Bolin v. Jill L. Brown, et al
Filing
350
MEMORANDUM and ORDER (1) Dismissing without Prejudice Unexhausted Allegations, (2) Denying Claim "C2" Following Limited Evidentiary Hearing, (3) Denying Further Record Expansion and Evidentiary Hearing, (4) Denying Record Based Claims A , B, and D through FF, (5) Denying Amended Petition for Writ of Habeas Corpus, and (6) Issuing Certificate of Appealability for Claims C, I13, L (L1-L4) & W2; Clerk to Vacate Any and All Scheduled Dates and Substitute Ron Davis as Respondent Warden and Enter Judgment, signed by Chief Judge Lawrence J. O'Neill on 6/9/16. CASE CLOSED. (Verduzco, M)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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PAUL C. BOLIN,
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Petitioner,
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v.
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KEVIN CHAPPELL, Warden of San Quentin
State Prison,
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Respondent.
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Case No. 1:99-cv-05279-LJO-SAB
DEATH PENALTY CASE
MEMORANDUM AND ORDER (1)
DISMISSING WITHOUT PREJUDICE
UNEXHAUSTED ALLEGATIONS, (2)
DENYING CLAIM “C2” FOLLOWING
LIMITED EVIDENTIARY HEARING, (3)
DENYING FURTHER RECORD EXPANSION
AND EVIDENTIARY HEARING, (4)
DENYING RECORD BASED CLAIMS A, B,
and D THROUGH FF, (5) DENYING
AMENDED PETITION FOR WRIT OF
HABEAS CORPUS, and (6) ISSUING
CERTIFICATE OF APPEALABILITY FOR
CLAIMS C2, I13, L (L1-L4) & W2
CLERK TO VACATE ANY AND ALL
SCHEDULED DATES AND SUBSTITUTE
RON DAVIS AS RESPONDENT WARDEN
AND ENTER JUDGMENT
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Petitioner is a state prisoner, sentenced to death, proceeding with a petition for writ of habeas
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24 corpus pursuant to 28 U.S.C. § 2254. He is represented in this action by appointed counsel Robert
25 Bacon, Esq. and Brian Abbington, Esq. of the Office of the Federal Defender.
Respondent Kevin Chappell1 is named as Warden of San Quentin State Prison.
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He is
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Pursuant to Fed. R. Civ. P. 25(d), Ron Davis, warden of San Quentin State Prison, is substituted as Respondent in place of
his predecessor wardens.
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represented in this action by Rachelle Newcomb, Esq., and Ryan McCarroll, Esq. of the Office of the
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California Attorney General.
John Lee Holt, a state prisoner, sentenced to death, is a limited purpose intervener at the
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evidentiary hearing. He is represented by Jennifer Mann, Esq., of the Office of the Federal Defender.
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Before the Court for a decision are (1) claim C2, taken under submission following May 14,
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2013 limited evidentiary hearing (ECF No. 339), (2) matters reserved for ruling raised in Petitioner’s
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motion for evidentiary hearing and expansion of the record (ECF No. 214), and (3) the amended
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petition (ECF No. 113), record based claims A, B, and D through FF.2
I. BACKGROUND
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Petitioner is currently in the custody of the California Department of Corrections and
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11 Rehabilitation pursuant to judgment of the Superior Court of California, County of Kern imposing the
12 death sentence, following his conviction by jury trial of two counts of first degree murder for which the
13 multiple murder special-circumstance allegation as to the murders of Vance Huffstuttler and Steve
14 Mincy was found true. The jury also found Petitioner guilty of one count of attempted first degree
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15 murder of Mr. Jim Wilson, and one count of marijuana cultivation. (CT at 399-400.)
On September 19, 1989, Petitioner was charged with the following offenses: the murder of
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17 Steve Mincy, pursuant to California Penal Code § 187 (Count I), the murder of Vance Huffstuttler,
18 pursuant to California Penal Code § 187 (Count II), the attempted murder of James Wilson, pursuant to
19 California Penal Code § 664/187 (Count III), and the cultivation of marijuana, in violation of Health
20 and Safety Code § 11358 (Count IV). (CT at 125-29.) Counts I-III included alleged use of a firearm.
21 Counts I and II included alleged multiple murder, a special circumstance pursuant to California Penal
22 Code § 190.2(a)(3). All counts alleged that Petitioner had suffered a prior conviction for a serious
23 felony.
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The Court previously denied claim C1. (ECF No. 276, at 40:27-28.)
Unless otherwise indicated, throughout this order, “CT” refers to the Clerk’s Transcript on Appeal, “RT” to the Reporter’s
Transcript on Appeal, “EH” refers to evidentiary hearing held May 14, 2013, “EH Ex” refers to joint final exhibit at the
evidentiary hearing, “Supp. RT” refers to the Supplemental Reporter’s Transcript on Appeal, “CSC” refers to the California
Supreme Court, and “SHCP” refers to state habeas corpus petition. Other transcripts are referenced by date. Reference to
page numbering is to the page numbering in the original document except Bates numbering is used for the CT. Any
reference to state law is to California law unless otherwise noted.
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At Petitioner’s arraignment on January 16, 1990, defense counsel Charles Soria and George
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Peterson were appointed to represent him. (CT at 4.)
On March 16, 1990, Petitioner pled not guilty to the charges. (CT at 130.) Trial was set to
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begin on October 22, 1990. (CT at 131.)
Several months later, Mr. Peterson suffered health issues and became unavailable to work on
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the case. (CT at 133-134.)
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Defense counsel Soria moved to withdraw shortly thereafter (CT at 137-39), citing Mr.
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Peterson’s departure and Soria’s desire for new and different employment. (7/18/90 RT at 3-4.) Mr.
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Soria agreed to stay on the case with the appointment of William Cater as second counsel on July 30,
10 1990. (CT at 203; 7/30/90 RT at 9-10.)
Petitioner, on October 12, 1990, moved to change venue because of the airing of two segments
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12 of the television program America’s Most Wanted re-enacting Petitioner’s alleged involvement in the
13 crime and profiling his subsequent arrest, as well as local broadcast and print media reporting of the
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14 case. (CT at 238-46.) The Court heard argument on November 1, 1990 and reserved the motion until
15 the conclusion of voir dire. (11/1/90 RT at 2-50.) There was no subsequent ruling on the change of
16 venue motion. (RT at 1640:28-45:13.)
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The jury was sworn on December 3, 1990. (CT at 372.)
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On December 12, 1990, the jury found Petitioner guilty on all counts and enhancements and
19 found the special circumstance to be true. (CT at 400-09.)
On December 13, 1990, prior to a bifurcated trial on Petitioner’s prior conviction for attempted
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21 voluntary manslaughter, the Court granted the prosecutor’s motion to strike the prior-prison-term
22 allegation in count IV. (CT at 519-21, 524.) After the bifurcated trial, the jury found true the
23 allegation of a prior conviction. (Id.)
On December 14, 1990, following the guilt phase verdict, the Court granted Petitioner’s request
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25 for substitute defense counsel pursuant to People v. Marsden, 2 Cal. 3d 118 (1970), finding a complete
26 breakdown in the relationship between Mr. Soria and Petitioner (RT at 2297-98), and appointed co27
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There were two America’s Most Wanted broadcasts aired on the FOX television network: one on January 7, 1990, and the
other on January 14, 1990. (See ECF No. 194 at 5 n.5.)
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counsel Cater to represent Petitioner at the penalty phase. (RT at 2297-2301.)
The penalty phase began in January 22, 1991. (CT at 584-89.) The jury returned a verdict of
death on January 24, 1991. (CT at 626.)
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On February 25, 1991, defense counsel Cater’s motion for appointment of independent counsel
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to prepare a motion for new trial was denied. (CT at 668; Supp. RT 2/25/91 at 1-8, 15-17; RT 2/25/91
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at 9-14.) Mr. Cater did not then move for a new trial. (Supp. RT 2/25/91 at 18-27.) Later that day, the
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trial court heard and denied Petitioner’s motion to modify the verdict pursuant to Pen. Code § 190.4
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and sentenced Petitioner to death on the capital charges. (RT 2/25/91 at 18-27.) The trial court also
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sentenced Petitioner to the upper term of nine years for attempted premeditated murder (Count III),
10 three years with a stayed one-year enhancement for marijuana cultivation (Count IV), two years for the
11 firearm enhancement pursuant to Pen. Code § 12022.5 and five years for the serious felony
12 enhancement pursuant to Pen. Code § 667(a). (CT at 668-70; RT 2/25/91 at 24-27.)
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On June 18, 1998, the California Supreme Court affirmed the judgment and sentence on direct
14 appeal, as modified on August 12, 1998 upon denial of rehearing. People v. Bolin, 18 Cal. 4th 297
15 (1998), as modified on denial of reh'g (Aug. 12, 1998).
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Petition for writ of certiorari was denied by the United States Supreme Court on March 8, 1999.
17 Bolin v. California, 526 U.S. 1006 (1999).
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On August 8, 2000, Petitioner filed his federal petition for writ of habeas corpus. On that same
19 day, Petitioner filed a petition for writ of habeas corpus in the California Supreme Court.
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The state petition was summarily denied on January 19, 2005, each claim was denied on the
21 merits, claims E1, E2, I3 (with respect to defense-requested penalty phase instruction No. 9) and L
22 were denied on procedural grounds as raised and rejected on appeal, see In re Harris, 5 Cal. 4th 813,
23 824-29 (1993), and (except to the extent of claimed ineffective assistance of appellate counsel) claims
24 A, B1 (to the extent of alleged trial court error), C, E3, E4, F, H, I1, I2, I3 (except as to defense
25 requested penalty phase instruction No. 9), and J were also denied on procedural grounds because these
26 claims could have been but were not raised on appeal, see In re Dixon, 41 Cal. 2d 756, 759 (1953). In
27 re Bolin, S090684. On that same day, Petitioner filed an amended federal petition alleging violations of
28 the First, Fifth, Sixth, Eighth and Fourteenth Amendments to the U.S. Constitution, (ECF No. 113),
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which is the operative pleading.5
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Respondent filed an answer to the amended petition on June 17, 2005, admitting certain
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jurisdictional and procedural allegations, asserting procedural defenses, and denying all claims A
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through FF. (ECF No. 120.)
On September 30, 2005, the Court found all claims in the amended petition to be fully
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exhausted. (ECF No. 142 at 4:2-4.)
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On September 7, 2006, the Court granted Petitioner limited pre-briefing discovery as to
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prosecution files including background materials regarding potential jurors; witness Eloy Ramirez;
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victim/witness Jim Wilson; and notes of prosecution expert, criminologist Greg Laskowski. (ECF No.
10 174.)
On March 1, 2007, Petitioner filed a memorandum of points and authorities in support of the
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12 petition. (ECF No. 178.)
On December 17, 2007, Respondent filed a memorandum of points and authorities in support of
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14 his answer to the amended petition. (ECF No. 194.)
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On April 15, 2008, Petitioner filed a reply to Respondent’s memorandum. (ECF No. 205.)
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On December 22, 2008, Petitioner requested an evidentiary hearing with respect to claims A,
17 B2, C, D, F, G, I, J, K, W, Y, BB, CC, DD, and EE. (ECF No. 214.) Therein Petitioner also sought
18 expansion of the record to include exhibits 52 through 94 not previously submitted, which supplement
19 the exhibits that were before the state court.
On March 19, 2009, Respondent filed his opposition to the request for evidentiary development
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21 and hearing. (ECF No. 232.)
On August 7, 2009, Petitioner filed a reply to Respondent’s opposition, (ECF No. 235); therein
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23 withdrawing claim CC and the request for evidentiary hearing on claim CC, alleging that lethal
24 injection is cruel and unusual punishment. (ECF No. 235 at 39:15-16; ECF No. 236.)
On April 27, 2012, the Court granted an evidentiary hearing as to claim C2, ineffective
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26 assistance of defense counsel regarding “his trial attorneys’ failure to renew their request for a change
27 of venue on the basis of presumed prejudice occasioned by pretrial publicity.” (ECF No. 261 at 54:1228
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The Court takes judicial notice of the certified state record on appeal.
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15; ECF No. 276, at 53:4-7.) The Court denied on the merits the request for evidentiary hearing for
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“[t]he trial error component of [c]laim C as well as the argument that juror impartiality (sic) followed
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from actual prejudice . . . .” (Id.) The Court reserved ruling on the balance of claims requested for
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evidentiary hearing. (ECF No. 271 at 2:18-19.)
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On November 29, 2012, the Court granted Respondent pre-hearing discovery of claim C2 by
authorizing deposition subpoenas duces tecum for attorneys Soria and Cater. (ECF No. 303.)
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On February 27, 2013, the Court granted the motion to intervene by third party intervenor John
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Lee Holt, for the limited purpose of asserting his attorney-client privilege and work product protection
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during the testimony of Soria, Howard Varinsky and Bruce Binns at the evidentiary hearing and in any
10 other proceeding in this case in which such assertion may be necessary. (ECF No. 325.) Mr. Holt was
11 represented by Messrs. Soria and Peterson when they were appointed to represent Petitioner. (EH RT
12 at 30:14-31:14, 91:16-17.)
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The evidentiary hearing took place on May 14, 2013. Claim C2 was taken under submission
14 following the evidentiary hearing. (ECF No. 339.) Petitioner, at the hearing, requested an evidentiary
15 hearing on other claims of ineffective assistance. (ECF No. 343 at 16, n.10.)
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On July 8, 2013, Petitioner filed a post-hearing brief. (ECF No. 343.)
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On September 3, 2013, Respondent filed a post-hearing brief. (ECF No. 344.)
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II. STATEMENT OF FACTS
This factual summary is taken from the California Supreme Court’s summary of the facts in its
20 June 18, 1998 opinion. Pursuant to 28 U.S.C. §§ 2254(d)(2), (e)(1), the state supreme court’s summary
21 of facts is presumed correct. Petitioner does not present clear and convincing evidence to the contrary;
22 thus, the Court adopts the factual recitations set forth by the state supreme court. Vasquez v. Kirkland,
23 572 F.3d 1029, 1031 n.1 (9th Cir. 2009) (“We rely on the state appellate court’s decision for our
24 summary of the facts of the crime.”).
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A. Guilt Phase
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The crimes occurred Labor Day weekend of 1989, when defendant was living in a small
cabin located in a secluded mountainous area of Walker Basin in rural Kern County.
Vance Huffstuttler also lived on the property in a trailer. Together they cultivated
marijuana defendant had planted nearby. Defendant had taken on Huffstuttler as an
assistant in the marijuana venture and intended to give him a portion of the profits when
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they sold the crop.
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On Friday, September 1, Steve Mincy and Jim Wilson drove from Garden Grove to a
campsite owned by Mincy’s father, Robert, near Twin Oaks, also in Kern County.
Robert and several other family members and friends had already arrived and were
planning to spend the weekend. The next day, Wilson went for a bicycle ride and then
met Steve Mincy at a bar in Twin Oaks. Mincy was there drinking with several others,
including Vance Huffstuttler; defendant was also among the group. Later, Wilson
returned to the campsite, where he agreed to drive Huffstuttler back to his trailer; Mincy
accompanied them.
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According to Wilson’s trial testimony, the trip to Walker Basin took about 45 minutes in
his truck, including 30 minutes on rough dirt roads leading into defendant’s property.
Defendant had already returned to his cabin. Upon arriving, Mincy, Wilson, and
Huffstuttler saw him there with Eloy Ramirez, a friend of defendant’s who was blind in
one eye. When they got out of the truck, Huffstuttler took Mincy and Wilson across a
creek bed and showed them numerous marijuana plants under cultivation. Defendant
followed shortly thereafter and confronted Huffstuttler about bringing strangers to the
location. Wilson testified defendant became “pretty agitated” and began arguing with
Huffstuttler. The two returned to the other side of the creek bed toward the cabin, out of
Wilson’s view, still arguing. Wilson then heard a gunshot from that direction. A moment
later, he and Mincy saw defendant appear from behind a line of trees holding a revolver
and saying he had “nothing against” them. As Wilson turned and ran, defendant fired a
shot that hit him in the shoulder. He heard several more shots as Mincy begged for his
life.
According to Ramirez’s testimony, when defendant and Huffstuttler returned across the
creek bed arguing, defendant went into the cabin and came out with a revolver.
Huffstuttler asked, “What are you going to do, shoot me?” Defendant did not respond,
but instead fired one shot at close range. Huffstuttler fell to the ground and did not
move. Defendant then approached Mincy and Wilson and fired several more rounds.
Back at the cabin, he took a rifle and shot at Huffstuttler’s inert body. He also took other
steps to make the scene appear like the result of a drug deal gone bad. Ramirez refused
to assist him. When defendant finished, they both left for Southern California.
Meanwhile, after traveling all night over the mountainous terrain, Wilson found his way
to a neighboring ranch, where the owner called the sheriff’s office. When sheriff’s
deputies went to defendant’s cabin, they found Huffstuttler’s body lying near Wilson’s
truck; Mincy’s body was in the creek bed in a fetal position. Both had several fatal
gunshot wounds; Huffstuttler had been shot with both a revolver and a rifle. The area
inside and outside the cabin was in disarray with broken bottles and marijuana
paraphernalia as well as some loose marijuana scattered about. The revolver, wiped
clean of fingerprints, was found near Huffstuttler. A knife was found nearby as well.
Spent shell casings and bullets were retrieved from near each body. At trial, Criminalist
Gregory Laskowski determined that grooves in the bullets were consistent with having
been fired from the .45-caliber weapon found at the scene. He also testified that blood
spatters around Mincy’s body indicated some gunshot wounds had been inflicted while
he was running and at least one other while he was in a fetal position.
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Despite an extensive search, law enforcement was unable to locate defendant for several
months. Authorities eventually arrested him in Chicago, where he had been living with
friends and family members. Sheriff’s deputies also traced the whereabouts of Eloy
Ramirez to the house of his girlfriend, Patricia Islas, in Covina, where he had gone after
the killings. At trial, Ramirez corroborated the description of events recounted by
Wilson.
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The defense presented no evidence at the guilt phase.
B. Penalty Phase
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1. Prosecution Evidence
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At the penalty phase, the prosecution presented evidence of two instances of violent
criminal conduct—an unadjudicated assault with great bodily injury of Matthew Spencer
and the attempted manslaughter of Kenneth Ross, for which defendant was convicted
and sentenced to prison. The prosecution also submitted a threatening letter defendant
wrote to Jerry Halfacre while incarcerated awaiting trial. Halfacre had previously had a
relationship with defendant’s daughter, Paula, and was the father of her child. Among
other things, the letter warned Halfacre not to see Paula again or defendant would have
him “permanently removed from the face of this Earth.” Halfacre had given the letter to
his probation officer, who transferred it to a Kern County District Attorney investigator.
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2. Defense Evidence
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In addition to testimony that defendant had acted under provocation in the incidents
involving Spencer and Ross, the defense presented evidence of his upbringing.
Defendant’s parents divorced when he was eight years old, and within a few years
neither wanted to care for him. He lived on the street until he was 16 years old when he
joined the Navy and went to Vietnam. Defendant’s two daughters testified he had raised
them from young ages when their mother abandoned them. Defendant also raised his
stepdaughter, Pamela Castillo, after he and her mother were divorced. Other family
members and friends recounted how defendant had helped them in various ways.
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22 Bolin, 18 Cal. 4th at 309-11 (1998).
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III. JURISDICTION
Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to
25 the judgment of a state court if the custody is in violation of the Constitution or laws or treaties of the
26 United States. 28 U.S.C. §§ 2241(c)(3), 2254(a); Williams v. Taylor, 529 U.S. 362, 375 (2000).
27 Petitioner asserts that he suffered violations of his rights as guaranteed by the U.S. Constitution. The
28 challenged conviction arises out of Kern County Superior Court, which is located within the
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jurisdiction of this Court. 28 U.S.C. §§ 2241(d), 2254(a).
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This action was initiated on March 11, 1999. Because this action was initiated after April 24,
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1996, the amendments to 28 U.S.C. § 2254 enacted as part of the Antiterrorism and Effective Death
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Penalty Act (AEDPA) apply. Lindh v. Murphy, 521 U.S. 320, 336 (1997); Van Tran v. Lindsey, 212
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F.3d 1143, 1148 (9th Cir. 2000), overruled on other grounds by Lockyer v. Andrade, 538 U.S. 63, 71
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(2003).
IV. STANDARDS OF REVIEW
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A.
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Legal Standard - Habeas Corpus
Under AEDPA, relitigation of any claim adjudicated on the merits in state court is barred unless
10 a petitioner can show that the state court’s adjudication of his claim:
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(1) resulted in a decision that was contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the Supreme Court of the United
States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in
light of the evidence presented in the State court proceeding.
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15 28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. 86, 98 (2011); Lockyer, 538 U.S. at 70-71;
16 Williams, 529 U.S. at 413.
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“[A] state has ‘adjudicated’ a petitioner's constitutional claim ‘on the merits' for purposes of §
18 2254(d) when it has decided the petitioner's right to post-conviction relief on the basis of substance of
19 the constitutional claim advanced, rather than denying the claim on the basis of a procedural or other
20 rule precluding state court review of the merits.” Brown v. Walker, No. C 09-04663 JSW, 2014 WL
21 4757804, at *5 (N.D. Cal. Sept. 24, 2014) (citing Lambert v. Blodgett, 393 F.3d 943, 969 (9th Cir.
22 2004)).
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As a threshold matter, this Court must “first decide what constitutes ‘clearly established Federal
24 law, as determined by the Supreme Court of the United States.’” Lockyer, 538 U.S. at 71 (quoting 28
25 U.S.C. § 2254(d)(1)). In ascertaining what is “clearly established Federal law,” this Court must look to
26 the “holdings, as opposed to the dicta, of [the Supreme Court’s] decisions as of the time of the relevant
27 state-court decision.” Williams, 529 U.S. at 412. “In other words, ‘clearly established Federal law’
28 under § 2254(d)(1) is the governing legal principle or principles set forth by the Supreme Court at the
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time the state court renders its decision.” Id. In addition, the Supreme Court decision must “‘squarely
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address [] the issue in th[e] case’; otherwise, there is no clearly established Federal law for purposes of
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review under AEDPA.” Moses v. Payne, 555 F.3d 742, 754 (9th Cir. 2009) (quoting Wright v. Van
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Patten, 552 U.S. 120, 125 (2008)); see also Panetti v. Quarterman, 551 U.S. 930, 949 (2007); Carey v.
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Musladin, 549 U.S. 70, 74 (2006).
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If no clearly established Federal law exists, the inquiry is at an end and the Court must defer to
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the state court’s decision. See Carey, 549 U.S. 70; Wright, 552 U.S. at 126; Moses, 555 F.3d at 760.
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In addition, the Supreme Court has recently clarified that habeas relief is unavailable in instances where
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a state court arguably refuses to extend a governing legal principle to a context in which the principle
10 should have controlled. White v. Woodall, __ U.S. __, 134 S. Ct. 1697, 1706 (2014). The Supreme
11 Court stated: “‘[I]f a habeas court must extend a rationale before it can apply to the facts at hand,’ then
12 by definition the rationale was not ‘clearly established at the time of the state-court decision.’” Id.
13 (quoting Yarborough v. Alvarado, 541 U.S. 652, 666 (2004)).
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If the Court determines there is governing clearly established Federal law, the Court must then
15 consider whether the state court’s decision was “contrary to, or involved an unreasonable application
16 of, [the] clearly established Federal law.” Lockyer, 538 U.S. at 72 (quoting 28 U.S.C. § 2254(d)(1)).
17 “Under the ‘contrary to’ clause, a federal habeas court may grant the writ if the state court arrives at a
18 conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court
19 decides a case differently than [the] Court has on a set of materially indistinguishable facts.” Williams,
20 529 U.S. at 412-13; see also Lockyer, 538 U.S. at 72. “The word ‘contrary’ is commonly understood to
21 mean ‘diametrically different,’ ‘opposite in character or nature,’ or ‘mutually opposed.’” Williams, 529
22 U.S. at 405 (quoting Webster’s Third New International Dictionary 495 (1976)).
“A state-court
23 decision will certainly be contrary to [Supreme Court] clearly established precedent if the state court
24 applies a rule that contradicts the governing law set forth in [Supreme Court] cases.” Id.
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“Under the ‘reasonable application clause,’ a federal habeas court may grant the writ if the state
26 court identifies the correct governing legal principle from [the] Court’s decisions but unreasonably
27 applies that principle to the facts of the prisoner’s case.” Williams, 529 U.S. at 413. “[A] federal court
28 may not issue the writ simply because the court concludes in its independent judgment that the relevant
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state court decision applied clearly established federal law erroneously or incorrectly. Rather, that
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application must also be unreasonable.” Id. at 411; see also Lockyer, 538 U.S. at 75-76. “A state
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court’s determination that a claim lacks merit precludes federal habeas relief so long as fair-minded
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jurists could disagree on the correctness of the state court’s decision.” Richter, 562 U.S. at 101, (citing
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Yarborough, 541 U.S. at 664). The Supreme Court stated:
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As a condition for obtaining habeas corpus from a federal court, a state prisoner must
show that the state court’s ruling on the claim being presented in federal court was so
lacking in justification that there was an error well understood and comprehended in
existing law beyond any possibility for fair-minded disagreement.
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Id. at 101-05. In other words, so long as fair-minded jurists could disagree on the correctness of the
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10 state courts decision, the decision cannot be considered unreasonable. Id. at 98-99. In applying this
11 standard, “a habeas court must determine what arguments or theories supported . . . or could have
12 supported the state court’s decision; and then it must ask whether it is possible fair-minded jurists could
13 disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the
14 Supreme Court].” Id. at 101-03. This objective standard of reasonableness applies to review under
15 both subsections of 28 U.S.C. § 2254(d). Hibbler v. Benedetti, 693 F.3d 1140, 1146-47 (9th Cir. 2012).
16 If the Court determines that the state court decision is objectively unreasonable, and the error is not
17 structural, habeas relief is nonetheless unavailable unless the error had a substantial and injurious effect
18 on the verdict. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993).
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Petitioner has the burden of establishing that the decision of the state court is contrary to or
20 involved an unreasonable application of United States Supreme Court precedent. Baylor v. Estelle, 94
21 F.3d 1321, 1322 (9th Cir. 1996). Although only Supreme Court law is binding on the states, Ninth
22 Circuit precedent remains relevant persuasive authority in determining whether a state court decision is
23 objectively unreasonable. LaJoie v. Thompson, 217 F.3d 663, 669 n.6 (9th Cir. 2000); see also
24 Duhaime v. Ducharme, 200 F.3d 597, 600-01 (9th Cir. 1999).
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The AEDPA requires considerable deference to the state courts. “[R]eview under § 2254(d)(1)
26 is limited to the record that was before the state court that adjudicated the claim on the merits,” and
27 “evidence introduced in federal court has no bearing on 2254(d)(1) review.” Cullen v. Pinholster, 563
28 U.S. 170, 180-85 (2011)). “Factual determinations by state courts are presumed correct absent clear
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and convincing evidence to the contrary.” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003) (citing 28
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U.S.C. § 2254(e)(1)). However, a state court’s factual finding is not entitled to deference if the relevant
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state court record is unavailable for the federal court to review. See Townsend v. Sain, 372 U.S. 293,
4
319 (1963), overruled on other grounds by Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992).
5
If a petitioner satisfies either subsection (1) or (2) of § 2254 for a claim, then the federal court
6
considers that claim de novo. Panetti, 551 U.S. at 953 (when § 2254(d) is satisfied, “[a] federal court
7
must then resolve the claim without the deference AEDPA otherwise requires”); Frantz v. Hazey, 533
8
F.3d 724, 737 (9th Cir. 2008).
9
In this case, many of Petitioner’s claims were raised and rejected by the California Supreme
10 Court on direct appeal. However, many of his claims were raised in his state habeas petition to the
11 California Supreme Court, and summarily denied on the merits. In such a case where the state court
12 decision is unaccompanied by an explanation, “the habeas petitioner’s burden still must be met by
13 showing there was no reasonable basis for the state court to deny relief.” Richter, 562 U.S. at 98. The
14 Supreme Court stated that “a habeas court must determine what arguments or theories supported or . . .
15 could have supported, the state court’s decision; and then it must ask whether it is possible fair-minded
16 jurists could disagree that those arguments or theories are inconsistent with the holding in a prior
17 decision of [the Supreme] Court.” Id. at 101-03 (emphasis added). Petitioner bears “the burden to
18 demonstrate that ‘there was no reasonable basis for the state court to deny relief.’” Walker v. Martel,
19 709 F.3d 925, 939 (9th Cir. 2013) (quoting Richter, 562 U.S. at 98). “Crucially, this is not a de novo
20 review of the constitutional question,” id., as “even a strong case for relief does not mean the state
21 court’s contrary conclusion was unreasonable.” Id. (quoting Richter, 562 U.S. at 102); see also Murray
22 v. Schriro, 745 F.3d 984, 998 (9th Cir. 2014). When reviewing the California Supreme Court’s
23 summary denial of a petition, this Court must consider that the California Supreme Court’s summary
24 denial of a habeas petition on the merits reflects that court’s determination that:
25
26
27
[T]he claims made in th[e] petition do not state a prima facie case entitling the petitioner to
relief. It appears that the court generally assumes the allegations in the petition to be true, but
does not accept wholly conclusory allegations, and will also review the record of the trial ... to
assess the merits of the petitioner’s claims.
