Stankewitz v. Brown, et al

Filing 600

Memorandum and ORDER GRANTING Petition for Writ of Habeas Corpus signed by Chief Judge Anthony W. Ishii on 9/21/2009. CASE CLOSED (Figueroa, O)

1 2 3 4 5 6 7 8 9 D O U G L A S RAY STANKEWITZ, 10 11 13 14 15 16
P e titio n e r Douglas Ray Stankewitz ("Stankewitz") appears before this vs. o f San Quentin State Prison, P e t it i o n e r , ) ) ) ) ) ) ) ) ) ) ) C a s e No. 1:91-cv-616-AWI D E A T H PENALTY CASE M e m o ra n d u m and Order Granting P e titio n for Writ of Habeas Corpus U N IT E D STATES DISTRICT COURT E A S T E R N DISTRICT OF CALIFORNIA

12 R O B E R T WONG, Acting Warden
R e s p o n d e n t.

17 C o u r t pursuant to a partial remand of his petition for a writ of habeas corpus by 18 th e Ninth Circuit. See Stankewitz v. Woodford, 365 F.3d 706 (9th Cir. 2004). 19 Stankewitz's initial federal petition was denied on the merits as to all claims 20 D e c e m b e r 22, 2000. Doc. 448. 21
In 2000, as the parties prepared for expert depositions in contemplation of

22 a federal evidentiary hearing, Stankewitz for the first time produced a 23 v o lu m in o u s set of documents he represented were relied on by his experts in 24 p r e p a r in g their opinions. See Doc. 443, Notice of Filing, (hereafter "Jointly Filed 25 D o cu m e n ts " ). At the same time, the grant of an evidentiary hearing was vacated, 26 a n d Stankewitz's federal petition was subsequently denied. In denying the

1 p r e s e n t claim, this Court found that Stankewitz had not established prejudice. 2 Doc. 448, at 83. Specifically, this Court concluded that: (1) Stankewitz was aware 3 th a t evidence of his background could be presented, but he had objected to any 4 s u c h testimony; (2) Stankewitz objected at both trials to the presentation of expert 5 te stim o n y ; (3) despite Stankewitz's continued opposition to a mental defense, 6 G o o d w in had introduced evidence of his background and upbringing through 7 th e testimony of Joe Walden, the former director of juvenile probation for Fresno 8 C o u n ty ; and (4) Goodwin's use of Walden may have been a tactical choice (one 9 w h ic h this Court noted was also used by counsel at the first trial), "since as a 10 p r o b a tio n officer Mr. Walden could have been seen as having a higher level of 11 c r e d ib ility than would Stankewitz's family, the majority of whom had either 12 c r im in a l records, histories of drug abuse or both." Doc. 448, at 83-84. 13
While disagreeing with the Warden's contention that the aggravating

14 e v id e n c e was so overwhelming additional mitigating evidence could not have 15 m a d e a difference, this Court nonetheless concluded that "Mr. Goodwin made an 16 im p a s s io n e d plea for mercy and did present mitigating evidence to the jury 17 th r o u g h Mr. Walden's testimony," that "the mitigating evidence Mr. Goodwin 18 fa ile d to present is neither compelling nor exculpatory," and that much of it was 19 c u m u la tiv e of the evidence presented at trial. Id., at 84. Focusing on Stankewitz's 20 m e n ta l health claims, and referencing numerous documents from the Jointly 21 F ile d Documents, this Court rejected the opinions of experts hired by Stankewitz 22 d u r in g the federal post-conviction proceedings and concluded that substantial 23 e v id e n c e at the time of the second trial supported the diagnosis of antisocial or 24 s o c io p a th ic personality disorder made by the experts from the first trial. Id., at 25 1 6 -1 8 , 85. This Court further concluded the record supported Goodwin's 26 a s s e r tio n that Stankewitz would not consent to the presentation of mitigating
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1 e v id e n c e from family members, as no family members had testified at the first 2 tr ia l. Id., at 85. Finally, this Court concluded that Stankewitz could not establish 3 p r e ju d ic e as it was not reasonably probable that additional mitigating evidence 4 w o u ld have resulted in a life sentence given the circumstances of the crime, 5 S ta n k ew itz 's extensive violent criminal history, and his continuation of violent 6 b e h a v io r while in prison. Doc. 448, at 85. 7
T h e Ninth Circuit, after affirming this Court's denial of the petition in all

8 o th e r respects, remanded for an evidentiary hearing on the sole claim of 9 in e ffe c tiv e assistance of counsel during the penalty phase of trial, holding that 10 S ta n k ew itz raised a colorable claim Hugh Goodwin, his attorney at his second 11 tr ia l, rendered ineffective assistance by failing to give the jury mitigating 12 in fo r m a tio n "that might have humanized Stankewitz," and that as a result 13 G o o d w in 's performance fell below constitutionally acceptable professional 14 s ta n d a r d s . Stankewitz v. Woodford, 365 F.3d at 708, 720-22, 724. In determining 15 w h e th e r Stankewitz had raised a colorable claim, the Circuit was compelled to 16 v ie w as true all of Stankewitz's factual allegations, included the long-disputed 17 a s s e r tio n that Goodwin had not obtained or reviewed any of counsel's records 18 fr o m the first trial. 19
N e w counsel was appointed to represent Stankewitz in his federal habeas

