings, the trial court was aware that Mr. Jonessuffered

12

from psychiatric problems affecting his ability to understand the proceedings and

13

to assist counsel. In March 1993, trial counsel requested that the trial court appoint

14

two experts to evaluate Mr. Jones’s competence to proceed. 1 RT 14-15. By June

15

1993, at the latest, jail mental health staff began treating Mr. Jones with Haldol, a

16

strong antipsychotic medication for treating auditory hallucinations, delusions, and

17

paranoia, because he was hearing voices.

18

(testifying that Mr. Jones began taking Haldol in late 1992). Jail staff also treated

19

Mr. Jones with antidepressants. Id. at RT 3549. After the defense psychiatrist,

20

Claudewell Thomas, Ph.D., M.D., examined Mr. Jones in 1994, Ex. 154 at 2751-

21

52, trial counsel requested funds for further examination, notifying the court that

22

Dr. Thomas “has found that that the defendant suffers from a major dissociative

23

process as part of a chronic schizophrenic disorder.” II Supp. 23 CT 6520. The

24

defense neuropsychologist also concluded that Mr. Jones suffered from

25

schizophrenia. 30 RT 4432.

23 RT 3547, 3549; 24 RT 3619

26

The trial court also was aware that at the outset of the case Mr. Jones had

27

significant conflicts with his lawyer. 1 RT 18. Among other things, Mr. Jones

28

believed that his trial counsel was arranging a plea of fifteen to life, even though
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no deal had been offered and trial counsel had been attempting to explain

2

something else when Mr. Jones became concerned about a deal. 1 RT 21-22.

3

Although trial counsel explained this to Mr. Jones, he remained upset, telling trial

4

counsel “you’re not going to represent me. I don’t care what nobody say. And you

5

know what you’re doing, man.” Id. at 24. Mr. Jones’s behavior in the courtroom

6

similarly put the trial judge on notice of his significant mental impairments. In one

7

early proceeding, Mr. Jones spoke out, saying “leave me alone, leave me alone,”

8

when no one appeared to be addressing him. 1 RT 6. During his testimony at trial,

9

Mr. Jones’s presentation was abnormally sluggish and he had difficulty responding

10

to the prosecutor’s questions. Ex. 150 at 2733; 23 RT 3481. In the courtroom, Mr.

11

Jones at times had a “blank expression and faraway look in his eyes” like a “closed

12

curtain.” Ex. 144 at 2707. In the penalty phase, the defense expert, Dr. Thomas,

13

testified, among other things, that Mr. Jones suffered from “a major psychiatric

14

disorder of a psychotic nature.” 30 RT 4413-14.

15

In addition to these clear indications of Mr. Jones’s mental problems, the

16

trial court was aware of Mr. Jones’s history of disturbed behavior. Before the

17

capital crime, Mr. Jones had been arrested for two sexual assaults. One was

18

against a long-time friend, Kim Jackson, who after the incident asked law

19

enforcement “to get him psychiatric treatments.” 28 RT 4196. In the other case,

20

Mr. Jones assaulted a girlfriend’s mother, Mrs. Harris, and was referred for

21

psychiatric care following that crime. 22 RT 3349. The capital crime involved a

22

disorganized and chaotic attack against another girlfriend’s mother, Mrs. Miller,

23

who was stabbed over a dozen times with two knives and bound with a telephone

24

cord, a nightgown, a purse strap, and an electric cord. Ex. 172 at 3053; 17 RT

25

2775. At some point, sexual intercourse occurred. See section II.A.2.b., supra

26

(describing evidence of post-mortem sexual contact). Mr. Jones did not remember

27

killing Mrs. Miller or having sexual intercourse with her. 22 RT 3335-36. After

28

the crime, he heard voices telling him that someone was coming to get him and
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believed someone was going to kill him. Id. at 3338. He first barricaded himself

2

in his apartment and later shot himself in the chest. Id. at 3343-45.

3

In spite of the evidence that Mr. Jones suffered from severe psychiatric

4

conditions that, inter alia, impaired his understanding of the proceedings and his

5

interactions with trial counsel, the trial court violated Mr. Jones’s due process

6

rights by failing to hold a hearing to determine whether Mr. Jones was competent

7

to proceed. See Drope, 420 U.S. at 180 (holding evidence of defendant’s suicide

8

attempt created a sufficient doubt of his competence to require further inquiry);

9

Pate, 383 U.S. at 378 (holding that in spite of expert opinion that Mr. Robinson

10

was sane, trial court was obligated to hold competence hearing in light of Mr.

11

Robinson’s history of unusual behavior, treatment for paranoia and hearing voices,

12

prior irrational crime, and suicide attempt); McMurtrey v. Ryan, 539 F.3d 1112,

13

1125 (9th Cir. 2008) (ruling that evidence of treatment with antipsychotic and anti-

14

anxiety medications while in jail, suicide attempt, and unusual behavior raised

15

sufficient doubt about competence and overcame expert opinion to the contrary

16

from a brief interview conducted four months before trial); Moore v. United States,

17

464 F.2d 663, 665-66 (9th Cir. 1972) (holding that evidence of suicide attempts,

18

hallucination, and psychiatric treatment sufficient to warrant competency hearing

19

in spite of expert report finding defendant competent).41

20
21
22
23
24
25
26
27
28

41

Mr. Jones also alleged that trial counsel was ineffective for failing to
request a competency hearing. See, e.g., Reply at 209-11. In December 1994,
before trial started, Dr. Thomas informed trial counsel that he had serious
concerns about Mr. Jones’s competence to stand trial and the status of his mental
health treatment in jail. Ex. 154 at 2754. In spite of this information and the
numerous other indications of Mr. Jones mental problems, trial counsel
unreasonably failed to seek a hearing to determine Mr. Jones’s competence. See
Stanley v. Cullen, 633 F.3d 852, 862 (9th Cir. 2011) (ruling that counsel’s failure
to seek competency hearing ineffective “when there are sufficient indicia of
incompetence to give objectively reasonable counsel reason to doubt the
defendant’s competency, and there is a reasonable probability that the defendant
continued…

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2

b. Mr. Jones was incompetent to stand trial.
Had a competency hearing been conducted, the evidence would have

3

established that Mr. Jones was incompetent to stand trial.

Dr. Thomas, who

4

evaluated Mr. Jones at the time of trial, would have opined that Mr. Jones was not

5

competent to stand trial. Ex. 154 at 2754. Dr. Thomas observed that Mr. Jones’s

6

treatment in jail with Haldol was an indication of “serious competency issues.” Id.

7

As Dr. Thomas explained, “Haldol is a difficult drug to take, and often has

8

significant side effects, so it is not prescribed unless an individual is severely

9

impaired. In addition, it can be given in doses as low as 1.25 milligrams or 2

10

milligrams; Mr. Jones received Haldol in doses of 5 milligrams per dose.” Id.

11

Following his clinical evaluation of Mr. Jones, Dr. Thomas concluded that Mr.

12

Jones “suffered from a Schizoaffecitve Disorder (or Schizophrenia, with a

13

depressive cast) that had been worsening over time. . . . As with any type of

14

psychosis, Mr. Jones’s psychiatric condition waxes and wanes, and can be more or

15

less apparent or active at any given time.” Id. at 2750-51.

16

Dr. Thomas would have opined that Mr. Jones’s severe psychiatric

17

conditions impaired his ability to consult with his lawyer and understand the

18

proceedings. In his interviews with Mr. Jones, Dr. Thomas observed that Mr. Jones

19

“was not a quick thinker. In conversation, Mr. Jones was generally non-reactive,

20

and a concrete thinker. His affect was depressed and relatively flat, and at times

21

inappropriate to expressed ideational content, remaining unchanged across a range

22

of conversational topics.” Id. at 2751. As a result of his impairment, Mr. Jones

23

“often has difficulty confronting the reality of what has occurred, and as a result,

24

often strongly held, confabulatory beliefs about what happened emerge instead.”

25
26
27

would have been found incompetent to stand trial had the issue been raised and
fully considered”). As demonstrated in the following section, had a hearing been
conducted, Mr. Jones would have been found incompetent to stand trial.

28
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Id.; see also id. at 2761 (“Mr. Jones exhibited memory impairments, concrete

2

thinking, and an inability to shift topics, and at times confusion and confabulation

3

of events”). Associated with these findings was Dr. Thomas opinion that Mr.

4

Jones’s “multiple mental impairments, including his memory impairments, his lack

5

of insight, and his major dissociative status, did not make him an appropriate

6

testifying witness.” Id. at 2754.

7

Moreover, had he been properly informed of Mr. Jones’s medication being

8

abruptly discontinued during trial, Dr. Thomas would have determined that the

9

“inappropriate medical change” also “adversely affected [Mr. Jones’s] ability to

10

attend, concentrate, assist his attorneys, and testify.”

Id. at 2762.