28 Pinholster, 563 U.S. at 188; see also Johnson v. Williams, 133 S. Ct. 1088, 1094-96 (2013) (holding
12
1
that even where the state court does not separately discuss a federal claim there is a presumption that
2
that state court adjudicated the federal claim on the merits). Accordingly, if this Court finds Petitioner
3
has unarguably presented a prima facie case for relief on a claim, the state court’s summary rejection of
4
that claim would be unreasonable. See e.g., Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir. 2004);
5
Nunes v. Mueller, 350 F.3d 1045, 1054-55 (9th Cir. 2003).
6
For any habeas claim that has not been adjudicated on the merits by the state court, the federal
7
court reviews the claim de novo without the deference usually accorded state courts under 28 U.S.C. §
8
2254(d)(1). Chaker v. Crogan, 428 F.3d 1215, 1221 (9th Cir. 2005); Pirtle v. Morgan, 313 F.3d 1160,
9
1167 (9th Cir. 2002). In such instances, however, the provisions of 28 U.S.C. § 2254(e) still apply.
10 Pinholster, 563 U.S. at 185 (“Section 2254(e)(2) continues to have force where § 2254(d)(1) does not
11 bar federal habeas relief.”); Pirtle, 313 F.3d at 1167–68 (stating that state court findings of fact are
12 presumed correct under § 2254(e)(1) even if legal review is de novo).
V. PROCEDURAL BARS
13
14
Some of Petitioner’s claims were alternatively denied by the California Supreme Court as
15 procedurally barred.
As to those claims, Respondent has invoked the independent state ground
16 doctrine, pursuant to which a federal court will not review a question of federal law decided by a state
17 court “if the decision of that court rests on a state law ground that is independent of the federal question
18 and adequate to support the judgment.” Vang v. Nevada, 329 F.3d 1069, 1072 (9th Cir. 2003) (quoting
19 Coleman v. Thompson, 501 U.S. 722, 729 (1991)).
20
Since “cause and prejudice” can excuse a procedurally defaulted claim, Smith v. Baldwin, 510
21 F.3d 1127, 1139 (9th Cir. 2007), (quoting Coleman, 501 U.S. at 750), and “prejudice” essentially
22 requires a merits analysis, the Court will proceed to the merits of claims found to be procedurally
23 defaulted without determining whether the state procedural default is adequate and independent to bar
24 relief in federal court.
Id., (quoting Coleman, 501 U.S. 732-35). A district court may exercise
25 discretion to proceed to the merits in advance of litigation of procedural default. See Franklin v.
26 Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002) (courts empowered to reach the merits if on their face
27 clearly not meritorious despite asserted procedural bar); Bell v. Cone, 543 U.S. 447, 451 n.3 (2005) (an
28 application for habeas corpus may be denied on the merits even if unexhausted in state court); Loggins
13
1
v. Thomas, 654 F.3d 1204, 1215 (11th Cir. 2011) (relief may be denied on the merits where petition is
2
clearly not meritorious despite asserted procedural bar).
3
VI. LIMITED EVIDENTIARY HEARING
4
Petitioner alleges in claim C2 that defense counsel was ineffective for failing to renew the
5
October 12, 1990 change of venue motion (CT at 238-46) following voir dire of the jury and in spite of
6
alleged inflammatory pretrial publicity and alleged lack of impartiality among the prospective jurors.
7
(ECF No. 113 at 16-38; ECF No. 178 at 43-63.)
8
Petitioner raised this same claim on direct appeal. (Appellant’s Opening Brief, “AOB”, at 11-
9
25.) The California Supreme Court denied the claim as procedurally barred because defense counsel
10 did not renew the motion to change venue or seek a definitive ruling. Bolin, 18 Cal. 4th at 312. That
11 court also rejected the claim on the merits. See Id. at 312-14.
12
Petitioner raised the claim again in his state habeas corpus petition (SHCP at 53-89), which the
13 California Supreme Court again rejected. (CSC Order Den. Pet. Habeas Corpus.)
14
Petitioner supported the venue motion with: the America’s Most Wanted program, both the
15 original re-enactment of the crime and the follow-up segment on Petitioner’s arrest (ECF No. 214, EH
16 Ex. 54); a defense-commissioned Community Attitude Survey (ECF No. 214, EH Ex. 52; see also
17 11/1/90 RT at 3-28); a folder of newspaper clippings and videotapes (ECF No. 214, EH Ex. 53; CT at
18 332); and a local News 29 broadcast about the role of America’s Most Wanted in Petitioner’s arrest.
19 (CT 332; 11/1/90 RT at 28.)
20
Petitioner offered, for prevailing professional norms, the 1989 ABA Guidelines for the
21 Appointment and Performance of Counsel in Death Penalty Cases (“ABA Guidelines”); the 1987
22 National Legal Aid and Defender Association (NLADA) Standards for the Appointment of Counsel in
23 Death Penalty Cases; excerpts from the California Death Penalty Defense Manual (1986 through
24 1989) regarding jury selection as well as pretrial motions for change of venue; and the declaration of
25 Strickland expert James S. Thomson. (ECF No. 214, EH Ex.’s 57, 58, 59, 60, and 72.) For evidence
26 regarding the performance of defense counsel, he offers the declarations of counsel Soria and Cater,
27 and expert Thomson. (Id., EH Ex.’s 65, 66, and 72.)
28
Petitioner argued that his survey showed that 45 percent of Kern County residents surveyed
14
1
were familiar with the case. (11/1/90 RT at 21:27-22:2.) Petitioner requested that, if the change of
2
venue motion was not granted, those potential jurors who had seen the America’s Most Wanted
3
reenactment be excused for cause without even participating in voir dire. (11/1/90 RT at 22:25-26.)
4
Respondent countered that only approximately 15 percent of the Kern County residents
5
surveyed had seen the America’s Most Wanted reenactment (11/1/90 RT at 24:26-25:2) and that only a
6
small portion of those felt swayed by seeing it (id.), such that Petitioner had not shown he could not get
7
a fair trial in Kern County. (11/1/90 RT at 25:10-12.)
8
The trial judge took the motion under consideration (RT 11/1/90, at 28:16-19, 50:6-24),
9
informing defense counsel that he was not inclined to grant the motion to change venue but that he was
10 “very, very concerned about that program. . . .” (11/1/90 RT at 28.) The court “reserve[d] ruling” on
11 the venue motion (11/1/90 RT at 50:6-18) because it wanted:
12
15
[T]o see first of all how many prospective run-ins we get who actually have seen this
video and then I would like to take a few of those and I realize you and Mr. Cater
[defense counsel] would have a great many question that may not be necessary and see
what their general reaction is . . . [¶] [I]f there are general reactions, what I think there is,
I think I might be inclined to give a blanket for cause.” (11/1/90 RT at 50:8-16.)
16
The trial court then stated that:
17
“Let me just make a finding, I think I did this morning, but to make it perfectly clear, but
for this re-enactment on America’s Most Wanted, I do not think there are grounds to
change the venue on any of the criteria that we have before us concerning that. That’s
the big issue. Fair enough?
13
14
18
19
20
21 (11/1/90 RT at 50:19-24.)
22
Defense counsel never raised the venue issue again, and the trial court made no further ruling on
23 it. (RT at 1640:28-45:13.) Respondent argues the motion was impliedly denied when the jury was
24 sworn and the prosecution’s opening statement began. (Id.)
25 A.
Clearly Established Law
26
1.
27
The Sixth Amendment right to effective assistance of counsel, applicable to the states through
Ineffective Assistance of Counsel
28 the Due Process Clause of the Fourteenth Amendment, applies through the sentencing phase of a trial.
15
1
U.S. Const. amend. VI; U.S. Const. amend. XIV, § 1; Gideon v. Wainwright, 372 U.S. 335, 343-45
2
(1963); Silva v. Woodford, 279 F.3d 825, 836 (9th Cir. 2002); Murray, 745 F.3d at 1010-11.
3
The source of clearly established federal law for ineffective assistance of counsel claims is
4
Strickland v. Washington. 466 U.S. 668 (1984). In a petition for writ of habeas corpus alleging
5
ineffective assistance of counsel, the court must consider two factors. Richter, 562 U.S. at 104;
6
Strickland, 466 U.S. at 687; Lowry v. Lewis, 21 F.3d 344, 346 (9th Cir. 1994). First, the petitioner
7
must show that counsel’s performance was deficient, requiring a showing that counsel made errors so
8
serious that he or she was not functioning as the “counsel” guaranteed by the Sixth Amendment.
9
Strickland, 466 U.S. at 687. More specifically, the petitioner must show that “counsel’s representation
10 fell below an objective standard of reasonableness,” and must identify counsel’s alleged acts or
11 omissions that were not the result of reasonable professional judgment considering the circumstances.
12 Richter, 562 U.S. at 104, (citing Strickland, 466 U.S. at 688); accord United States v. Quintero-Barraza,
13 78 F.3d 1344, 1348 (9th Cir. 1995). Petitioner must show that counsel’s errors were so egregious as to
14 deprive defendant of a fair trial, which Strickland defines as “one whose result is reliable.” 466 U.S. at
15 688. Judicial scrutiny of counsel’s performance is highly deferential, and the habeas court must guard
16 against the temptation “to second-guess counsel’s assistance after conviction or adverse sentence.” Id.
17 at 689. Instead, the habeas court must make every effort “to eliminate the distorting effects of
18 hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct
19 from counsel’s perspective at the time.” Id.; see also Richter, 562 U.S. at 106-08. A court indulges a
20 “‘strong presumption’ that counsel’s representation was within the ‘wide range’ of reasonable
21 professional assistance.” Richter, 562 U.S. at 104 (quoting Strickland, 466 U.S. at 687); accord
22 Sanders v. Ratelle, 21 F.3d 1446, 1456 (9th Cir. 1994). This presumption of reasonableness means that
23 not only does the court “give the attorneys the benefit of the doubt,” but the court must also
24 “affirmatively entertain the range of possible reasons [defense] counsel may have had for proceeding as
25 they did.” Pinholster, 563 U.S. at 196.
26
The Supreme Court has “declined to articulate specific guidelines for appropriate attorney
27 conduct and instead ha[s] emphasized that ‘[t]he proper measure of attorney performance remains
28 simply reasonableness under prevailing professional norms.’” Wiggins v. Smith, 539 U.S. 510, 521
16
1
(2003) (quoting Strickland, 466 U.S. at 688). However, “general principles have emerged regarding
2
the duties of criminal defense attorneys that inform [a court’s] view as to the ‘objective standard of
3
reasonableness’ by which [a court must] assess attorney performance, particularly with respect to the
4
duty to investigate.” Summerlin v. Schriro, 427 F.3d 623, 629 (2005). “[S]trategic choices made after
5
thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.”
6
Strickland, 466 U.S. at 690. However,
7
8
9
10
[S]trategic choices made after less than complete investigation are reasonable precisely
to the extent that reasonable professional judgments support the limitations on
investigation. In other words, counsel has a duty to make reasonable investigations or to
make a reasonable decision that makes particular investigations unnecessary. In any
ineffectiveness case, a particular decision not to investigate must be directly assessed for
reasonableness in all the circumstances, applying a heavy measure of deference to
counsel’s judgments.
11
12 Wiggins, 539 U.S. at 521-22, (quoting Strickland, 466 U.S. at 690–91); see also Thomas v. Chappell,
13 678 F.3d 1086, 1104 (9th Cir. 2012) (counsel’s decision not to call a witness can only be considered
14 tactical if he had “sufficient information with which to make an informed decision”); Reynoso v.
15 Giurbino, 462 F.3d 1099, 1112–1115 (9th Cir. 2006) (counsel’s failure to cross-examine witnesses
16 about their knowledge of reward money cannot be considered strategic where counsel did not
17 investigate this avenue of impeachment); Jennings v. Woodford, 290 F.3d 1006, 1016 (9th Cir. 2002)
18 (counsel’s choice of alibi defense and rejection of mental health defense not reasonable strategy where
19 counsel failed to investigate possible mental defenses).
20
Second, the petitioner must demonstrate prejudice, that is, he must show that “there is a
21 reasonable probability that, but for counsel’s unprofessional errors, the result . . . would have been
22 different.” Strickland, 466 U.S. at 694. “It is not enough ‘to show that the errors had some conceivable
23 effect on the outcome of the proceeding.’” Richter, 562 U.S. at 104, (quoting Strickland, 466 U.S. at
24 693). “Counsel’s errors must be ‘so serious as to deprive the defendant of a fair trial, a trial whose
25 result is reliable.’” Richter, 562 U.S. at 104 (quoting Strickland, 466 U.S. at 687). Under this standard,
26 the court asks “whether it is ‘reasonably likely’ the result would have been different.” Richter, 562 U.S.
27 at 112 (quoting Strickland, 466 U.S. at 696). That is, only when “[t]he likelihood of a different result
28 [is] substantial, not just conceivable,” id., has the defendant met Strickland’s demand that defense
17
1
errors were “so serious as to deprive the defendant of a fair trial.” Id. at 103-05 (quoting Strickland,
2
466 U.S. at 687). A court need not determine whether counsel’s performance was deficient before
3
examining the prejudice suffered by the petitioner as a result of the alleged deficiencies. Strickland,
4
466 U.S. at 697. Since the defendant must affirmatively prove prejudice, any deficiency that does not
5
result in prejudice must necessarily fail.
6
Under AEDPA, the court does not apply Strickland de novo. Rather, the court must determine
7
whether the state court’s application of Strickland was unreasonable. Richter, 562 U.S. at 100-101.
8
Establishing that a state court’s application of Strickland was unreasonable under 28 U.S.C. § 2254(d)
9
is very difficult. Richter, 562 U.S. at 102 (on deferential § 2254(d) review, relief is granted only for
10 “extreme malfunctions” in the state criminal justice system, not for ordinary errors that can be corrected
11 on appeal).
12
Since the standards created by Strickland and § 2254(d) are both “highly deferential”, Richter,
13 562 U.S. at 105 (quoting Strickland, 466 U.S. at 689),“when the two apply in tandem, review is
14 ‘doubly’ so.” Id. (quoting Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)). Further, because the
15 Strickland rule is a “general” one, courts have “more leeway . . . in reaching outcomes in case-by-case
16 determinations” such that the range of reasonable applications is substantial. Id. at 123; see also Premo
17 v. Moore, 562 U.S. 115, 122 (2011) (citing Strickland, 466 U.S. at 689-90) (“[T]he Strickland standard
18 must be applied with scrupulous care, lest ‘intrusive post-trial inquiry’ threaten the integrity of the very
19 adversary process the right to counsel is meant to serve.”).
20
Notwithstanding the foregoing, in issuing it decision following the limited evidentiary hearing,
21 the Court “reviews de novo the evidence elicited through discovery and at the evidentiary hearing in
22 these proceedings and is no longer constrained by the limitations imposed by § 2254(d).” Williams v.
23 Davis, No. CV 00-10637 DOC, 2016 WL 1254149, at *8 (C.D. Cal. Mar. 29, 2016) (citing Frantz, 533
24 F.3d at 737) (“In sum, where the analysis on federal habeas, in whatever order conducted, results in the
25 conclusion that § 2254(d)(1) is satisfied, then federal habeas courts must review the substantive
26 constitutionality of the state custody de novo.”); accord Williams v. Woodford, 859 F. Supp. 2d 1154,
27 1161 (E.D. Cal. 2012) (Kozinski, J., sitting by designation).
28
2.
Change of Venue
18
1
The Sixth Amendment secures to criminal defendants the right to trial by an impartial jury.
2
Skilling v. United States, 561 U.S. 358, 377-78 (2010); Irvin v. Dowd, 366 U.S. 717, 722 (1961). The
3
Constitution further provides that the trial shall occur “in the State where the . . . Crimes . . . have been
4
committed.” Art. III, § 2, cl. 3; see also U.S. Const., Amend. 6 (right to trial by “jury of the State and
5
district wherein the crime shall have been committed”). “The Constitution’s place-of-trial
6
prescriptions, however, do not impede transfer of the proceeding to a different district at the
7
defendant’s request if extraordinary local prejudice will prevent a fair trial—a ‘basic requirement of
8
due process.’” Skilling, 561 U.S. at 378.
9
Nevertheless, “juror impartiality, we have reiterated, does not require ignorance.” Skilling, 561
10 U.S. at 381 (citing Irvin, 366 U.S. at 722) (jurors are not required to be “totally ignorant of the facts and
11 issues involved”; “scarcely any of those best qualified to serve as jurors will not have formed some
12 impression or opinion as to the merits of the case.”); Reynolds v. United States, 98 U.S. 145, 155-156
13 (1879) (“[E]very case of public interest is almost, as a matter of necessity, brought to the attention of all
14 the intelligent people in the vicinity, and scarcely any one can be found among those best fitted for
15 jurors who has not read or heard of it, and who has not some impression or some opinion in respect to
16 its merits.”).
17
To merit relief for violation of his due process rights due to pretrial publicity, petitioner must
18 demonstrate that the case is one in which prejudice is presumed, or he must demonstrate actual
19 prejudice. Skilling, 561 U.S. at 379, 385.
20
Under California law, “[a] motion for change of venue or continuance shall be granted
21 whenever it is determined that because of the dissemination of potentially prejudicial material, there is
22 a reasonable likelihood that in the absence of such relief, a fair trial cannot be had.” Maine v. Superior
23 Court, 68 Cal. 2d 375, 383 (1968); (see CT at 257). The factors to be considered in granting or denying
24 a motion for change of venue are: “1) the nature and gravity of the offense, 2) the size and nature of the
25 community, 3) the status of the victim, 4) the status of the defendant, 5) the nature and extent of the
26 publicity.” Martinez v. Superior Court, 29 Cal. 3d 574, 578 (1981); (see CT at 242, 257).
27
28
a.
Presumed Prejudice
A presumption of prejudice is “rarely invoked and only in extreme situations.” United States v.
19
1
McVeigh, 153 F.3d 1166, 1181 (10th Cir. 1998), partially overruled on other grounds by Hooks v.
2
Ward, 184 F.3d 1206, 1227 (10th Cir. 1999). The Supreme Court has determined that pretrial publicity
3
so manifestly tainted a criminal prosecution that prejudice must be presumed in only three cases:
4
Rideau v. Louisiana, 373 U.S. 723 (1963); Estes v. Texas, 381 U.S. 532 (1965); and Sheppard v.
5
Maxwell, 384 U.S. 333 (1966).
6
“The foundation precedent is Rideau.” Skilling, 561 U.S. at 379. In Rideau, the case turned on
7
an actual filmed confession broadcast to the entire community. 373 U.S. at 724. “What the people [in
8
the community] saw on their television sets,” the Supreme Court observed, “was Rideau, in jail,
9
flanked by the sheriff and two state troopers, admitting in detail the commission of the robbery,
10 kidnapping, and murder.” Id. at 725. “[T]o the tens of thousands of people who saw and heard it,” the
11 Supreme Court explained, the interrogation “in a very real sense was Rideau’s trial—at which he
12 pleaded guilty.” Id. at 726. The Supreme Court therefore “d[id] not hesitate to hold, without pausing
13 to examine a particularized transcript of the voir dire,” that “[t]he kangaroo court proceedings” trailing
14 the televised confession violated due process. Id. at 726–727.
15
In the two cases to follow Rideau, the analyses and holdings turned on the massive media
16 interference with court proceedings and the constant and pervasive media coverage during trial. See
17 Skilling, 561 U.S. at 379-80. In Estes, “extensive publicity before trial swelled into excessive exposure
18 during preliminary court proceedings as reporters and television crews overran the courtroom and
19 ‘bombard[ed] . . . the community with the sights and sounds of the pretrial hearing. The media’s
20 overzealous reporting efforts, we observed, ‘led to considerable disruption’ and denied the ‘judicial
21 serenity and calm to which petitioner was entitled.’” Id. (quoting Estes, 381 U.S. at 536). In Sheppard,
22 the Supreme Court noted that “bedlam reigned at the courthouse during the trial and newsmen took
23 over practically the entire courtroom,” thrusting jurors “into the role of celebrities.” 384 U.S. at 353,
24 355. Pretrial publicity consisted of “months [of] virulent publicity about [the defendant] and the
25 murder.” Id. at 354. Ultimately, the Supreme Court “upset the murder conviction because a ‘carnival
26 atmosphere’ pervaded the trial.” Skilling, 561 U.S. at 380 (quoting Sheppard, 384 U.S. at 358).
27
When pretrial publicity is at issue, “primary reliance on the judgment of the trial court makes
28 [especially] good sense” because the judge “sits in the locale where the publicity is said to have had its
20
1
effect” and may base her evaluation on her “own perception of the depth and extent of news stories that
2
might influence a juror.” Mu’Min v. Virginia, 500 U.S. 415, 427 (1991).
3
B.
Analysis of Claim C2
4
Petitioner alleges that defense counsel was ineffective for failing to investigate and renew his
5
change of venue motion following (1) voir dire, which he claims demonstrated inflammatory pretrial
6
publicity and partiality among the prospective jurors; and (2) the trial court’s denial of certain of
7
defense counsel’s “for cause” challenges of potential jurors who had seen the America’s Most Wanted
8
re-enactment.
9
As noted, the trial court reserved ruling on the change of venue motion until it could question
10 potential jurors regarding their exposure to pretrial publicity (11/1/90 RT at 50:6-18; RT at 1640:2811 45:13) and see “first of all how many prospective run-ins we get who actually have seen this video and
12 . . . what their general reaction is.” (11/1/90 RT at 50:8-12.) However, that court voiced its concern
13 that the average person might be unable to rise above the publicity relating to the show’s “quite
14 dramatic” re-enactment of the alleged incident (11/1/90 RT at 26:20)), and noting that:
15
16
Let me just make a finding, I think I did this morning, but to make it perfectly clear, but
for this re-enactment on America’s Most Wanted, I do not think there are grounds to
change the venue on any of the criteria that we have before us concerning that. That’s
the big issue. Fair enough?
17
18 (11/1/90 RT at 50:19-24.)
19
The California Supreme Court, in rejecting this claim, stated:
20
Prior to trial, defendant moved for a change of venue due to pretrial publicity about the
case. Not only had the local television and print media given the killings substantial
coverage, the program, America’s Most Wanted, featured a television reenactment of the
crimes during a segment aired just prior to defendant’s arrest. The broadcast apparently
led to his identification in Chicago as the alleged perpetrator, and a second airing shortly
thereafter described his apprehension. In support of the motion, defendant submitted
videotaped copies of the television episodes as well as local news clippings reporting the
crimes. At the hearing on the change of venue motion, defense counsel also referred to
the results of a public opinion survey the defense had undertaken in Kern County. Based
on the survey, counsel represented that 45 percent of the people responding indicated
they had some knowledge of the case due to the media attention. Of this number, 20
percent had seen the America’s Most Wanted reenactment.
21
22
23
24
25
26
27
28 Bolin, 18 Cal. 4th at 311-12. That court went on to observe that:
21
1
2
3
4
5
6
7
8
9
10
11
Counsel’s failure to renew the change of venue motion did not result from ignorance or
inadvertence and reflected a reasonable trial strategy. [Citation] The impact of the
pretrial publicity generally and the America’s Most Wanted episodes in particular was a
critical focus of the voir dire. Although many prospective jurors had been exposed to
some pretrial publicity, including the segment reenacting the killings, for the most part
few recalled the specifics or had formed a resolute impression of [Petitioner’s] guilt. In
particular, those who eventually sat on the jury all gave assurances they would decide
the case based solely on the courtroom evidence. [Citation]
In light of these responses, counsel could well have recognized the effect of the publicity
had not been as substantial as feared, especially after an 11-month interim. Thus,
renewed effort to seek a change of venue would be futile since the trial court had
conditioned any change in its tentative ruling on a determination the television coverage
had impaired the ability to assemble an impartial jury. In addition, the reenactment was
relevant only to the guilt phase portion of the trial. With guilt virtually a foregone
conclusion, counsel’s concern may at that point have turned to the penalty phase, which
was substantially insulated from the effect of pretrial publicity. [Citation] Given the
possibility of a valid trial tactic, we reject this claim of ineffective assistance. [Citation]
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Id. at 314.
Upon consideration of the record and the following findings of fact after limited evidentiary
hearing the Court concludes that voir dire of the jury did not demonstrate exposure to pretrial publicity
rising to the level of presumptive prejudice, and that defense counsel was not deficient by failing to
renew the change of venue motion.
1.
Presumed Prejudice
Petitioner argues that the nature and extent and material falsity of the pretrial publicity, and the
lack of impartiality among the venire pool, support a presumption of prejudice.
As noted, the Court previously denied Petitioner claim of actual prejudice (i.e., “actual partiality
or hostility that could not be laid aside”), see Harris v. Pulley, 885 F.2d 1354, 1363 (9th Cir. 1988).
(ECF No. 261 at 54:12-15; ECF No. 276, at 53:4-7.)
Furthermore, the Court previously stated that the Strickland prejudice prong must be established
for claim C2 and that its Strickland analysis will be informed by whether it is reasonably likely that
venue would have been changed from Kern County because of presumed prejudice had Bolin’s
attorneys renewed the motion. (ECF No. 330 at 2:2-3); see Styers v. Schriro, 547 F.3d 1026, 1030 (9th
Cir. 2008) (citing Strickland, 466 U.S. at 695) (“[T]he governing legal standard plays a critical role in
22
1
defining the question to be asked in assessing prejudice for counsel's errors.”). Thus Respondent’s
2
argument that the Court has substituted a presumed prejudice standard in place of the Strickland
3
standard of prejudice is rejected. Respondent’s re-argument and citation to Thomas v. Borg, 159 F.3d
4
1147, 1149-52 (9th Cir. 1998), a case rejecting an ineffective assistance claim relating to jury
5
composition by applying the Strickland prejudice standard, does not persuade the Court otherwise.
6
a.
1)
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Nature and Extent of Pretrial Publicity
America’s Most Wanted Program
Petitioner contends that the program, which initially aired on January 7, 1990, was an
inflammatory re-enactment of events according to the Kern County Sheriff’s Department (ECF No. 113
at 21:1-3) and that the prosecution admitted as much. (11/1/90 RT at 25:6-9.) He also contends the
program presented inaccurate background information on Petitioner. (ECF No. 113 at 21:2-4.)
The trial court, after viewing the program, found it “quite dramatic” (11/1/90 RT at 26:20)
attended by considerable “media hoopla” (RT at 1226:21-25) and a “pretty graphic dramatization of
this alleged incident.” (RT at 761:8-9). The trial court was “very, very concerned about that program.”
(Id. at 28:18-19.)
Shortly thereafter, local television news aired a story on Petitioner’s capture, including excerpts
from the America’s Most Wanted program. (ECF No. 214, EH Ex. 54.)
On January 14, 1990, America’s Most Wanted aired a follow-up program, advising viewers of
Petitioner’s arrest (Id.; 11/1/90 RT at 17:6-13; 113 at 21:17-19), including an interview with Jim
Wilson and a rebroadcast of the alleged last words of Steve Mincy pleading for his life, comments from
Mr. Mincy’s mother that his daughter was missing her deceased dad (ECF No. 113 at 21:17-23), and
information about the fear of residents near the crime scene that Petitioner might return. (ECF No. 113
at 21:23-27; 1/1/90 Supp. RT at 16:24-20:25.) This second broadcast revisited the false booby trap
allegations (11/1/90 RT at 7), discussed below, included victim impact statements from Jim Wilson
and from Steve Mincy’s daughter, (11/1/90 RT at 7:9-20:25), and falsely stated that: “[I]n 1981
[Petitioner] killed a man with a shotgun blast in an argument. He was paroled after serving 2 years. In
1986, [Petitioner] stabbed a man 15 times, but he was acquitted.” (11/1/90 RT at 16:7-12; cf., RT at
2246-48; CT at 125-28; SHCP Ex. 42:191.)
23
2)
1
Local Media Coverage
2
Prior to the March 2, 1990 preliminary examination hearing, four motions for media coverage
3
of proceedings were filed, one from a newspaper, the Bakersfield Californian, to include a still camera
4
and tape recorder; one from radio station KUZZ, for audio; and one each from television stations
5
Channel 17 and Channel 23. (CT at 8:3-12.) These motions were granted by the trial court. (CT at
6
15:25-28.) The trial court denied Petitioner’s request to close the preliminary hearing and seal the
7
transcript.
8
permanently in the courtroom to record witness testimony (RT at 1643:7-12; RT-8 at 1780:15-82:11),
9
and requests to accompany the jurors on their crime scene visit. (RT at 1892:26-1893:4.)