20 p ro ce e d in g December 18, 2007, and the parties subsequently agreed to brief the 21 m e r its of the remanded claim based on the evidence currently in the record, with 22 th e provision that the briefing be without prejudice to a future request for an 23 e v id e n tia r y hearing. Stankewitz filed his brief in support of the remanded claim 24 N o v e m b e r 19, 2008. Doc. 587. Respondent Robert Wong ("the Warden") filed 25 h is opposing brief February 18, 2009. Doc. 589. Stankewitz filed his reply brief 26 M a y 29, 2009. Doc. 597.
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1 S ta n d a rd of Review 2
T h e standard for ineffective assistance of counsel claims is set forth in

3 S trick la n d v. Washington, 466 U.S. 668 (1984). Stankewitz must establish that his 4 c o u n se l's performance was deficient and that the deficiency prejudiced the 5 o u tc o m e of his trial. Id. at 689, 694. Counsel's failure to investigate and present 6 m itig a tin g evidence presents serious constitutional concerns. Wiggins v. Smith, 7 5 3 9 U.S. 510 (2003); Williams v. Taylor, 529 U.S. 362 (2000). Both cases emphasize 8 c o u n se l's duty to conduct a thorough investigation, and Williams states that 9 m e r e ly presenting some evidence does not discharge counsel's duty. Rather, a 10 p e n a lty phase ineffective assistance claim depends on the magnitude of the 11 d is c r e p a n cy between what counsel did investigate and present and what counsel 12 c o u ld have investigated and presented. Stankewitz v. Woodford, 365 F.3d 706, 71513 7 1 6 (9th Cir. 2004) (citing Wiggins and Williams). 14 S u m m a ry of the Parties' Respective Arguments 15
S ta n k e w itz argues he has presented sufficient evidence, which is largely

16 u n co n te s te d , which supports the finding that Goodwin's performance at the 17 p e n a lty phase was deficient under the established principles governing counsel 18 in capital cases, and that Stankewitz was prejudiced by Goodwin's failure to 19 in v e s tig a te and present any more than minimal mitigation at penalty, as well as 20 p re s e n t available evidence undermining aggravation. 21
T h e Warden argues in opposition that the established facts of this case

22 h a v e changed dramatically since the remand by the Ninth Circuit, especially the 23 r e v e la tio n of the fact that Goodwin did obtain and review the trial counsel's files 24 fr o m Stankewitz's first trial, and that those changes undermine the remanded 25 c la im and conversely support this Court's earlier rejection of the claim. 26
S ta n k e w itz replies that despite the Warden's assertions, the great bulk of

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1 fa c ts in the record are uncontested and are more than sufficient to justify penalty 2 p h a s e relief. The Warden's arguments do not change the fact that (1) Goodwin 3 r e n d er e d deficient performance by not conducting an independent investigation, 4 n o t hiring investigators or experts, and presenting a minimal, cursory and 5 u n p e rs u a siv e mitigation case, (2) Stankewitz was prejudiced by the jury's lack of 6 k n o w le d g e about his toxic upbringing; and (3) Stankewitz was further prejudiced 7 b y Goodwin's failure to present available evidence that Stankewitz may not have 8 fir e d the shots that struck a police officer (aggravating evidence which was 9 p re se n ted by the prosecutor to show prior acts of criminal conduct). 10 T h e Warden's argument 11
S p e c ific a lly , the Warden contends that Stankewitz's remanded claim

12 a lle g e d Goodwin failed to adequately investigate and present available 13 m itig a tin g evidence about his character and background. In support of this 14 c la im , Stankewitz submitted a lengthy description of Stankewitz's background 15 a n d upbringing, supported primarily by declarations prepared on his behalf and 16 in a few instances by references to official records (which were not filed), and by 17 a 1995 declaration from Goodwin stating he had not obtained or reviewed the 18 file s of trial or appellate counsel from the first trial. Stankewitz asserted that with 19 ju s t the effort required to read the transcript from his first trial, Goodwin could 20 h a v e presented some of Stankewitz's relevant background and history. 21
T h e Warden observes that some of the factual representations relied on by

22 th e Ninth Circuit are untrue, and that Stankewitz now concedes Goodwin 23 o b ta in e d the files of counsel from his first trial, and reviewed them and the 24 tr a n s c rip ts . This concession means the contrary statement in Goodwin's 1995 25 d e c la ra tio n was false, and that Goodwin was aware of virtually all of the facts of 26 s ig n ific a n c e to Stankewitz's current claim.
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T h e Warden objects to Stankewitz's criticism of Goodwin for failing to

2 p r e s e n t evidence of the violence, neglect, substance abuse and criminality within 3 h is family, asserting Stankewitz fails to adequately account for timelines which 4 e s ta b lis h he had little exposure to these family members after age six. The 5 r e co rd s suggest that from the time he was removed from his family at age six, 6 u n til he murdered Theresa Greybeal in February 1978, at age 19, Stankewitz was 7 w ith his mother for a total of no more than seven months, with his father for less 8 th a n three weeks, and with his aunt Maggie Marquez for a total of no more than 9 n in e months. While the record leaves little room for doubt about the failings of 10 S ta n k e w itz 's parents, siblings and other family members, the Warden argues few 11 s p e c ific s are provided about the first six years of his life, and Stankewitz does not 12 a tte m p t to correlate his accusations of family dysfunction to the relatively narrow 13 p e r io d s of time he spent with his family. The Warden contends that, while is it 14 u n d is p u te d Stankewitz was taken from his home at age six after his mother beat 15 h im on two occasions, the record does not include suggestions of on-going 16 p h y s ic a l abuse, pointing to statements by his mother that their father "never hit 17 th e children" and only spanked his sister once, that she "never really spanked 18 a n y of the children," and that the beatings of Stankewitz were isolated and out of 19 th e ordinary. See Petitioner's Supplement to Joint Submission ("SJS"), filed April 20 2 3 , 2008, Doc. 556, Vol. 3, page 269, and Doc. 558, Vol. 9, page 1044. 21
T h e Warden objects to Stankewitz's criticism of Goodwin for failing to