A multi-

11

generational history of mental illness in Mr. Jones’s family, including records of

12

institutionalization, treatment with prescription medication for anxiety and

13

depression, and suicide among family members, would have further corroborated

14

Dr. Thomas’s conclusions and highlighted Mr. Jones’s “genetic predisposition to

15

mental illness.” Id. at 2759; see also id. at 2757.

16

Expert evaluation of Mr. Jones during state post-conviction proceedings

17

confirm and corroborate Dr. Thomas’s findings and demonstrate Mr. Jones’s long-

18

standing impairment in communication, comprehension, attention, and cognition.

19

Zakee Matthews, M.D., a psychiatrist retained by Mr. Jones’s state habeas counsel,

20

made the following observations, among others, after his evaluation of Mr. Jones:

21

 “He could not always remember periods of time, and he could not always

22

focus on a single topic of conversation during our discussions. Ernest

23

had much difficulty responding to anything but the most basic questions.

24

Any complex questions that required him to delve into memory easily

25

vexed him;”

26

 “Ernests’s eagerness to act appropriately and not disappoint at times

27

produces answers that exhibit evidence of confabulation. . . . Frequently,

28

he does not appear to have sufficient insight to understand that his
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answers are not accurate;”

2

 “Ernest also exhibited signs of rigid, perseverative thinking. Once he had

3

decided that things were a certain way, no suggestion of facts to the

4

contrary could affect his conclusions.”

5

Ex. 178 at 3154-55.

6

Natasha Khazanov, Ph.D., conducted neuropsychological testing of Mr.

7

Jones during state post-conviction proceedings. See generally Ex. 175. In testing

8

to evaluate Mr. Jones’s short-term memory and working memory, which both

9

affect his ability to attend to and concentrate on events and information, Mr. Jones

10

exhibited extreme deficits, falling into the lowest percentile of scoring. Id. at 3064.

11

A number of other tests similarly demonstrated problems in attention and

12

concentration and revealed significant signs of brain damage. Id. at 3065-66. Dr.

13

Khazanov further determined that:

14

One striking pathognomic sign of frontal lobe dysfunction was Mr.

15

Jones’s greater difficulty recalling a story that had been read to him

16

than recalling a list of unrelated words. His prose recall was in only

17

the 5th percentile.

18

organize the story in a logical way to facilitate recall, and thus

19

perform better on recalling a story than an unrelated list of words.

20

Individuals with frontal lobe damage are unable to utilize such

21

techniques, and have better recall of unrelated words.

22

Id. at 3069. Overall, neuropsychological testing documented Mr. Jones’s

23

severe level of mental impairment; he “suffers from such severe brain damage that

24

he is unable to function at the same level as 99 percent of those in his age

25

category.” Id. at 3072. Dr. Khazanov’s review of information about Mr. Jones’s

26

background further led her to conclude that his brain damage and resulting

27

impairments existed prior to his arrest in 1992. Id. at 3076.

28

Individuals with unimpaired frontal lobes

Expert findings about Mr. Jones’s functioning at the time of trial were
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confirmed by those in contact with Mr. Jones at the time. Wanda Barrow, an

2

acquaintance of Mr. Jones’s who saw him in jail, said that when she visited Mr.

3

Jones during the trial, “[h]e seemed like he was really climbing the walls, and was

4

not actually understanding all of what was going on.” Ex. 24 at 246. Mr. Jones’s

5

trial counsel was not in regular contact with him during the trial; instead, the

6

defense paralegal, Rhonda Cameron, was the primary contact with Mr. Jones. Ex.

7

19 at 206; Ex. 12 at 106. Her role was “to act as a parent figure and make [Mr.

8

Jones] feel comfortable discussing painful or sensitive information with me.” Ex.

9

19 at 206. Mr. Jones had difficulty recalling events in his life in order to assist the

10

paralegal in her work. Id. When the paralegal told Mr. Jones what his legal team

11

was doing, he had difficulty understanding her. Id. at 207. “I found myself having

12

the same conversation with him to ensure that he understood what we were doing.”

13

Id. During his interactions with the paralegal, Mr. Jones did not express emotion

14

or give her any indication of his reaction to their conversation, but had a

15

“motionless, stony face and glassy eyes that looked right through you.” Id. In the

16

courtroom, there were times Mr. Jones became agitated over irrelevant information

17

or testimony; he had difficulty ignoring the things that distracted and bothered him

18

and focusing on the more important aspects of the trial. Ex. 144 at 2707.

19

Mr. Jones’s allegations and supporting documentary material before the state

20

court made a prima facie showing that he was incompetent to stand trial;

21

specifically, Mr. Jones was unable effectively to communicate with or assist trial

22

counsel, comprehend key aspects of the trial and defense, or attend to and recall

23

the proceedings of the trial from day to day. See Dusky, 362 U.S. at 402; Drope,

24

420 U.S. at 171; Odle v. Woodford, 238 F.3d 1084, 1089 (9th Cir. 2001) (ruling that

25

competence to stand trial “requires the mental acuity to see, hear and digest the

26

evidence, and the ability to communicate with counsel in helping prepare an

27

effective defense”) (citing Dusky, 362 U.S. at 402).

28
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3. Respondent Disputed Key Facts in State Court.

2

In response to Mr. Jones’s claim that the trial court should have held a

3

hearing to determine whether he was competent, and that trial counsel was

4

ineffective for failing to move for one, Respondent stated, “Respondent disagrees.

5

Both counsel and the trial court reasonably relied on the competency findings of

6

Dr. Stalberg and Mead.” Inf. Resp. at 27. Respondent contended that Mr. Jones’s

7

testimony “belies the contention that petitioner was unable to understand the nature

8

of the proceedings and assist in his defense.” Id. Respondent also urged the state

9

court to conclude that Dr. Thomas’s determination that Mr. Jones suffered from

10

schizophrenia “does not mean that petitioner was incompetent to stand trial. . . .

11

Indeed, the administration of antipsychotic medications may have improved

12

petitioner’s mental condition.” Id.

13

4. Section 2254 does not bar relief on this claim.

14

In 2009, the state court summarily denied Mr. Jones’s habeas claim as failing

15

to state a prima facie case for relief. To the extent the state court’s ruling reflects

16

its determination that Mr. Jones failed to plead sufficient facts to establish his

17

claim, the state court’s decision is (1) contrary to clearly established federal law

18

and (2) an unreasonable application of Dusky, Drope, and Pate, under section

19

2254(d)(1). In the alternative, the state court unreasonably determined the facts

20

under section 2254(d)(2) by finding facts and resolving disputes without adequate

21

procedures.

22

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

23

The state court summary denial of Mr. Jones’s claim was both contrary to

24

and an unreasonable application of Supreme Court precedent. First, contrary to

25

clearly established federal law, the California Supreme Court, relying on California

26

Penal Code section 1367, has long required that a defendant’s incompetence to

27

stand trial must be attributable to “a diagnosed mental illness.” People v. Taylor,

28

47 Cal. 4th 850, 864, 220 P.3d 872 (2010); see also People v. Dunkle, 36 Cal. 4th
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861, 885, 116 P.3d 494 (2005), partially overruled on other grounds by People v.

2

Doolin, 45 Cal. 4th 390, 198 P.3d 11 (2009) (stating competency for due process

3

purposes as whether “as a result of mental disorder or developmental disability,

4

[the defendant] is unable to understand the nature of the criminal proceedings or to

5

assist counsel in the conduct of a defense in a rational manner”); People v.

6

Rodrigues, 8 Cal. 4th 1060, 1110, 885 P.2d 1 (1994) (rejecting defendant’s claim

7

due to the lack of a disorder or disability). This modification and addition to the

8

test for competency under Dusky satisfies section 2254(d)(1). See Williams, 529

9

U.S. at 405-06 (holding state court decision contrary to clearly established law for

10

adding to prejudice requirement of Strickland).

11

The state court decision also is contrary to federal law because Mr. Jones’s

12

allegations that he was entitled to a competency hearing are “materially

13

indistinguishable” from those set out in Drope and Pate, and yet the state court

14

determined that he did not sufficiently plead a claim for relief. Williams, 529 U.S.

15

at 405 (O’Connor, J., concurring). The state court’s failure to engage in fact

16

finding to resolve Mr. Jones’s sufficiently pled claim is contrary to federal law that

17

obligates state courts to resolve properly presented federal constitutional claims.

18

See section I.B.1, supra. By failing to engage in any fact finding or adversarial

19

proceeding to resolve Mr. Jones’s competency claims, the state court decision also

20

was an unreasonable application of Dusky and Pate. See Panetti v. Quarterman,

21

551 U.S. at 954; section I.B.1, supra; see also Miller v. Fenton, 474 U.S. 104, 116-

22

17, 106 S. Ct. 445, 88 L. Ed. 2d 405 (1985) (ruling that “assessments of credibility

23

and demeanor” are “crucial” to finding competency to stand trial).

24

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

25

“A state court’s finding that the evidence before the trial court did not

26

require a competency hearing under Pate is a finding of fact.” Maxwell v. Roe, 606

27

F.3d 561, 567 (9th Cir. 2010).