10
(CT at 14-15.)
Local media interest during the trial included television cameras
Petitioner cites the following articles published in the Bakersfield Californian during the period
11 September 1989 to March 1990:
12
A September 4, 1989 article, which falsely attributed booby traps and pipe bombs to
13
Petitioner, who was falsely described as a former Navy SEAL with explosives expertise.
14
(ECF No. 113 at 17:1-20.) This article also erroneously stated that Jim Wilson had to
15
find a road where he flagged down a passing motorist. (EH Ex. 53.)
16
A September 6, 1989 article, which repeated the false pipe bomb statement and falsely
17
described Petitioner as a “convicted killer.” (Id.; 11/1/90 RT at 23.) In fact, Petitioner
18
asserts, no pipe bomb had been assembled from the components found at the crime
19
scene. (ECF No. 113 at 18:8-13; RT at 1887-88.) Petitioner claims this article also left
20
the false impression that Petitioner may have been involved in a 1985 shooting of a law
21
enforcement officer who was investigating a marijuana farm in the same general area.
22
(ECF No. 113, at 18-25.)
23
A September 7, 1989 article which falsely reported that Petitioner had shot Kenneth
24
Ross with a shotgun, when in fact Ross had been shot with a rifle. (Id.; EH Ex. 53; RT
25
at 2565.)
26
A September 8, 1989 article, which related to the search for Petitioner and included
27
irrelevant and prejudicial information relating to other pot farms in the area, implying
28
Petitioner was connected to the other pot farms. (EH Ex. 53; ECF No. 113 at 19:7-24.)
24
1
A September 9, 1989 article which reported that Petitioner’s van had been found
2
abandoned in Covina, California; that the search for him continued; and that police
3
patrols in the Walker Basin area had increased following possible sightings of Petitioner
4
in the area. (EH Ex. 53.) The article also included information about other pot farms in
5
that area. (Id.)
6
A January 6, 1990 article, which falsely report details of Wilson’s escape, that he
7
crawled to safety over 14 hours (id.; ECF No. 113 at 20-22); reported on Petitioner’s
8
alleged violent history; and falsely reported that 4 pipe bombs were found at the crime
9
scene when in fact only 3 unloaded alleged pipe bombs were found. (ECF No. 113 at
10
20:20-28; RT at 1863, 1888.)
11
A January 8, 1990 article which reported on Petitioner’s arrest and repeated the
12
erroneous information that Jim Wilson had “crawled eight miles over 14 hours to reach
13
safety.” (ECF No. 113 at 22:25-28.)
14
A January 17, 1990 article, which repeated the erroneous information above and
15
reported Petitioner’s return to California following his capture in Illinois, his pleading
16
not guilty to the two murder counts, the attempted murder count, and the marijuana
17
cultivation count, discovery of four pipe bombs in the cabin which officials thought
18
were used as booby traps, (EH Ex. 53; ECF No. 113 at 22:24-23:1), and stated that
19
during arraignment, the courtroom “was fortified by seven Kern County sheriff’s
20
deputies.” (ECF No. 113 at 23: 2-3.)
21
A January 27, 1990 article, which repeated the erroneous information above and
22
reported a delay in Petitioner’s preliminary hearing until March 2, 1990. (EH Ex. 53;
23
ECF No. 113 at 22:24-23:1.)
24
25
26
A March 3, 1990 article summarizing the March 2, 1990 preliminary examination
testimony of Jim Wilson and Eloy Ramirez. (EH Ex. 53; ECF No. 276 at 13:27-28.)
Respondent counters that the print publicity was not persistent and pervasive because only one
27 newspaper, the Bakersfield Californian, covered the trial, with six articles published in the week
28 following the crime (through September 9, 1989), and another four articles published near the
25
1
televising of the America’s Most Wanted segments (through January 27, 1990.) (ECF No. 194 at
2
40:27-41:7.) Respondent argues these facts support the state court finding that most of the news
3
articles appeared almost a year before trial, Bolin, 18 Cal. 4th 314, and that the articles were
4
insufficient to show presumed prejudice. See Hamilton v. Ayers, 458 F. Supp. 2d 1075, 1093 (E.D.
5
Cal. October 30, 2006), reversed in part on other grounds, 583 F.3d 1100, 1135-36 (9th Cir. 2009)
6
(citing United States v. Sherwood, 98 F.3d 402, 410 (9th Cir. 1996) (presumed prejudice standard
7
requires the community be “saturated with prejudicial and inflammatory media publicity about the
8
crime.”).
9
The record suggests that there was no local media coverage (print, radio or television) following
10 the preliminary hearing (CT at 8-12) until jury selection began in late November 1990. (EH RT 41-43,
11 181.) Moreover, the potential jurors were admonished numerous times by the trial court to avoid any
12 contact with the media coverage of the case. (RT at 25, 228, 235, 249, 326, 1642-43, 1892-93, 197613 77, 2090.)
14
15
3)
Community Attitude Survey
Petitioner argued at the hearing that the defense-commissioned Kern County community
16 attitude venue change survey (EH Ex. 52), which involved 317 Kern County residents registered to
17 vote and holding California driver’s licenses, showed that 45% of the Kern County residents surveyed
18 were familiar with the case from various sources, (id. at 3-5; 11/1/90 RT at 21:27-24:11); 52% of those
19 familiar with the case, or 23% of all respondents, had seen the America’s Most Wanted program, (id.;
20 see also ECF No. 178 at 45:12-14); and 66% of those familiar with the case, or 29.7% of all
21 respondents, had been exposed to other pretrial publicity, (EH Ex. 52 at 3-5).
22
Of the 45% who were aware of the case, 60% of those, or 27% of all respondents, believed
23 Bolin to be guilty. (Id.) The percentage of respondents who believed Bolin to be guilty was higher in
24 the category of individuals who saw the America’s Most Wanted program (77%, versus 45% for those
25 who had not seen the program). Furthermore, of those who watched the program, 66% responded they
26 were led to their belief in Bolin’s guilt because of the program, while 34% did not form an opinion.
27 (Id.)
28
Additionally, of the 45% who were aware of the case, 69% favored death, 14% favored life, and
26
1
17% needed more information to form an opinion.
(Id.)
Comparing respondents who saw the
2
America’s Most Wanted program against those who did not see it, the percentage favoring the death
3
penalty was 76% for those who saw it versus 61% for those who did not see it. (Id.)
4
Petitioner argues that defense counsel Soria misstated the results of the survey at the venue
5
change hearing by telling the trial judge that “of the 45% of residents who were aware of the case
6
through the media, 20% had seen the America’s Most Wanted program.” (ECF No. 178 at 45 n.40.)
7
He claims that according to his community survey, 75% of those who saw the American’s Most Wanted
8
program were convinced of Petitioner’s guilt of the charged crimes, (ECF No. 113 at 22:21-24; 11/1/90
9
RT at 21) and that over half the final jury pool (56 of 110) admitted seeing and remembering portions
10 of the America’s Most Wanted program. (ECF No. 113 at 23:21-24.)
11
Mr. Soria argued at the time of the motion that over half the potential jury pool would have seen
12 portions of the America’s Most Wanted reenactment; and that about three-quarters of those who saw the
13 show believed Petitioner was guilty. (RT, 11/1/90 at 21.) He suggested at that time about 15 percent of
14 Kern County residents had actually viewed the reenactment of the crime on America’s Most Wanted.
15 (11/1/90 RT at 24:1-5, 28:11.)
16
The prosecution admitted the show was “probably inflammatory” (11/1/90 RT at 25:7-9) and
17 that the show included inaccurate information regarding Petitioner’s background (RT at 386:12-19), but
18 argued that only 15% of the Kern County residents surveyed had actually seen the America’s Most
19 Wanted reenactment (11/1/90 RT at 24:24-26:14) and that only a small percentage of those felt they
20 were prejudiced by seeing it (Id.). The prosecution asserted that such small percentages did not support
21 a change of venue, (id.; ECF No. 194 at 34:22-35:8), i.e., that prior to voir dire, the pretrial publicity
22 did not establish that Petitioner could not get a fair trial in Kern County. (ECF No. 194 at 40:20-24.)
23
Respondent contends the motion to change venue was impliedly denied by the trial court when
24 the jury was sworn. (RT at 1641:28-41:5.)
25
26
4)
Voir Dire
Petitioner argues that the initial venire pool reflected a “high degree of prejudicial media
27 exposure,” noting that, of the 158 prospective jurors initially questioned on voir dire: 37 prospective
28 jurors had seen the America’s Most Wanted program, (ECF No. 178 at 46:2-5), of whom 16 were
27
1
excused for cause “because of attitudes hostile to the defense” (Id. at 46:4-5); 18 prospective jurors had
2
learned about the case primarily from television other than America’s Most Wanted (ECF No. 178 at
3
49:26-50:1); and 31 prospective jurors read about Petitioner’s case in the newspaper. (ECF No. 178 at
4
53:2-4.)
5
Petitioner’s Strickland expert, Mr. Thomson, noting Mr. Soria’s averment of not recalling any
6
strategic reason for failing to renew the change of venue motion unless he and Mr. Cater had been
7
successful in selecting a jury of people who had not seen the America’s Most Wanted program, stated
8
that:
9
10
11
Unfortunately, counsel had not been successful in that regard: four seated jurors (Lee,
Vaughn, Hanson, and Bowles) disclosed that they had seen the America’s Most Wanted
episode regarding Mr. Bolin [Record citation] Another seated juror (Barnes) admitted to
being influenced by newspaper reports about the case. [Record citation] Failure to renew
the venue motion under these circumstances is inconsistent with prevailing professional
norms at the time of Mr. Bolin’s trial.
12
13 (EH Ex. 72, ¶ 48.)
14
Respondent counters that Petitioner, at the time of the motion, did not carry his burden of
15 showing that he could not get a fair trial in Kern County, (RT 11/1/90 at 24), given that only 15% of
16 surveyed county residents had seen the America’s Most Wanted reenactment (id. at 28), and that only a
17 small portion of those expressed possible prejudice from seeing the program (id. at 24-26). Respondent
18 contends the survey supports a tactical decision by defense counsel not to pursue the change of venue
19 motion where counsel reasonably could have been satisfied with the jury as constituted following voir
20 dire. (See ECF No. 194 at 39:3-7.) Respondent goes on to argue that, for the same reasons, the change
21 of venue motion, even if it had been re-asserted, had no reasonable probability of success. (Id. at 39:822 11.)
23
24
b.
No Presumed Prejudice
Petitioner claims that prejudicial pretrial publicity saturated the community. He argues this
25 included the dramatic and graphic America’s Most Wanted re-enactment of the crime. (See RT at 282,
26 565, 574, 602-603, 675, 1060, and 1133-35.) He argues the broadcast’s dramatized re-enactment was
27 akin to the televised confession in Rideau. (ECF No. 178 at 44:16-25.) He emphasizes what he views
28 as non-factual and factually incorrect and conflated content, citing to Daniels v. Woodford, 428 F.3d
28
1
1181, 1210-12 (9th Cir. 2005), as an analogous case where prejudice was presumed from pretrial
2
publicity. He points out even the prosecution admitted that the information provided in America’s Most
3
Wanted was “inaccurate with regard to [Petitioner’s] background.” (RT at 386:12-19.)
4
Petitioner contends that voir dire demonstrated media coverage at preliminary hearing (CT at 8-
5
12) and thereafter was so extensive and extreme that a fair trial could not be had in Kern County and
6
counsel’s failure to renew the venue change motion following voir dire was presumptively prejudicial
7
given his evidentiary proffer at the hearing. (ECF No. 214 at 18:16-20:16.)
8
9
10
This Court finds that the noted facts developed during the evidentiary hearing do not stray
significantly from those in the state record, as discussed below.
Mr. Soria testified that he believed less than 50% of the venire pool was aware of the
11 American’s Most Wanted program. (EH RT at 32:25-33:4.)
12
The record at evidentiary hearing suggests that, of the jurors who passed the initial hardship
13 process and who filled out the juror questionnaires, approximately 51% were aware of the case; about
14 24% of those stated they were aware of the case from America’s Most Wanted (this percentage
15 increases to approximately 40% if jurors who were expressed uncertainty of their awareness and/or its
16 source are considered). (EH Ex.’s. 1-7, 9.) Moreover, of the jurors aware of the case, approximately
17 29% believed Petitioner was probably guilty, and approximately 23% believed Petitioner was probably
18 guilty because of pretrial publicity. (Id.)
19
These percentages were similar to the community survey, which showed 45% of those surveyed
20 were aware of the case; 23% were aware of the case from America’s Most Wanted with 66% of those
21 led to believe Petitioner was guilty of the charges; and 29% had seen or heard media stories about the
22 case other than America’s Most Wanted. (ECF No. 214, EH Ex. 52.) Those jurors responding to the
23 survey who had seen America’s Most Wanted were more likely to view Petitioner as guilty of the
24 charges than those responding to the survey who had not seen America’s Most Wanted. (Id.) Those
25 jurors responding to the survey who had seen America’s Most Wanted also were more likely to favor a
26 death sentence upon conviction. (Id.)
27
The foregoing reasonably suggest that no more than 40% of the venire pool had seen the
28 America’s Most Wanted program and no more than a one-third of those were predisposed to guilt.
29
1
The Court finds that the media coverage in this case falls short of the type of massive media
2
attention that manifestly tainted proceedings in Rideau, Estes, and Sheppard. In those cases, “the
3
influence of the news media, either in the community at large or in the courtroom itself, pervaded the
4
proceedings. Crater v. Galaza, 491 F.3d 1119, 1135 (9th Cir. 2007), (citing Murphy v. Florida, 421
5
U.S. 794, 799 (1975)). Those cases “cannot be made to stand for the proposition that juror exposure to
6
information about a state defendant's prior convictions or to news accounts of the crime with which he
7
is charged alone presumptively deprives the defendant of due process.” Id.
8
Moreover, the size and characteristics of the community from which the instant venire was
9
drawn suggest as much. For example, in Rideau, defendant’s jailhouse interrogation and confession
10 was broadcast three times to a total of some 97,000 (i.e., 65%) people living in the parish of 150,000
11 from which the venire was drawn. 373 U.S. at 724. Kern County, on the other hand, was double that
12 size with a population of 300,000, (EH RT at 44:13-14), of which the Community Survey suggested
13 23% had seen the America’s Most Wanted broadcast.
14
Moreover, the taped interrogation and confession in Rideau had been created “with the active
15 cooperation and participation of the local law enforcement officers, [citation] and two local deputy
16 sheriffs later were seated on Rideau's trial jury for what the Supreme Court denounced as “kangaroo
17 court proceedings.” Rideau, 373 U.S. at 726. Here, Kern County deputies took phone calls generated
18 by America’s Most Wanted, but Petitioner has not demonstrated the deputies participated in production
19 of the America’s Most Wanted reenactment as seen in Rideau.
20
The publicity in this case was not pervasive and constant. There were news articles, local
21 television and the America’s Most Wanted broadcasts concerning the case around the time of the
22 murders, Petitioner’s capture, and preliminary hearing. However, the coverage subsided over the
23 nearly 1-year period prior to jury selection and trial, and was not persistent and pervasive. Bolin, 18
24 Cal. 4th at 314.
25
Coverage in the Bakersfield Californian was sporadic: ten articles spanning September 1989 to
26 March 1990, all substantially prior to the December 3, 1990 empaneling of the jury. There were no
27 further articles or media coverage in the local news prior to jury selection in late November 1990. (EH
28 RT at 41-42.) Once jury selection began, jurors were repeatedly admonished to avoid any radio,
30
1
television, or newspaper coverage of the case. (EH Ex. 26.)
2
The trial court made clear that neither the press coverage in the Bakersfield Californian nor the
3
local January 1990 local news broadcasts warranted a change of venue. (EH Ex. 24 at 50.) Mr. Soria,
4
at the evidentiary hearing, acknowledged his view that there was no media saturation between the
5
preliminary hearing and the opening statement. (EH RT at 43:5-9.) Mr. Cater agreed that the publicity
6
had attenuated over time. (EH RT at 181:4-9.)
7
The false allegations relating to the voluntary manslaughter, the stabbing assault and battery,
8
Petitioner allegedly being an ex-Navy SEAL explosives expert, and his alleged connection to other
9
marijuana operations in the area, were clarified by the argument and evidence presented to the jury.
10 (RT at 1652:4-14, 1666:14-1667:6, 2588-89, 2598; CT at 125-30, 588.) The supposed pipe bombs
11 found in the cabin, (RT at 1862-65, 1887:10-1891:18), were not charged as a criminal offense or
12 argued as aggravating circumstance evidence during the penalty phase. (CT at 229, 552.)
13
The Court concludes that, for the reasons stated, prejudice cannot be presumed in this case. See
14 Hamilton, 458 F. Supp. 2d at 1093 (prejudice is not established where the nature of the news coverage
15 was factual and not inflammatory and the bulk of the publicity occurred months before jury selection
16 began); Casey v. Moore, 386 F.3d 896, 910 (9th Cir. 2004) (whether a jury was biased is a question of
17 fact and trial court's finding on this question is entitled to a presumption of correctness); Nebraska Press
18 Ass’n v. Stuart, 427 U.S. 539, 554 (1976) (pretrial publicity even pervasive, adverse publicity does not
19 inevitably lead to an unfair trial); accord McVeigh, 153 F.3d at 1181 (noting that presumed prejudice is
20 “rarely invoked and only in extreme situations”). Nor has Petitioner provided any authority that
21 selection for portrayal on America’s Most Wanted is alone a basis to presume prejudice.
22
In the rare case that prejudice is presumed, there will have been a “‘barrage of inflammatory
23 publicity immediately prior to trial,’ . . . amounting to a ‘huge . . . wave of public passion.’” Patton v.
24 Yount, 467 U.S. 1025, 1033 (1984) (quoting Murphy, 421 U.S. at 798 and Irvin, 366 U.S. at 728). For
25 the reasons stated, such was not the case here.
26
2.
Defense Strategy: The Empaneled Jury Was Acceptable to Counsel
27
Mr. Soria and Mr. Cater used a juror rating system that scored the jurors; they discussed the
28 scoring for each individual juror. (EH RT at 52:18-53:5.) The criteria used by counsel in scoring
31
1
jurors included consideration of how much negative impact was elicited for those jurors who saw
2
America’s Most Wanted (EH RT at 55:5-17) and other forms of pretrial publicity (EH RT at 55:20-
3
56:11), and whether the juror was believable (EH RT at 57:7-9).
4
Additionally, the rating system reflected whether, and the extent to which, a juror’s initially low
5
score was rehabilitated by beliefs that would support selection of a sentence of life without parole,
6
jurors he referred to as being “pro-life”, resulting in a higher juror score. (EH RT at 67:9-21.) A
7
juror’s rating could change over time, from juror questionnaire through voir dire. (EH RT at 123:13-
8
24.)
9
Defense counsel considered each juror as a whole package. (EH RT at 57:18-21.) A juror was
10 dismissed where the rating system dictated. (EH RT at 59:20-25.)
11
Mr. Soria stated that he challenged jurors for cause, for having seen America’s Most Wanted, in
12 order to preserve the issue on appeal. (EH RT at 50:17-21.) The trial judge denied some of these for13 cause challenges. (See e.g., EH RT at 51:8-11.) Defense counsel unsuccessfully challenged for cause
14 six of the twelve seated jurors (jurors Robert Bowles, Dale Campbell, Julie Hanson, Patricia Hinson,
15 Jeannine Lee, and Michael Vaughn). (See ECF No. 276 at 33-34 & n.17.)
16
Mr. Soria stated that he left on the panel jurors who had seen America’s Most Wanted because
17 he felt evidence of guilt was overwhelming. (See EH RT at 13:4.) He was more concerned with
18 avoiding jurors whose beliefs would support selection of a death sentence, jurors he referred to as being
19 “pro-death penalty” (EH RT at 13:10-11) and picking pro-life jurors (EH RT at 17:12, 81:16-18). Mr.
20 Soria, who was lead counsel at the time, states that he and Mr. Cater were in agreement on this primary
21 goal of selecting a pro-life jury, which he states was difficult in Kern County at that time. (EH RT at
22 49:1-13.) Though Mr. Cater testified at the evidentiary hearing that he felt the major objective was to
23 get jurors empaneled who had not seen America’s Most Wanted (EH RT at 154:2-9), he agreed that
24 getting a pro-life jury was a primary consideration. (EH RT at 184: 11-15.)
25
Mr. Soria was responsible for filing the change of venue motion. (EH RT at 151:1-7.) He
26 stated that it did not occur to him to renew the motion (EH RT at 11:23-24, 12) to keep off jurors who
27 had seen the America’s Most Wanted program (EH Ex. 16, ¶ 8; EH RT at 86-89); that he was satisfied
28 with the jury empaneled; and that any contrary statements in his 2008 declaration were prior to
32
1
refreshing his recollection for the 2013 evidentiary hearing. (EH RT at 33, 49-60, 85, 105:11-107:3,
2
185-89.) Mr. Soria testified that he did not see the need to use preemptory challenges simply because
3
he had challenged for cause (EH RT at 26: 9-17, 69:19-70:7), and he was concerned whom he might
4
get if he dismissed any of the finally empaneled jurors. (EH RT at 77:4-6.) Mr. Soria could not recall
5
any disagreement with Mr. Cater that the finally empaneled jury was acceptable to the defense. (EH
6
RT at 81:8-11.)
7
Mr. Cater stated that he was not happy with the jury they passed on, and that he had expected
8
the prosecution to continue with challenges. (EH RT at 189:16-23.) However, Mr. Cater conceded that
9
he consulted with Mr. Soria regarding the selection of jurors and had no major disagreements with Mr.
10 Soria as to the jury chosen. (EH RT at 190:10-12.) Mr. Cater also conceded that a potential juror’s
11 awareness of the case was not “an absolute death knell”; that if the juror appeared impartial even
12 though having viewed the America’s Most Wanted program and was “very good” on the death penalty,
13 the juror would not have warranted a peremptory challenge. (EH RT at 154.) He also agreed that
14 saving a defendant’s life in a capital case was the primary consideration. (EH RT at 184.)
15
The Court finds and concludes that Petitioner has not impeached defense counsel’s juror
16 selection methodology. Defense counsel, in addition to the effect of pretrial publicity, considered
17 potential jurors’ feelings about the death penalty and Petitioner not testifying and the prosecution
18 witnesses. (See e.g., EH RT at 13, 17, 29, 37, 48, 54-55, 154, 184-85; EH Ex.’s. 1r at TC000843,
19 TC000230; 2a at TC001225; 2c at TC001226, TC000244; 2e at TC001224; 2f at TC001221; 2g at
20 TC001227, Q19; 2i at TC001220; 5d at TC000244; 5l at TC000900, TC000437; 5r at TC000893,
21 TC000251; and 6b at TC000243.) To this end, although juror Barnes was familiar with the case from
22 sources other than America’s Most Wanted, defense counsel favored his views on the death penalty (EH
23 RT at 61-63, 66-67) because juror Barnes believed that imposition of the death penalty should be used
24 “only . . . as a last resort if the crime demands it.” (EH Ex. 2a at Q20; EH RT at 61.)
25
Similarly, juror Bowles’s exposure to America’s Most Wanted was minimal and, more
26 importantly, he was offended by the show because it suggested Petitioner was guilty of the crimes
27 charged. (EH RT at 25, 55; EH Ex. 2b at TC001219, 13971401.) Juror Hanson gave a credible
28 assurance of impartiality during voir dire and remembered little about the show despite her earlier
33
1
questionnaire response that she thought Petitioner was probably guilty based on the show. (EH RT at
2
25, 64-66; EH Ex. 2d at 1092-1100.) Defense counsel retained juror Hinson, despite having made a pro
3
forma challenge for cause based on the show, because she did not remember the show, believed it
4
would be difficult to vote for death, and her overall rating was middling, a three. (EH RT at 27, 63-64;
5
EH Ex. 2e at TC001224.) Juror Lee “absolutely” could put aside what she had learned from America’s
6
Most Wanted, had not read any other news, and hated to see the death penalty used. (EH RT at 55-56;
7
EH Ex. 2g at TC001227, Q19-20, 240-247.) Juror Lee believed that defense attorneys had “tough
8
job[s]” and that both the guilty and innocent deserved representation. (EH RT at 56; EH Ex. 2g at
9
Q13.) Juror Goff was subjected to a pro forma “for cause” challenge based on his having seen the
10 America’s Most Wanted program, to preserve the issue for appeal, but Mr. Goff was retained as a pro11 life sentence juror favorable to the defense
12
(RT at 1427-1441.)
Petitioner makes much of defense counsel allowing juror Vaughn to remain in the final twelve
13 jurors. (See EH RT at 85:20-89:11.) Petitioner argued that the score defense counsel had given
14 Vaughn warranted removal. Petitioner argued that Vaughn’s juror questionnaire suggested that he was
15 pro-death penalty, had been exposed to pretrial publicity, and felt Petitioner was guilty. However,
16 defense counsel Soria responded that juror Vaughn’s score was middling, not low, (EH RT at 104:1617 17), and that he saw things in juror Vaughn’s background (e.g., drug use; military service in Viet Nam)
18 that made him a favorable juror for the defense. (EH RT at 127-29.) Co-counsel Cater was uncertain
19 whether Vaughn’s overall rating favored the defense or the prosecution. (EH RT at 174:16-19.) He
20 scored juror Vaughn as middling on death penalty. (EH RT at 178:14-16.) Mr. Cater also testified at
21 the evidentiary hearing that juror Vaughn’s belief the crime involved Petitioner fighting with a friend,
22 (EH RT at 176:11-13) favored the defense theory of voluntary manslaughter or imperfect self-defense.
23
The evidence developed at the May 14, 2013 hearing suggests that as a matter of jury selection
24 strategy, defense counsel viewed pretrial publicity as important, but not controlling, as long as the juror
25 gave credible assurances of impartiality and offered other benefits for Petitioner toward the overarching
26 goal of avoiding a death sentence. This was not an unreasonable strategy given that Kern County juries
27 were “very pro-prosecution” regarding guilt in the 1980’s, (EH RT at 49-50), with one-third to one-half
28 of Kern County jurors then favoring the death penalty. (Id. at 110.)
34
1
Furthermore, the Court finds Mr. Soria’s testimony at the evidentiary hearing was forthcoming
2
and corroborated by defense jury selection notes. He adequately addressed why his 2008 declaration
3
(see EH Ex. 16) failed to explain the reasons he did not renew the venue motion – because he had not
4
received and reviewed relevant case materials prior to making the statements therein – and that he had
5
reviewed such materials prior to his testimony at the hearing. (EH RT at 8-9, 11, 33-40, 107.)
6
It does not appear unreasonable that, on the facts of this case, defense counsel would have a
7
primary strategic goal of selecting pro-life jurors, and a secondary strategic goal of selecting jurors who
8
had not seen the America’s Most Wanted broadcast. See Duff-Smith v. Collins, 973 F.2d 1175, 1183
9
(5th Cir. 1992) (strategic choice not to pursue change of venue motion proper where counsel could
10 have been satisfied with the panel as constituted after voir dire). Petitioner has not made a sufficient
11 evidentiary showing that the defense strategy was objectively unreasonable.
Nor is the Court
12 convinced by Petitioner’s contention that the above-described jury selection strategy was simply an
13 excuse for counsel’s insufficient investigation.
(See, e.g., EH RT at 13, 48-50, 167-72.)
That
14 contention fails for reasons discussed ante and in claim W, post.
15
At bottom, Petitioner has not demonstrated that the defense in mitigation, including life
16 experience and social history, was insufficiently developed prior to voir dire so as to preclude defense
17 counsel’s use of their asserted juror scoring methodology. Cf. Chateloin v. Singletary, 89 F.3d 749,
18 753 (11th Cir. 1996) (effective assistance found where counsel had no recollection of whether he
19 waived jury trial to avoid death penalty, but testified that he believed that to be a reasonable tactic and
20 had experience to support that opinion).
21
Furthermore, defense counsel’s consistent “for cause” challenges of jurors who had seen the
22 America’s Most Wanted program, (see EH RT, at 50:13-19; 181:16-20; EH Ex.’s. 1a at 562; 1f at 1435;
23 1k at 1507; 1o at 1235; 1r at 868; 2b at 1402; 2c at 1012; 2d at 1100; 2e at 1120; 2g at 245; 2l at 38424 87; 4c at 729; 5d at 987; 5h at 436; 5u at 1172-73; 5w at 1185; 5bb at 766; 6a at 955-56; 6d at 619; 6e
25 at 1057; 6f at 1141; 6h at 1162; 6i at 1177; 6j at 290; 6k at 1299; 6m at 452; 6n at 847; 7b at 1372; RT
26 at 465; EH RT at 50:17-51:22, 101:15-21, 120-122, 181-186), could have reasonably been seen as a
27 means to preserve the issue on appeal without risking use of peremptory challenges in a way that
28 impaired final say on the jury selected. See Jeffrey G. Adachi et al., Cal. Criminal Law Procedure and
35
1
Practice § 15.26 (2013 CEB); see also id. at § 15.17 (“it is unlikely that a trial judge who may have just
2
denied a challenge to a juror for cause based on prejudice stemming from publicity will grant a motion
3
to change venue a short time later.”). Especially so here, given that the same jury sat for the guilt and
4
penalty phases. (See EH RT at 22:7-10.)