22 p r e s e n t mitigation from the time Stankewitz spent at Napa State Hospital 23 (" N S H " ) and in the foster home of Ms. Bollmeyer, arguing the allegations of 24 s e x u a l abuse and inappropriate medication and placement at NSH, as well as 25 o u t-o f-c o n tr o l and disturbed behavior, requirement of heavy medication, and 26 la ck of basic life skills while in foster care, are based on the thinnest of evidence,
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1 a lm o s t entirely drawn from a highly questionable source, Ms. Bollmeyer's 2 d a u g h t e r Rosetta. 3
T h e Warden disputes Stankewitz's allegation that Goodwin should have

4 fu rth e r investigated and presented evidence of impaired intellectual functioning 5 a n d brain damage, and contends the expanded record now before the Court 6 s u p p o rts the prior finding that Stankewitz was not incompetent or suffering from 7 a mental disease or disorder. The Warden also disputes the allegation that 8 G o o d w in failed to present evidence of Stankewitz's drug use at the time of the 9 c r im e , asserting that evidence was presented of his drug use before the murder 10 a n d that the new evidence alleging Stankewitz used marijuana, heroin and 11 a lc o h o l with his brother Willie in the days before the crime is not reliable and is 12 in c o n sis te n t with other evidence. 13
T h e Warden disputes Stankewitz's allegation that Goodwin should have

14 fu rth e r investigated and presented evidence that Stankewitz's brother Johnny 15 w a s in the car during the 1973 CHP shootout, and that there was a strong 16 p o s sib ility Johnny, and not Stankewitz, was the shooter. The Warden asserts 17 Jo h n n y 's statement does not provide evidence he was the shooter, but incredibly 18 a tte m p ts to lay blame for the shooting on his deceased friend Eddie Davis, 19 c o n te n d in g that Eddie fired the shotgun out the passenger window or out the 20 b a c k window through the small crack under the open trunk while keeping his 21 fo o t on the accelerator and having Stankewitz steer the car. Even if this evidence 22 is viewed as raising a doubt that Stankewitz was the shooter, the Warden 23 c o n te n d s that at a minimum Stankewitz aided and abetted the shooting, so a 24 ta ctic a l choice not to present such evidence was reasonable and understandable. 25 S ta n k e w itz 's Allegations of Non-Presented Mitigation 26
S ta n k e w itz 's factual allegations of potential mitigation fall into three

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1 c a te g o r ie s : (1) childhood of abuse/ neglect; (2) history of mental illness; and (3) 2 s u b s ta n ce abuse/ lack of sleep prior to the murder. In the first category, 3 S ta n k e w itz submitted agency documents detailing the abuse and neglect which 4 r e su lte d in his removal from home at a young age, numerous declarations from 5 fa m ily and friends relating the poverty and abuse (both physical and mental) 6 s u ffe r e d by Stankewitz in his home, and medical records and declarations 7 in d ic a tin g the difficulties Stankewitz experienced in subsequent state institutions 8 a n d foster homes. Of the 16 allegations in the first category, most are shown by 9 g o v e r n m e n t or medical records, although some have questionable support. 10 1 -A . S ta n k ew itz 's difficult and traumatic youth, up to age six, included: 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
Stankewitz's parents, Marian Sample and William R. "Sonny" Stankewitz, w e r e married 1/18/55 - at which time his mother already had two children: Frank M o n tg o m e r y (dob: 1951) and Gary Lewis (dob: 6/7/54). Marian and Sonny had nine c h ild r e n : Glenda, born 8/17/55; William "Willie" & Wilma "Tillie", twins born 3 /2 6 /5 7 ; Douglas, born 5/31/58; Johnnie, born 8/17/59; Roger, born 1/2/61; Rhonda, b o rn 1/24/62; Teddy, born 2/12/64; and Rodney, born 3/29/66. At the time S ta n k e w itz was removed, there appear to have been nine children in the home R o d n e y was not yet born, and a March 1965 report does not list Frank Montgomery w ith the other children in the home (which is consistent with a report that Frank liv e d with his maternal grandmother until he was 15). SJS 0073, Doc. 556, Vol. 1. T h e ages of the children at home when Stankewitz was removed, in February of 1 9 6 5 , were: Gary 10, Glenda 9, Willie & Tillie 7, Douglas Stankewitz 6, Johnnie 5, R o g e r 4, Rhonda 3, and Teddy 1. 2 Although the Stankewitz house was reported to be dilapidated but clean in a March 1965 report, 1965, SJS 0071 (Doc. 556, Vol. 1), subsequent inspections
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a psychiatrist's description of his home as "totally lacking in love, w a r m th and affection and frequently filled with deprivation, r e je c tio n and punishment;"

b.

a poverty-stricken household where there was often not enough fo o d for the children;1

c.

a house that was dirty, filled with vermin and without running w a te r or electricity;2

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d.

s ta rtin g to sniff paint by age five, and soon expanding into the use of a lc o h o l and harder drugs 3 ;

e.

p h y s ic a l and mental abuse by both parents - being taken to the e m e r g e n c y room three times before his first birthday 4 ;

f.

a mother who drank excessively while pregnant with him, was also p h y s ic a lly abused by his father, who struck her repeatedly in the abdom en;

g.

a violent father of Native American descent who ridiculed him for b e in g light-skinned and told him not to take medication prescribed to control his behavior;

h.

a mother who beat him so badly with an electrical cord at age six th a t she was jailed and he was placed into state care 5 ;

i. j.

o ld e r siblings who also abused the younger ones, especially him 6 ; a t least one scar, "a substantial indentation on his cranium," which r e m a in s as a reminder of the physical abuse.