28

competence also requires fact finding. See, e.g., Miller v. Fenton, 474 U.S. at 116-

Resolution of the question of a defendant’s
120

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17; Evans v. Raines, 800 F.2d 884, 887 (9th Cir. 1986). Therefore to the extent that

2

the state court settled these questions, its decision is an unreasonable determination

3

of facts. See Hurles v. Ryan, 650 F.3d at 1312; Williams v. Woodford, 859 F. Supp.

4

2d at 1159; section I.B.2, supra.

5

G.

Mr. Jones Is Ineligible For The Death Penalty.

6

Mr. Jones presented the California Supreme Court with a prima facie

7

showing that his intellectual disabilities and mental impairments render him

8

ineligible for the death penalty under the Eighth Amendment. State Pet. at 347-70;

9

Reply at 320-30.42

Mr. Jones presented the state court with lay and expert

10

declarations and records documenting his subaverage intellectual functioning and

11

significant limitations in adaptive skills that qualify him as intellectually disabled

12

and that make him ineligible for the death penalty under Atkins v. Virginia, 536

13

U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002). Furthermore, Mr. Jones

14

established that his mental impairments significantly diminished his capacity to

15

control his behavior and therefore make him one of the morally less culpable

16

offenders the Eighth Amendment excludes from capital punishment.

17

1. Controlling U.S. Supreme Court Precedent.

18

The Eighth Amendment requires that “[c]apital punishment must be limited

19

to those offenders who commit a narrow category of the most serious crimes and

20

whose extreme culpability makes them the most deserving of execution.” Roper v.

21

Simmons, 543 U.S. 551, 568, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005) (internal

22

quotations omitted). For this reason, the execution of individuals who “do not act

23

with the level of moral culpability that characterizes the most serious adult

24

criminal conduct” is prohibited as cruel and unusual punishment. Atkins, 536 U.S.

25

at 306; see also id. at 311 (recognizing that the “Eighth Amendment succinctly

26
27

42

This claim was Claim Twenty in state court and is Claim Twenty-three in
federal court. State Pet. at 347-70; Fed. Pet. at 382-94.

28
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prohibits excessive sanctions”). The Eighth Amendment prohibition on executing

2

individuals of lesser moral culpability has long been reflected in the Supreme

3

Court’s jurisprudence. See, e.g., Roper, 543 U.S. at 571 (prohibiting death penalty

4

for those under eighteen years of age given characteristics of youth that make such

5

offenders less culpable); Atkins, 536 U.S. at 306, 321 (prohibiting death penalty for

6

those less culpable because of disabilities in areas of reasoning, judgment, and

7

impulse control); Enmund v. Florida, 458 U.S. 782, 799, 102 S. Ct. 3368, 73 L. Ed.

8

2d 1140 (1982) (prohibiting death penalty for accomplice who does not kill or

9

intend to kill); Godfrey v. Georgia, 446 U.S. 420, 433, 100 S. Ct. 1759, 64 L. Ed.

10

2d 398 (1980) (prohibiting death penalty for an individual whose crime “cannot be

11

said to have reflected a consciousness materially more depraved than that of any

12

person guilty of murder”).

13

The Court also has held that executing those of lesser moral culpability does

14

not serve the dual social purposes of the death penalty: “retribution and deterrence

15

of capital crimes by prospective offenders.” Atkins, 536 U.S. at 319 (internal

16

quotation omitted).

17

penalty is imposed on one whose culpability or blameworthiness is diminished.”

18

Roper, 543 U.S. at 571; see also Enmund, 458 U.S. at 799 (ruling deterrent effect

19

of death penalty inapplicable to less culpable offender; “it seems likely that capital

20

punishment can serve as a deterrent only when murder is the result of

21

premeditation and deliberation”). When the imposition of the death penalty does

22

not contribute to either retribution or deterrence, “it is nothing more than the

23

purposeless and needless imposition of pain and suffering, and hence an

24

unconstitutional punishment.” Atkins, 536 U.S. at 319 (internal quotation omitted).

25

In determining whether punishment is constitutionally impermissible, the Court’s

26

rulings are informed by consensus as reflected in the deliberations of the

27

“American public, legislators, scholars, and judges.” Id. at 307.

28

“Retribution is not proportional if the law’s most severe

In keeping with these Eighth Amendment principles, the Court in Atkins held
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that when an individual is less culpable because of his mental impairments, the

2

narrowing jurisprudence of the Eighth Amendment excludes him from eligibility

3

for the death penalty. Id. Such impairments include diminished capacity to (1)

4

understand and process information; (2) communicate; (3) abstract from mistakes

5

and learn from experience; (4) engage in logical reasoning; (5) control impulses;

6

and (6) understand the reactions of others. Id. at 318. In addition to the lack of

7

deterrence or proportional retribution for this category of offender, the death

8

penalty is inappropriate for individuals with such impairments because they “may

9

be less able to give meaningful assistance to their counsel and are typically poor

10

witnesses, and their demeanor may create an unwarranted impression of lack of

11

remorse for their crimes. Id. at 320-21. The Court in Atkins thus prohibited

12

execution of individuals with mental retardation, now referred to as intellectual

13

disability,43 which is defined as “subaverage intellectual functioning” combined

14

with “significant limitations in adaptive skills such as communication, self-care,

15

and self-direction that became manifest before age 18.” Id. at 318.

16

2. Prima Facie Allegations Before the State Court.

17

a. Mr. Jones’s intellectual disabilities make him ineligible for the

18

death penalty.

19

Under California law, intellectual disability is defined as “significantly

20

subaverage general intellectual functioning existing concurrently with deficits in

21

adaptive behavior and manifested before the age of 18.”

22

1376(a); see also Atkins, 536 U.S. at 317 (according individual states the task of

23

defining intellectual disability to enforce constitutional restrictions on capital

24

punishment); In re Hawthorne, 35 Cal. 4th 40, 48, 105 P.3d 552 (2005) (declining

25

to interpret state statute as including any fixed IQ score; a “fixed cutoff is

Cal. Penal Code §

26
27

43

See, e.g., Moormann v. Schriro, 672 F.3d 644, 649 (9th Cir. 2012).

28
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inconsistent with established clinical definitions”); People v. Super. Ct. (Vidal), 40

2

Cal. 4th 999, 1013, 155 P.3d 259 (2007) (upholding trial court determination that

3

defendant met the definition of Penal Code section 1376 when his Full Scale IQ

4

scores over the course of several years ranged from 77 to 92).

5

Mr. Jones’s detailed allegations and supporting documentary material clearly

6

establish that he qualifies under this definition. From the beginning of elementary

7

school, Mr. Jones’s intellectual deficits were obvious. At the end of the first grade,

8

he was tested and found to have a Full Scale IQ score of 68, squarely in the

9

intellectually disabled range of functioning. Ex. 50 at 1103. School officials

10

placed Mr. Jones in an Educable Mentally Retarded (“EMR”) program from the

11

first through third grades. Ex. 125 at 2552-53. His low scores on some of the tests

12

“indicated problems with making appropriate decisions, caring for self, and

13

responding age appropriately to social situations.” Ex. 130 at 2599. After leaving

14

the EMR program in elementary school, Mr. Jones “achieved virtually no academic

15

success.” Id. at 2601. He did not earn enough credits to graduate from junior high

16

school and received a special transfer to high school.

17

Crenshaw High School, Mr. Jones participated in the Educationally Handicapped

18

program. Id. at 2556. At the age of sixteen, Mr. Jones’s academic achievement

19

was “extremely poor, ranging from the second to the sixth grade level.” Ex. 130 at

20

2601.

Ex. 125 at 2554. At

21

Dr. Khazanov’s testing established that Mr. Jones “has markedly sub-average

22

intelligence.” Ex. 175 at 3063. He had a Verbal IQ score of 82 and a Performance

23

IQ of 76. Id. Mr. Jones’s Full Scale IQ of 77 “places him in the 6th percentile,

24

meaning that 94 percent of those of Mr. Jones’s age scored higher than he did.” Id.

25

Dr. Matthews, who reviewed a wide variety of materials pertaining to Mr. Jones’s

26

background, including institutional records and numerous lay witness declarations,

27

concluded that Mr. Jones suffered from “significantly compromised adaptive

28

functioning.” Ex. 178 at 3155. Dr. Matthews explained that:
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[Mr. Jones] lacked the capacity to live independently or manage his

2

own affairs. He never lived alone, except for the brief period when

3

he lived in Mrs. Harris’s garage after Glynnis ended their

4

relationship, before he became homeless. He was homeless more

5

than once, could not secure steady employment, and had no specific

6

job skills; there is no known record of [Mr. Jones] even owning a

7

driver’s license. [Mr. Jones] was willing to work hard, loyal to

8

friends and family, and polite—but these traits alone were

9

insufficient for him to make his way in a world that only frightened

10

and intimidated him.