5
3.
6
The Court finds that the trial court’s statements and rulings during voir dire, as well as the
7
testimony of counsel Cater and Soria, reasonably demonstrated that a renewed change of venue motion
8
likely would have been denied.
9
a.
10
Futility of Renewed Motion to Change Venue
State Law Requirements
Defense counsel could not renew a change of venue motion until facts were disclosed during
11 voir dire supporting the claim that a fair trial could not be had in Kern County because of pretrial
12 publicity. People v. Coleman, 48 Cal. 3d 112, 133, 136 (1989); Odle v. Superior Court, 32 Cal. 3d 932,
13 943-44 (1982); People v. Wallace, 6 Cal. 2d 759, 764 (1936); see also EH Ex. 24 at 50.
14
Even then, counsel had to demonstrate that other efforts besides a venue change had been
15 insufficient to protect his client’s right to an impartial jury, by: (1) challenging for cause every juror
16 who had been exposed to pretrial publicity; (2) exercising a peremptory challenge against every juror
17 who had been so exposed; and (3) moving to strike the jury panel. Coleman, 48 Cal. 3d at 136; Odle,
18 32 Cal. 3d at 943; see also People v. Bittaker, 48 Cal. 3d 1046, 1087-88 (1989), overruled on other
19 grounds by People v. Black, 58 Cal.4th 912 (2014) (to preserve claim of improper denial of cause
20 challenge, defendant must use peremptory challenge against juror, exhaust peremptory challenges or
21 justify failure to do so, and state dissatisfaction with jury selected).
22
23
b.
Trial Court Disinclined to Grant Relief
Petitioner faults defense counsel for not renewing the venue motion. He argues that under state
24 law, the venue change was required given the reasonable likelihood a fair trial could not be had, the
25 small community size and the nature of the crime. Corona v. Superior Court, 24 Cal. App. 3d 872,
26 883-84 (1972); Martinez, 29 Cal. 3d at 583-85 (1981).
27
Petitioner also faults counsel for not seeking a “blanket for cause” ruling excluding all jurors
28 who had been exposed to the America’s Most Wanted program. (ECF No. 178 at 59: 16-19.) He points
36
1
2
3
to the trial judge’s statement that:
[H]e wanted to determine first of all how many prospective run-ins we get who actually
have seen this video [America’s Most Wanted] and... see what their reaction is. [T]hat if
there were] general [prejudicial] reactions... [he] might be inclined to give a blanket for
cause.
4
5
6
(Id.; see also 11/1/90 RT at 50.)
Petitioner argues these omissions were not part of any reasonable litigation strategy or
7
intentional abandonment of the venue motion.
8
1)
9
Venue Change Motion
Counsel could reasonably have believed that a renewed venue change motion would have been
10 denied given the facts of this case. Mr. Soria, though acknowledging the importance of making
11 motions and objections in the trial court in order to preserve issues for appellate review (EH RT at 50,
12 101-03, 109), testified at the evidentiary hearing that he believed the venue motion, if renewed, would
13 have been denied. (EH RT at 32-33; 46; 81:3-7; 109:25-110:3; 114, 153:15-17.) Likewise, Mr. Cater
14 testified that it was unlikely such a motion would have been granted. (EH RT at 194-95.)
15
At the evidentiary hearing, Mr. Soria testified that he felt the motion to change venue was “not
16 good” because less than 50% of the jurors were aware of the American’s Most Wanted program. (EH
17 RT at 32:25-33:4.) Co-counsel Cater testified at the evidentiary hearing that, although he believed the
18 venue motion had merit given the level of publicity and uniqueness of the America’s Most Wanted
19 program, (EH RT at 151:17-21), he had never brought a venue motion himself and that he had never
20 seen one granted in Kern County. (EH RT at 179:2-12.)
21
Defense counsel acknowledged that, according to their survey, the number of Kern County
22 residents who had heard of his case was small compared to other cases where venue motions had been
23 granted, (11/1/90 RT at 23), and conceded that the nature and extent of the news coverage would not
24 have warranted a change of venue absent the reenactment of the crime on America’s Most Wanted.
25 (11/1/90 RT at 23.) Moreover, voir dire could reasonably have suggested that the passage of time
26 between significant media coverage and the trial limited the effect of pretrial publicity. (See, e.g., EH
27 Ex.’s. 1c at 1460:7-10; 2c at 1005-06; 6f at 1135-36.)
28
Mr. Soria stated that he did not regret commissioning the survey or filing the venue motion,
37
1
because he believed the then-unique nature of America’s Most Wanted warranted the filing of the
2
motion. (EH RT at 46, 114, 176, 180.) But he nonetheless believed his chances of getting the motion
3
granted were “nonexistent.” (Id. at 109:25-110:3.)
4
Mr. Cater testified that there was no strategic reason for not renewing the motion, (EH RT at
5
153:6-8), that he and Mr. Soria simply overlooked doing so, (EH RT at 194:2-3), and that it was “a
6
mistake” not to get a final ruling on the motion. (EH RT at 153:18-21.) However, Mr. Cater goes on to
7
concede that the trial court likely would not have granted the venue motion. (EH RT at 153:15-17.) He
8
believed that the trial judge would have invited them to renew the motion had the judge been inclined
9
to grant it. (Id. at 194-95.)
10
Defense counsel acknowledge that they did not use all their peremptory challenges, (EH RT at
11 19:21-23; 187:5-14), exercising only four of the available twenty peremptory challenges, (RT at 163312 38), effectively precluding any change of venue. (EH RT at 69:19-70:7.) However, Mr. Soria was an
13 experienced capital defense attorney, (EH RT at 37-39), who, prior to the venue change motion, had
14 consulted with jury experts in a separate action regarding the requirements for a successful venue
15 change motion. (EH RT at 45-47.) Furthermore, neither Mr. Soria nor Mr. Cater had seen a venue
16 motion granted in Kern County. (EH RT at 44, 179.) Mr. Soria stated that he was aware of a venue
17 motion with 70% media saturation that was nonetheless denied in Kern County. (EH RT at 44:2018 45:3.) This suggests a basis for deference to counsel’s decision not to renew the motion given
19 Strickland’s presumption of competent assistance. Stewart v. Secretary, Dep’t of Corrections, 476 F.3d
20 1193, 1209 n.25 (11th Cir. 2007) (noting that counsel’s experience strengthens the presumption of
21 reasonable assistance).
22
Defense counsel could reasonably have concluded that the trial court would have denied a
23 renewed change of venue motion. (See EH RT at 51, 182-83.)
24
25
2)
“Blanket For Cause” Ruling
Counsel could reasonably have believed the trial court would not grant a “blanket for cause”
26 ruling relating to America’s Most Wanted because that court actively rehabilitated certain of these
27 jurors. The trial court granted defense cause challenges for jurors who not only remembered pretrial
28 publicity about the case but who also could not set aside their beliefs about Petitioner’s guilt because of
38
1
this publicity. (See, e.g., EH Ex.’s. 6a at 955-56; 6c at 1604; 6d at 619; 6e at 1062-63; 6h at 1161-62;
2
6i at 1177; 6j at 280-90; 6k at 1296-99; 6n at 844-47.) The trial court also denied many other cause
3
challenges based on exposure to pretrial publicity because the jurors either remembered very little
4
about the case or could set aside what they had learned, and they had provided credible assurances that
5
they could put aside any initial beliefs about Petitioner’s guilt. (See e.g., EH RT at 182; EH Ex.’s. 1a at
6
563; 1f at 1435-40; 1k at 1498-1507; 1o at 1228-35; 1r at 859-68; 2b at 1402-03; 2c at 1005-13; 2d at
7
1098-1100; 2e at 1111-20; 2g at 243-45; 2l at 373-78, 384-87; 4c at 724-30; 5d at 976-91; 5h at 433-38;
8
5u at 1162-74; 5w at 1178-90; 5bb at 761-66; RT at 459-66.)
9
Here, the trial court excused nine jurors based on exposure to pretrial publicity. On the other
10 hand, it denied nineteen cause challenges on the same basis because none of these jurors “had such
11 fixed opinions that they could not judge impartially the guilt of the defendant.” See Yount, 467 U.S. at
12 1035. Six of these potential jurors who saw the America’s Most Wanted program or believed they may
13 have seen it were actually selected as jurors, over defense challenges for cause, based on credible
14 assurances of impartiality. (RT at 243-45 re Marie Lee; RT at 1111-20 re Patricia Hinson; RT at 36215 87 re Michael Vaughn; RT at 1005-14 re Dale Campbell; RT at 1092-1102 re Julie Hanson; RT at
16 1393-1403 re Robert Bowles.) Similarly, juror Gilbert Barnes as selected as a juror even though he
17 was exposed to print and television coverage (RT at 90-106) and stated during voir dire that he thought
18 Petitioner was guilty based thereon. The trial court’s resolution of these questions is entitled to
19 deference. Yount, 467 U.S. at 1038 (deference accorded to trial judge’s determination where based on
20 voir dire and juror demeanor).
21
Defense counsel could reasonably have concluded that the trial court would not have entertained
22 a blanket challenge for cause. (See EH Ex. 24 at 50.)
23
4.
No Prejudicially Deficient Conduct by Defense Counsel
24
Petitioner argues that defense counsel Soria was deficient by not renewing the venue motion
25 and by being pre-occupied with the prospect of a job change and the press of the noted concurrent
26 capital case, People v. Holt, E.D. Cal. Case No. 1:97-cv-6210-AWI, and did not adequately prepare for
27 voir dire, the venue change, or the penalty phase.
28
It was not unreasonable for defense counsel to adopt the strategy discussed above for selecting
39
1
the jury, and to forego renewal of the venue motion by placing priority in avoiding a death sentence
2
over the effect of pretrial publicity. (EH RT at 48-49.) The joint decision of defense counsel to select a
3
favorable jury regarding penalty selection was a reasonable strategic alternative to exhausting all of
4
Petitioner’s peremptory challenges, which could have resulted in losing favorable jurors and still not
5
obtaining a change of venue. Given Mr. Soria’s almost ten years’ experience as a criminal defense
6
attorney at the time, his experience as counsel in fifteen prior murder cases and three prior capital cases,
7
(EH RT at 37-47), Strickland’s presumption of competent assistance is persuasive. See Stewart, 476
8
F.3d at 1209 (noting that counsel’s experience strengthens the presumption of reasonable assistance).
9
In rejecting Petitioner’s ineffective assistance of counsel claim on direct appeal, the California
10 Supreme Court observed:
11
12
13
14
15
16
17
18
19
20
Counsel’s failure to renew the change of venue motion did not result from ignorance or
inadvertence and reflected a reasonable trial strategy. [Citation] The impact of the pretrial
publicity generally and the America’s Most Wanted episodes in particular was a critical focus
of the voir dire. Although many prospective jurors had been exposed to some pretrial
publicity, including the segment reenacting the killings, for the most part few recalled the
specifics or had formed a resolute impression of [Petitioner’s] guilt. In particular, those who
eventually sat on the jury all gave assurances they would decide the case based solely on the
courtroom evidence. [Citation] In light of these responses, counsel could well have recognized
the effect of the publicity had not been as substantial as feared, especially after an 11-month
interim. Thus, renewed effort to seek a change of venue would be futile since the trial court
had conditioned any change in its tentative ruling on a determination the television coverage
had impaired the ability to assemble an impartial jury. In addition, the reenactment was
relevant only to the guilt phase portion of the trial. With guilt virtually a foregone conclusion,
counsel’s concern may at that point have turned to the penalty phase, which was substantially
insulated from the effect of pretrial publicity. [Citation] Given the possibility of a valid trial
tactic, we reject this claim of ineffective assistance. [Citation]
21 Bolin, 18 Cal. 4th at 314.
22
The above noted record on evidentiary hearing suggests that defense counsel employed this
23 strategy in jury selection. While defense counsel believed that the effect of the pretrial publicity upon
24 potential jurors was an important consideration in selecting a jury, it appears that counsel considered
25 avoiding a death sentence to be of paramount importance to Petitioner. Moreover, jurors “who are least
26 willing and likely to vote death are more apt to be good jurors on the question of guilt.” (EH Ex. 15 at
27 A-20.)
28
Defense counsel could reasonably have found that given the strength of the evidence against
40
1
Petitioner and the knowledge that Kern County jurors were generally supportive of the death penalty,
2
jurors’ thoughts about the death penalty were more important than mere exposure to pretrial publicity
3
or even significant exposure to pretrial publicity if the juror gave credible assurances of impartiality and
4
offered other benefits for Petitioner. Mr. Soria’s experience with Kern County juries for 10 years had
5
demonstrated that such juries were “very pro-prosecution.” (EH RT at 49-50.) Moreover, at that time,
6
one-third to one-half of Kern County jurors were in favor of the death penalty. (Id. at 110.)
7
Defense counsel also considered whether potential jurors wanted Petitioner to testify to prove
8
his innocence, their likely reactions to the prosecution witnesses including the surviving victim, Jim
9
Wilson, and juror rehabilitation during voir dire. (EH RT at 13, 17, 29-30, 37, 48, 54-55, 154, 184-85;
10 see also EH Ex.’s. 1a at 563; 1f at 1435-40; 1k at 1498-1507; 1o at 1228-35; 1r at 859-68; 2b at 140211 03; 2c at 1005-13; 2d at 1098-1100; 2e at 1111-20; 2g at 243-45; 2l at 373-78, 384-87; 4c at 724-30; 5d
12 at 976-91; 5h at 433-38; 5u at 1162-74; 5w at 1178-90; 5bb at 761-66; RT at 459-66.) For example,
13 juror Barnes was familiar with the case from media exposure, yet defense counsel liked his views on
14 the death penalty (EH RT at 61-67) because juror Barnes believed that imposition of the death penalty
15 should be used “only. . . as a last resort if the crime demands it.” (EH Ex. 2a at Q20; EH RT at 61.)
16
Similarly, juror Bowles saw, but was offended by the America’s Most Wanted program. (EH RT
17 at 25, 55; EH Ex. 2b at TC001219, 1397.) Juror Hanson, who stated in her juror questionnaire that she
18 thought Petitioner was probably guilty based on the America’s Most Wanted program, later gave
19 assurance of impartiality during voir dire, saying she remembered little of the show. (EH RT at 25, 6420 66; EH Ex. 2d at 1092-94, 1097-1102.) Defense counsel retained juror Hinson, despite having made a
21 pro forma challenge for cause based on the program, because she did not remember the show, believed
22 it would be difficult to vote for death, and her overall rating was a three. (EH RT at 27, 51, 59, 63-64;
23 EH Ex. 2e at TC001224.) Juror Lee “absolutely” could put aside what she had learned from America’s
24 Most Wanted, had not read any other news, and hated to see the death penalty used. (EH RT at 55-56;
25 EH Ex. 2g at TC001227, Q19-20, 240-43.)
26
While perhaps not as important as significant exposure to publicity or views on the death
27 penalty, defense counsel also weighed other juror characteristics in deciding whether to exercise
28 peremptory challenges against jurors who either had limited exposure to publicity or who had provided
41
1
credible assurances of impartiality. (EH RT at 125-26.) Counsel relied upon their instincts and
2
considered each juror independently in deciding which jurors to select. (Id. at 57, 59-60, 66-67, 185.)
3
For example, though one potential juror, Mr. Newberry, had seen the American’s Most Wanted
4
program and felt Petitioner was probably guilty, defense counsel’s notes reflect both counsel and
5
Petitioner liked Mr. Newberry. (EH Ex. 4c at Q1.) Similarly, a juror’s prior experience with inmates
6
or drugs was considered by defense counsel, (see EH Ex.’s. 1d at TC000436, TC000868; 2b at Q13;
7
5bb at TC000227), as was prior military service in Vietnam, (EH Ex. 2l at Q5, Q13).
8
Though counsel Cater could not recall the meaning of the defense notes on juror Vaughn, (EH
9
RT at 173-76), he “was pleased to see” that Vaughn’s knowledge of the case gained from the America’s
10 Most Wanted program was consistent with their “theory of defense.” (EH RT at 176.) Defense counsel
11 also considered juror Lee’s belief that defense attorneys had “tough job[s]” and that both the guilty and
12 innocent deserved representation. (EH RT at 56; EH Ex. 2g at Q13.)
13
Mr. Soria, at the evidentiary hearing went on to explain that he did not exhaust all his
14 peremptory challenges because he liked the jurors he had on the panel. (EH RT at 60.) Had he used all
15 of his peremptory challenges, he would not have known the final composition of the jury, especially in
16 a case such as this where counsel was unaware which jurors would be called to replace jurors who had
17 been excused on a peremptory challenge. (Id. at 70.)
18
Additionally, the noted defense strategy for juror selection was independently supported by trial
19 counsel’s handwritten notes taken during jury selection, (see, e.g., EH Ex.’s 1a-7i.), regarding decisions
20 about particular jurors. (See, e.g., EH RT at 16, 122-23, 186.) As noted, Mr. Soria explained why his
21 2008 declaration (see EH Ex. 16) failed to clearly set out the defense jury selection and venue strategy,
22 i.e., that he had not reviewed any of these materials prior to making the statements in his 2008
23 declaration but had reviewed them prior to his testimony at the evidentiary hearing. (EH RT at 8-9, 11,
24 33-34, 36, 39-40, 95-96, 107.)
25
Petitioner also claims counsel was deficient for not seeking a ruling on the venue motion in
26 order to preserve the issue for appeal. He argues the professional norms embodied in the ABA
27 Guidelines provide for preservation of appeal issues. (See ECF No. 178 at 62:24-63:2; ABA Guideline
28 11.7.3.) However, Petitioner has not demonstrated ABA Guidelines create a duty counsel was bound to
42
1
follow. See e.g., Bobby v. Van Hook, 558 U.S. 4, 8-9 (2009) (ABA Guidelines have been viewed as
2
essentially guides that inform reasonable attorney conduct, but not “inexorable commands”). Even if
3
ABA Guidelines could be viewed as required conduct, counsel could reasonably have decided that an
4
appeal of the venue issue would have lacked merit for the reasons discussed above. Additionally,
5
counsel’s noted juror selection strategy, going to trial with a jury with whom they were satisfied, could
6
reasonably be seen as outweighing considerations of appeal preservation.
7
The facts developed at the evidentiary hearing suggest that it was not unreasonable for the
8
California Supreme Court to reject claimed ineffective assistance of counsel relating to the motion to
9
change venue. Defense counsel was not required to make a futile and potentially counterproductive
10 renewal of the change of venue motion, even in a capital case. See James v. Borg, 24 F.3d 20, 26 (9th
11 Cir. 1994) (counsel not incompetent for failing to file meritless suppression motion). Nor was it
12 prejudicial because there was no reasonable probability the motion to change venue, if renewed, would
13 have been granted. Finally, even if there was a violation of state law as Petitioner contends, see
14 Coleman, 48 Cal. 3d at 136, such is not alone a sufficient basis for federal habeas relief. Pulley v.
15 Harris, 465 U.S. 37, 41 (1984).
Conclusions Regarding Limited Evidentiary Hearing – Claim C2
16
5.
17
For the reasons stated, Petitioner has failed to demonstrate that counsel was deficient by failing
18 to renew the change of venue motion and that, but for counsel’s unprofessional errors, venue in this
19 proceeding would have been different. Strickland, 466 U.S. at 687-98.
20
Claim C2 is denied.
21 C.
Ineffective Assistance of Counsel at the Penalty Phase
22
Petitioner, at the evidentiary hearing, attempted to develop facts relating to Mr. Soria’s
23 allegedly inadequate penalty phase preparation and conduct. However, such matters are outside the
24 scope of the evidentiary hearing granted by the Court. (ECF Nos. 261 at 54:12-15, 276 at 53:4-7.)
25 Moreover, for claims like these, that are adjudicated on the merits in state court, a petitioner can only
26 rely on the record that was before the state court to satisfy the requirements of § 2254(d). See Schriro
27 v. Landrigan, 550 U.S. 465, 474 (2007); Pinholster, 563 U.S. at 181. Here, evidentiary development of
28 allegations relating to IAC at the penalty phase is precluded because Petitioner has not satisfied the §
43
1
2254(d) gateway for reasons stated in claim W, post.
2
Even if the Court could consider the purported evidentiary proffer at the evidentiary hearing, no
3
prima facie claim has been stated. Mr. Soria, at the evidentiary hearing, initially testified he took no
4
steps, prior to November 1990, to prepare for the penalty phase. (EH RT at 23:23-24:7.) He stated that
5
he was somewhat pre-occupied with the prospect of taking a job with the Monterey Public Defender,
6
(Id. at 21:11-15), and with the demands of acting as petitioner’s counsel in Holt through May 1990.
7
(Id. at 30:24-31:11.) However, Mr. Soria later testified that he was in fact preparing for both the guilt
8
and penalty phases in this action prior to trial, during the period July-November 1990. (Id. at 68:15-
9
69:15.)
10
Mr. Cater, who came in as second chair in late July, testified at the evidentiary hearing that no
11 sufficient penalty defense had been prepared by Mr. Soria. (Id. at 161:14-19, 163:8-22, 166:17-19,
12 167:12-16, 169:19-21.) Mr. Cater testified that Mr. Soria and his investigator, Bruce Binns, provided
13 little, if anything, relating to their penalty phase preparation. (Id. at 148:9-12.) But later in his
14 testimony, Mr. Cater conceded that he did receive Mr. Soria’s penalty file, including research and
15 discovery, though stating that these files did not contain much information. (Id. at 159:15-21.)
16
For the reasons stated above and in claim W, post, Petitioner was not and is not entitled to
17 evidentiary development of claimed ineffective assistance of defense counsel at the penalty phase.
VII. REVIEW OF RECORD CLAIMS
18
19 A.
Claims Relating to Pretrial Issues
20
1.
21
Petitioner alleges the trial court erred in denying Mr. Soria’s July 1990 pretrial motion to
Review of Claim A
22 withdraw from the case, despite Mr. Soria’s lack of interest and preparation and his valid reasons to
23 withdraw, forcing Petitioner to proceed to trial with an unwilling, incompetent, disloyal and ineffective
24 attorney.
25
Petitioner raised this same claim in his petition for writ of habeas corpus in the California
26 Supreme Court. The California Supreme Court ruled that, to the extent Petitioner’s claim alleged trial27 court error, the claim was procedurally barred because this claim could have been, but was not, raised
28 on direct appeal. (CSC Order Den. Pet. Habeas Corpus [citing In re Harris, 5 Cal. 4th at 825 n.3 and In
44
1
re Dixon, 41 Cal. 2d at 759].) The California Supreme Court also summarily rejected Petitioner’s
2
claim on the merits in a decision unaccompanied by explanation. (Id.)
3
4
5
6
7
a.
Clearly Established Law
Trial court error violates due process where it renders the resulting criminal trial fundamentally
unfair. Chambers v. Mississippi, 410 U.S. 284, 294, 303 (1973).
The standard for ineffective assistance of counsel is set forth at in claim C2, ante.
b.
Analysis of Claim A
8
Petitioner alleges that the trial court abused its discretion by refusing to appoint new lead
9
counsel unless Mr. Soria could quickly find replacement lead counsel agreeable to keeping the
10 previously set October 22, 1990 trial date. (7/18/90 RT at 3-4.) Mr. Soria was unable to do so, but he
11 agreed to go forward with Mr. Cater as second counsel. (7/30/90 RT at 9-11.)
12
A breakdown in the attorney-client relationship can result in a denial of the right to effective
13 assistance of counsel. Frazer v. United States, 18 F.3d 778, 782-83, 785 (9th Cir. 1994); see also
14 Brown v. Craven, 424 F.2d. 1166, 1169-70 (9th Cir. 1970) (trial court’s failure to conduct inquiry into
15 irreconcilable conflict arising from the client’s refusal to communicate or cooperate with counsel
16 resulted in denial of effective assistance of counsel); Schell v. Witek, 218 F.3d 1017, 1026, (9th Cir.
17 2000) (citing Smith v. Lockhart, 923 F.2d 1314, 1320 (8th Cir. 1991)) (the overarching constitutional
18 question is whether the attorney-client conflict has become so great that “it resulted in a total lack of
19 communication or other significant impediment that resulted in turn in an attorney-client relationship
20 that fell short of that required by the Sixth Amendment”).
21
Here, the record reflects that, on July 18, 1990, the trial court heard Soria’s motion to
22 withdraw as counsel. Soria argued that he had been seeking other employment, (7/18/90 In Camera
23 Hearing RT 14 at 3-4, 11), and that sufficient time remained for new counsel to get up to speed.
24 (7/18/90 In Camera Hearing RT at 4-5, 10-11.) The trial court denied Soria’s request without
25 prejudice and stated that it would reconsider Soria’s motion on the following conditions: (1) that
26 Soria provided the court with the names of two attorneys who were willing to work together and
27 represent Petitioner “within the next week”; (2) the attorneys would be ready to begin trial on
28 October 22, 1990, “or very shortly thereafter”; and (3) Petitioner had met with the two attorneys and
45
1
felt “comfortable” with them representing him. (7/18/90 RT at 12; see also 7/18/90 RT at 3.) Both
2
Mr. Soria and Petitioner agreed that the court’s denial of the motion to withdraw and the conditions
3
on reconsideration of the motion were “fair.” (7/18/90 RT at 12.)
4
On July 30, 1990, Mr. Soria indicated his willingness to continue handling Petitioner’s case and
5
that he had found a co-counsel, Mr. Cater, to assist him. (7/18/90 RT at 9.) The trial court then
6
appointed Mr. Cater as co-counsel. (Id. at 9-10.)
7
Petitioner cites to the ABA Guidelines and argues that the trial court “unreasonably applied” the
8
Sixth Amendment duty of investigation in a capital case because its ruling would not have allowed a
9
new counsel sufficient time to prepare for trial. (ECF No. 178 at 17-18.)
But even if a failure to abide
10 by the ABA Guidelines could establish ineffectiveness of counsel, the trial court was not provided any
11 reason to believe that Mr. Soria was not abiding by them, (see claim I, post), or that any newly
12 appointed counsel could not abide by them.
13
Mr. Soria informed the court that he brought the motion when he did because “there would be a
14 significant amount of time for new counsel to come in” and he had “done enough investigation that [he]
15 could bring [new] counsel up to speed” before trial. (7/18/90 In Camera Hearing RT at 4-5.) Moreover,
16 even if the trial court’s ruling could have conflicted with the ABA Guidelines regarding the amount of
17 preparation time needed for a newly appointed counsel, the issue was never before the trial court
18 because Mr. Soria chose to remain on the case. (7/18/90 RT at 9.)
19
Mr. Soria also had indicated that he was “on the middle of the fence” about withdrawing in any
20 event and agreed with the court’s assessment that he was primarily making the motion to withdraw
21 because he did not currently have a second counsel, which he felt was necessary to presenting the case
22 effectively. (7/18/90 In Camera Hearing RT at 7-8, 10-11.) Mr. Soria then indicated that another
23 counsel, Mr. Cater, had expressed interest, and the court indicated he would do “an excellent job.”
24 (7/18/90 In Camera Hearing RT at 13.)
25
To the extent Petitioner complains that Mr. Soria subsequently performed deficiently alleged in
26 claims B2, C2, D, G2, H2, I1-I17, J, W1-W9 and Y, these claims all fail for the reasons stated, post.
27
Petitioner also argues by inference that the trial court abused its discretion in denying Mr.
28 Soria’s motion to withdraw given that court’s subsequent grant of Petitioner’s Marsden motion
46
1
following the guilt phase. In granting the Marsden motion, the trial court removed Mr. Soria due to a
2
complete breakdown in the attorney-client relationship to the point of conflict of interest (RT at 2271-
3
96), appointing Mr. Cater to be lead counsel for the penalty phase. (CT at 544-45; RT at 2298-2301.)
4
However, the trial court cannot be found to have abused its discretion in denying the motion to
5
withdraw based upon events that occurred after ruling on that motion. (See ECF No. 178 at 14-18.)
6
Mr. Soria’s performance at trial is irrelevant when determining the propriety of the trial court’s pre-trial
7
ruling on the motion to withdraw.
8
Similarly unavailing is Petitioner’s claim that the trial court erred in subsequently denying Mr.
9
Cater’s post-sentencing motion for appointment of independent counsel. At that time, the trial court
10 “did not see anything wrong with [Mr. Soria’s] representation and [did not think] by any stretch of the
11 imagination that any more favorable determination would have occurred.” (2/25/91 RT at 16-17.) This
12 Court agrees, for reasons discussed in claim W, post.
13
A fair-minded jurist could have found that Petitioner failed to establish that he was denied a fair
14 trial, or to the extent alleged, that defense counsel’s performance fell below an objective standard of
15 reasonableness and that, but for counsel’s unprofessional errors, the result of the proceeding would
16 have been different. Strickland, 466 U.S., at 687-98.