17 r e v e a le d sub-standard living conditions in October 1967, SJS 2055 (Doc. 559, Vol. 18, 18 2 0 3 9 (Doc. 559, Vol. 17, home "barely adequate," "care and control of said minors 19 20 21 22 23 24 25 26
re la tin g filthy conditions and neglect of minor children) and September 1969, SJS a p p e a r s to be marginal"). 3 Stankewitz stated his increased drug and alcohol use began at age 11-12. SJS 2 3 5 , Doc. 556, Vol. 2 (Dr. LaDue's 1989 psychological evaluation). 4 The Warden asserts these emergency room visits were for routine childhood illn e s s e s . 5 The Warden asserts the record does not include allegations of on-going p h y s ic a l abuse, pointing to Marian's statements that Sonny "never hit the children" a n d only spanked Glenda once, that she "never really spanked any of the children," a n d that the beating of Stankewitz was isolated and out of the ordinary. SJS 269, D o c . 556, Vol. 3, and 1044, Doc. 558, Vol. 9. This assertion is contradicted by G le n d a 's statement that Marian used to regularly beat all of the kids. SJS 1255, Doc. 5 5 8 , Vol. 11, (Dec. 17, 1989 interview by Howard Liptzin, Solomon Investigations). 6 The Warden contends the allegations regarding Frank Montgomery's abuse o f his younger half-siblings are not applicable to Stankewitz, as he was removed fr o m the home prior to Frank's living there, and Frank was in jail by the time S ta n k e w itz returned home.
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1 1 -B . 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

S ta n k e w itz 's difficult and traumatic youth, after removal from his home, in c lu d e d : k. b e in g shuffled from one state institution to another after removal fr o m home; l. " c a r e " at NSH that was indicative of the balance of his time as a w a r d of the state: he was sexually abused by hospital staff 7 , heavily m e d ic a te d and placed among psychotic and autistic children even th o u g h he was not similarly diagnosed; m. u p o n transfer to the Bollmeyer foster home from NSH, he tore apart th e back seat of the car, was "like a wild animal" and had to be held d o w n by three teenage boys, was prescribed extremely high doses of m e d ic a tio n , would often wet and defecate in bed, smeared feces on th e wall, continued wetting the bed until at least age 12;8 n. M s . Bollmeyer had to teach him to talk instead of grunt, use the to ile t, dress himself, use silverware and ask instead of grab; o. h e was removed from the Bollmeyer home and spiraled through 22 s u b s e q u e n t placements in eight years;

Contradicting this assertion, Stankewitz stated his first sexual experience w a s at age 10 in a foster home, and he recalled it as pleasurable. SJS 227-228, Doc. 5 5 6 , Vol. 2 (4/78 interview by Ross Becker). 8 Some of these allegations are questionable. The facts in subsections m. and n . are not consistent with reports of Stankewitz's behavior as related in NSH r e c o r d s . To the extent the source for the allegations is the foster mother in S e b a s to p o l, Ms. Bollmeyer, her credibility may be undermined in light of lies that s h e told to Stankewitz's teacher, Mrs. Hunt (i.e., that Stankewitz and his siblings w e r e kept in cages by their parents, that he couldn't stand up straight because his c a g e was too short, that his siblings were also at NSH). See SJS 822-24, Doc. 558, Vol. 8 and SJS 821A, Doc. 561. If the source is Ms. Bollmeyer's daughter, Rosetta, her c r e d ib ility is undermined by statements from her brother Rick of the conflict b e tw e e n Rosetta and their mother and Rosetta's resulting animosity toward the fo s te r children, see SJS 14, Doc. 556, Vol. 1, and by inconsistencies between her a lle g a tio n s and statements made by Stankewitz.
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p.

fr o m his placement at NSH until his arrest for the murder, a total of n e a rly 13 years, he spent all but 16 months in some form of g o v e r n m e n t care, during which he was massively and unnecessarily d r u g g e d , tied to beds, beaten, sexually molested, neglected, d e lib e ra te l y tortured, and otherwise abused by staff.

In the second category, Stankewitz submitted opinions of three experts

7 w h o agree he is brain-damaged, as well as expert testimony from the first trial 8 th a t he appeared "not to fully appreciate the flow of events or the full 9 im p lic a tio n s of his actions," and medical reports indicating mental or emotional 10 p r o b le m s when he was a child. Although the Ninth Circuit observed that some 11 o f the habeas experts' conclusions were rejected in denying Stankewitz's guilt 12 p h a s e claims of diminished capacity and insanity, they stated the remaining 13 c o n clu s io n s "could have invoked sympathy from at least one juror," especially 14 w h e n considered in conjunction with other mitigation. Stankewitz v. Woodford, 15 3 6 5 F.3d at 718 n.6. 16 2 . 17 18 19 20 21 22 23 24 25 26
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S ta n k e w itz 's history of mental illness: a. a n expert at the first trial testified he appeared "not to be fully able to appreciate the flow of events or full implications of his actions;" b. c. a ll three habeas experts agreed he is brain-damaged; D r . Riley opined he is borderline mentally retarded, with an IQ of 79, a n d suffers from significant brain dysfunction, perhaps attributable to Fetal Alcohol Syndrome and childhood abuse; d. D r . Rosenthal said his brain damage "would produce problems with e m o tio n a l control, tendencies to be impulsive and unpredictable, a n d to be unable to exercise adequate judgment or to understand the c o n s e q u e n c e s of his behavior. Furthermore, from early childhood

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e.