11

Id.; see also Reply at 322-25 (describing additional details of Mr. Jones’s adaptive

12

functioning deficits). The expert declarations and extensive documentary support

13

thus demonstrate that Mr. Jones’s intellectual disability renders him ineligible for

14

the death penalty under Atkins.

15

b. Mr. Jones’s mental impairments make him ineligible for the
death penalty.

16
17

In addition to his intellectual disability, Mr. Jones suffers from multiple

18

mental impairments that diminish his moral culpability and further establish his

19

ineligibility for the death penalty.

20

dissociative process as a part of his schizoaffective illness.” Ex. 154 at 2750. As a

21

result, in stressful or emotional situations, he experiences a psychotic break,

22

“dissociating from external reality and rational consciousness, and responding

23

instead only to an unconscious, internal world of memories and messages over

24

which he had no control.” Id.; see also Ex. 178 at 3152 (“emotionally intense or

25

stressful situations triggered intrusive and dissociative mental states that further

26

compromised

27

appropriately”). As Dr. Matthews explained:

[Mr.

Jones’s]

Mr. Jones suffers from a “major active

ability

to

understand

events

and

respond

28
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Having had the experience of abject terror, as [Mr. Jones] frequently

2

did as a boy, he is at risk to dissociate when confronted by new

3

experiences that are fear provoking.

4

danger, real or perceived, as well as situations of stress or

5

vulnerability may produce this reaction, often resulting in behavior

6

that the person can neither control nor remember after the event.

7

Ex. 178 at 3153.

Situations of inescapable

Mr. Jones “also displayed symptoms of depression,

8

impulsivity, and auditory and visual hallucinations.” Id. at 3154. “Beyond his

9

dissociation, [Mr. Jones] has problems with judgment, accomplishing objectives,

10

planning, and initiative.” Id. He has difficulty responding to anything but the most

11

basic questions, engages in confabulation and does not understand that he is not

12

accurate, and exhibits “rigid, perseverative thinking.” Id. at 3155.

13
14

Mr. Jones’s brain damage also seriously impairs his mental functioning. As
Dr. Khazanov concluded, Mr. Jones suffers from frontal lobe damage that:

15

has produced cognitive rigidity, distorted perception, and an inability

16

to inhibit unwanted responses, deficits consistent with impulse

17

control problems, poor emotional control, confabulation, diminished

18

frustration tolerance, aggression, and disproportionate outbursts of

19

anger. . . .

20

capacities similarly impede his ability to accurately perceive,

21

process, and respond to visual information in many situations. . . .

22

Finally, Mr. Jones is largely unaware of these problems; however,

23

even if [he] could be made aware of them, he lacks the capacity to

24

adapt to changed circumstances.

25

The impairments in his visuo-spatial or nonverbal

Ex. 175 at 3076.

26

In addition to individual impairments that diminish his moral culpability, Mr.

27

Jones presented substantial information to the state court documenting California

28

as an outlier among states, which largely prohibit death sentences for conduct an
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individual was powerless to avoid. See State Pet. at 353-61. He also presented the

2

conclusions of nearly every major mental health organization in the United States

3

advocating either an outright ban on executing all mentally ill offenders, or a

4

moratorium until a more comprehensive evaluation system can be implemented.

5

Id. at 362-63. As in Atkins and the Court’s other cases prohibiting the execution of

6

morally less culpable offenders, the national consensus thus supports Mr. Jones’s

7

claim that his mental impairments render him ineligible for the death penalty. See,

8

e.g., Atkins, 536 U.S. at 313 (ruling that in “cases involving a consensus, [the

9

Court’s] own judgment is brought to bear by asking whether there is reason to

10

disagree with the judgment reached by the citizenry and its legislators”).

11

As a result of his mental impairments, Mr. Jones did not have “the ability to

12

control the normal functioning self.” 30 RT 4435; see also id. at 4465-67. Each

13

mental health expert to conduct a thorough evaluation of Mr. Jones has concluded

14

that he was not in control of his actions or behavior at the time of the crime. Ex.

15

154 at 2754-55; Ex. 178 at 3155-57. Specifically, he was unable to (1) understand

16

and process information; (2) communicate; (3) abstract from mistakes and learn

17

from experience; (4) engage in logical reasoning; (5) control impulses; and (6)

18

understand the reactions of others. Atkins, 536 U.S. at 318. As a result, Mr. Jones

19

is ineligible for the death penalty.

20

3. Respondent Disputed Key Facts in State Court.

21

In response to Mr. Jones’s allegations, Respondent stated that the factual

22

predicate for the claim—that Mr. Jones was unable to control his behavior and

23

conform his conduct to the requirements of the law—“is erroneous.” Inf. Resp. at

24

53 (citing jury’s verdict necessarily finding that Mr. Jones acted with specific

25

intent). Respondent urged the state court to disregard additional proffers by Mr.

26

Jones regarding his mental impairments and functioning, contending that “the

27

evidence does not establish that petitioner failed to act purposefully and with

28

specific intent” at the time of the crime. Id. at 54.
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4. Section 2254 Does Not Bar Relief on this Claim.

2

In 2009, the state court summarily denied Mr. Jones’s habeas claim as failing

3

to state a prima facie case for relief. To the extent the state court’s ruling reflects

4

its determination that Mr. Jones failed to plead sufficient facts to establish his

5

claim, the state court’s decision is (1) contrary to clearly established federal law

6

and (2) an unreasonable application of Atkins, Roper, Godfrey, and Enmund. In the

7

alternative, the state court unreasonably determined the facts under section

8

2254(d)(2) by finding facts and resolving disputes without adequate procedures.

9

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

10

The state court’s summary denial of Mr. Jones’s claim was both contrary to

11

and an unreasonable application of Supreme Court precedent. The state court

12

decision is contrary to federal law because Mr. Jones’s allegations are “materially

13

indistinguishable” from those set out in Atkins, but the state court determined that

14

he did not sufficiently plead a claim for relief. See, e.g., Williams, 529 U.S. at 405

15

(O’Connor, J., concurring). Moreover, the state court’s failure to engage in fact

16

finding to resolve Mr. Jones’s sufficiently pled claim is contrary to federal law that

17

obligates state courts to resolve properly presented federal constitutional claims.

18

See section I.B.1, supra. Finally, the state court’s denial of Mr. Jones’s prima facie

19

showing that he suffers from intellectual disability and mental impairment within

20

the meaning of Atkins without allowing him the opportunity to develop his claim is

21

an unreasonable application of Atkins and related Supreme Court precedent. See,

22

e.g., Rivera, 505 F.3d at 358 (citing Panetti in holding failure to allow Atkins

23

hearing upon prima facie showing satisfied section 2254(d)(1)).

24

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

25

As the California Supreme Court has recognized, the measure of intellectual

26

functioning under California Penal Code section 1376 is a factual question. See

27

Vidal, 40 Cal. 4th at 1013. Therefore, to the extent that the state court settled this

28

question, or other factual questions regarding Mr. Jones’s mental impairments and
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1

their effect on his volitional behavior and moral culpability, its decision is an

2

unreasonable determination of facts.

3

Williams v. Woodford, 859 F. Supp. 2d at 1159; section I.B.2, supra.

4

H.

See Hurles v. Ryan, 650 F.3d at 1312;

California’s Death Penalty Statute Does Not Fulfill the Constitutional

5

Mandate to Narrow the Class of Death-Eligible Defendants.

6

Mr. Jones presented the California Supreme Court with a prima facie claim

7

that his death sentence is unconstitutional because he was sentenced under a

8

California statute that does not comply with the Eighth Amendment requirement

9

that a state’s capital sentencing scheme genuinely narrow the class of defendants

10

eligible for the death penalty (“death-eligible” defendants).44 State Pet. at 383-408;

11

Reply at 358-62.45

12

punishment statute to meet two obligations: (1) it must “genuinely narrow” the

13

subclass of offenders who are death-eligible; and (2) it may not permit the

14

“wanton” and freakish” imposition of a death sentence on only a small percentage

15

of death-eligible defendants. Zant v. Stephens, 462 U.S. 862, 877, 103 S. Ct. 2733,

16

77 L. Ed. 2d 235 (1983); Gregg v. Georgia, 428 U.S. 153, 189, 96 S. Ct. 2909,

17

2932, 49 L. Ed. 2d 859 (1976) (plurality opinion); see also Furman v. Georgia, 408

18

U.S. 238, 309-10, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972) (Stewart, J.,

19

concurring).

20

expansively defines (1) first-degree murder and (2) the “special circumstances”

21

that identify death-eligible defendants, rendering the vast majority of murder

22

defendants potentially death-eligible. It then imposes death sentences arbitrarily

Specifically, the Eighth Amendment requires a capital

Directly contrary to this constitutional mandate, California

23
24
25
26
27

44

Mr. Jones alleged his narrowing claim as Claim Twenty-Four in both state
and federal court. State Pet. at 383-408; Fed. Pet. at 394-401.
45

In state court, Mr. Jones supported his narrowing claim with five
declarations that described the supporting empirical evidence and the drafting,
adoption, and revision of California’s death penalty statute. Exs. 184-88.