17
It does not appear that the California Supreme Court’s rejection of the claim was contrary to, or
18 an unreasonable application of, clearly established federal law, as determined by the Supreme Court, or
19 that the state court’s ruling was based on an unreasonable determination of the facts in light of the
20 evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).
21
Claim A is denied.
22
2.
23
Petitioner next claims ineffective assistance by defense counsel’s preparation and submission of
Review of Claims B1 & B2
24 a jury questionnaire that contained prejudicial information and induced the jurors to prejudge the
25 question of his guilt or innocence, and he claims that the trial court erred in using the questionnaire.
26 (ECF No. 113 at 14-15.)
27
Petitioner raised both claims in his petition for writ of habeas corpus in the California Supreme
28 Court. (CSC Pet. Habeas Corpus at 25-28, 51-53.)
47
The California Supreme Court ruled that
1
Petitioner’s first claim was procedurally barred because the claim could have been, but was not raised
2
on direct appeal. (CSC Order Den. Pet. Habeas Corpus [citing In re Harris, 5 Cal. 4th at 825 n.3 & In re
3
Dixon, 41 Cal. 2d at 759].) The California Supreme Court also summarily rejected both of Petitioner’s
4
claims on the merits without explanation. (CSC Order Den. Pet. Habeas Corpus.)
5
a.
Clearly Established Law
6
“[T]he right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial,
7
‘indifferent’ jurors.” Irvin, 366 U.S. at 722; see also Skilling, 561 U.S. at 377-78. In a capital case, “a
8
prospective juror may be excluded for cause because of his or her views on capital punishment . . . if
9
the juror’s views would ‘prevent or substantially impair the performance of his duties as a juror in
10 accordance with his instructions and his oath.’” Wainwright v. Witt, 469 U.S. 412, 424 (1985) (citing
11 Adams v. Texas, 448 U.S. 38, 45 (1980)). Thus, “a juror who in no case would vote for capital
12 punishment, regardless of his or her instructions, is not an impartial juror and must be removed for
13 cause.” Morgan v. Illinois, 504 U.S. 719, 728 (1992). Likewise, a juror who would automatically
14 impose the death penalty if a defendant is found guilty is not impartial and must be removed for cause.
15 Id. at 733; Ross v. Oklahoma, 487 U.S. 81, 85 (1988).
16
“[P]art of the guarantee of a defendant’s right to an impartial jury is an adequate voir dire to
17 identify unqualified jurors.” Morgan, 504 U.S. at 729. “Voir dire ‘is conducted under the supervision
18 of the court, and a great deal must, of necessity, be left to its sound discretion.’” Ristaino v. Ross, 424
19 U.S. 589, 594 (1976) (quoting Connors v. United States, 158 U.S. 408, 413 (1895)). “[T]he trial court
20 retains great latitude in deciding what questions should be asked on voir dire.” Mu’Min, 500 U.S. at
21 424. No hard-and-fast formula dictates the necessary depth or breadth of voir dire, see United States v.
22 Wood, 299 U.S. 123, 145–146 (1936), and “[t]he Constitution . . . does not dictate a catechism for voir
23 dire, but only that the defendant be afforded an impartial jury.” Morgan, 504 U.S. at 729. A trial
24 court’s failure to ask certain questions does not violate the Constitution unless it “render[s] the
25 defendant’s trial fundamentally unfair.” Mu’Min, 500 U.S. at 426.
26
“[T]he trial court retains great latitude in deciding what questions should be asked on voir
27 dire.” Id. at 424. A trial court’s failure to ask certain questions does not violate the Constitution unless
28 it “render[s] the defendant’s trial fundamentally unfair.” Id. at 426.
48
1
Two specific inquires of voir dire are constitutionally compelled: inquiries into racial prejudice
2
against a defendant charged with a violent crime against a person of a different racial group, id. at 424;
3
and, in a capital case, inquiries into a juror’s views on capital punishment. Morgan, 504 U.S. at 730-32.
4
5
The standard for ineffective assistance of counsel is set out in claim C2, ante. 299 U.S. 123
b.
Analysis of Claims B1 & B2
6
Petitioner alleges that the questionnaire, prepared and submitted by defense counsel (SHCP Ex.
7
1; 11/1/90 Supp. RT at 35-36), prejudicially informed potential jurors of outside evidence, that he had
8
been the subject of America’s Most Wanted, leading jurors to prejudge his guilt, biasing them against
9
him. (See, e.g., RT 92-93; 364-378; 1482-83; 1488-89.) He complains counsel was ineffective in
10 unnecessarily exposing jurors to the information about the America’s Most Wanted broadcast and that
11 doing so may have caused jurors to form conclusions not based upon the admitted evidence. See
12 Taylor v. Kentucky, 436 U.S. 478, 485 (1978) (jury to reach their conclusion solely from the legal
13 evidence adduced); Brecht, 507 U.S. at 637.
14
The questionnaire informed potential jurors that America’s Most Wanted had created and aired a
15 detailed re-enactment of the crime and that local stations had referenced, promoted and aired the
16 episode. (See SHCP Ex. 1, Question 71.) The questionnaire asked potential jurors to state, based upon
17 what they had seen, heard or read about the case, whether they would say that Petitioner was “definitely
18 guilty, probably guilty, definitely not guilty or probably not guilty.” (SHCP Ex. 1, Questions 71 C, 73.)
19
The Court finds these claims unpersuasive. As an initial matter, the trial court has broad
20 discretion in the manner in which it conducts voir dire. Ristaino, 424 U.S. at 594; Mu’Min, 500 U.S. at
21 424. There is no constitutional right to a written questionnaire or that certain questions be included or
22 omitted. When a defendant challenges voir dire procedures, the issue is whether a particular question
23 rendered the trial fundamentally unfair. See Mu’Min, 500 U.S. at 425-266. Equally so where the case
24 has appeared on American’s Most Wanted, such a “[a] searching voir dire of the prospective jurors is
25 the primary tool to determine if the impact of the publicity rises to th[e] level of actual prejudice.” Jin
26 Sig Choi v. Warren, No. CIV. 12-3473 KM, 2015 WL 4042016, at *17 (D.N.J. June 30, 2015).
27
The California Supreme Court, for reasons discussed in claim C2, ante, could reasonably have
28 determined that the trial court’s need to gauge potential prejudice relating to America’s Most Wanted
49
1
supported the specific questions regarding America’s Most Wanted.
2
prejudgment of guilt, the questionnaire reasonably could be seen as exposing it. “The Fourteenth
3
Amendment guarantees each criminal defendant the right to a trial by an impartial jury free of outside
4
influences. See Sheppard, 384 U.S. at 362. Even if some potential jurors’ view of Petitioner’s guilt or
5
innocence was impacted by the questionnaire, (see e.g., RT at 1489-91 where the trial court appears to
6
acknowledge as much), where responses demonstrated bias the Petitioner was able to mount a for cause
7
challenge. (See e.g., RT at 452 [juror Thompson], RT at 619-20 [juror Crawford], RT at 1497, 1510
8
[juror Clifford].)
9
Rather than inviting unfair
At voir dire, the court must examine the jurors' statements “to determine whether a community-
10 wide sentiment exists against the defendant [citation] . . . [n]egative media coverage by itself is
11 insufficient to establish actual prejudice, and the existence of a juror's preconceived notion as to the
12 guilt or innocence of the defendant, without more, is not sufficient to rebut the presumption of
13 impartiality. Foley v. Parker, 488 F.3d 377, 387 (6th Cir. 2007). Petitioner has not demonstrated the
14 questionnaire was improper under clearly established law. “[N]either th[e] court nor the parties should
15 be precluded from asking ‘case-specific’ questions to attempt to discover a potential juror's bias based
16 on facts that are or are likely to be at issue in this case.” U.S. v. Johnson, 366 F. Supp.2d 822, 849
17 (N.D. Iowa 2005). Similarly, the Court rejects Petitioner’s argument under Bayramoglu v. Estelle, 806
18 F.2d 880, 887 (9th Cir. 1986), that the questionnaire introduced the jury to prejudicial extrinsic
19 evidence. Bayramoglu is distinguishable to the extent that case involved clear juror misconduct during
20 deliberations, researching possible criminal penalties and providing the results to other jurors. Here,
21 the allegedly prejudicial outside information was provided to the venire pool pretrial and was
22 reasonably necessary to ferret out jurors who might be biased upon learning of evidence to be admitted
23 at trial. Even if Bayramoglu were factually on point, that court’s determination the juror misconduct
24 was harmless because the offending juror was removed and the other jurors were told to disregard the
25 outside evidence would suggest harmless error here as well. Potential jurors whose bias was shown by
26 the questionnaire were removed for cause; the petite jury was instructed to consider only the admitted
27 evidence.
28
It follows that counsel was not ineffective by drafting and submitting the questionnaire. As
50
1
noted, in addition to broadcast media, numerous articles about the crime also appeared in the local
2
newspaper, the Bakersfield Californian. (EH Ex. 53.)
3
necessitated gauging the jurors’ exposure to media coverage and its impact. As Respondent notes,
4
counsel had “full authority to manage the conduct of the trial.” Taylor v. Illinois, 484 U.S. 400, 417-18
5
(1988); New York v. Hill, 528 U.S. 110, 114-15 (2000). Petitioner was “bound” by the acts of his
6
counsel and, “[a]bsent a demonstration of ineffectiveness, counsel’s word on such matters is the last.”
7
Hill, 528 U.S. at 115; Allum v. Twomey, 484 F.2d 740, 745 (9th Cir. 1973) (“assuming the lawyer’s
8
competence, the client must accept the consequences of his trial strategy”).
9
Given the facts of this case, a fair trial
Even if counsel was deficient regarding the questionnaire, Petitioner has not demonstrated
10 prejudice.
The state supreme court could reasonably have determined the information in the
11 questionnaire did not add to or conflict with evidence admitted at trial in any material way. Moreover,
12 all jurors who had been exposed to pretrial publicity agreed they would follow instructions and
13 deliberate based solely on the admitted evidence. (RT at 2182-2218; ECF No. 194 at 32:1-7 citing RT
14 at 1005-07, 1011-12 [juror Campbell], 1111-15 [juror Hinson], 1142, 1145 [juror Lauer], 94, 100-03
15 [juror Barnes], 365-66, 375, 377-78 [juror Vaughn], 1397-98 [juror Bowles], 238, 240, 244-45 [juror
16 Lee], 1092-94, 1097-1100 [juror Hanson], and 1422-23, 1426 [juror Medina].) The state supreme court
17 could reasonably have concluded there was no reasonable probability of a more favorable outcome had
18 the questionnaire not been used.
19
Finally, Petitioner’s re-argument relating to actual and presumed prejudice is unpersuasive for
20 reasons discussed in claim C2, ante, summarized as follows. The Court previously denied on the
21 merits Petitioner’s allegation of actual prejudice (i.e., “actual partiality or hostility that could not be laid
22 aside.” See Harris, 885 F.2d at 1363; ECF No. 261 at 54:12-15; ECF No. 276, at 53:4-7.) This was not
23 a case where prejudice is presumed, i.e., where there was a “barrage of inflammatory publicity
24 immediately prior to trial,’ . . . amounting to a ‘huge . . . wave of public passion.” Yount, 467 U.S.
25 1025, 1033 (1984) (quoting Murphy, 421 U.S. at 798 and Irvin, 366 U.S. at 728).
26
For the reasons stated, a fair-minded jurist could have found that Petitioner failed to establish
27 that he was denied a fair trial, or to the extent alleged, that defense counsel’s performance fell below an
28 objective standard of reasonableness and that, but for counsel’s unprofessional errors, the result of the
51
1
proceeding would have been different, Strickland, 466 U.S. at 687-98. It follows that there was no trial
2
court error in that regard.
3
It does not appear that the California Supreme Court’s rejection of the claim was contrary to, or
4
an unreasonable application of, clearly established federal law, as determined by the Supreme Court, or
5
that the state court’s ruling was based on an unreasonable determination of the facts in light of the
6
evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).
7
Claims B1 and B2 are denied.
8
3.
9
In this claim, Petitioner alleges that defense counsel was ineffective during voir dire of each of
Review of Claim D
10 the twelve emplaned jurors regarding whether the jurors were willing to consider mitigating factors at
11 the sentence selection phase. Petitioner also claims that the trial court compounded the error by failing
12 to explain the mitigating factors to be considered at the penalty phase.
13
Petitioner raised this same claim in his petition for writ of habeas corpus in the California
14 Supreme Court (CSC Pet. Habeas Corpus at 35-51), which the California Supreme Court rejected on
15 the merits. (CSC Order Den. Pet. Habeas Corpus.)
16
17
18
19
a.
Clearly Established Law
The legal standard for ineffective assistance of counsel is set out in claim C2, ante.
b.
Analysis of Claim D
Petitioner claims that defense counsel conducted ineffective voir dire regarding “whether the
20 jurors were willing to consider mitigating factors” and that “[t]he trial court compounded that error by
21 limiting its explanation of factors to consider at the penalty phase to the circumstances of the crime as
22 opposed to mitigating factors.” (ECF No. 113 at ¶ 164.)
23
Petitioner alleges that defense counsel’s voir dire was deficient regarding “the nature of
24 mitigation” and the statutory mitigation factors so that the jurors could answer whether they were
25 willing to consider mitigating factors during their sentence deliberations. (ECF No. 113 at ¶ 165; see
26 also RT at 90-106 re Gilbert Barnes; RT at 389-97 re Connie Pauley; RT at 236-50 re Marie Lee; RT at
27 361-87 re Michael Vaughn; RT at 1111-23 re Patricia Hinson; RT at 1144-47 re Beverly Lauer; RT
28 1088-91 re Ralph Lopes; RT at 1009-14 re Dale Campbell; RT at 1096-1102 re Julie Hanson; RT at
52
1
1352-62 re Steven Parkison; RT at 1399-1404 re Robert Bowles; RT at 1424-27 re John Medina.)
2
The Court is not persuaded that defense counsel acts ineffectively at voir dire by not requesting
3
that potential jurors be instructed about the nature of statutory mitigation. As noted, only two specific
4
inquires of voir dire are constitutionally compelled: inquiries into racial prejudice against a defendant
5
charged with a violent crime against a person of a different racial group, Ristaino, 424 U.S. at 595; and,
6
in a capital case, inquiries into a juror’s views on capital punishment. Morgan, 504 U.S. at 730-732.
7
Since the Supreme Court has not decided the issue raised by Petitioner, the state supreme court’s
8
decision could not be contrary to or an unreasonable application of United States Supreme Court
9
precedent. See Carey, 549 U.S. at 76.
10
Moreover, defense counsel could have had tactical reasons for not asking questions about
11 mitigation in the abstract. Knowing that there may not have been anything significant to present in
12 mitigation or that what was available may not ultimately materialize, counsel may have sought to avoid
13 potential prejudice caused by discussion of mitigating factors not later presented at the penalty phase.
14 “[W]hen counsel focuses on some issues [and excludes] others, there is a strong presumption that he
15 did so for tactical reasons rather than through sheer neglect.” Jacobs v. Horn, 395 F.3d 92, 118 (3d Cir.
16 2005) (citing Yarborough v. Gentry, 540 U.S. 1, 8 (2003)); cf. People v. Lucas, 12 Cal. 4th 415, 482-84
17 (1995) (rejecting defendant’s claim that he needed a new penalty jury to avoid potential prejudice
18 caused by court’s voir dire statements that defense would present evidence in mitigation at penalty
19 trial).
20
Even had defense counsel sought to question prospective jurors regarding “the nature of
21 mitigation,” the trial court could have properly denied such requests or sustained objections to such
22 questions. People v. Sanders, 11 Cal. 4th 475, 539 (1995) (the scope of questions to be asked at voir
23 dire is a matter for the court’s discretion); see also 11/1/90 RT at 37-45 (court notes limitations in voir
24 dire set by Proposition 115 and desire not to unnecessarily prolong voir dire, allowing use of juror
25 questionaire).
In short, defense counsel was not required to question the venire about potential
26 mitigation evidence in order to be constitutionally effective. See Hale v. Gibson, 227 F.3d 1298, 131727 18 (10th Cir. 2000) (no ineffectiveness for failure to voir dire about defense strategy); Paradis v. Arave,
28 954 F.2d 1483, 1491 (9th Cir. 1992), vacated on other grounds, 507 U.S. 1026 (1993) (no
53
1
ineffectiveness for failure to voir dire about possible defense).
2
Petitioner also alleges that the trial court failed to explain the mitigating factors to be considered
3
at the penalty phase and (along with the prosecutor) referred to the Penal Code § 190.3 factors as
4
“guidelines” (see claim U1, post), “clearly vitiat[ing] any narrowing of the jury’s discretion in
5
determining what penalty to render.” (ECF No. 113 at 47:9-11.) However, the trial court is not
6
required to instruct the jurors at voir dire. The jury was properly instructed at the penalty phase. Prior
7
to commencing their deliberations, the jurors were instructed with CALJIC No. 8.85 and specifically
8
instructed that they “shall consider all of the evidence,” including any mitigating factors found
9
applicable (RT at 2605-07; see also claim U, post); they were provided instructions explaining what
10 mitigating factors were (RT at 2615); and they were told how they should be weighed. (RT at 261511 16.) Jurors are presumed to follow the court’s instructions. Weeks v. Angelone, 528 U.S. 225, 234
12 (2000); United States v. Olano, 507 U.S. 725, 740 (1993); Aguilar v. Alexander, 125 F.3d 815, 820 (9th
13 Cir. 1997); United States v. Brady, 579 F.2d 1121, 1127 (9th Cir. 1978). Petitioner’s suggestion the
14 jury’s impartiality was undermined by the alleged error (see ECF No. 178 at 66:5-6) could reasonably
15 be seen as only speculative.
16
Petitioner’s allegation that the trial court “limit[ed] its explanation of factors to consider at the
17 penalty phase to the circumstances of the crime as opposed to mitigating factors”, (see ECF No. 113 at
18 37:16-17), does not demonstrate constitutional error. It does not appear that the court’s comments were
19 meant to be an exhaustive list of the penalty factors and the law. Instead, it appears that court’s
20 comments were meant to give the prospective jurors “a general idea of the nature of the proceeding.”
21 People v. Livaditis, 2 Cal. 4th 759, 781 (1992). If the jury somehow misunderstood this, “the penalty
22 phase instructions ultimately given obviated any prejudice.” People v. Wright, 52 Cal. 3d 367, 414
23 (1990) (disapproved on other grounds by People v. Wright, 49 Cal.4th 405, 459 (2010)).
24
Futhermore, Petitioner does not allege that the trial court failed to inquire into the noted
25 constitutionally compelled areas of voir dire. Ristaino, 424 U.S. at 595; Morgan, 504 U.S. at 730-732.
26 Since the Supreme Court has not decided the issue raised by Petitioner, the state supreme court’s
27 decision could not be contrary to or an unreasonable application of United States Supreme Court
28 precedent. See Carey, 549 U.S. at 76.
54
1
Finally, Petitioner cannot demonstrate any prejudice on this claim. Even if counsel had asked
2
the mitigation questions he claims should have been asked, it is unknown what the jurors’ answers
3
would have been, what rulings the trial court would have made on cause challenges subsequently made,
4
and how the jury makeup would have changed, if at all. White v. Luebbers, 307 F.3d 722, 728 (8th Cir.
5
2002). Furthermore, “it is exceedingly unlikely that directing the venire’s attention to the potential
6
mitigating evidence would either have disposed the jury that was selected to lenity or have altered the
7
composition of the jury in a direction favorable to him.” Lear v. Cowan, 220 F.3d 825, 829 (7th Cir.
8
2000). More importantly, prior to trial, each of the jurors assured the court that he or she could be fair
9
and impartial. Bolin, 18 Cal. 4th at 314, 316; see Leavitt v. Arave, 383 F.3d 809, 826-27 (9th Cir.
10 2004) (giving weight to jurors’ assurances of impartiality); Quintero-Barraza, 78 F.3d at 1350 & n.5
11 (trial court’s conclusion regarding “juror impartiality” is a “factual issue” given “special deference”
12 under AEDPA).
13
A fair-minded jurist could have found that Petitioner failed to establish defense counsel’s
14 performance fell below an objective standard of reasonableness and that, but for counsel’s
15 unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at
16 687-98.
17
For the reasons above, this Court also agrees with the California Supreme Court that there was
18 no reasonable likelihood that Petitioner did not receive a fair trial despite the limited voir dire regarding
19 Penal Code § 190.3 mitigation factors.
20
Accordingly, the California Supreme Court’s rejection of this claim was not contrary to, or an
21 unreasonable application of, clearly established federal law, or an unreasonable determination of the
22 facts in light of the evidence presented in the state court proceeding. 28 U.S.C. § 2254(d).
23
Claim D is denied.
24
4.
25
In this claim, Petitioner alleges that the trial court erred by failing to excuse five prospective
Review of Claim E
26 jurors, who were ultimately placed on the panel, four of whom were challenged for cause, and he
27 alleges ineffective assistance by counsel’s failure to dismiss these jurors by peremptory challenge.
28
Petitioner presented this same claim to the California Supreme Court on direct appeal. (AOB at
55
1
26-34.) The California Supreme Court held that Petitioner’s claim had not been preserved for appeal
2
based on the well-settled rule in California that “exhaustion of peremptory challenges is a condition
3
precedent to an appeal based on the composition of the jury.” Bolin, 18 Cal. 4th at 315, (citing Ross,
4
487 U.S. at 90). That Court stated:
5
8
Defendant’s right to a fair and impartial jury is not compromised as long [as] he could have
secured the juror’s removal through the exercise of a peremptory challenge. Accordingly,
California courts hold that the defendant must exercise his peremptory challenges to remove
prospective jurors who should have been excluded for cause, and that to complain on appeal
of the composition of the jury, the defendant must have exhausted those challenges. [Citation]
Defendant did not do so; he may not now claim error.
9
Bolin, 18 Cal. 4th at 315. The California Supreme Court also rejected Petitioner’s related ineffective
6
7
10 assistance claim as follows:
11
12
13
14
15
[W]e also reject defendant’s passing suggestion that defense counsel rendered ineffective
assistance in failing to utilize all available peremptory challenges. “[T]he decision whether to
accept a jury as constituted is obviously tactical, and nothing on the appellate record
demonstrates counsel’s tactical choice here was either unreasonable or prejudicial.” [Citation]
We have reviewed the voir dire of the jurors in question. Whether or not they had been
exposed to any pretrial publicity, including viewing America’s Most Wanted, each gave
credible assurances he or she would decide the case based only on what transpired in the
courtroom.
16 Id. at 316.
17
18
a.
Clearly Established Law
“[T]he right to jury trial guarantees to the criminally accused a fair trial by a panel of
19 impartial, ‘indifferent’ jurors.” Irvin, 366 U.S. 717, 722 (1961); see also Skilling, 561 U.S. at 377-78.
20 In a capital case, “a prospective juror may be excluded for cause because of his or her views on
21 capital punishment . . . if the juror’s views would ‘prevent or substantially impair the performance of
22 his duties as a juror in accordance with his instructions and his oath.’” Wainwright, 469 U.S. at 424
23 (quoting Adams, 448 U.S. at 45). Thus, “a juror who in no case would vote for capital punishment,
24 regardless of his or her instructions, is not an impartial juror and must be removed for cause.”
25 Morgan, 504 U.S. at 728. Likewise, a juror who would automatically impose the death penalty if a
26 defendant is found guilty is not impartial and must be removed for cause. Id. at 733; Ross, 487 U.S.
27 at 85.
28
“[P]art of the guarantee of a defendant’s right to an impartial jury is an adequate voir dire to
56
identify unqualified jurors.”
2
supervision of the court, and a great deal must, of necessity, be left to its sound discretion.’” Ristaino,
3
424 U.S. at 594 (quoting Connors, 158 U.S. at 413). “[T]he trial court retains great latitude in
4
deciding what questions should be asked on voir dire.” Mu’Min, 500 U.S. at 424. “No hard-and-fast
5
formula dictates the necessary depth or breadth of voir dire,” Wood, 299 U.S. at 145–146, and “[t]he
6
Constitution . . . does not dictate a catechism for voir dire, but only that the defendant be afforded an
7
impartial jury.” Morgan, 504 U.S. at 729. A trial court’s failure to ask certain questions does not
8
violate the Constitution unless it “render[s] the defendant’s trial fundamentally unfair.” Mu’Min, 500
9
U.S. at 426.
10
The ineffective assistance standard is set out in claim C2, ante.
b.
11
12
Morgan, 504 U.S. at 729.
“Voir dire ‘is conducted under the
1
Analysis of Claim E
Petitioner alleges that these jurors were biased due to media coverage. Juror Barnes stated he
13 “definitely” believed Petitioner was guilty based on newspaper and television coverage. (RT at 9014 93.) However, Mr. Barnes later stated he was did not “know” whether Petitioner was guilty (RT at
15 93-94) and stated he could decide the case based on what he heard in the courtroom. (Id.) Petitioner
16 also alleges that juror Barnes was pre-disposed toward the death penalty. (ECF No. 113 at 48:2817 49:13.) Juror Barnes stated that he would have no doubt about the death penalty for very violent
18 crime consistent with the perpetrator’s past record. (RT at 104.)
19
Juror Vaughn saw the America’s Most Wanted broadcast and based on it felt Petitioner was
20 “probably guilty” (RT at 364-65), but not necessarily so. (RT at 378.) Petitioner notes that Juror
21 Vaughn also failed to disclose on his questionnaire a prior arrest for possession of marijuana. (RT at
22 381-83.)
23
Juror Bowles had seen the America’s Most Wanted program. (RT at 1396.)
24
Juror Lee may have seen the America’s Most Wanted program. (RT at 238-39.)
25
Juror Hanson saw the America’s Most Wanted program and remembered some general
26 information about the crime. (RT at 1092-1100.)
27
Petitioner argues that, notwithstanding the above showing of “bias,” the trial court denied
28 defense counsel’s for-cause challenges against jurors Lee, Vaughn, Hanson and Bowles. (See RT at
57
1
245 (Lee); RT at 378-79 (Vaughn); RT at 1100 (Hanson); RT at 1402 (Bowles.)
2
This claim fails. Petitioner does not cite to established authority that a trial court violates due
3
process in not excusing a juror for cause even when the defendant is able to but fails to exercise a
4
peremptory challenge. In Ross, the Supreme Court found no due process violation where the state
5
had a rule requiring the defendant to exhaust all peremptory challenges before complaining of an
6
allegedly erroneous denial of a cause challenge. 487 U.S. at 90. Accordingly, the state supreme
7
court’s decision could not be contrary to or an unreasonable application of United States Supreme
8
Court precedent. See Carey, 549 U.S. at 76.
9
Additionally, the California Supreme Court could reasonably have determined that Petitioner
10 failed to show that these jurors were other than impartial. (See claim C2, ante.) Petitioner’s argument
11 that juror Barnes was predisposed to the death penalty is not sufficiently supported in the evidentiary
12 record. A potential juror’s view regarding the death penalty may not be the basis of a for-cause
13 challenge unless those views would “prevent or substantially impair the performance of his duties as
14 a juror in accordance with his instructions and his oath.” Wainwright, 469 U.S. at 424 (quoting
15 Adams, 448 U.S. at 45).
16
The record demonstrates that each of the five jurors referenced by Petitioner assured the trial
17 court that she/he could be fair and impartial. Juror Barnes assured the court and counsel that he could
18 decide the case on the facts presented in court, not in the media (RT at 92-103) and that he could
19 presume Petitioner’s innocence at the start of trial (id.); Juror Vaughn likewise assured the court and
20 counsel that he accepted the presumption of innocence (RT at 365-84) and that he could be fair
21 despite prior knowledge of the case (id.); Juror Bowles told the court that he had not seen enough of
22 the America’s Most Wanted program’s reenactment of the crime “to really remember what it was
23 about” (RT at 1397), that he had no opinion one way or the other about Petitioner’s guilt or innocence
24 (id.), and that he could be a fair and impartial juror in this case (RT at 1398); Juror Lee “[v]aguely”
25 remembered the case from television (RT at 238), but she assured the court and counsel she
26 absolutely could put aside whatever prior knowledge of the case she had and decide the case on the
27 evidence presented in the courtroom (RT at 240-46); and Juror Hanson recalled some of the details of
28 the charged crimes from the America’s Most Wanted program (RT at 1092-1102) but assured the
58
1
court she could put that information out of her mind and decide the case on the evidence presented in
2
court. (Id.)