M r . Stankewitz had intense mood shifts, profound depressions with s u icid a l tendencies, psychotic thinking, an inability to relate to r e a lity in a rational manner, and paranoid delusional thinking;" a report at age 12 reveals he suffered from problems with a "sudden lo s s of control, during which he becomes abusive, uses vile la n g u a g e , and actually becomes combative." During one of these fits , he was placed in a padded room at Juvenile Hall and was o b s e r v e d "actually biting the walls." In the third category, Stankewitz submitted numerous declarations

10 d e ta ilin g his severe substance abuse starting at age 10, and a co-defendant's 11 d e c la r a tio n that Stankewitz injected heroin just prior to the murder. Only the 12 a lle g a tio n s that Stankewitz was sleep-deprived at the time of the murder and that 13 th e heroin dose was the "largest he'd ever had" have questionable support. 14 3 . 15 16 17 18 19 20 21 22 23 24 A n a l y s i s 25
E v e n accepting the Warden's objections to some of Stankewitz's c. b. S ta n k e w itz ' s substance abuse and lack of sleep prior to the murder: a. h e claims that, for at least the 48 hours before the murder, he had b in g e d on substantial quantities of alcohol, heroin and m e th a m p h e ta m in e , and had not slept; h e also claims to have injected the largest dose of heroin he had ever ta k e n shortly before the murder, which he claims lessened his a lr e a d y diminished ability to control his behavior; h e had a "very severe" substance abuse problem dating back from as e a r ly as age 10 or younger which likely aggravated his unstable e m o tio n a l state and limited mental capacity.

26 a lle g a tio n s , the evidence shows Stankewitz was already severely emotionally
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1 d a m a g e d by the time he was removed from his home at age six. He was out of 2 c o n t ro l and exhibited acting out behavior, had frequent temper tantrums, 3 in c lu d in g hitting, kicking and biting, and was often only controlled with extreme 4 m e as u r es (restraints or drugs). SJS 056-057, Doc. 556, Vol. 1 (March 1965 letter 5 fr o m Probation Officer Joe Walden). "While in the County Hospital, the minor 6 p r e s e n te d almost uncontrollable behavior problems and the hospital staff had to 7 u s e physical restraints to keep Douglas under control. . . . He was transferred to 8 [a ] foster home by a social worker and while in route, he ran away from her and 9 w h e n she caught him, he kicked and hit her before she was able to subdue him. 10 His placement in this foster home lasted for only 24 hours due to the fact that the 11 fo s te r parents were not able to control Douglas. While in the first foster home, 12 D o u g las threw chairs and threatened to run away and kept the foster parents 13 a w a k e all night long. The following day, this officer and a social worker 14 tr a n s p o r te d Douglas to a second foster home. Upon arrival there, Douglas 15 a tte m p te d to run away and kicked and hit this officer, as well as attempting to 16 b ite him. The foster parents were unable to control Douglas and he was removed 17 fr o m this foster home eight hours later and placed in Juvenile Hall . . . ." SJS 8718 8 8 , Doc. 556, Vol. 1 (Dec. 8, 1965 probation report by Joe Walden). 19
S ta n k e w itz was somewhat stable for the four years he spent in Ms.

20 B o llm e y e r 's foster home in Sebastopol, although he was eventually returned to 21 F re s n o in 1970 at Ms. Bollmeyer's request because he was uncontrollable. By 22 th e n , at age 12, Stankewitz had "many emotional problems . . . and at many 23 tim e s , [wa]s hostile and require[d] physical restraint to be used in order to 24 c o n tr o l him. . . . when he [wa]s pressed or put in a frustrating situation, he often 25 r e a c t[e d ] by becoming violent." Despite these problems, the evaluation of 26 S ta n k e w itz 's prognosis was good, and it was believed that with the planned
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1 in v o lv e m e n t in his case, he would come around and learn to control his 2 e m o tio n a l outbursts. SJS 105-106, Doc. 556, Vol. 1 (May 1970 report by Probation 3 O ffice r Roger Nelson). 4
H o w e v e r , in 1971 the assaults on others began: August 9 - he was with

5 th r e e adults during an assault and robbery of an older man; August 19 - he hit 6 a n d injured a smaller boy at Juvenile Hall. In 1972, he was sent to CYA, mainly 7 fo r being out of control. At this point, Stankewitz had been through at least 14 8 p la ce m e n t changes in the 25 months since his removal from the Bollmeyer foster 9 h o m e . After nine months in CYA, he was paroled to his aunt Maggie Marquez, 10 a n d then went to live with his mother when she was paroled to Fresno. 11
O n April 24, 1973, just three and a half months after his release from CYA,

12 S ta n k ew itz was involved in the assault of George Key and robbery of his car, and 13 a subsequent CHP chase and shooting, which ended with the killing of co14 p a rtic ip a n t Eddie Davis. Stankewitz was returned to CYA, where he exhibited 15 " n o remorse for what had happened - except that he had been caught, no 16 a s s u r a n c e that parallel occurrences would not happen when again on the streets. 17 . . . Doug feels no responsibility for depriving anyone of property, health or even 18 life , enjoying the excitement of the chase. Although ingratiating and pleasant, I 19 h a v e come to believe this to be surface stuff only. I look upon this youth as 20 d a n g er o u s ." SJS 164, Doc. 556, Vol. 2 (June 1973 Youth Authority report by 21 E d w a rd Mueller). 22
T h e reports from this period also indicate (1) Stankewitz was extremely