28
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on only a small number of those defendants. This statutory scheme violates the

2

Eighth Amendment and renders Mr. Jones’s death sentence invalid.

3

1. Controlling U.S. Supreme Court Precedent

4

The Supreme Court first stated the Eighth Amendment’s narrowing

5

requirement in Furman, prescribing that the legislature’s capital punishment

6

scheme must provide a “meaningful basis for distinguishing the few cases in which

7

[the death penalty] is imposed from the many cases in which it is not.” 408 U.S. at

8

313 (White, J., concurring); Gregg, 428 U.S. at 207 (plurality opinion) (observing

9

that the Eighth Amendment requires the selection of death-eligible persons to be

10

“circumscribed by . . . legislative guidelines”). The opinions of several Justices

11

concurring in the judgment concluded that statutes that allowed the infrequent and

12

seemingly random imposition of the death penalty upon only a small percentage of

13

death-eligible criminal defendants violated the prohibition against cruel and

14

unusual punishment because they permitted the death penalty “to be so wantonly

15

and freakishly imposed.” Furman, 408 U.S. at 309-10 (Stewart, J., concurring)

16

(infrequently imposed or random death sentences are “cruel and unusual in the

17

same way that being struck by lightning is cruel and unusual.”); id. at 313 (White,

18

J., concurring); id. at 248 n.11 (Douglas, J., concurring); id. at 291-95 (Brennan, J.,

19

concurring); id. at 354 n.124 (Marshall, J., concurring); see also Gregg, 428 U.S. at

20

188.46 Since Furman, the Court consistently has held that sentencing procedures

21

violate the Eighth Amendment when they “create a substantial risk that the

22

punishment will be inflicted in an arbitrary and capricious manner.” Godfrey v.

23

Georgia, 446 U.S. 420, 427, 100 S. Ct. 1759, 64 L. Ed. 2d 398 (1980); see also

24

Gregg, 428 U.S. at 189.

25
26
27

46

In Furman, the five justices in the majority wrote separately. The Court’s
holding is the position taken by the justices who concurred in the judgment on the
narrowest grounds, Justices Stewart and White. Gregg, 428 U.S. at 169 n.15.

28
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To pass constitutional muster, then, a capital sentencing scheme must

2

“genuinely narrow” the death-eligible class of persons and “must reasonably

3

justify the imposition of a more severe sentence on the defendant compared to

4

others found guilty of murder.” Lowenfield v. Phelps, 484 U.S. 231, 244, 108 S.

5

Ct. 546, 98 L. Ed. 2d 568 (1988); see also Tuilaepa v. California, 512 U.S. 967,

6

982, 114 S. Ct. 2630, 129 L. Ed. 2d 750 (1994); Arave v. Creech, 507 U.S. 463,

7

474, 113 S. Ct. 1534, 123 L. Ed. 2d 188 (1993); Zant, 462 U.S. at 877. The

8

“narrowing function” may be accomplished in either of two ways: (1) the

9

legislature may narrow the definition of capital offenses, such that a jury finding of

10

guilt accomplishes narrowing, or (2) the legislature may define capital offenses

11

more broadly and provide for narrowing by a penalty phase jury finding of

12

aggravated circumstances. Lowenfield, 484 U.S. at 246. In contrast, a death

13

penalty scheme that makes “almost every murder” potentially punishable by death,

14

but punishes with death only a small percentage of death-eligible defendants,

15

creates a substantial risk of arbitrary and capricious punishment and thus violates

16

the Eighth Amendment. Godfrey, 446 U.S. at 428-29.

17

2. Prima Facie Allegations Before the State Court

18

Mr. Jones was arrested in 1992 and tried in 1995 on one count of felony

19

murder and on three felony-murder special circumstances: rape, robbery, and

20

burglary. 1 CT 91-92; 1 CT 236. The California statute under which he was

21

sentenced purportedly satisfies the Eighth Amendment’s requirements through

22

Lowenfield’s second method described above; that is, the statute defines a broad

23

class of first-degree murders, then purportedly “narrows” that class by requiring

24

the jury to find true at least one “special circumstance” in California Penal Code

25

section 190.2. People v. Bacigalupo, 6 Cal. 4th 457, 468, 24 Cal. Rptr. 2d 808

26

(1993) (holding that section 190.2 special circumstances “perform the same

27

constitutionally required narrowing function” as other states’ aggravating

28

circumstances or factors.) However, as set forth below, the special circumstances
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1

were not intended to, and do not, perform a narrowing function. California has

2

thus created the very situation prohibited by the Eighth Amendment, in which

3

“almost every murder” is potentially punishable by death, due to overbroad

4

definitions of first-degree murder and the special circumstances, but only a small

5

percentage of death-eligible defendants are arbitrarily and capriciously sentenced

6

to die. Godfrey, 446 U.S. at 428-29.
a. First Degree Murder (Cal. Penal Code § 189)

7
8

At the time of the capital crime and Mr. Jones’s trial, California Penal Code

9

section 189 defined first-degree murder to include three broad types of murder:

10

premeditated and deliberate murder,47 murder committed by a listed means, and

11

felony murder. Mr. Jones was convicted only of the last of these categories: felony

12

murder based on rape.

13

At the time of the capital crime, felony murders included those committed in

14

the perpetration or attempted perpetration of arson, rape, robbery, burglary,

15

kidnapping, trainwrecking, or mayhem. California’s felony-murder rule was (and

16
17
18
19
20
21
22
23
24
25
26
27

47

In 1981, the Legislature expanded section 189’s definition of first-degree
murder by eliminating the requirement that a defendant guilty of “deliberate and
premeditated” murder have “maturely” and “meaningfully” reflected upon the
gravity of his act. Cal. Penal Code § 189. This amendment, coupled with judicial
expansion of the definition of premeditation and deliberation, made first-degree
and second-degree murders indistinguishable from each other. See Suzanne
Mounts, Premeditation and Deliberation in California:
Returning to a
Distinction Without a Difference, 36 U.S.F. L. Rev. 261, 308 (2001) (noting that
no first-degree murder conviction has been reversed since 1986 based on
insufficient evidence to establish premeditation and deliberation); cf. People v.
Perez, 2 Cal. 4th 1117, 1130, 9 Cal. Rptr. 2d 577 (1992) (Mosk, J., dissenting);
People v. Ruiz, 44 Cal. 3d 589, 614, 244 Cal. Rptr. 200 (1988) (first-degree
murder based on lying-in-wait does not require premeditation, deliberation or
intent to kill); People v. Dillon, 34 Cal. 3d 441, 477, 194 Cal. Rptr. 390 (1983)
(unintended homicides are included in first-degree murder) abrogated by statute
on other grounds.

28
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1

remains) too broad to serve a narrowing function. First, California’s felony-murder

2

categories include most common felonies such as robbery and burglary, which are

3

broadly defined crimes. Cal. Penal Code § 189. Second, California’s felony-

4

murder rule applies to killings that occur even after the underlying felony is

5

completed. See, e.g., People v. Chavez, 37 Cal. 2d 656, 669-70, 234 P.2d 632

6

(1951). Finally, the normal rules of causation do not apply under the felony-

7

murder rule, which encompasses deaths that are accidental and unforeseeable, or

8

result from recklessness or negligence. Dillon, 34 Cal. 3d at 477; see Steven F.

9

Shatz & Nina Rivkind, The California Death Penalty Scheme: Requiem for

10

Furman? 72 N.Y.U. L. Rev. 1283, 1320-21 (1997) (“Shatz & Rivkind”); Steven F.

11

Shatz, The Eighth Amendment, the Death Penalty, and Ordinary Robbery-Burglary

12

Murderers: A California Case Study, 59 Fla. L. Rev. 719, 730-32 (2007).

13

b. The Special Circumstances (Cal. Penal Code § 190.2)

14

In 1977, the California Legislature enacted a new death penalty law (“1977

15

Law”), under which one of twelve section 190.2 special circumstances, each

16

describing a different homicide, had to be proved beyond a reasonable doubt to

17

make a murderer death-eligible. 1977 Cal. Stat. 1255-66. Under the 1977 Law,

18

death eligibility was the exception, not the rule. Ex. 185 at 3314. The 1977 Law

19

was superseded in 1978 by the enactment of the Briggs Initiative (the “1978

20

Law”). Proposition 7 § 6 (approved Nov. 7, 1978). The drafters of the 1978 Law

21

sought to broaden death eligibility to the maximum extent, including for

22

commission of all first-degree murders. Ex. 185 at 3314-15. The 1978 Law

23

significantly expanded the number and scope of section 190.2’s special

24

circumstances, most significantly by eliminating the 1977 Law’s mens rea

25

requirement that all death-eligible defendants must have intended to commit

26
27
28
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homicide.48 Ex. 187 at 3329-51.