3
Petitioner contends the trial court gave too much weight to these jurors’ statements that they
4
could follow the law. (ECF No. 178 at 58:18-59:7.) However, for the reasons discussed above, the
5
state supreme court could reasonably have found that Petitioner “presented no evidence that any of
6
the jurors that convicted and sentenced him were unable or unwilling to properly perform their
7
duties.” United States v. Padilla-Mendoza, 157 F.3d 730, 734 (9th Cir. 1998). “[A]n impartial jury
8
consists of nothing more than ‘jurors who will conscientiously apply the law and find the facts.’”
9
Lockhart v. McCree, 476 U.S. 162, 178 (1986) (quoting Wainwright, 469 U.S. at 423). Each of the
10 above five jurors stated that their prior knowledge of the case would not affect their sitting as fair and
11 impartial jurors. The California Supreme Court could reasonably have found that the trial court’s
12 denial of Petitioner’s for-cause challenges as to these jurors was not an abuse of its discretion causing
13 an unfair trial.
14
Even if the trial court had erred, the California Supreme Court could reasonably have found
15 the error to be harmless. The overarching issue was whether the jury that sat for the trial was
16 impartial. See Poland v. Stewart, 169 F.3d 573, 583 (9th Cir. 1999) (holding trial court’s denial of
17 challenges for cause did not violate Sixth Amendment where no prejudice shown). Here, Petitioner
18 has not demonstrated on the evidentiary record that the empaneled jury was other than impartial.
19 (See claim C2, ante.)
20
Petitioner’s additional allegation, albeit un-argued, that defense counsel was ineffective for
21 failing to make peremptory challenges against these five allegedly biased jurors fails for the reasons
22 stated above, as well as those discussed in claim F, post. Accordingly, a fair-minded jurist could have
23 found that Petitioner failed to establish trial court error, or that he was denied a fair trial, or that
24 defense counsel’s performance fell below an objective standard of reasonableness and that, but for
25 counsel’s unprofessional errors, the result of the proceeding would have been different. Strickland,
26 466 U.S. at 687-98.
27
It does not appear that the state supreme court’s rejection of the claim was contrary to, or an
28 unreasonable application of, clearly established federal law, as determined by the Supreme Court, or
59
1
that the state court’s ruling was based on an unreasonable determination of the facts in light of the
2
evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).
3
Claim E is denied.6
4
5.
5
Petitioner alleges in this claim that defense counsel was ineffective by failing to challenge the
6
empaneled jurors for cause or by available peremptory challenges.
The California Supreme Court considered and rejected this same claim on the merits on direct
7
8
appeal, noting that:
“‘[T]he decision whether to accept a jury as constituted is obviously tactical, and nothing on
the appellate record demonstrates counsel’s tactical choice here was either unreasonable or
prejudicial.’ [Citation] We have reviewed the voir dire of the jurors in question. Whether or
not they had been exposed to any pretrial publicity, including viewing America’s Most
Wanted, each gave credible assurances he or she would decide the case based only on what
transpired in the courtroom.”
9
10
11
12
Review of Claim F
Bolin, 18 Cal. 4th at 316.
13
a.
14
Clearly Established Law
The standard for ineffective assistance of counsel is set out in claim C2, ante.
15
b.
16
Analysis of Claim F
Petitioner faults defense counsel for failing to challenge and remove Jurors Barnes, Vaughn,
17 Bowles, Hanson, and Lee. (ECF No. 178 at 70-72.)
18
Petitioner re-argues that the empaneled jury was tainted with prejudicial publicity; that juror
19 Barnes had prejudged guilt and the penalty; and that at least juror Vaughn had prejudged guilt. He
20 argues that defense counsel acknowledged as much when making for-cause challenges against jurors
21 Lee, Vaughn, Hanson and Bowles, who had seen the America’s Most Wanted program. (See RT at
22 245 (Lee); RT at 378-79 (Vaughn); RT at 1100 (Hanson); RT at 1402 (Bowles.) Petitioner also
23 claims defense counsel was ineffective by failing to exercise available peremptory challenges against
24 these five jurors.
25
However, the evidentiary record suggests defense counsel may have had tactical reasons to
26
27
28
6
Here, Respondent contends this claim is not cognizable because it creates and retroactively applies a “new rule” of
constitutional law under Teague v. Lane, 489 U.S. 288 (1989). Respondent advances this argument as to numerous other
claims as well. Unless otherwise noted, the Court declines to address Respondent’s Teague arguments where the claim
lacks merit.
60
1
keep all of the noted jurors. Juror Barnes had some reservations about the death penalty (RT at 97-
2
98, 104) and had not seen the reenactment of the charged crimes on the America’s Most Wanted
3
program (RT at 92), the latter possibly being the reason defense counsel did not challenge juror
4
Barnes for cause (see claim E, ante).
5
Juror Vaughn admitted in his questionnaire that at one time he had a “problem” with
6
marijuana, and he admitted during voir dire that he had used marijuana for “probably four or five
7
years.” (RT at 371.) Juror Vaughn also admitted that he had been arrested once for marijuana and
8
ultimately had the charge reduced from a felony to a misdemeanor. (RT at 381-83.) Since Petitioner
9
was charged with a marijuana offense, counsel could have tactically believed that having juror
10 Vaughn, who himself had used marijuana and who had been convicted of a crime, would be
11 sympathetic to Petitioner in some respects.
12
As to juror Bowles, he specifically stated that he doesn’t “agree” with America’s Most Wanted
13 (RT at 1396) because “everybody has their day in court and if a person has not been convicted or
14 proven guilty, I don’t feel they should be shown on that program . . . . [¶] They, now, people, the
15 general public, oh, he is guilty because it’s shown on TV. He is guilty. I don’t agree with that.” (RT at
16 1397:19-26.) Mr. Soria lodged a pro forma challenge based on the America’s Most Wanted program.
17 (RT at 1402:14-15.) However, Mr. Soria otherwise passed juror Bowles for cause. (RT at 1402:1418 15.) This could suggest that apart from building the appeal record regarding the America’s Most
19 Wanted program, Mr. Soria found juror Bowles to be unbiased.
20
Juror Lee indicated that she “absolutely” does not believe everything in the newspaper and
21 views television as “entertainment” rather than a source of news. (RT at 237:16-21.) She expressed
22 some uncertainty about imposing the death penalty (RT at 242:9-21) and held a job as a union
23 steward (RT at 243:9-13), something the defense could have found favorable. In any event, she
24 assured the court that she “absolutely” could put her prior minimal knowledge about the case aside
25 and decide it on the evidence presented in court. (RT at 240, 242-45.)
26
Juror Hanson remembered little about the case from America’s Most Wanted, assuming what
27 she knew even pertained to Petitioner’s case and she had not mistaken it for something else. (RT at
28 1092-94, 1097-99.) Furthermore, defense counsel could have felt that juror Hanson’s former career
61
1
with the welfare department and the fact that she was presently unemployed were favorable to the
2
defense.
3
psychiatry in preparation for becoming a counselor. (RT at 1101:16-25.) Since Petitioner was
4
considering whether to offer psychiatric evidence, he may have viewed juror Hanson as someone who
5
would favorably view such evidence.
(RT at 1095:8-15.)
Juror Hanson also had taken many courses in psychology and
6
This Court is not persuaded by the claim. Petitioner has not made an evidentiary showing that
7
undermines the California Supreme Court’s conclusion that defense counsel’s failure to use
8
peremptory challenges could have been a reasonable tactical decision. Davis v. Woodford, 333 F.3d
9
982, 995-96 (9th Cir. 2003), amended and superseded 384 F.3d 628, 643 (9th Cir. 2004) (no
10 ineffectiveness in failing to use peremptory challenges where jurors’ statements did not demonstrate
11 actual or implied bias; each said they could “follow the judge’s instructions and decide the case
12 impartially”); Quintero-Barraza, 78 F.3d at 1349-50 (where juror stated it would be “difficult” for
13 him to be impartial because he believed persons to be guilty until proven innocent, no ineffectiveness
14 in failing to strike juror because decision was manifestly tactical and due respect was paid to juror’s
15 oath); Denham v. Deeds, 954 F.2d 1501, 1505 (9th Cir. 1992) (where juror stated that defendant may
16 have told her about the charged crime while she waited on them at work, no ineffectiveness to fail to
17 challenge her because she said she could be fair and where decision could be tactical).
18
Nor has Petitioner shown that the California Supreme Court incorrectly concluded that
19 Petitioner failed to demonstrate any prejudice from the decision of counsel not to object to these
20 jurors. Bolin, 18 Cal. 4th at 316 (“nothing on the appellate record demonstrates counsel’s tactical
21 choice here was either unreasonable or prejudicial”). Prior to trial, each of the jurors assured the
22 court that he or she could be fair and impartial. Id. at 314, 316; see Leavitt, 383 F.3d at 826-27
23 (giving weight to jurors’ assurances of impartiality). As explained in claim E, ante, all five of these
24 jurors provided what could reasonably be viewed as credible assurances that each could decide the
25 case on the evidence presented in court.
26
For the reasons stated, a fair-minded jurist could have found that Petitioner failed to establish
27 that he was denied a fair trial, or to the extent alleged, that defense counsel’s performance fell below
28 an objective standard of reasonableness and that but for counsel’s unprofessional errors the result of
62
1
the proceeding would have been different. Strickland, 466 U.S. at 687-98.
2
It does not appear that the state supreme court’s rejection of the claim was contrary to, or an
3
unreasonable application of, clearly established federal law, as determined by the Supreme Court, or
4
that the state court’s ruling was based on an unreasonable determination of the facts in light of the
5
evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).
6
Claim F is denied.
7
6.
8
Petitioner, in these claims, cites to People v. Wheeler, 22 Cal. 3d 258 (1978), and Batson v.
9
Kentucky, 476 U.S. 79 (1986), and alleges that the prosecution improperly used racially
Review of Claims G, G1 & G2
10 discriminatory peremptory challenges to excuse prospective jurors with Hispanic surnames.
11 Specifically, he points to potential jurors Nancy Burciaga (RT at 1632:19-20), Dina Romero (RT at
12 1635:22-23), and Arthur Cordova (RT at 1636:19-20). He faults both the trial court and counsel for
13 failing to make a Wheeler/Batson objection. (ECF No. 113 at 52-54; ECF No. 178 at 72-80.)
14 Petitioner also contends that the California Supreme Court did not adjudicate the merits of his
15 constitutional allegations. (Id.) All this, he claims, violated his Sixth Amendment right to a jury
16 drawn from a representative cross-section of the community and his Fourteenth Amendment right to
17 equal protection. (Id.)
18
Petitioner presented these same allegations to the California Supreme Court on direct appeal.
19 That court held Petitioner’s failure to make a Wheeler motion waived alleged prosecutorial misconduct
20 and trial court error. Bolin, 18 Cal. 4th at 316-17. The California Supreme Court also denied on the
21 merits the allegation that trial counsel was ineffective by failing to preserve the Wheeler issue. Bolin,
22 18 Cal. 4th at 317.
23
Respondent counters that the claims are procedurally defaulted, waived by counsel’s failure to
24 object—an independent and adequate state ground. Petitioner replies that any waiver and default was
25 caused by the ineffective assistance of his trial counsel, citing Martinez v. Ryan, 132 S. Ct. 1309, 1317
26 (2012) (an attorney's errors during direct appeal may provide cause to excuse a procedural default).
27
The Court will review the merits of the unadjudicated allegations de novo, see Pirtle, 313 F.3d
28 at 1167-68 & n.4; Coleman, 501 U.S. at 732-35, without determining whether the state procedural
63
1
default is adequate and independent to bar relief in federal court. See Franklin, 290 F.3d at 1232
2
(courts empowered to reach the merits if on their face clearly not meritorious despite asserted
3
procedural bar); Loggins, 654 F.3d at 1215 (relief may be denied on the merits where petition is clearly
4
not meritorious despite asserted procedural bar).
5
6
7
8
9
As to the adjudicated ineffective assistance allegations, these are reviewed deferentially under
AEDPA. See Williams, 133 S. Ct. at 1094-96.
The three claims are analyzed separately below.
a.
Review of Claim G – Prosecutorial Misconduct
Petitioner alleges that the noted three potential jurors were improperly removed by the
10 prosecution’s discriminatory peremptory challenges.
11
12
1)
Clearly Established Law
To constitute a due process violation, the prosecutorial misconduct must be “of sufficient
13 significance to result in the denial of the defendant’s right to a fair trial.” Greer v. Miller, 483 U.S.
14 756, 765 (1987) (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)). “Before a federal court
15 may overturn a conviction resulting from a state trial . . . it must be established not merely that the
16 [State’s action] is undesirable, erroneous, or even universally condemned, but that it violated some
17 right which was guaranteed to the defendant by the Fourteenth Amendment.” Smith v. Phillips, 455
18 U.S. 209, 221 (1982) (quoting Cupp v. Naughten, 414 U.S. 141, 146 (1973)).
19
Any claim of prosecutorial misconduct must be reviewed within the context of the entire trial.
20 Greer, 483 U.S. at 765-66; United States v. Weitzenhoff, 35 F.3d 1275, 1291 (9th Cir. 1994). The
21 court must keep in mind that “[t]he touchstone of due process analysis in cases of alleged
22 prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor” and “the aim
23 of due process is not punishment of society for the misdeeds of the prosecutor but avoidance of an
24 unfair trial to the accused.” Phillips, 455 U.S. at 219. “Improper argument does not, per se, violate a
25 defendant’s constitutional rights.” Thompson v. Borg, 74 F.3d 1571, 1576 (9th Cir. 1996) (quoting
26 Jeffries v. Blodgett, 5 F.3d 1180, 1191 (9th Cir. 1993)). Furthermore, the Supreme Court has stated:
27
28
[A]rguments of counsel generally carry less weight with a jury than do instructions from the
court. The former are usually billed in advance to the jury as matters of argument, not
evidence, . . . , and are likely viewed as the statements of advocates; the latter, we have often
64
1
2
3
recognized, are viewed as definitive and binding statements of the law. Arguments of counsel
which misstate the law are subject to objection and to correction by the court. This is not to
say that prosecutorial misrepresentations may never have a decisive effect on the jury, but
only that they are not to be judged as having the same force as an instruction from the court.
And the arguments of counsel, like the instructions of the court, must be judged in the context
in which they are made.
4
5
Boyde v. California, 494 U.S. 370, 384-85 (1990).
6
If prosecutorial misconduct is established, and it was constitutional error, the error must be
7
evaluated pursuant to the harmless error test set forth in Brecht. See Thompson, 74 F.3d at 1577
8
(“Only if the argument were constitutional error would we have to decide whether the constitutional
9
error was harmless.”).
2)
10
11
Analysis of Claim G
The California Supreme Court reviewed this claim on direct appeal and held that Petitioner’s
12 failure to make a Wheeler motion waived the claim. Bolin, 18 Cal. 4th at 316-17.
13
The Sixth Amendment guarantees trial by a jury drawn from a representative cross-section of
14 the community. Batson, 476 U.S. at 96-98. The Equal Protection Clause prohibits a prosecutor from
15 using peremptory challenges to exclude potential jurors solely on account of their race, e.g., on the
16 assumption that black jurors as a group are unable to impartially consider the case against a black
17 defendant. Id. at 79.
18
Under Batson and its state corollary, Wheeler, in order to contest the discriminatory use of
19 peremptory challenges by the prosecution, a defendant must establish a prima facie case of
20 discrimination by showing circumstances indicating that the exclusion of jurors was based on their
21 race. Batson, 476 U.S. at 1723; Wheeler, 22 Cal. 3d at 281. These circumstances include but are not
22 limited to a pattern of striking members of a certain racial group, or voir dire questions that reveal the
23 prosecutor’s intent to strike solely for racial reasons. Id. Once a defendant puts forth a prima facie
24 case, the prosecutor must come forward with “clear and reasonably specific” neutral explanations for
25 the peremptory strikes. Id.
26
In Purkett v. Elem, 514 U.S. 765, 767 (1995), the Supreme Court provided a three-step Batson
27 analysis: (1) the opponent of the peremptory challenge makes a prima facie showing of racial
28 discrimination, (2) the burden of proof then shifts to the proponent of the strike to present a race-
65
1
neutral explanation, noting that unless a discriminatory intent is inherent in the explanation, the
2
reason offered will be deemed race-neutral, and (3) the court then determines whether the opponent of
3
the strike has proved purposeful discrimination. In 1991, the Supreme Court decided Powers v. Ohio,
4
499 U.S. 400, 402 (1991), which expanded the Batson rule to cases where, as here, the petitioner and
5
excluded jurors are not of the same ethnicity.
6
In considering a Batson objection or ruling, all of the circumstances that bear upon the issue
7
of racial animosity must be consulted. Snyder v. Louisiana, 552 U.S. 472, 478 (2008) (citing Miller-
8
El v. Dretke, 545 U.S. 231, 239 (2005)). In the Ninth Circuit, the first prong under Batson, the prima
9
facie showing of racial discrimination, is accorded deferential review in a habeas proceeding. Tolbert
10 v. Page, 182 F.3d 677, 682 (9th Cir. 1999).
11
Because there was no Wheeler/Batson objection at trial the reasons for the prosecution
12 challenge of these three potential jurors are not express in the state record. See Dias v. Sky Chefs,
13 Inc., 948 F.2d 532, 534 (9th Cir. 1991) (Batson objections “must occur as soon as possible, preferably
14 before the jury is sworn.”). Petitioner relies upon an inference of racial discrimination arising from
15 his allegations that, of thirteen Hispanic potential jurors in the original pool of 158 (AOB at 36), nine
16 were removed for hardship or cause, (ECF No. 178 at 52-53), and the three noted above were
17 removed by prosecution peremptory challenge, leaving one Hispanic, juror Medina, seated on the
18 jury. (Id.) He cites to Williams v. Runnels, 432 F.3d 1102, 1107 (9th Cir. 2006), in arguing that this
19 statistical disparity is sufficient to raise an inference of purposeful discrimination. (See ECF No. 178
20 at 74.)
21
As the California Supreme Court noted, excuse for financial hardship is not alone a basis for a
22 Wheeler challenge. See Bolin, 18 Cal. 4th at 316, n.3. Petitioner claims a statistical inference of
23 discrimination, that though Hispanics comprised only a small percentage of the venire pool surviving
24 hardship (i.e., 4 Hispanics in the 149 member venire pool), 75% of Hispanics (i.e., 3 of 4) were
25 subject of peremptory challenge. Petitioner argues these circumstances suggest purposeful racial
26 discrimination. See Windham v. Merkle, 163 F.3d 1092, 1099 (1998) (“to establish a prima facie
27 case of purposeful racial discrimination, a defendant must interpose an objection on the ground that
28 the prosecutor has exercised peremptory challenges against prospective jurors because of their race
66
1
[and] defendant must articulate facts and other relevant circumstances that raise an inference that the
2
prosecutor exercised peremptory challenges to exclude the veniremen from the petit jury on account
3
of their race.”).
4
5
Respondent counters that the claim is waived by defense counsel’s failure to object.
Petitioner replies that any waiver was caused by the ineffective assistance of counsel.
6
Here, Petitioner relies upon only the alleged Hispanic surnames of the challenged jurors to
7
support an inference of discrimination. However, Petitioner does not demonstrate, other than through
8
counsel’s surmise, that the challenged jurors Burciaga, Romero and Cordova had Hispanic surnames
9
and were Hispanic. Cf. Williams, 432 F.3d at 1107 (petitioner, an African-American, made a prima
10 facie statistical disparity showing under Batson where prosecution excused three of four African11 Americans from a 59 member jury pool).
12
Petitioner also fails to show that anything in these jurors’ questionnaires and voir dire signaled
13 purposeful racial motivation. See e.g., U.S. v. Esparsen, 930 F.2d 1461, 1465-67 (10th Cir. 1991) (no
14 discriminatory peremptory challenge where racial identity of venire members with Hispanic surnames
15 was uncertain and nothing during voir dire suggested a racial motivation); cf. People v. Trevino, 39
16 Cal. 3d 667, 684-86 (1985), disapproved on other grounds, People v. Johnson, 47 Cal. 3d. 1194,
17 1216-21 (1989) (prima facie Wheeler claim to exclude Hispanics stated where prosecution challenged
18 individuals based solely on Spanish surnames where Hispanics comprised 30% of the total population
19 of the county).
20
Moreover, that an alleged Hispanic, Mr. Medina, was not challenged and remained a sitting
21 juror, suggests an absence of discriminatory selection. See Esparsen, 930 F.2d at 1468 (presence on
22 the final jury of a member of the excluded cognizable group is relevant to a Batson challenge when
23 the prosecution had an opportunity to strike the juror).
24
A California Court of Appeal has held that “the exclusion of disproportionate numbers of
25 minority jurors per se” does not automatically establish a prima facie case of discrimination under
26 Wheeler. People v. Allen, 212 Cal. App. 3d 306, 316 (1989). Furthermore, “[a] prima facie case of
27 group bias requiring prosecutorial explanation arises only if from all the circumstances of the case the
28 trial court finds a strong likelihood that the persons were being challenged because of their group
67
1
association rather than specific bias.” Carrera v. Ayers, 699 F.3d 1104, 1109 (9th Cir. 2012).
2
Here, the evidentiary record also suggests non-discriminatory reasons for these peremptory
3
challenges. Potential juror Burciaga expressed a pro-life stance during voir dire, (see RT at 1461-67),
4
and questioned her ability to impose a death sentence in this case. (Id.) Petitioner appears to concede
5
that juror Burciaga was challenged due to her position on the death penalty. (See claim H, post; ECF
6
No. 113 at 54-55.)
7
Potential juror Romero suggested during voir dire that previously her husband was the subject
8
of child support proceedings brought by the district attorney’s office. (RT at 317-18.) Similarly,
9
during voir dire, potential juror Cordova suggested possible dissatisfaction with law enforcement
10 relating to criminal proceedings against family members, (RT at 160-61), that his prior service as a
11 juror in a murder case had been “very stressful” (RT at 167:25-27), and that he questioned whether
12 the death penalty was fairly applied (RT at 166-75).
13
Petitioner also alleges in passing that he was denied the opportunity to develop facts
14 supporting this claim. (See ECF No. 178 at 76 n.71.) But he has shown neither the requisite (28
15 U.S.C. § 2254(e)(2)(A)(ii)) diligence, i.e., facts that could not have been previously discovered by
16 diligent counsel, nor the requisite purposeful discrimination against these jurors by the prosecution.
17 Any suggestion that counsel was deficient by failing to make a Wheeler/Batson objection is
18 insufficient to support this claim given the possibility counsel was reasonably motivated by trial
19 tactics a discussed in claim G2, post. Furthermore, Petitioner has not otherwise shown on the record
20 that he was denied factual development of this claim. See Dias, 948 F.2d 532, 535 (9th Cir. 1991)
21 (“No case requires a trial court to address sua sponte [an unadvanced Wheeler objection], an issue
22 that neither this court nor the Supreme Court has decided. Trials are still adversary proceedings in
23 which counsel may not lay traps for a trial judge and then expect relief from an appellate court.”).
24
In sum, the California Supreme Court could reasonably have found the record devoid of facts
25 showing how race was involved in the instant peremptory challenges and supporting an inference that
26 the prosecutor exercised the challenges on account of race. See Carrera, 699 F.3d at 1110 (six
27 peremptory strikes of Hispanic-surnamed venirepersons not sufficient to show Wheeler bias where
28 obvious non-discriminatory reasons for striking and two Hispanic-surnamed persons seated on the
68
1
jury); cf. Johnson, 125 S. Ct. at 2418 (inference of discriminatory statistical disparity found where
2
African-American petitioner being tried for murdering his Caucasian girlfriend’s daughter objected to
3
prosecutor’s challenge of all three African-American’s on the jury panel).
4
For the reasons stated, this claim does not demonstrate constitutional error.
Moreover,
5
Respondent would be prejudiced by consideration of an untimely Wheeler objection when
6
Respondent did not have the opportunity to contemporaneously respond during voir dire. See Dias,
7
948 F.2d at 535.
8
Claim G is denied.
b.
9
10
Review of Claim G1 – Trial Court Error on Batson/Wheeler Claim
Petitioner alleges that the trial court erred in not sua sponte initiating a Wheeler/Batson
11 objection to the prosecution’s use of peremptory challenges against the three potential jurors.
12
The California Supreme Court reviewed this claim on direct appeal and, as with the above
13 claim, held that Petitioner’s failure to make a Wheeler motion waived the claim. Bolin, 18 Cal. 4th at
14 316-17.
15
16
17
18
1)
Clearly Established Law
The standard for trial court error is set out in claim A.
2)
Analysis of Claim G1
Petitioner alleges that the trial court had a sua sponte duty to raise the Wheeler/Batson issue
19 because of the prosecution’s blatant use of peremptory challenges on racial grounds and that failure to
20 do so “had a substantial and injurious effect or influence in determining the jury’s verdict.” (ECF No.
21 113 at 53:14-15); Brecht, 507 U.S. at 637. He claims this violated his Sixth Amendment right to a
22 jury drawn from a representative cross-section of the community and his Fourteenth Amendment
23 right to equal protection.
24
The initial burden of mounting a Batson challenge is on the aggrieved party. See Purkett, 514
25 U.S. at 767. Petitioner has not cited authority that the trial court had a sua sponte obligation to
26 question the prosecution’s challenges. On review, the California Supreme Court found no such
27 obligation. Bolin, 18 Cal. 4th at 316-17 (citing Wheeler, 22 Cal. 3d at 280); see also Dias, 948 F.2d
28 532, 535 (9th Cir. 1991) (“It is too late to claim on appeal that the trial court erred when counsel
69
1
never asked the judge to do anything.”).
2
prosecution’s challenges to jurors Burciaga, Romero and Cordova were not constitutionally infirm for
3
the reasons stated above.
Even if such an obligation were found to exist, the
For the reasons stated, this claim does not demonstrate constitutional error.
4
Moreover,
5
Respondent would be prejudiced by consideration of an untimely Wheeler objection when
6
Respondent did not have the opportunity to contemporaneously respond during voir dire. See Dias,
7
948 F.2d at 535.
8
9
10
Claim G1 is denied.
c.
Review of Claim G2 – Ineffective Assistance on Wheeler/Batson Claim
Petitioner contends that trial counsel was ineffective by not lodging a Wheeler/Batson
11 objection to the above noted peremptory challenges.
12
The California Supreme Court reviewed this claim on direct appeal and found it to be without
13 merit. Bolin, 18 Cal. 4th at 317.
14
15
16
17
18
19
20
1)
Clearly Established Law
The standard for ineffective assistance of counsel is set out in claim C2, ante.
2)
Analysis of Claim G2
The California Supreme Court denied these allegations, finding:
On this record, we are unable to determine the reason counsel did not make a timely
challenge. He may have perceived the prosecutor could adequately rebut the charge, or
he himself may have been dissatisfied with the individuals excused. Since the decision
may well have been “an informed tactical choice within the range of reasonable
competence, the conviction must be affirmed. [Citation]”
21 Id.
22
The Court, considering the discussion in claims G and G1, ante, finds this determination is not
23 unreasonable. Judicial scrutiny of counsel’s performance is highly deferential and the habeas court
24 must guard against the temptation “to second-guess counsel’s assistance after conviction or adverse
25 sentence.” Strickland, 466 U.S. at 689. A court indulges a “‘strong presumption’ that counsel’s
26 representation was within the ‘wide range’ of reasonable professional assistance.” Richter, 562 U.S. at
27 104 (quoting Strickland, 466 U.S. at 687). This presumption of reasonableness means that not only do
28 we “give the attorneys the benefit of the doubt,” we must also “affirmatively entertain the range of
70
1
possible reasons [defense] counsel may have had for proceeding as they did.” Pinholster, 563 U.S. at
2
196.
3
“The proper measure of attorney performance remains simple reasonableness under prevailing
4
professional norms.” Wiggins, 539 U.S. at 521 (quoting Strickland, 466 U.S. at 688). The California
5
Supreme Court could reasonably have found that Petitioner failed to demonstrate the prosecution’s
6
challenge of these three jurors was for reasons of race, and that defense counsel could have reasonably
7
refrained from raising a futile Wheeler/Batson objection.
8
A fair-minded jurist could have found that Petitioner failed to establish that he was denied a
9
fair trial, or to the extent alleged, that defense counsel’s performance fell below an objective standard
10 of reasonableness and that there was a reasonable probability Petitioner would have prevailed on a
11 Wheeler challenge had it been raised by counsel. Mitcham v. Davis, 103 F. Supp. 3d 1091, 1108,
12 citing Carrera, 699 F.3d at 1108; Strickland, 466 U.S. at 687-98.
13
It does not appear that the state supreme court’s rejection of the claim was contrary to, or an
14 unreasonable application of, clearly established federal law, as determined by the Supreme Court, or
15 that the state court’s ruling was based on an unreasonable determination of the facts in light of the
16 evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).
17
Claim G2 is denied.
18
7.