23 v io le n c e prone, and diagnosed with an antisocial personality; (2) there were 24 n u m e r o u s incidents at CYA during which Stankewitz relied on prison-type 25 in tim id a tio n and pressure in his interaction with other wards, and was not 26 a m e n a b le to influence or external controls by the authorities; and (3) Stankewitz
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1 s a w aggressive behavior, even hurting or killing others, as the solution to his 2 f r u s tr a tio n s . 3
H e was furloughed to his aunt Maggie Marquez after two and a half years

4 in CYA, but arrested on battery charges six days later. He was returned to CYA, 5 a n d paroled after three and a half months. By this time, at age 18, he was 6 h a r d e n e d by the years of criminal associations and surroundings. Stankewitz 7 h a d a "deprived background, being institutionalized early in his life and 8 e s s e n tia lly raised in institutions. He has a history of assaultive behavior, both in 9 th e community and in Youth Authority institutions." SJS 007, Doc. 556, Vol. 1 10 (M a y 1977 Probation Report by Dean Thompson). "From an early life 11 d e v e lo p m e n ta l standpoint, [Stankewitz] has suffered from early childhood 12 lo s s e s , prolonged separation from parents, poor institutional surrogate care. This 13 h a s resulted in poor social adjustment as manifested by frequent runaways, 14 b e h a v io r problems, scholastic under-achievement and finally culminating in anti15 s o c ia l behavior which has occurred both in and out of institutional placements." 16 SJS 228, Doc. 556, Vol. 2 (May 1978 Social Evaluation by Ross Becker). 17
S ta n k e w itz was arrested two and a half months later and although the

18 in itia l charges were dropped, he was charged with assault on a booking officer 19 a n d sentenced to county jail. He was released after nine months on January 14, 20 1 9 7 8 . He and an accomplice (who had a gun) robbed a gas station on January 20, 21 a n d later the same night he robbed two massage parlor customers. On January 22 2 5 , he assaulted customers of a Sacramento card room and attempted to commit 23 r o b b e r y . On February 8, 1978, he and his accomplices kidnapped, car jacked, and 24 u ltim a te ly murdered Theresa Graybeal, then later the same evening attempted to 25 r o b Jesus Meraz, a.k.a. Valenti Cordero. 26
A lth o u g h some of the mitigation allegations in the first category (listed on
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15

1 p a g e s 8-11 above) have limited support or are undermined by other documents, 2 th e record as a whole shows Stankewitz was psychologically and emotionally 3 d a m a g e d by his upbringing. See Summary Chronology of Stankewitz's 4 C h ild h o o d , Appendix A. Dr. James Missett testified at the first trial Stankewitz's 5 u p b r in g in g included the criteria for developing an anti-social personality. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 1 9 7 8 trial RT, Vol. 22, pages 4697-98, testimony of Dr. James Missett; SJS 661, Doc. 20 5 5 7 , Vol. 6 (Summary of mental health expert testimony by Quinn Denvir). 21
T h e Ninth Circuit made the following findings on remand: (1) "Stankewitz [T ] h e criteria we look for [in the development of an antisocial p e r s o n a lity ] are perhaps 20 in number, most of which Mr. S ta n k e w itz has shown at one time or others [sic]. . . . There is a h is to r y of sociopathic or violent behavior in the home. There's very o fte n a history of the individual being abused, especially physically, b u t not necessarily just physically. If there is [sic] a lot of put-downs in the home, that, also, can contribute to it. T h e r e is, in the individual's family, usually, histories of a lc o h o lis m , sometimes, but again not always, criminal behavior, d iffic u lty with work, difficulty in marital relationships, a history of d is r e g a r d for societal institutions sofar as the importance of school in o n e 's life, the importance of work, the importance of obeying laws, o r in any way responding to what the dictates are of society. There's ­ in the individual, himself ­ and this was evident, also, in Mr. S ta n k e w itz , a history of bed wetting that goes beyond the usual a c c e p te d time of it stopping. The usual accepted time of it stopping is sometime between age three and four. Mr. Stankewitz went ­ had e p is o d e s of bed wetting up through ages 10 and 11. There are also e p is o d e s of fire setting, and I don't remember if he had episodes of fir e setting or not, of truancy, difficulty with all types of authorities, o u ts id e the home, of poor work habits. As far as I know he has n o n e . I'm not aware of his having been exposed to that situation at a ll, a tremendous amount of difficulty with peers, with anybody in r e la tio n s h ip of authority.