2

The California Supreme Court deems section 190.2 special circumstances to

3

perform the constitutionally required narrowing. Bacigalupo, 6 Cal. 4th at 468.

4

But given the expansive breadth of the special circumstances, no such narrowing

5

occurs. As the Ninth Circuit has stated: “Where the Constitution demands a

6

funnel narrowing the pool of defendants eligible for the death penalty, California

7

gives us a bucket.” Morales v. Woodford, 388 F.3d 1159, 1185 (9th Cir. 2004).

8

First, at the time of the capital crime, Penal Code sections 189 and 190.2 had

9

nearly complete overlap, meaning that defendants were death-eligible for virtually

10

all first-degree murders, including all felony-murders. Second, expansive judicial

11

interpretations of the special circumstances heightened their already extraordinary

12

breadth. See, e.g., Morales, 388 F.3d at 1185 (noting that there is “virtually no line

13

between lying-in-wait first degree murder and the special circumstance”); People v.

14

Webster, 54 Cal. 3d 411, 463-68, 285 Cal. Rptr. 31 (1991) (Broussard, J.,

15

concurring and dissenting) (criticizing expansive definitions of robbery and

16

robbery-murder special circumstance and observing that lying-in-wait special

17

circumstance “does not meet minimum constitutional criteria”); People v. Morales,

18

48 Cal. 3d 527, 575, 257 Cal. Rptr. 64 (1989) (Mosk, J., concurring and dissenting)

19

(noting that lying-in-wait special circumstance is “so broad in scope as to embrace

20

virtually all intentional killings”); People v. Anderson, 43 Cal. 3d 1104, 1147, 240

21

Cal. Rptr. 585 (1987) (holding that special circumstances do not require a showing

22
23
24
25
26
27

48

The 1978 Law also expanded death eligibility in other ways. First, it
eliminated the felony-murder mens rea requirement that the homicide itself must
have been intentional. Second, it broadened the circumstances under which an
accomplice could be death-eligible by eliminating the requirements that (1) the
accomplice be personally present during the homicide and (2) have participated in
the crime with the intent of causing the victim’s death. Compare 1977 Cal. Stat.
316 § 9, with former Cal. Penal Code § 190.2 (West 1992.)

28
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1

of “intent to kill” unless explicitly specified).

2

Finally, the legislative drafters of section 190.2 did not intend the special

3

circumstances to serve a narrowing function. Ex. 187 at 3332-35; Ex. 185 at 3314-

4

15. The extensive overlap that exists between the definition of first-degree murder

5

and the list of special circumstances is intentional. The initiative was intended to

6

create the “toughest” death penalty law by making it applicable to all murderers.

7

Shatz & Rivkind, 72 N.Y.U. L. Rev. at 1307; Ex. 185 at 3314-15. Accordingly, the

8

drafters of the 1978 Law and the voters eschewed their “constitutional

9

responsibility to tailor” the law “in a manner that avoids the arbitrary and

10

capricious infliction of the death penalty,” Godfrey, 446 U.S. at 428, and to enact a

11

“carefully drafted” statute, Gregg, 428 U.S. at 195.

12

c. Empirical Data

13

Mr. Jones presented the state court with three empirical studies, described

14

below, that show that (1) the overwhelming majority of murders in California

15

could be charged as capital murders and (2) in virtually all of them, at least one

16

special circumstance could be proved. This renders California’s death penalty

17

statute in violation of the Eighth and Fourteenth Amendments: because there is no

18

meaningful basis to distinguish the cases in which the defendant is sentenced to

19

death, those death sentences are arbitrary and capricious.

20

First, Professor David Baldus studied California’s death sentencing rate—the

21

rate at which defendants who were factually eligible for the death penalty under

22

2008 California law actually received a death sentence. He analyzed over 27,000

23

first-degree

24

convictions in California for crimes committed between January 1, 1978, and June

25

30, 2002 (“Baldus Study”). Ex. 184 at 3190. Of all defendants factually eligible

26

for the death penalty, the death sentencing rate was 4.4 percent. Id. at 3217-18,

27

3222. Of defendants convicted of first-degree murder, 95 percent were factually

28

eligible for a death sentence under 2008 law, but the death sentencing rate was only

murder,

second-degree

murder,

and

voluntary

manslaughter

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8.7 percent. Id. at 3201-02, 3204, 3220. Comparing California’s 95 percent death-

2

eligibility rate for first-degree murders under 2008 law with the 100 percent of

3

first-degree murders that were death-eligible under pre-Furman Georgia law, the

4

resulting 5 percent narrowing rate illustrates that the section 190.2 special

5

circumstances fail to limit death eligibility as required by Furman and the Eighth

6

Amendment.49 Id. at 3203-04, 3223-24.

7

Second, Mr. Jones presented a study conducted by Professor Steven Shatz

8

and Nina Rivkind that surveyed first-and second-degree murder convictions in

9

three California counties, Alameda, Kern, and San Francisco (“Statewide Study”).

10

The Statewide Study analyzed 596 published and unpublished appellate decisions

11

and 78 murder convictions that were not appealed from 1988-92. Of defendants

12

convicted of first-degree murder, 87 percent were death-eligible, but their death

13

sentencing rate was only 9.6 percent; the overall death sentence rate was

14

approximately 11.0 percent. Ex. 186 at 3322-23; Shatz & Rivkind, 72 N.Y.U. L.

15

Rev. at 1332.

16

Third, Mr. Jones presented a study conducted by Professor Shatz that

17

surveyed 803 murder convictions in Alameda County (“Alameda Study”). The

18

Alameda Study analyzed 803 murders, including all of the county’s death penalty

19

cases, from November 8, 1978 (the effective date of the 1978 Law) and November

20

7, 2001. Shatz, 59 Fla. L. Rev. at 737. Of defendants convicted of first-degree

21

murder who were death-eligible, the death sentence rate was 12.6 percent. Ex. 186

22

at 3324. This rate is only slightly higher than the 9.6 percent rate found in the

23

Statewide Study, and the disparity is likely attributable to Alameda County’s status

24
25
26
27

49

Among persons convicted of first-degree murder, second-degree murder,
and voluntary manslaughter between January 1978 and June 2002, 59 percent
would have been death-eligible based on the facts of the offense under California
law in 2008. Ex.184. at 3201-02. Comparing this rate with the rate under preFurman Georgia law leads to a narrowing rate of 35 percent. Id. at 3203-04.

28
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1

as a “high death” county. Id. at 3322, 3324. Both the Statewide Study and the

2

Alameda Study also demonstrate that the California statute fails to perform

3

constitutionally required narrowing.

4

In addition to these three studies, Mr. Jones presented the state court with

5

empirical evidence that California’s death penalty scheme is broader than any other

6

state’s statute. California has the highest rate of death-eligibility of any death

7

penalty jurisdiction; its rate is so much higher than the other jurisdictions’ that it is

8

a statistical outlier.

9

California’s narrowing rate—the rate at which its death penalty statute narrows

10

death-eligibility relative to pre-Furman Georgia law—is lower than other states’

11

narrowing rates. Ex. 184 at 3209.

Ex. 184 at 3210-15; Ex. 188 at 3371-73.

Moreover,

12

The Furman Court implicitly found a death sentencing rate of 15-20 percent

13

sufficiently low to create a risk of arbitrariness and capriciousness that violated the

14

Eighth Amendment. Furman, 408 U.S. at 386-87 n.11 (Burger, C.J., dissenting);

15

cf. Gregg, 428 U.S. at 182 n.26 (plurality opinion) (“It has been estimated that

16

before Furman less than 20% of those convicted of murder were sentenced to

17

death in those States that authorized capital punishment.”). Each of the three

18

studies that Mr. Jones placed before the state court determined that California has a

19

substantially lower death sentencing rate, which a fortiori violates the Eighth

20

Amendment. Mr. Jones presented a prima facie case that section 190.2’s special

21

circumstances fail to accomplish constitutionally mandated narrowing, because

22

they apply to an overwhelming proportion of first-degree murders and fail to

23

narrow genuinely the class of death-eligible offenders.50

24
25
26
27
28

50

Several federal district courts have recognized that the facts and allegations
that Mr. Jones presented to the California Supreme Court set forth a prima facie
case for relief and warrant an evidentiary hearing on the merits of the claim. See,
e.g., Order re: Motion for Evidentiary Hearing at 149, Ashmus v. Wong, No. 3:93cv-00594-TEH (N.D. Cal. Mar. 14, 2001) (granting an evidentiary hearing on
continued…

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3. Section 2254 does not bar relief on this claim.

2

In 2009, the state court summarily denied Mr. Jones’s narrowing claim as

3

failing to state a prima facie case for relief. To the extent the state court’s ruling

4

reflects its determination that Mr. Jones failed to plead sufficient facts that, if

5

proven, would entitle him to Eighth Amendment relief, the state court’s decision is

6

contrary to and an unreasonable application of Furman and its progeny under

7

section 2254(d)(1). In the alternative, the state court unreasonably determined the

8

facts under section 2254(d)(2) by finding facts and resolving disputes without any

9

adjudicative procedure.