19
Petitioner, in these claims, alleges prosecutorial misconduct and ineffective assistance relating
Review of Claims H, H1 & H2
20 to exclusion of nine potential jurors with reservations about the death penalty, denying him rights to
21 equal protection, an impartial jury drawn from a cross-section of the community, and a reliable
22 determination of guilt and sentence, violating his rights under the Sixth, Eighth and Fourteenth
23 Amendments to the U.S. Constitution.
24
The prosecutorial misconduct claim was raised on direct appeal and denied on the merits.
25 Bolin, 18 Cal. 4th at 317.
26
The ineffective assistance claim, failing to object to the prosecutor’s use of peremptory
27 challenges to exclude potential jurors with reservations about the death penalty, (ECF No. 113 at 5728 58; ECF No. 178 at 82), also was raised on direct appeal and denied on the merits. Bolin, 18 Cal. 4th
71
1
at 317.
2
Petitioner alleges that these claims were not adjudicated by the state court. (ECF No. 113 at
3
57:11-12.) This is incorrect, as the California Supreme Court rejected these allegations on the merits.
4
See Bolin, 18 Cal. 4th at 317.
5
6
7
These claims are analyzed separately below.
a.
Review of Claims H, H1
1)
Clearly Established Law
8
The legal standard for prosecutorial misconduct is set out in claim G, ante.
9
The legal standard for ineffective assistance is set out in claim C2, ante.
10
11
2)
Analysis of Claims H and H1
In claims H and H1, Petitioner alleges that the prosecution used at least nine of fourteen
12 peremptory challenges exercised to exclude potential jurors who, while voicing some concern of
13 sentencing someone to death, nonetheless stated they could vote for death in an appropriate case.
14 (ECF No. 113 at 54-57); (juror Fuson, RT at 1316-22); (juror Burciaga, RT at 1461-65); (juror Goff,
15 RT at 1427-40); (juror Lewis, RT at 1501-07); (juror O’Neal, RT at 734-35); (juror Lucas, RT at 54216 48); (juror Hatfield, RT at 661-64); (juror Sprague, RT at 814, 818-20); (juror Holder, RT at 141317 15).
18
Petitioner cites Witherspoon v. Illinois, 391 U.S. 510, 522-23 (1967), as authority that the
19 prosecution improperly used peremptory challenges to exclude jurors solely because of reservations
20 about the death penalty. He claims this denied him an impartial jury and “had a substantial and
21 injurious effect or influence in determining the jury’s verdict.” Brecht, 507 U.S. at 637.
22
In rejecting this claim on direct appeal, the California Supreme Court stated:
23
24
25
26
27
Relying primarily on Witherspoon v. Illinois (1968) 391 U.S. 510 and Wainwright v. Witt
(1985) 469 U.S. 412, defendant contends the prosecutor violated various constitutional rights
by using peremptory challenges to excuse prospective jurors who expressed scruples about
imposing the death penalty. Witherspoon and Witt set forth the standard for determining
whether the trial court properly excused prospective jurors for cause based on their attitudes
toward capital punishment. [Citation] With respect to peremptory challenges, this court has
consistently held such excusals do not implicate any constitutional guaranty. [Citation]
Defendant offers no persuasive reason to reexamine that determination. Consequently,
counsel was not ineffective for failing to make an objection.
28
72
1
Bolin, 18 Cal. 4th at 317.
2
This Court agrees that Petitioner’s reliance upon Witherspoon, and also Gray v. Mississippi,
3
481 U.S. 648 (1987), is misplaced given their facts. Those cases involved prosecution for-cause
4
challenges of potential jurors who expressed general objections to or scruples about the death penalty.
5
As noted in claim E, ante, “[t]he right to jury trial guarantees to the criminally accused a fair trial by a
6
panel of impartial, ‘indifferent’ jurors.” Irvin, 366 U.S. at 722; see also Skilling, 561 U.S. at 377-78.
7
In a capital case, “a prospective juror may be excluded for cause because of his or her views on
8
capital punishment . . . if the juror’s views would ‘prevent or substantially impair the performance of
9
his duties as a juror in accordance with his instructions and his oath.’” Wainwright, 469 U.S. at 424
10 (quoting Adams, 448 U.S. at 45). Thus, “a juror who in no case would vote for capital punishment,
11 regardless of his or her instructions, is not an impartial juror and must be removed for cause.”
12 Morgan, 504 U.S. at 728.
13
The California Supreme Court held that, because the prosecutor’s exercise of peremptory
14 challenges to excuse jurors with scruples about the death penalty does not implicate any
15 constitutional guaranty, defense counsel was not ineffective for failing to make a futile objection.
16 Bolin, 18 Cal. 4th at 317. Failure to object is not ineffectiveness where an objection would have
17 lacked merit. United States v. Aguon, 851 F.2d 1158, 1172 (9th Cir. 1988), overruled on other
18 grounds by Evans v. United States, 504 U.S. 255 (1992).
19
“The Supreme Court has never questioned the propriety, under the Constitution, of using
20 peremptory challenges to remove from the jury persons likely to support the defendant’s position” on
21 capital punishment. Gosier v. Welborn, 175 F.3d 504, 510 (7th Cir. 1999). It follows that the
22 California Supreme Court’s conclusion was neither an unreasonable application of, nor contrary to,
23 Supreme Court law. Carey, 549 U.S. at 76.
24
A criminal defendant has the right to an impartial jury drawn from a venire that has not been
25 tilted in favor of capital punishment by selective prosecutorial challenges for cause. Uttecht v.
26 Brown, 551 U.S. 1, 9 (2007); cf. Wainwright, 469 U.S. at 424 (exclusion for cause is proper where a
27 juror’s views on capital punishment would impair the performance of his duties). Petitioner concedes
28 that none of the jurors about whom he complains was excluded for cause. (ECF No. 113 at 54:12-19;
73
1
ECF No. 178 at 80:22-81:2.)
2
dimension. Ross, 487 U.S. at 88; Gray, 481 U.S. at 663. The California Supreme Court on direct
3
appeal stated that:
4
5
Furthermore, peremptory challenges are not of constitutional
“[W]ith respect to peremptory challenges, this court has consistently held such excusals do
not implicate any constitutional guaranty.”
6
Bolin, 18 Cal. 4th at 317. The Supreme Court has upheld use of peremptory challenges that do not
7
discriminate on a constitutionally suspect basis. See e.g., Holland v. Illinois, 493 U.S. 474, 478 (1990)
8
(rejecting argument that “a prosecutor’s use of peremptory challenges to eliminate a distinctive group
9
in the community deprives the defendant of a Sixth Amendment right to the ‘fair possibility’ of a
10 representative jury”).
11
Respondent suggests, and this Court agrees that the California Supreme Court reasonably
12 could have determined these nine peremptory challenges were not related to the potential jurors’
13 reservations over the death penalty. Prospective juror Lucas’s son had a drug related arrest (RT at
14 539-40); prospective juror Hatfield had a DUI (RT at 656-58); prospective juror Sprague had been
15 federally indicted and prosecuted, but not convicted (RT at 810-13); and prospective juror O’Neal
16 was an ex-felon who had served time in prison for burglary and robbery (RT at 731-33). As to the
17 other five challenges, Petitioner’s speculation alone that a challenge was exercised because of the
18 prospective juror’s reservations about the death penalty is not a basis for a constitutional violation.
19
For the reasons stated, a fair-minded jurist could have found that Petitioner failed to establish
20 that he was denied a fair trial, or to the extent alleged, that defense counsel’s performance fell below
21 an objective standard of reasonableness and that, but for counsel’s unprofessional errors, the result of
22 the proceeding would have been different
23
Accordingly, it does not appear that the state supreme court’s rejection of these claims was
24 contrary to, or an unreasonable application of, clearly established federal law, as determined by the
25 Supreme Court, or that the state court’s ruling was based on an unreasonable determination of the
26 facts in light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).
27
28
Claims H and H1 are denied.
b.
Review of Claim H2
74
1
In claim H2, Petitioner alleges defense counsel’s ineffective assistance by failing to object to
2
the prosecution’s noted selection of an allegedly pro-death penalty jury. Petitioner alleges that there
3
was no tactical reason for counsel’s failure to object.
1)
4
Clearly Established Law
The legal standard for ineffective assistance of counsel is set out in claim C2, ante.
5
2)
6
Analysis of Claim H2
7
This claim fails for the same reasons discussed in claims H and H1, ante. A fair-minded jurist
8
could have found that Petitioner has not demonstrated the prosecution’s use of peremptory challenges
9
was constitutionally infirm, or that he was denied a fair trial. Defense counsel’s failure to object,
10 where objection would be futile, was not objectively unreasonable. See Aguon, 851 F.2d at 1172;
11 Strickland, 466 U.S., at 687-698. Additionally, Petitioner has not demonstrated that but for counsel’s
12 performance there is a reasonable probability of a more favorable result. Strickland, 466 U.S. at 68713 98. For the reasons discussed in claim E, ante, he has not demonstrated on the evidentiary record that
14 the empaneled jury was other than impartial.
15
It does not appear that the state supreme court’s rejection of the claim was contrary to, or an
16 unreasonable application of, clearly established federal law, as determined by the Supreme Court, or
17 that the state court’s ruling was based on an unreasonable determination of the facts in light of the
18 evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).
19
Claim H2 is denied.
20 B.
Claims Relating to Guilt Phase
21
1.
22
This claim consists of seventeen subclaims alleging ineffective assistance at the guilt phase,
Review of Claim I
23 resulting in a complete breakdown of the adversarial process, denying Petitioner’s rights under the
24 Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution.
25
The California Supreme Court considered and rejected ineffective assistance of counsel
26 claims at the guilt phase on direct appeal, noting generally that:
27
28
Defendant alleges numerous instances of ineffective assistance of counsel. To prevail on such
claims, he must establish not only deficient performance, i.e., representation below an
75
1
2
3
4
5
6
7
8
objective standard of reasonableness, but also resultant prejudice. [Citation] Tactical errors are
generally not deemed reversible, and counsel’s decision making must be evaluated in the
context of the available facts. [Citation] To the extent the record on appeal fails to disclose
why counsel acted or failed to act in the manner challenged, we will affirm the judgment
“unless counsel was asked for an explanation and failed to provide one, or unless there simply
could be no satisfactory explanation ....” [Citation] Finally, prejudice must be affirmatively
proved; the record must demonstrate “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the outcome.” [Citation]
Bolin, 18 Cal. 4th at 333-35.
The seventeen subclaims are addressed separately below
a.
9
10
The legal standard for ineffective assistance of counsel is set out in claim C2, ante.
b.
11
12
Clearly Established Law
Review of Claim I1
In this claim, Petitioner alleges defense counsel’s cumulative failure to adequately investigate,
13 prepare for or present the guilt phase as alleged in claims I2-I17 amounts to ineffective assistance of
14 counsel.
15
This claim was raised and denied on direct appeal.
16
Petitioner also raised this same claim in his petition for writ of habeas corpus in the California
17 Supreme Court, which was summarily rejected on the merits without explanation. (CSC Order Den.
18 Pet. Habeas Corpus.)
19
Petitioner cites to claim A and alleges that lead counsel Soria and initial second counsel
20 Peterson did little work on this case prior to appointment of Mr. Cater as replacement second counsel
21 in July 1990. (ECF No. 113 at 58-62; ECF No. 178 at 92-94.) Petitioner argues that Mr. Soria, who
22 was engaged in another capital trial for the initial four months of his appointment in this case, did not
23 do a complete guilt phase investigation.
He complains that Mr. Soria used an incompetent
24 investigator, Bruce Binns Investigations; that Mr. Soria did not have a trial strategy; that Mr. Soria
25 did not consult necessary experts; that Mr. Soria did not test forensic evidence; and that Mr. Soria
26 nonetheless did not request a continuance of trial.
27
Petitioner also alleges that when Mr. Cater was appointed, Mr. Soria told him the
28 investigation for both phases of trial was virtually completed, even though that was not true, and that
76
1
Cater had no reason to believe otherwise. (SHCP Ex. 47; 2/25/91 RT at 11-12.) As a result,
2
Petitioner alleges that Mr. Cater ended up cross-examining witnesses without investigative materials
3
to rely upon.
4
The California Supreme Court could reasonably have denied this claim as lacking support in
5
the evidentiary record. Claim A, to the extent re-alleged here, fails for the reasons stated therein,
6
ante. As noted by the California Supreme Court, conclusory allegations of failure to investigate are
7
insufficient to raise a cognizable claim of ineffective assistance of counsel. Bolin, 18 Cal. 4th at 332-
8
34; see also Jones v. Gomez, 66 F.3d 199, 205 (9th Cir. 1995) (conclusory suggestions that counsel
9
provided ineffective assistance “fall far short of stating a valid claim of constitutional violation”);
10 United States v. Taylor, 802 F.2d 1108, 1119 (9th Cir. 1986) (petitioner’s “vague and speculative
11 assertions” failed to satisfy his burden under Strickland).
12
Petitioner’s only specific allegations refer to investigator Binns, (ECF No. 113 at 59-61),
13 whom he describes as drunk and ineffective during pretrial witness interviews. (Id.; SHCP Ex. 4;
14 SHCP Ex. 5; 2/25/91 RT at 11.)
15
The California Supreme Court rejected this claim for the following reasons:
16
Without elaboration, defendant asserts the investigator employed on his case must have been
inadequate because counsel’s performance was so deficient, also noting the investigator
admitted stealing money from defendant. These assertions are entirely too vague and
conclusory to demonstrate any lack of competence on the part of either. Absent such a
demonstration, we will not speculate defendant received ineffective assistance.
17
18
19
20 Bolin, 18 Cal. 4th at 334.
The California Supreme Court’s rejection of this claim was not
21 unreasonable. As noted by that court, defense counsel had “few viable options” because “[w]ith two
22 eyewitnesses to the killing, the defendant’s state of mind and intent were the only issues open to
23 question. The forensic evidence bearing on those elements was straightforward, to the point, and not
24 susceptible to much controversy. The guilt phase was matter-of-fact in tenor, and the penalty phase
25 was presented and argued without inflammatory rhetoric or vilification.” Id. at 313. That court went
26 on to describe the evidence against Petitioner as “overwhelming.” Id. at 334.
27
Petitioner points to the ABA Guidelines, which require a thorough capital case defense
28 investigation, in support his ineffective assistance of counsel claims. (ECF No. 178 at 83-85.) But
77
1
the ABA Guidelines are “only guides.” Strickland, 466 U.S. at 688; Jeffries, 5 F.3d at 1198 (ABA
2
Standards serve only as a ‘guide’ for determining whether an attorney’s performance is adequate”). It
3
follows that a failure to follow the ABA Guidelines “does not necessarily make out a denial of the
4
Sixth Amendment guarantee of assistance of counsel.” Nix v. Whiteside, 475 U.S. 157, 165 (1986).
5
This Court “need not determine the actual explanation for defense counsel’s strategic choices,
6
so long as his [choices] fall[] within the range of reasonable representation.” Morris v. State of
7
California, 966 F.2d 448, 456 (9th Cir. 1991). “The mere criticism of trial tactics is insufficient to
8
establish ineffectiveness or prejudice.” United States v. Ferreira-Alameda, 815 F.2d 1251, 1254 (9th
9
Cir. 1986). Here, counsel’s primary defense theory, to avoid a death sentence by showing the
10 Huffstuttler and Mincy killings were not first degree murder, could be seen as reasonably furthered
11 by the guilt phase investigation and presentation.
12
Counsel, individually or through investigator Binns, inspected the physical crime scene and
13 viewed crime scene photos (see claims I8-I9, post); reviewed police reports and eye witness
14 statements of Ramirez and Wilson (see claims I2-I3, post); reviewed the report of criminologist
15 Laskowski (see claims I8-I9); interviewed witnesses Ms. Ward and Ms. Islas (see claims I4-I5, post);
16 interviewed Petitioner’s daughter Paula and attempted to contact her common law husband, Jerry
17 Halfacre and reviewed Petitioner’s threatening letter to Halfacre and Detective Williamson’s
18 interview of Halfacre (see claim I6, post); contacted or attempted to contact potential witnesses Mr.
19 Daser, Mr. Jones, Mr. Williams and Mr. (Brent) Wilson and reviewed related police reports (see
20 claim I7, post); contacted Dr. Markman and investigated mental state defenses (see claim I10, post);
21 traveled to the Los Angeles area to identify and interview potential witnesses and obtained Detective
22 Nikkel’s report regarding Covina California potential witnesses including Ms. Hooten (see claim K,
23 post); and traveled to Chicago, Illinois to identify and interview potential witnesses among
24 Petitioner’s extended family (see claim W1, post; SHCP Ex. 47, 1/7/91 Marsden RT at 2304-11).
25
These efforts were to garner evidence that Petitioner acted in the heat of passion or by self-
26 defense, including evidence that Petitioner feared Huffstuttler; that Petitioner’s mental state precluded
27 premeditation; that Petitioner and Huffstuttler were scuffling at the time Huffstuttler was shot; that
28 circumstances under which Petitioner shot Huffstuttler carried over to his shooting Mincy and
78
1
Wilson; that Petitioner may have been stabbed during the scuffle; and that one or more unidentified
2
parties may have been involved in the murders.
3
To the extent Petitioner bases this claim on claims I2 through I17 (see ECF No. 178 at 93), for
4
the reasons set forth in those claims, post, Petitioner fails to demonstrate any singular errors for this
5
Court to aggregate. Thompson v. Calderon, 86 F.3d 1509, 1521 (9th Cir. 1996), amended by 109
6
F.3d 1358, 1369 (9th Cir. 1997), rev’d, 120 F.3d 1045 (en banc), opinion reinstated, Calderon v.
7
Thompson, 523 U.S. 538, 566 (1998) (“finding no prejudice from the errors considered separately,
8
we also find no cumulative prejudice”); see also Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir. 1996)
9
(holding that there was no reason to reverse for cumulative error because there was no violation of
10 federal rights in the guilt phase).
11
For the reasons stated, a fair-minded jurist could have found that Petitioner failed to establish
12 that he was denied a fair trial, or to the extent alleged, that defense counsel’s performance fell below
13 an objective standard of reasonableness and that, but for counsel’s unprofessional errors, there is a
14 reasonable probability the outcome of the proceeding would have been different. Strickland, 466
15 U.S., at 687-98.
16
It does not appear that the California Supreme Court’s rejection of the claim was contrary to,
17 or an unreasonable application of, clearly established federal law, as determined by the Supreme
18 Court, or that the state court’s ruling was based on an unreasonable determination of the facts in light
19 of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).
20
21
22
Claim I1 is denied.
c.
Review of Claim I2
Petitioner alleges multiple failures by counsel to investigate and present evidence to impeach
23 witness Eloy Ramirez, who was present during the crime and fled the scene with Petitioner to the
24 home of Ramirez’s girlfriend, Patricia Islas, where they spent the night following the murders.
25
26
27
28
The state supreme court rejected this claim on direct appeal, stating that:
Defendant contends counsel’s investigation and review of discovery were inadequate
because he failed to interview Patricia Islas or to anticipate her testimony about
statements made by Ramirez. At trial, counsel made a hearsay objection to this
testimony and also complained the statements had not been disclosed on discovery. In
response, the prosecutor noted they were contained in a police report. On that basis,
79
1
2
3
defendant asserts counsel’s review and preparation must have been deficient. The record
reflects, however, that the “discovery” objection was predicated on a lack of detail in the
report regarding Ramirez’s statements, implying counsel had in fact reviewed what was
provided. The record also suggests a defense investigator contacted Islas prior to trial.
More importantly, even if he did not, defendant fails to establish additional investigation
would have produced exculpatory or impeachment evidence.
4
5
Petitioner raised this claim in his petition for writ of habeas corpus in the California Supreme
6
Court, which was summarily rejected on the merits without explanation. (CSC Order Den. Pet.
7
Habeas Corpus).
8
Mr. Ramirez, a friend of Petitioner’s who is apparently blind in one eye and drinks heavily, was
9
present at the crime scene when Petitioner shot and killed both victims. Bolin, 18 Cal. 4th at 310.
10 Ramirez, who was arrested by Kern County Sheriff for the homicides (SHCP Ex. 13), testified to what
11 he saw and heard of the events surrounding the killings. (Id.; RT at 1919-62.) Petitioner faults counsel
12 on several fronts.
13
14
1)
Ramirez’s Statement to Law Enforcement
Petitioner first asserts that defense counsel failed to investigate the circumstances surrounding
15 Ramirez’s statement to the police and/or to investigate any mental and physical conditions that would
16 have affected Ramirez’s ability to perceive, recall, or testify about the events as an eye witness. (ECF
17 No. 113 at 63-67.) More specifically, Petitioner asserts that defense counsel failed to interview
18 Joseph Gutierrez, Ramirez’s attorney, about Ramirez’s condition at the time of Ramirez’s interview
19 with the police or any promises made in exchange for his statement. (Id.) Petitioner claims Gutierrez
20 would have provided information showing that Ramirez was strongly motivated to exculpate himself
21 and could have led to evidence of law enforcement inducement, and that the failure to interview him
22 prevented any effective challenge of the testimony of Ramirez and Deputy Williamson. (Id.)
23
Petitioner also faults counsel for failure to interview Kern County Sheriff’s Deputies Nickel
24 and Williamson, who interviewed Ramirez after his arrest. (Id.)
25
Though the declaration of Mr. Gutierrez indicates that defense counsel did not contact him
26 regarding Ramirez’s “statement or the circumstances under which it was given” (SHCP Ex. 7 at 2),
27 ex parte motions for funds filed by counsel indicate that the defense team made an unsuccessful
28 attempt to contact Gutierrez on April 9, 1990 (SHCP Ex. 69A, 4/17/90 Binn’s Invoice, at 9) and that
80
1
the defense team contacted Gutierrez on July 30, 1990, and drafted a letter to him on July 31, 1990.
2
(SHCP Ex. 69B, 8/28/90 Binn’s Invoice, at EMF Billing Statement at 1.) Nothing suggests that the
3
defense team spoke to Gutierrez about anything other than Ramirez.
4
Documentary evidence indicates that Petitioner’s counsel investigated Ramirez and prepared
5
for his testimony. (See SHCP Ex. 69A, Binn’s 3/13/90 Invoice, at 2 [reviewed Ramirez’s taped
6
statement]; SHCP Ex. 69A, 6/6/90 EMF Billing Statement at 2 [reviewed reports for information on
7
Ramirez]; 6/6/90 EMF Billing Statement at 5 and 8/28/90 EMF Billing Statement at 2 [contacted
8
Paula Bolin regarding Ramirez]; 7/18/90 EMF Billing Statement at 3 and 8/28/90 EMF Billing
9
Statement at 1 [prepared letter to Paula Bolin regarding Ramirez]; 8/28/90 EMF Billing Statement at
10 2-3 [attempted to locate Ramirez]; 8/28/90 EMF Billing Statement at 3 and 10/16/90 Billing
11 Statement at 3 [contacted Frank Jones regarding Ramirez].)
12
Additionally, as discussed in claim K1, post, defense counsel was already aware of the only
13 inducement made to Ramirez, i.e., that if he was uninvolved in the murders, he would be released
14 without charges being filed. (RT at 1861.) Deputy Williamson testified at trial:
15
16
17
We felt that Mr. Ramirez knew a lot more than what he was telling us, because he wasn’t
telling us anything, and that basically if by [sic] were able to determine that he was involved,
we would file charges; if we were able to determine that he was not involved, we would not
file charges. But there was no promises other than we were trying to conduct an investigation.
18 (Id.) The California Supreme Court could reasonably have found that attorney Gutierrez allowed
19 Ramirez to talk with authorities because Ramirez was uninvolved in the crime. (Id.; see SHCP Ex.
20 13, Supplemental Report of Senior Deputy Nikkel dated 9/7/89.) Gutierrez admits “[i]t appeared to
21 me at the time that the deputies did not really feel [Ramirez] was involved, but had arrested him
22 solely to obtain his cooperation.” (SHCP Ex. 7, ¶ 4.)
23
Petitioner has not demonstrated on the evidentiary record that further interviewing of
24 Ramirez, Gutierrez, or Deputies Nickel or Williamson, other than that already done by counsel,
25 would have provided any new helpful or useful information. The defense team was in possession of
26 Ramirez’s taped statement and the deputies’ reports (see SHCP Ex. 69A, Binns’ 3/13/90 Invoice, at
27 2; SHCP Ex. 13; RT at 1850-55, 1935-38), and Petitioner has failed to set forth what additional
28 information would have been obtained had the defense team personally interviewed Deputies Nickel
81
1
and Williamson.
2
Moreover, Gutierrez had an attorney-client privilege with Ramirez which, absent waiver,
3
would have prevented him from discussing any privileged information with Petitioner’s counsel.
4
(See, e.g., RT at 1937; SHCP Ex. 7 at 3.) Since counsel were well-informed regarding the nature of
5
the testimony to be presented by these individuals, and Petitioner presents only conjecture about
6
alleged inducements which might be discovered had further investigation been done, his claim of
7
ineffective assistance fails. Bragg v. Galaza, 242 F.3d 1082, 1088 (9th Cir. 2001); LaGrand v.
8
Stewart, 133 F.3d 1253, 1274 (9th Cir. 1998) (defense counsel need not personally conduct
9
interviews where he had transcripts of prosecution interviews).
10
Nor has Petitioner argued or established prejudice from any defense counsel failure to conduct
11 further interviews. The “inducement” as noted above was presented during trial and argued during
12 counsel’s closing argument. (RT at 1861, 1962, 2163, 2170-71.)
13
Given the noted substantial evidence against Petitioner, (see claims O, R, S, post), any
14 additional inducements which might have been uncovered likely would not have resulted in a
15 different outcome. Bragg, 242 F.3d at 1088. Ramirez was not the only witness to the crime. Wilson
16 also saw and heard Petitioner arguing with Huffstuttler before Petitioner killed Huffstuttler and
17 Mincy, and then tried to kill him (Wilson). Bolin, 18 Cal. 4th at 310; RT at 1739-43, 1765-71.
18 Wilson’s testimony corroborated Ramirez’s testimony in many important respects. Bolin, 18 Cal. 4th
19 at 310-311. Likewise, Ramirez corroborated the significant events to which Wilson testified. (RT at
20 1922-25, 1950-58.) Ramirez’s testimony regarding various forensic aspects of the case, e.g., that
21 Huffstuttler immediately fell to the ground after being shot only to be fired upon again and that
22 Petitioner made the scene look like a drug deal gone bad, also was confirmed by other testimony and
23 photographic and physical evidence. (See RT at 1792-96, 1806-10, 1818-24, 1834-36, 1843-55,
24 1928-34, 1945-58, 1969-71, 1978-2013, 2015, 2017.)
Additionally, Patricia Islas, Ramirez’s
25 girlfriend, to whom Ramirez first spoke about the murders, testified to Ramirez’s statements to her,
26 which were consistent with his testimony at trial and to the above detectives. (RT at 1969-73.)
27
28
2)
Ramirez’s Physical and Mental Condition at the Time of the Crime
Petitioner faults defense counsel’ for failing to investigate Ramirez’s physical and mental
82
1
condition at the time of the crime. (ECF No. 113 at 65-67.) Petitioner claims that this would have
2
led to discovery of various facts about Ramirez’s vision and drug and alcohol use, (id.; RT 1912-19;
3
SHCP Ex. 8), demonstrating that he was an incompetent and/or not credible witness.
4
Petitioner states Ramirez was an alcoholic (SHCP Ex. 3 at ¶ 7-8, Ex. 11 ¶ 25, Ex. 12 at ¶ 10-
5
11) who had been drinking at the time of the crime and who may have had pre-existing memory and
6
perception issues from a car accident the year before the crime. (SHCP Ex. 9 at ¶ 28.)
7
However, the record reflects that defense counsel was aware of, and presented to the jury,
8
evidence of Ramirez’s vision problem. (SHCP Ex. 13 at 6; RT at 1834-35, 1912-13.) Similarly,
9
defense counsel was aware that Ramirez had been drinking just prior to his arrest. (SHCP Ex. 13 at
10 3.) Evidence of Ramirez’s alleged alcoholism and drinking the day of the murders was presented to
11 the jury. (RT at 1726, 1850-51, 1917-19, 1942.)
12
Ramirez testified that, prior to the shooting, he had been drinking beer, (RT at 1918; see also
13 RT at 1918, 1942), and that he felt the effects of the beer and was “feeling good.” (RT at 1918-19.)
14 Deputy Williamson further testified that Ramirez had obviously been drinking when he was arrested
15 shortly after the murders and was “an alcoholic type.” (RT at 1850:25-28.)
16
When counsel asked Ramirez if he got drunk the day after the murders, Ramirez testified that
17 he did not remember. (RT at 1962.) The jury was presented with additional evidence that Ramirez
18 had difficulty remembering events. (RT at 1914, 1918, 1925, 1931, 1938-42, 1944, 1948-49, 1951,
19 1953, 1960; see also SHCP Ex. 13 at 2.) Any failure to present cumulative evidence of Ramirez’s
20 alcoholism or inebriated status on the day of the murders could not have been prejudicial.