22 h a s alleged facts that, if true, would establish that Goodwin was ineffective for 23 fa ilin g to investigate and uncover the important mitigating evidence outlined 24 a b o v e ," Stankewitz v. Woodford, 365 F.3d at 722; (2) "[a] more complete 25 p r e s e n ta tio n , including even a fraction of the details Stankewitz now alleges," 26 c o u ld have made a difference in Stankewitz's sentence, id., at 724; and (3) "there
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1 w a s a reasonable probability that the jury would not have sentenced Stankewitz 2 to death had it been presented with the evidence of the numerous deprivations 3 a n d abuses Stankewitz alleges that he suffered." Id., at 725. Since many of 4 S ta n k ew itz 's allegations are proved by official documents in the record, the 5 r e q u ir e m e n ts for his ineffective assistance of counsel claim as set forth in the 6 r e m a n d opinion are satisfied. Even assuming that Goodwin's decision not to 7 p re s e n t the entirety of the available mitigating evidence was a tactical choice, the 8 N in th Circuit found such a choice unreasonable, and the result prejudicial. Id. 9 O rd er 10
H a v in g considered all the pleadings, lodged and expanded records,

11 s u b m itte d evidence, and arguments of the parties, the Court determines, as 12 d e t a ile d above, that many of Stankewitz's allegations of mitigation evidence are 13 tr u e . Stankewitz's petition for a writ of habeas corpus is granted as to the 14 r e m a n d e d claim alleging ineffective assistance of counsel at the penalty phase of 15 h is second trial. A writ of habeas corpus shall issue directing the State of 16 C a lifo rn ia to vacate and set aside the death sentence in People v. Douglas Ray 17 S tan kew itz , Fresno County Superior Court Case No. 227015-5, unless within 90 18 d a y s of the entry of judgment of this order, the State of California initiates 19 p r o ce e d in g s to retry Stankewitz's sentence. In the alternative, the State of 20 C a lifo rn ia shall re-sentence Stankewitz to life without the possibility of parole. 21
T h e Clerk is directed to enter judgment in this case.

22 IT IS SO ORDERED. 23 DATED: 24 25 26
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September 21, 2009 /s/ Anthony W. Ishii Chief United States District Judge

17

1

A p p e n d ix A

2 S u m m a ry Chronology of Stankewitz's childhood 3 E x ce r p ts from Jointly Filed Documents (Notice of Filing: Doc. No. 443) and 4 S u p p le m e n tal to Joint Submission Documents (Doc. Nos. 556-559, 561). 5 6 5 /3 1 /5 8 7 1 1 /1 8 /6 4 8 9 10 11 12 14 15 16 17 3 / 1 6 / 6 5 18 19 20 21 22 5 / 2 4 / 6 5 23 24 25 26
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D a te of Birth, Douglas Stankewitz r e p o rte d beating to Fresno Police Department, police picked him up " in shock," Sonny was in jail ta k e n to police by neighbor, found at their door after beating in Fresno Co. Hospital (removal from home due to abuse) r e le a s e d from hospital 2 unsuccessful foster home placements, runaway threats & attempts, th r e a t to throw chair/self through window, hitting, kicking, etc. in Juvenile Hall pending placement, problems in younger boys unit, tr a n s fe r r e d to girls unit P s y c h Eval., Dr. Simmang: erratic and unpredictable behavior, r e q u ir e d restraints, rapid mood changes, average normal in te llig e n c e , no signs of psychosis, recommend further exam at Napa S ta te Hospital Jo e Walden (Fresno Co. Probation) letter to Napa State Hospital r e q u e s tin g admission N a p a State Psychiatric Hospital (uncorroborated allegations of s e x u a l abuse while here, assumption made by Rosetta Bollmeyer b a s e d on ambiguous statement by Stankewitz) Donn Beddle, Ph.D.: average intellectual potential, difficulties c o n tr o llin g himself emotionally C.W. Brackenridge, Ph.D.: mild hyperactivity, some aggressiveness, IQ of 85 Napa Hospital: diagnosis of adjustment reaction of childhood, c o n d u c t disturbance; emotionally disturbed, severe tantrums, e x tr e m e ly aggressive behavior, immature speech le tte r recommending discharge from Napa Hospital and for foster c a r e , diagnosis - not mentally ill

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r e le a s e d from Napa Hospital, no appropriate foster homes in Fresno p la c e d in Santa Rosa/Sebastopol foster home of Rosamond B o llm e y e r Stankewitz alleges first sexual experience about age 10, also same a p p r o x im a te age began sniffing paint/gas, using wide range of drugs & alcohol including hallucinogens r e m o v e d from Bollmeyer's home (Bollmeyer stated he was difficult to handle, uncontrollable and requested his removal) r e tu r n e d to Juvenile Hall by new foster parents, who stated he was o u t of control (over next 6-7 weeks: rotated between being with m o th e r , in foster care or juvenile hall) p o lic e report of Stankewitz & his brother chasing & threatening girls a t Dinkey Playground, mother says she had sent him to Juvenile H a ll numerous times as she could not control him at home P s y c h Eval. w/ EEG, Dr. Zeifert: sudden loss of control, becomes a b u s iv e , uses vile language, combative, ample evidence of neurotic d istu r b a n c e (bitten fingernails and bed-wetting) may be due to e m o tio n a l instability, recommend stable program & medication p r o b a tio n report: adjustment in Juvenile Hall has been less than s a tis fa c to r y , numerous write-ups regarding his behavior have often r e s u lte d in the use of physical restriants & holding room James Caffee, M.D.: although abnormal EEG, doubt outbursts are c a u s e d by seizure because triggered by frustration and not followed b y sleep, no evidence of psychic depression v a r io u s tests, treatments ordered by juvenile court le tte r from probation officer recommending private school C.W. House, Ph.D.: impulse-ridden child, normal intelligence, but p r o c e s s e s are impaired regarding judgment, impulse control, a p p r e c ia tio n of rules and regulations, limited concern for the needs o f others, severe characterological disorder, impulses expressed w ith o u t concern for the consequences to Borrego Palms School tr a n s fe r to Awhanee Schools (closer to home) r a n away to mother's house, taken to Juvenile Hall when refused to r e tu r n to Awhanee P r o b a tio n Report/Social Study, Juvenile Ct, ran away from Awhanee