10

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

11

The state court summarily denied Mr. Jones’s narrowing claim without

12

citation or a reasoned decision. However, the state court’s published decisions

13

make clear that it has unreasonably concluded that the U.S. Supreme Court

14

resolved all narrowing challenges to the California statute in Pulley v. Harris, 465

15

U.S. 37, 104 S. Ct. 871, 79 L. Ed. 2d 29 (1984), and Tuilaepa v. California, 512

16

U.S. 967, 973, 114 S. Ct. 2630, 129 L. Ed. 2d 750 (1994). See People v. Arias, 13

17

Cal. 4th 92, 186-87, 51 Cal. Rptr. 2d 770 (1996) (relying on Tuilaepa v. California

18

to find 1978 Law constitutional); People v. Crittenden, 9 Cal. 4th 83, 154-56, 36

19

Cal. Rptr. 2d 474 (1994) (reasoning that the U.S. Supreme Court upheld the

20

constitutionality of the 1977 Law’s special circumstances in Pulley v. Harris and

21

concluding that the 1978 Law’s special circumstances play an “essentially

22
23
24
25
26
27

petitioner’s narrowing claim because petitioner’s allegations, if proven, could
establish that the California statutory scheme imposed death sentences more
infrequently than the schemes considered in Furman and thus violates the Eighth
Amendment); Order, Riel v. Goughnour, No. 2:01-cv-00507-LKK-KJM (E.D.
Cal. filed July 27, 2004); Order, Frye v. Goughnour, No. 2:99-cv-00628-LKKKJM (E.D. Cal. filed July 27, 2004); Order, Webster v. Ornoski, No. 2:93-cv0306-LKK-DAD (E.D. Cal. filed July 27, 2006).

28
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1

identical” role in “thereby limiting the death sentence to a small subclass of

2

murders,” apparently despite the “greatly expanded” number of special

3

circumstances).

4

denying subsequent narrowing challenges.

5

4th 596, 632, 94 Cal. Rptr. 2d 17 (2000) (citing both cases).

The state court has repeatedly cited Arias and Crittenden in
See, e.g., People v. Sakarias, 22 Cal.

6

Thus, the state court denied Mr. Jones’s narrowing claim based on its belief

7

that the U.S. Supreme Court had previously rejected the claim. In reality, neither

8

Pulley nor Tuilaepa address the claim. Pulley held only that a death penalty statute

9

need not include a proportionality review provision to be constitutional. 465 U.S.

10

at 42-45. It rejected a facial challenge to California’s 1977 Law because it had

11

sufficient checks on arbitrariness to survive a Furman challenge, but implied that

12

its conclusion could differ if given additional facts. Id. at 51, 53-54. The Court did

13

not resolve any other constitutional questions pertaining to the 1977 Law—and

14

more importantly, did not consider the constitutionality of the broader 1978 Law

15

under which Mr. Jones was sentenced.

16

contrasts the 1977 Law’s narrow special circumstances with the 1978 Law’s

17

overbroad special circumstances. In turn, Tuilaepa resolved the constitutionality of

18

specific section 190.3 aggravating factors. 512 U.S. 969. The Supreme Court

19

explicitly stated that it was not addressing issues concerning the eligibility stage of

20

California’s capital punishment scheme; narrowing is such an issue.51 Id. at 975.

Indeed, Mr. Jones’s claim explicitly

21
22
23
24
25
26
27
28

51

Indeed, in Tuilaepa, Justice Blackmun noted that the U.S. Supreme Court
had not immunized the California statute from challenge based on its
“extraordinary” breadth:
The Court’s opinion says nothing about the constitutional adequacy of
California’s eligibility process, which subjects a defendant to the
death penalty if he is convicted of first degree murder and the jury
finds the existence of one “special circumstance.” By creating nearly
20 such special circumstances, California creates an extraordinary
large death pool. Because petitioners mount no challenge to these
continued…

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The state court thus misapplied both Pulley and Tuilaepa and resultantly

2

failed to apply the fact-dependent analysis of Furman and its progeny to the

3

particular facts of the 1978 Law’s sentencing scheme in rejecting Mr. Jones’s

4

narrowing claim. This was both contrary to and an unreasonable application of the

5

Supreme Court’s Eighth Amendment narrowing precedents.

6

Workman, 554 F.3d 879, 887 (10th Cir. 2009) (finding the state court decision

7

“contrary to” federal law because the state court’s analysis was “inconsistent with

8

the inquiry demanded by” relevant precedent); Brumley v. Wingard, 269 F.3d 629,

9

638-39 (6th Cir. 2001) (finding section 2254(d) did not bar relief when the state

10

court’s error was simple failure to apply the controlling Supreme Court precedent).

11

As described above, Mr. Jones’s allegations established a prima facie Eighth

12

Amendment violation when taken as true. By summarily denying the claim, the

13

state court did not require Respondent to respond formally to Mr. Jones’s

14

allegations or present any evidence opposing Mr. Jones’s contentions. The state

15

court ruling also denied Mr. Jones the opportunity to present evidence, subpoena

16

witnesses, and prove his allegations. See section I.B.2, supra. The summary

17

denial of this claim was thus contrary to federal law requiring a state court to

18

ascertain facts reliably before denying adequately presented federal claims. See

19

section I.B.1, supra; Reply. Br. on Pinholster at 12-17. Finally, to the extent that

20

the state court determined for any other reason that Mr. Jones did not state a prima

21

facie claim, its determination was an unreasonable application of the Supreme

22

Court’s narrowing jurisprudence.

23

section 2254(d)(1) is satisfied where a state court identifies the governing legal

24

rule but applies it unreasonably to a particular case).

See Taylor v.

See Williams, 529 U.S. at 407-08 (holding

25
26
27

circumstances, the Court is not called on to determine that they
collectively perform sufficient, meaningful narrowing.
512 U.S. at 994 (Blackmun, J., dissenting) (citing Zant, 462 U.S. at 862).

28
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b. Section 2254(d)(2) is satisfied.

1
2

In the alternative, the state court may have unreasonably determined that Mr.

3

Jones’s proffer of substantial empirical evidence, described supra, was irrelevant to

4

its adjudication of the narrowing claim. Prior to the filing of Mr. Jones’s habeas

5

petition, in People v. Sanchez, the state court was first presented with some of the

6

empirical statistical data that Mr. Jones also presented. 12 Cal. 4th 1, 60-61, 47

7

Cal. Rptr. 2d 843 (1995). Although Sanchez was the first case in which the state

8

court had been presented with this empirical data, the state court determined that

9

the claim was “identical” to the facial challenges it had previously considered.52

10

The state court’s determination that the statistical data did not alter the claim’s

11

factual support was necessarily a determination that the data lacked evidentiary

12

value. To the extent that the state court applied Sanchez’s reasoning to Mr. Jones’s

13

claim, it unreasonably determined the facts. Earp v. Ornoski, 431 F.3d 1158, 1167

14

(9th Cir. 2005).

15

I.

Considered Cumulatively, the Constitutional Errors in Mr. Jones’s Case

16

Require the Granting of Relief.53

17

Mr. Jones presented the California Supreme Court with a prima facie claim

18
19
20
21
22
23
24
25
26
27

52

The state court’s faulty reasoning in Sanchez also suggests that the state
court may not have taken Mr. Jones’s factual allegations as true, as required at the
pleading stage of a habeas proceeding. See Taylor v. Maddox, 366 F.3d 992, 1000
(9th Cir. 2004) (a state court unreasonably determines facts by refusing to
consider petitioner’s relevant factual allegations).
53

In this brief, Mr. Jones has demonstrated that he satisfies section 2254(d)’s
limitations as to the claims on which he seeks a federal evidentiary hearing. In
addition to these claims, Mr. Jones requested that the state court’s cumulative
error assessment consider the additional claims of constitutional error that Mr.
Jones presented on habeas and on direct appeal. State Pet. at 425. This Court’s
assessment of cumulative error also must include Mr. Jones’s remaining claims of
record-based and extrarecord constitutional errors that are alleged in his petition
but are not described in this brief due to space limitations.

28
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1

that his conviction and death sentence are unconstitutional because the

2

constitutional errors that he identified on direct appeal and in his state habeas

3

proceedings, viewed cumulatively, prejudicially altered the outcome of the guilt

4

phase and penalty phase of his trial.54 State Pet. at 425-26; Reply at 368-39.

5

1. Controlling U.S. Supreme Court Law

6

The combined effect of multiple trial court errors warrants habeas relief

7

where the errors have infected the trial with unfairness so as to make the resulting

8

conviction a denial of due process: i.e., where the errors, considered together, had

9

a substantial and injurious effect on the jury’s verdict. Chambers v. Mississippi,

10

410 U.S. 284, 298, 302-03, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973); Brecht, 507

11

U.S. at 637; see also Taylor v. Kentucky, 436 U.S. 478, 487 n.15, 98 S. Ct. 1930, 56

12

L. Ed. 2d 468 (1978). The cumulative effect of multiple errors may violate due

13

process even where no single error rises to the level of a constitutional violation or

14

independently warrants reversal. Chambers, 410 U.S. at 290 n.3.

15

In sum, when the combined effect of individually harmless errors renders a

16

criminal defense “far less persuasive than it might [otherwise] have been,” the

17

resulting conviction violates due process. Chambers, 410 U.S. at 294, 302-03. An

18

assessment of cumulative error as to the guilt determination and punishment

19

imposed is especially appropriate in a capital case. Beck v. Alabama, 447 U.S. 625,

20

637-38, 100 S. Ct. 2382, 65 L. Ed. 2d 392 (1980) (discussing special need for

21

reliability in determining guilt in capital murder case); Johnson v. Mississippi, 486

22

U.S. 578, 584, 108 S. Ct. 1981, 100 L. Ed. 2d 575 (1988) (same as to penalty).

23

2. Prima Facie Allegations Before the State Court

24

In his state habeas petition, Mr. Jones alleged that his need for a cumulative

25

error assessment is especially pronounced because the errors in his case worked

26
27

54

Mr. Jones’s cumulative error claim was Claim Twenty-Seven in state court
and is Claim Thirty in federal court. State Pet. at 425-26; Fed. Pet. at 428-29.

28
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1

together to deprive him of a fair trial. State Pet. at 425-26. Specifically: Mr. Jones

2

wrongly faced trial for the capital crime despite his incompetence to stand trial.

3

The guilt phase outcome was prejudicially altered by the combined effect of (1)

4

trial counsel’s ineffective assistance; (2) the prosecution’s Brady violations; and (3)

5

the court’s erroneous ruling that Mr. Jones could not fully testify to his own

6

protracted symptoms of mental illness. These constitutional errors enabled the

7

prosecution to argue that Mr. Jones fabricated his mental state defense and

8

deprived the jury of the information it needed to conclude that Mr. Jones’s mental

9

state defense was meritorious. In particular, the jury was deprived of: (1) the

10

wealth of corroborating evidence supporting Mr. Jones’s mental state defense,

11

including the mitigating evidence pertaining to both the Harris crime and capital

12

crime; (2) the corroborating records the prosecution possessed describing Mr.

13

Jones’s long-standing mental illness and legitimate need for antipsychotic

14

medication while incarcerated; and (3) the full extent of Mr. Jones’s own testimony

15

about his mental illness.

16

hearing the second defense that there was a reasonable doubt whether Mr. Jones

17

had pre-mortem sexual contact with the victim. If the jurors had heard these two

18

defenses in full, they would have acquitted Mr. Jones of rape and first-degree

19

murder based on a rape felony-murder theory and found the rape special

20

circumstance to be untrue. Instead, the jurors wrongly and prejudicially convicted

21

Mr. Jones of a capital offense.

Trial counsel’s errors also prevented the jury from

22

At the penalty phase, trial counsel’s errors meant that the jury never heard

23

readily available and compelling mitigating evidence that would have changed the

24

penalty phase outcome, including the physical abuse, sexual abuse, brain damage,

25

neglect, and homelessness that Mr. Jones suffered as a child and the testimony of a

26

well-prepared expert describing Mr. Jones’s debilitating mental illness.

27

counsel’s failures were exacerbated by jurors’ misconduct in prejudging Mr.

28

Jones’s sentence prior to penalty phase deliberations, considering multiple forms of

Trial

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1

prejudicial extrinsic evidence, and in one juror’s case, sleeping during critical

2

portions of the defense’s penalty phase presentation. Finally, at both phases of

3

trial, forced medication and improper alterations in Mr. Jones’s medication

4

regimen inhibited his capacity to respond authentically to the proceedings, thus

5

depriving the jury of critical information about his impaired mental functioning

6

and mitigating expressions of remorse and compassion.

7

The combined effect of these constitutional errors rendered Mr. Jones’s guilt

8

phase and penalty phase defenses “far less persuasive than [they] might [otherwise]

9

have been,” Chambers, 410 U.S. at 294, 302-03.

10

Thus, Mr. Jones’s capital

conviction and death sentence both violate due process.

11

3. Section 2254 does not bar relief on this claim.

12

In 2009, the state court summarily denied Mr. Jones’s cumulative error claim

13

as failing to state a prima facie case for relief. To the extent that the state court’s

14

ruling reflects its determination that Mr. Jones failed to plead sufficient facts to

15

establish his claim, its decision is (1) contrary to clearly established federal law

16

and (2) an unreasonable application of Chambers and subsequent Supreme Court

17

jurisprudence under section 2254(d)(1).

18

unreasonably determined the facts under section 2254(d)(2) by finding facts and

19

resolving disputes without adequate process.

In the alternative, the state court

20

The state court’s ineffective assistance of counsel precedents demonstrate

21

that it analyzes cumulative error contrary to clearly established Supreme Court law.

22

As set forth supra, Strickland mandates that a court analyzing whether trial

23

counsel’s ineffectiveness was prejudicial should consider all of the instances of

24

deficient performance and make a cumulative assessment of prejudice. 466 U.S. at

25

495.

26

performance, the state court considers prejudice separately for each instance of

27

deficient performance, Robbins, 18 Cal. 4th at 820-21 (Kennard, J., dissenting)

28

(explaining the state court’s failure to cumulate error), illustrating that its

However, where a petitioner identifies multiple instances of deficient

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1

assessment of cumulative error is contrary to Supreme Court law.

2

The state court’s failure to engage in fact-finding to resolve Mr. Jones’s

3

adequately pled claim is also contrary to federal law that obliges state courts to

4

resolve properly presented federal constitutional claims. See section I.B.1, supra.

5

Finally, by rejecting Mr. Jones’s prima facie claim of cumulative error without any

6

fact-finding or adversarial proceeding, the state court unreasonably applied

7

Chambers and its progeny.55 See Parle v. Runnels, 505 F.3d 922, 927-28 (9th Cir.

8

2007) (murder conviction set aside due to cumulative errors including the trial

9

court’s erroneous exclusion of evidence probative of the central guilt issue, the

10

mentally ill petitioner’s mental state at the time of the crime); Killian v. Poole, 282

11

F.3d 1204, 1210 (9th Cir. 2002) (finding cumulative error and granting habeas

12

relief based on, inter alia, the prosecution’s failure to disclose Brady evidence).

13

As set forth supra, to the extent that the state court made factual findings at

14

the pleading stage in resolving Mr. Jones’s claim of cumulative error, those factual

15

findings were unreasonable under section 2254(d)(2) and violated Mr. Jones’s

16

basic right to confront and rebut the evidence that formed the basis for the court’s

17

adverse decision. See generally Section I.B, supra. Moreover, the state court’s

18

rejection of Mr. Jones’s prima facie claim of cumulative error is an unreasonable

19

determination of the facts because the state court should have made a finding of

20

fact but neglected to do so. See, e.g., Hurles, 650 F.3d at 1312; Williams, 859 F.

21

Supp. 2d at 1160.

22
23
24
25
26
27

55

Moreover, if this Court determines that the state court’s resolution of one or
more constitutional issues on direct appeal or habeas was unreasonable under
section 2254(d)(1), this also renders the state court’s cumulative error analysis
unreasonable under section 2254(d)(1), because the cumulative error analysis
depends on the correct identification of errors. See Panetti, 551 U.S. at 953
(section 2254(d)(1) is satisfied when the state court’s adjudication of a claim “is
dependent on an antecedent unreasonable application of federal law.”)

28
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1
CONCLUSION

2
3

Mr. Jones renews his motion for an evidentiary hearing on each of the

4

above-briefed claims. On March 26, 2012, this Court denied Mr. Jones’s Motion

5

for an Evidentiary Hearing without prejudice, ruling that “Mr. Jones must first

6

demonstrate that he has satisfied the requirements of the [AEDPA], 28 U.S.C. §

7

2254(d), based solely on the state court record, before this Court will consider his

8

request for an evidentiary hearing.” See ECF No. 75 at 2. In this brief, Mr. Jones

9

has demonstrated that he satisfies the limitations of section 2254(d) with respect to

10

each claim on which he seeks an evidentiary hearing.

Moreover, Mr. Jones

11

diligently sought an evidentiary hearing in state court.

12

Accordingly, no further obstacle precludes this Court from granting Mr. Jones an

13

evidentiary hearing.

State Pet. at 427.

14
15
16

Dated: December 10, 2012

Respectfully submitted,
HABEAS CORPUS RESOURCE CENTER

17
18
19
20
21
22

By: / s / Michael Laurence
Michael Laurence
Barbara Saavedra
Cliona Plunkett
Bethany Lobo
Attorneys for Petitioner
Ernest Dewayne Jones

23
24
25
26
27
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