1968

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w ith aunt Maggie Marquez r e tu r n to Juvenile Hall (assault/robbery), 2 weeks prior spent with u n c le Joe Lopez around Fresno In c id e n t report, Juvenile Hall, hit smaller boy, recommend transfer to A Unit to aunt Maggie Marquez to Juvenile Hall (probation violation, failure to attend school) to father; spent much of this time at aunt Maggie Marquez's or on th e streets, exposed to large quantities of drugs/violence with fa th e r 's motorcycle gang to Juvenile Hall (runaway) r e c e iv e d at NRCC (No. Reception Center Clinic) S o c ia l Evaluation, NRCC, pre-CYA commitment to Los Guilucos School T r a n s fe r Report, Los Guilucos School, behavior hostile & aggressive, n o t able to accept rules, verbally and physically abusive, required fo r c e to restrain, recommend transfer to O.H. Close School to NRCC, medical furlough r e tu r n to O.H. Close School P la c e m e n t Request, O.H. Close School: diagnosis of neurotic acting o u t, has made progress in controlling his temper, growing in selfa w a r e n e s s , doing well in school, continues to be a very unstable y o u n g man, recommend discharge to aunt Maggie Marquez p a r o le d to aunt Maggie Marquez r e tu r n e d to mother after her return from LA following parole on m a n s la u g h te r charge, probation report recommended it would be b e tte r if Stankewitz worked rather than attended school a r r e s te d , drunk r e le a s e d on parole G e o rg e Key assault/GTA, subsequent CHP chase & shooting of E d d ie Davis to NRCC

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R e c o m m itm e n t Report S o c ia l Evaluation, NRCC: "There was no remorse for what had h a p p e n e d ­ except that he had been caught, no assurance that p a r a lle l occurrences would not happen when again on the streets." Feels no responsibility for depriving anyone of health, property or e v e n life, believe his ingratiating and pleasant characteristics are s u r fa c e only, look upon him as dangerous. to O.H. Close School P s y c h Eval., Dr. Melges, "extremely violence prone," concur with dx o f antisocial personality made by Edward Hodgson, M.D. at NRCC o n 6/28/73 P s y c h Eval., Dr. Melges, 2nd session: substantial gains, would like to s e e some kind of moral sense, an ethical concern for others, despite im p r o v e m e n ts , at this stage Stankewitz sees man as an individual a lo n e - hasn't grasped the concept of men interdigitating with others P r o b a tio n Report, Juvenile Ct, recommend release to Aunt Maggie M a rq u e z P s y c h Eval., Dr. Melges, 3rd session: Stankewitz initiated, difficulty c o n tr o llin g anger, quite overtly violent T r a n s fe r Order, O.H. Close School: since arrival not participated in a c a d e m ic or treatment programs, numerous incidents, grossly m is p la c e d with other 16 year olds due to physical size and reliance o n classic prison-type methods of pressuring and intimidation, p o te n tia l for threats & explosiveness, not amenable to influence or e x te r n a l controls, recommend transfer to Karl Holton School P s y c h Eval., Karl Holton School, Adolf Pfefferbaum, M.D.: slightly b e lo w normal intelligence, but may be from profound lack of insight, n o evidence of hallucinations, delusions or psychotic thought p r o c e s s, sees aggressive behavior, hurting and even killing people as th e solution to his frustration, agree with past dx of Sociopathic P e r s o n a lity , antisocial type, considerable allegiance to criminal e le m e n t, potential for future violence is quite high In c id e n t report, CYA, attempted escape r e -e v a lu a tio n at NRCC (7 write-ups at Karl Holton School): not m o tiv a te d to change r e p o rt: drug of choice - hallucinogens P s y c h Eval., Karl Holton School, A. Pfefferbaum, M.D.: 9 additional m o n th s for infractions, not motivated to change, no evidence of

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o b s e s s io n s , hallucinations, thought broadcasting, suicidal ideation or s e v e r e depression, diagnosis of sociopathic personality, antisocial ty p e Y T S (Chino), add'l 18 mos. for infractions (then 15 mos. cut for good p r o g r e s s , obtained high school diploma, taken college courses) a s s a u lt on employee of CYA P s y c h Eval., S. Resnick, Ph.D.: diagnosis of antisocial personality, p o s s ib le psychomotor epilepsy, no evidence of hallucinations, d e lu s io n s, psychotic thinking or behavior, denies any depression D isa b ility Survey, Dx: Sociopathic personality a d m is s io n to Emotional Behavior Program rejected, prognosis for im p r o v e m e n t via psychotherapy judged to be poor P s y c h Eval., H.T. Rondeau, M.D.: no evidence of thinking disorder, d is tu r b a n c e in affect, delusions or hallucinations, oriented to time, p la c e and person, guess IQ to be high normal, Dx: sociopathic p e r s o n a lity , guarded prognosis but feel further institutionalization m ig h t reverse the gains he has made 8 day training furlough, released to aunt Maggie Marquez a r r e s t, battery (returned to CYA) p a r o le d from CYA, to mother a r r e s t (charges dropped); scuffle with booking officers at the S a c r a m e n to County jail resulted in assault charges s e n te n c e d r e le a s e d from Sacramento Co. jail r o b s gas station in Sacramento, accomplice with a gun; later same n ig h t robs two massage parlor customers a s s a u lt to commit robbery in card room, Sacramento T h e r e s a Graybeal kidnapping/murder; Jesus Meraz, a.k.a. Valenti C o r d e r o attempted robbery

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v