21
The record reflects that the jury also considered other evidence potentially impeaching
22 Ramirez’s testimony. (See RT at 1850-1861 [inducements]; RT at 1956 [spontaneous denial of
23 participation in the crimes]; RT at 1957 [admitted nervousness].) Here, again, the failure to present
24 cumulative evidence would not be prejudicial.
25
26
3)
Impeachment with Inconsistent Statements
Petitioner faults defense counsel for failing to present at the December 1990 trial Ramirez’s
27 inconsistent tape recorded statements given to Kern County Sheriff’s deputies on September 6, 1989,
28 several days after the crime, and at the March 1990 preliminary hearing. (ECF No. 113 at 67-70.)
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1
Petitioner claims that defense counsel did not develop Ramirez’s alleged inconsistent
2
statements whether Petitioner was surprised by the arrival of Huffstuttler and the victims at the cabin,
3
i.e., Ramirez initially stated Huffstuffler told him and Bolin that Huffstuttler was going to stay with
4
the victims for a couple days but this information was not adduced at trial (see SHCP Ex. 13 at 3-4;
5
RT at 1944), thereby missing an opportunity to support the heat of passion defense. However,
6
Ramirez did testify at trial that, though he was unsure what was said between Petitioner and the
7
victims at the bar (RT at 1944), and that Petitioner was cordial in greeting the group at the cabin (RT
8
at 1733-34), Petitioner nonetheless told Huffstuttler upon the latter’s arrival at the cabin that
9
“bringing his friends up there” was a “no no” (RT at 1950).
10
Petitioner claims that defense counsel did not develop Ramirez’s inconsistent statements
11 whether he saw Huffstuttler and the other victims go down to the marijuana field, i.e., Ramirez
12 initially stated he did not see where the victims went upon arriving at the cabin, but at trial he stated
13 the victims went down to the marijuana patch. (CT at 23-24, 36-39; RT 1922, 1949-52; see also
14 SHCP Ex. 13 at 14, 16; CT at 23, 38-39, 41.) However, there is no material inconsistency in this
15 regard. Ramirez’s statement that he was unsure whether he could see victims Mincy and Wilson at
16 the time Huffstuttler was shot is not inconsistent with his subsequent statements that Mincy and
17 Wilson went to the marijuana field. (Id.)
18
Petitioner claims that counsel did not develop Ramirez’s inconsistent statements regarding
19 what Huffstuttler said and did just prior to being shot, i.e., prior to and at trial Ramirez stated he heard
20 Huffstuttler say something to Petitioner like “what are you going to do, shoot me?” or “shoot me
21 then” or “why don’t you shoot me” and raised his hands in the air (RT at 1922; CT at 25-26; SHCP
22 Ex. 13 at 4, 6; see ECF No. 113 at 68), but at a point during his pretrial interview with Officer Nikkel
23 the following colloquy took place:
24
25
Question: When [Petitioner] went in the house to get the gun, did he say he was gonna
get the gun?
Answer: Um-hmm. No …(?)
26
27
Question: Did he say anything?
Answer: No
28
Questions: To [Huffstuttler]?
Answer: (Unintelligible)
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1
2
3
Question: And [Huffstutterl] said, “What are you gonna do, shoot me?”
Answer: I didn’t really know. I didn’t hear him … nothing.
Question: He didn’t say anything? He didn’t say yes to [Huffstutter] or anything?
Answer: No.
4
5
(SHCP Ex. 13 at 16.) However, Ramirez’s noted answer to Nikkel’s question appears ambiguous
6
when taken in the context of Nikkel’s questions about whether Petitioner said anything prior to
7
shooting Huffstuttler. Ramirez may have been confused and his statement that he did not “hear …
8
nothing” was meant to be a response to Nikkel’s questions whether Petitioner said anything. Even if
9
the response referred to Huffstuttler, it is incomplete and uncertain as to what Ramirez meant to say.
10
Because Ramirez’s noted statements to authorities prior to and at trial were not necessarily
11 inconsistent there was nothing for defense counsel to impeach Ramirez with at trial. (RT at 1922-23;
12 CT 25-26; SHCP Ex. 13 at 4-6, 16.)
13
Petitioner claims that counsel did not develop Ramirez’s inconsistent statements regarding
14 whether Ramirez knew where Petitioner kept the rifle used in the crime, i.e., prior to trial Ramirez
15 denied knowing where Petitioner kept the rifle (CT at 49; SHCP Ex. 13 at 5), but at trial Ramirez
16 testified that Petitioner kept the rifle at his bedside (RT at 1955-56). However, Ramirez’s pretrial
17 statements reflected that he did not know where the rifle came from immediately prior to the shooting
18 (CT at 49) but that he previously had seen the rifle “in the cabin” (id.) and that he thought the rifle
19 was kept “either in the lounge, or in – inside the house.” (SHCP Ex. 13 at 5.)
20
Here again, the state supreme court could reasonably have found no inconsistency. Ramirez’s
21 initial statement that he did not know where the rifle was on the day before the shooting is not
22 inconsistent with his later statement that Petitioner kept the rifle at his bedside. (Id.) Ramirez’s
23 testimony regarding where the gun was also helped Petitioner because it supported Rebecca Ward’s
24 testimony that the guns were kept there only to kill rattlesnakes. (RT at 1668.) It also supported
25 Petitioner’s alternate defense that Ramirez knew where the gun was and could describe it because
26 Ramirez actually participated in the murders. (RT at 1955, 2167.)
27
Petitioner claims that counsel did not develop Ramirez’s allegedly inconsistent statements
28 regarding whether he saw Petitioner break bottles of hot sauce to make the scene look like a “bad
85
1
dope deal”, i.e., that Ramirez did not mention the bottles during his testimony at preliminary hearing
2
(CT 31) or early in his interview with detective Nikkel (SHCP Ex. 13 at 7), but later in his interview
3
with Nikkel stated that Petitioner broke bottles (id. at 16) and at trial Ramirez testified that Petitioner
4
“broke bottles and poured stuff on them.”
5
necessarily inconsistent. Any conflict between Ramirez’s testimony and his pretrial statements in this
6
subject area was speculative, partly because different questions were asked at different times. The
7
California Supreme Court reasonably could have found no material conflict. Where a witness is
8
thoroughly examined, failure to impeach with minor inconsistencies between preliminary hearing and
9
trial testimony does not establish ineffectiveness because “the decision to not use everything is
(RT at 1929.)
However, these statements are not
10 preeminently a tactical decision best made by counsel.” Jaiceris, 290 F. Supp. 2d at 1082.
11
Petitioner argues that Ramirez gave conflicting testimony regarding whether Petitioner had
12 gone in the cabin immediately before shooting Huffstuttler. Ramirez testified prior to trial that while
13 Petitioner and Huffstuffler were arguing Petitioner went into the cabin and came out and he
14 (Ramirez) then heard a shot. (SHCP Ex. 13 at 4; CT 19, 25, 41; RT 1923, 1950-52.) Ramirez
15 initially confirmed this at trial, testifying that “[Petitioner] walked in, came back out and shot
16 [Huffstuttler].” (RT at 1950:16.) But then Ramirez responded to a question whether Petitioner went
17 into the cabin before shooting Huffstuttler by stating “I don’t remember.” (RT 1952:2-4.) The
18 California Supreme Court could reasonably have concluded counsel’s failure to follow-up on this
19 inconsistency to be a matter of trial tactics. As noted, prior to and at trial Ramirez testified that
20 Petitioner went into and came out of the cabin prior to shooting Huffstutter. His statement that he
21 could not remember could be seen as transient and not necessarily inconsistent with his prior
22 statements. Moreover, counsel could have determined that exploring the inconsistency might have
23 led to further testimony contrary to the defense theory that the killing of Huffstuttler occurred in the
24 cabin during an argument and was manslaughter, not murder. (ECF No. 113 at 79.)
The mere
25 criticism of trial tactics is insufficient to establish ineffectiveness or prejudice. Ferreira-Alameda,
26 815 F.2d at 1254.
27
Petitioner argues that Ramirez gave conflicting testimony regarding his statement that
28 Huffstuttler had his “hands raised up out from his side” just prior to being shot, i.e., prior to trial
86
1
Ramirez stated that Huffstuttler had his hands raised prior to being shot (SHCP Ex. 13 at 6), but did
2
not so testify at trial (see RT at 1922-23, 1950-52). Trial tactics were seemingly implicated here as
3
well. If Petitioner wanted to emphasize Ramirez’s intoxication, poor vision and memory, getting
4
Ramirez to describe specific movements might not have been helpful to the defense, especially given
5
the absence of evidence that Huffstuttler ever had any weapons that day or fought Petitioner. (See RT
6
at 1689-90, 1707, 1731, 1740-43, 1747, 1922-24, 1930, 1950-52, 1958.) Further, the California
7
Supreme Court could reasonably have concluded that defense counsel was in a better position by
8
simply arguing that Huffstuttler might have made threatening gestures, supporting their heat of
9
passion defense, than allowing Ramirez to clarify that Huffstuttler did not do so.
10
Finally, an additional explanation for any alleged inconsistency regarding recorded statements
11 made on September 6, 1989 (SHCP Ex. 13 at 1), is that the batteries in the tape recorder ran down
12 during the interview and only a portion of the September 6, 1989 interview was taped. This could
13 suggest that untaped portions of the interview might have resolved apparent inconsistencies.
4)
14
15
Impeachment with Prior Misdemeanor Convictions
Petitioner contends that his counsel rendered deficient performance by failing to impeach
16 Ramirez with prior misdemeanor convictions for theft (1965 and 1967) and for resisting, delaying, or
17 obstructing an officer (1973), convictions defense counsel presumptively knew about. (ECF No. 113
18 at 70; SHCP Ex. 14.)
19
Here, again, trial tactics could reasonably have dictated counsel not pursue impeachment
20 given the nature of these offenses, their age, and potential difficulties in garnering supporting
21 evidence and witnesses to prove these crimes. People v. Wheeler, 4 Cal. 4th 284, 297-301 (1992)
22 (misdemeanor conviction is inadmissible hearsay).
23
24
25
26
27
28
5)
No Prejudice
Petitioner claims that had Ramirez been impeached with the noted evidence in this claim, the
jury might have discounted Ramirez’s testimony which was key to the prosecution’s theory that the
killing of Huffstuttler was first degree murder; and instead credited statements of the other eye
witness, Mt. Wilson, which Petitioner contends support the defense theory of voluntary manslaughter
arising from a scuffle between Petitioner and Huffstuttler or Petitioner protecting himself upon being
87
1
threatened by Huffstuffler.
2
Even if counsel was deficient as alleged, for the reasons discussed above and those discussed
3
in claim I3, post, the California Supreme Court could reasonably have found no Strickland prejudice
4
arising from claim I2. Moreover, defense counsel questioned Ramirez about the circumstances under
5
which he gave his statement to the police, his awareness of Petitioner’s marijuana venture, his alcohol
6
consumption on the day of the crimes, his poor memory of and inability to perceive the details of the
7
crimes, and his apparent lack of participation in the crimes. (RT at 1935-62.) The jury was able to
8
consider this information. Petitioner has not demonstrated prejudice under claim I2 by counsel’s
9
failure to further investigate and present evidence impeaching eye witness Ramirez. See e.g., Burger
10 v. Kemp, 483 U.S. 776, 795 (1987) (failure to pursue fruitless investigation not unreasonable).
11
For the reasons stated, a fair-minded jurist could have found that Petitioner failed to establish
12 that he was denied a fair trial, or to the extent alleged that defense counsel’s performance fell below
13 an objective standard of reasonableness and that, but for counsel’s unprofessional errors, the outcome
14 of this proceeding would have been different. Strickland, 466 U.S., at 687-98.
15
It does not appear that the California Supreme Court’s rejection of the claim was contrary to,
16 or an unreasonable application of, clearly established federal law, as determined by the Supreme
17 Court, or that the state court’s ruling was based on an unreasonable determination of the facts in light
18 of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).
19
20
21
Claim I2 is denied.
d.
Review of Claim I3
Petitioner faults counsel’s failure to impeach victim witness Wilson regarding his alleged
22 inconsistent statements about the shooting of Huffstuttler. (ECF No. 113 at 71-74.)
23
Petitioner raised this same claim in his petition for writ of habeas corpus in the California
24 Supreme Court, which the California Supreme Court summarily rejected on the merits without
25 explanation. (CSC Order Den. Pet. Habeas Corpus.)
26
Petitioner claims that Wilson’s trial testimony was inconsistent with his pretrial statements on
27 the issue of whether Huffstuttler was shot in the cabin.
Petitioner argues that in his pretrial
28 statements Wilson told authorities that Petitioner and Huffstuttler entered the cabin, but later testified
88
1
that it sounded as if one or both entered the cabin, but that he could not see the cabin. (SHCP Ex. 6 at
2
7, 31; RT 1740-42; RT 1764-69; RT 1809.)
3
Petitioner claims prejudice in that impeachment on this issue would have called into question
4
Ramirez’s credibility, and supported Petitioner’s argument for manslaughter, creating a reasonable
5
likelihood of a totally different outcome.
6
The Court is not persuaded by this claim. Wilson’s pretrial statements were not inconsistent
7
with, but rather could be seen as clarifying of, his subsequent testimony. Wilson stated at the
8
preliminary hearing and at trial that he could not see the entrance to the cabin. Deputy Layman, who
9
had written in his police report that “Wilson said [Huffstuttler] and [Petitioner] went into the
10 residence,” clarified during his trial testimony that Wilson had told him that he could not see the front
11 of the cabin. (RT at 1809-10.)
12
Moreover, even though Wilson testified at trial that he did not hear scuffling, (RT at 1767-68),
13 but had told Kern County Deputy Layman that he had (RT at 1809-10), the state supreme court could
14 reasonably have found no inconsistency. The term “scuffle” could refer to a verbal argument as
15 suggested during the prosecution’s closing argument. (RT 2154-55.) Wilson’s testimony at trial was
16 consistent with an ongoing argument of some sort between Petitioner and Huffstuttler. (RT at 176717 68.) Deputy Layman might have used “scuffle” to describe the argument, whether verbal or physical.
18
Accordingly, the state supreme court could reasonably have determined that Wilson’s
19 statements on this matter were substantially consistent and that impeachment would not have been
20 successful.
In that Wilson’s statements were not clearly inconsistent, defense counsel was not
21 necessarily deficient for failing to impeach on these points. Given Wilson’s consistent testimony that
22 he could not see the cabin, Wilson could have explained any alleged inconsistencies between what
23 Deputy Layman had reported and what Wilson had told him. Defense counsel could have determined
24 that the alleged inconsistencies were explainable based on the circumstances in the record and thus
25 not a basis for impeachment.
26
For the reasons stated, a fair-minded jurist could have found that Petitioner failed to establish
27 that he was denied a fair trial, or to the extent alleged, that defense counsel’s performance fell below
28 an objective standard of reasonableness and that, but for counsel’s unprofessional errors, the outcome
89
1
of this proceeding would have been different. Strickland, 466 U.S. at 687-98.
2
Therefore, the California Supreme Court’s rejection of the claim was not contrary to, or an
3
unreasonable application of, clearly established federal law, as determined by the Supreme Court, or
4
that the state court’s ruling was based on an unreasonable determination of the facts in light of the
5
evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).
6
7
Claim I3 is denied.
e.
Review of Claim I4
8
In this claim, Petitioner alleges defense counsel was ineffective by failing to investigate or
9
challenge the testimony of Rebecca Ward, victim Huffstuttler’s girlfriend, who had previously lived
10 at the cabin but was not present during the murders. (ECF No. 113 at 74-75.)
11
Petitioner raised this same claim in his petition for writ of habeas corpus in the California
12 Supreme Court (SHCP at 113-15), which was summarily denied on the merits without explanation.
13 (CSC Order Den. Pet. Habeas Corpus.)
14
Petitioner alleges that defense counsel failed to interview Ward and impeach her regarding
15 how she and others were involved in the marijuana operation, and regarding prior threats of violence
16 by Huffstuttler against Petitioner and Huffstuttler’s financial interest in the marijuana operation. He
17 claims these failures by defense counsel were not tactical because her testimony damaged Petitioner’s
18 manslaughter defense.
19
Ward testified regarding the weapons kept at the cabin. (RT at 1660-69, 2143.) She also
20 testified regarding Petitioner’s partnership with Huffstuttler in the marijuana growing operation. (RT
21 at 1660-69, 2142-43.) Petitioner claims the prosecutor argued that Petitioner had a financial motive
22 for killing Huffstuttler, undermining the defense manslaughter theory.
23
Petitioner claims that defense counsel should have asked Ward on cross-examination whether
24 she had a financial interest in the marijuana farm or whether she used marijuana or any other drugs.
25 But even if Petitioner could demonstrate the relevance of such questions, the California Supreme
26 Court reasonably could have found it unlikely Ward would take the stand and inculpate herself in this
27 fashion. That court could also have found trial tactics in play. Should Ward have responded
28 negatively to such questions, it could have bolstered her credibility.
90
Defense counsel had
1
investigated Ward and presumptively aware that she had admitted knowledge of the marijuana crop
2
and helped to water it on occasion, (RT at 1664), but stated that the marijuana venture was between
3
Petitioner and Huffstuttler. (RT at 1667; SHCP, Ex. 18b, 9/7/89 Nikkel Supp. Report at 13.)
4
Petitioner also claims that defense counsel failed to investigate and to interview Ward prior to
5
the trial, thereby missing crucial information. However, the record belies these allegations. (See
6
SHCP Ex. 69B, 10/16/90 EMF Billing Statement at 3 [contacted Ward in Pineville Oregon]; see also
7
3/20/90 EMF Billing Statement at 5 [contacted Barbara Ward regarding Rebecca Ward]; 4/26/90
8
EMF Billing Statement at 4 [searched court files for information regarding Ward]; 6/6/90 EMF
9
Billing Statement at 2 [reviewed discovery regarding Ward]; 8/28/90 EMF Billing Statement at 6
10 [attempted to locate and serve subpoena on Ward]; 10/16/90 EMF Billing Statement at 2-3, 5
11 [attempted to locate Ward, attempted to contact Ward’s ex-husband, spoke with bar owner regarding
12 Ward].)
13
Even if counsel should have done more to obtain information from Ward prior to trial, nothing
14 supports Petitioner’s theory that Ward would have provided information favorable to the defense.
15 Petitioner cites to the declaration of Paula Bolin and claims that Ward might have been able to
16 provide information that Jerry Halfacre had a financial interest in the marijuana plantation. (See
17 SHCP Ex. 9 at ¶ 10.) But nowhere in Paula Bolin’s declaration does she indicate Ward or her
18 boyfriend, Huffstuttler, was aware of any alleged financial interest of Halfacre. (Id.) Petitioner has
19 not demonstrated that defense counsel reasonably could have expected to get this information from
20 Ward.
21
Petitioner suggests that Ward could have provided information helpful to a self-defense theory
22 relating to an alleged fight between Petitioner and Huffstuttler that occurred shortly before the
23 shootings.
It appears that, when authorities interviewed Ward shortly after the shootings, she
24 referenced a confrontation of some sort between Petitioner and Huffstuttler:
25
26
27
28
[Ward] said one time, when [Ward, Petitioner, and Huffstuttler] were at the cabin,
[Huffstuttler] had gone out to get their pillows out of the van. She said when
[Huffstuttler] closed the door to the van, he slammed it. She said that [Petitioner] came
into the bedroom where they were at and stuck the .45 into [Huffstuttler’s] mouth,
telling him that he should not slam the door to his van. She said she and two (2) other
people, who were friends of [Petitioner’s], named Sandra and Dennis, from Covina,
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1
2
pulled [Petitioner] off of [Huffstuttler].
(SHCP, Ex. 18b, 9/7/89 Nikkel Supp. Report at 13.)
3
However, the California Supreme Court could reasonably have determined that defense counsel
4
may have been tactically motivated in not further investigating Ward’s knowledge of this confrontation.
5
The jury was unlikely to believe that Petitioner feared Huffstuttler as a result of this incident, (SHCP
6
Ex. 15 at ¶ 8), but was more likely to focus on Petitioner’s violent temper and display of the weapon.
7
Sondra Hooten, who apparently witnessed the fight, does not mention Ward was present during the
8
fight, (SHCP Ex. 15 at ¶ 7-8), suggesting a basis to discount such testimony by Ward. Additionally, it
9
appears that Ward was a minor witness given the testimony of Ramirez and Wilson, eyewitnesses to the
10 shooting of Huffstuttler.
11
Relying upon a remark from the prosecutor’s closing argument (RT at 2142-43), Petitioner also
12 asserts that his counsel was ineffective because they failed to question Ward about her drug use, which
13 was allegedly apparent during her testimony. The Court finds the allegation unavailing. During
14 closing argument, the prosecutor made the following statement about Ward: “Becky probably uses
15 drugs. We don’t have any evidence of that other than what you could see on the witness stand, and I
16 think you could all see that she was not all there.” (RT at 2142-43.) However, the California Supreme
17 Court could reasonably have found that the prosecutor’s statement was not evidence that Ward was
18 intoxicated when testifying, but rather a reference to how drug use had affected Ward and her
19 credibility as a witness: her demeanor, appearance, and ability to communicate and recall.
20
Petitioner does not cite to any evidence supporting the contention that Ward was intoxicated
21 while testifying. Even if Ward’s demeanor did suggest obvious intoxication, defense counsel might
22 have made a tactical decision to not question her on the subject, reserving this “obvious” information
23 about her demeanor for argument, only to have the prosecutor mention it first.
24
Even if counsel did unreasonably fail to investigate or challenge Ward’s testimony, Petitioner
25 has not demonstrated prejudice. Any further information from Ward about the alleged confrontation
26 between Petitioner and Huffstuttler could be seen as duplicative of Ms. Hooten’s testimony regarding
27 that confrontation. See e.g., Foster v. Delo, 39 F.3d 873, 880 (8th Cir. 1994) (no ineffectiveness for
28 failure to investigate minor witness whose testimony was consistent with other witnesses).
92
1
Additionally, the substantial evidence cited by the prosecution in closing could reasonably have
2
supported the prosecution theory that Petitioner had murdered Huffstuttler, not due to fear of
3
Huffstuttler or self-defense, but because Huffstuttler had brought strangers to the marijuana farm.
4
(RT at 2154:11-14.)
5
For the reasons stated, a fair-minded jurist could have found that Petitioner failed to establish
6
that he was denied a fair trial, or to the extent alleged, that defense counsel’s performance fell below
7
an objective standard of reasonableness and that, but for counsel’s unprofessional errors, the outcome
8
of this proceeding would have been different. Strickland, 466 U.S. at 687-98.
9
It does not appear that the California Supreme Court’s rejection of the claim was contrary to,
10 or an unreasonable application of, clearly established federal law, as determined by the Supreme
11 Court, or that the state court’s ruling was based on an unreasonable determination of the facts in light
12 of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).
13
14
15
Claim I4 is denied.
f.
Review of Claim I5
In this claim, Petitioner alleges defense counsel was ineffective by failing to adequately
16 investigate or impeach the testimony of Patricia Islas, Ramirez’s girlfriend, who gave testimony
17 corroborating that of Ramirez. (ECF No. 113 at 75-76.)
18
Petitioner raised this same claim in his petition for writ of habeas corpus in the California
19 Supreme Court, and in his direct appeal, both of which were denied on the merits. (CSC Order Den.
20 Pet. Habeas Corpus; Bolin, 18 Cal. 4th at 333.)
21
Petitioner alleges that counsel or defense investigator Binns “attempted to question Islas prior
22 to trial without success.”
(ECF No. 113 at 75-76.)
Petitioner concludes this interview was
23 unsuccessful because investigator Binns was incompetent. (ECF No. 113 at 76.) Petitioner also
24 alleges that Islas was a heavy drinker and drug user (id.; SHCP Ex’s 3, 11, 12) whose competency
25 and credibility could have been challenged on such basis. He claims her testimony supported that of
26 Ramirez and was prejudicial, and that impeaching her would have significantly supported his
27 voluntary manslaughter defense.
28
The California Supreme Court considered and rejected this claim on direct appeal, noting that:
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1
2
3
4
5
6
7
8
9
Defendant contends counsel’s investigation and review of discovery were inadequate
because he failed to interview Patricia Islas or to anticipate her testimony about
statements made by Ramirez. At trial, counsel made a hearsay objection to this
testimony and also complained the statements had not been disclosed on discovery. In
response, the prosecutor noted they were contained in a police report. On that basis,
defendant asserts counsel’s review and preparation must have been deficient. The record
reflects, however, that the “discovery” objection was predicated on a lack of detail in the
report regarding Ramirez’s statements, implying counsel had in fact reviewed what was
provided. The record also suggests a defense investigator contacted Islas prior to trial.
More importantly, even if he did not, defendant fails to establish additional investigation
would have produced exculpatory or impeachment evidence.
Bolin, 18 Cal. 4th at 333.
The record reflects that Islas did speak to a member of the defense team, but it appears that she
10 did not speak about the events she testified to at trial. (RT at 1972-73; SHCP Ex. 69B, 6/6/90 EMF
11 Billing Statement at 2, 4; Bolin, 18 Cal. 4th at 333.) Petitioner does not state what favorable or
12 exculpatory facts Islas would have provided had she been interviewed. Petitioner suggests, but points
13 to no evidence that Islas would have told counsel that she abused drugs and “thus might not have
14 accurately recalled the events to which she testified.” (ECF No. 113 at 76.) See U.S. v. Schaflander,
15 743 F.2d 714, 721 (1984) (claim of failure to interview witness rejected because the defendant did “not
16 produce[] affidavits or sworn statements from . . . the witness[] or from counsel.”).
17
Petitioner cites to declarations from Joyce Sophie Balsamico (SHCP Ex. 3 at 2) stating that “I
18 also knew Eloy’s girlfriend, Pat Islas. Pat drank a lot, too”; and from Richard Brogden (SHCP Ex. 11
19 at 7-8) stating that Islas was a “very heavy drinker” and “did a lot of drugs. Pat used marijuana,
20 cocaine, and various narcotics”; and from Richard Balsamico (SHCP Ex. 12 at 2-3) stating that Islas
21 was a “drinker.”
22
However, none of these declarations suggests Islas was abusing drugs or alcohol at or near the
23 time period that she testified, or that she had difficulty remembering things. Her interview with
24 Detective Nikkel, which was available to defense counsel (SHCP Ex 18b, 9/7/89 Nikkel Supp. Report
25 at 7-8), and her testimony at trial (RT at 1963-73) suggest that Islas had no trouble remembering
26 details about the relevant information she knew about the crime. Moreover, one of Petitioner’s
27 exhibits corroborates Islas’s testimony that Petitioner went to her house the day after the murders.
28 (SHCP Ex. 15 at 3.)
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1
Petitioner cannot show prejudice relating to this claim. Islas’s testimony was minor given the
2
eyewitness testimony of Ramirez and Wilson, and corroborated only in general terms Ramirez’s
3
testimony that Petitioner had murdered Huffstuttler because he had brought strangers to his marijuana
4
farm. (RT at 1963-73.)
5
For the reasons stated, a fair-minded jurist could have found that Petitioner failed to establish
6
that he was denied a fair trial, or to the extent alleged, that defense counsel’s performance fell below
7
an objective standard of reasonableness and that, but for counsel’s unprofessional errors, the outcome
8
of this proceeding would have been different. Strickland, 466 U.S., at 687-98.
9
It does not appear that the California Supreme Court’s rejection of the claim was contrary to,
10 or an unreasonable application of, clearly established federal law, as determined by the Supreme
11 Court, or that the state court’s ruling was based on an unreasonable determination of the facts in light
12 of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).
13
Claim I5 is denied.
g.
14
15
Review of Claim I6
Petitioner claims that defense counsel did not investigate Jerry Halfacre, who had been living
16 with Petitioner’s daughter, Paula Bolin, was the father of Paula’s child, Ashley, and who provided a
17 threatening letter he received from Petitioner to authorities, through his probation officer Georgia
18 O’Connor, that was used by the prosecution in aggravation as alleged in claim R, post. (ECF No. 113
19 at 76-77.)
20
Petitioner raised this same claim in his petition for writ of habeas corpus in the California
21 Supreme Court, which was summarily denied on the merits without explanation. (CSC Order Den.
22 Pet. Habeas Corpus.)
23
Petitioner faults counsel’s failure to interview Halfacre about various matters, claiming that, if
24 they had done so, they “would have learned that Halfacre was an active partner in the marijuana
25 venture himself and perhaps in the crime itself” as suggested by Paula Bolin. (ECF No. 113 at 77:1226 14; see also SHCP Ex. 9 at ¶ 10-12; SHCP Ex. 16.)
27
The record is uncertain regarding whether counsel interviewed Halfacre. It appears that
28 defense investigators contacted Halfacre (SHCP Ex. 18b, 4/26/90 EMF Billing Statement at 4, 7), and
95
1
later attempted further contact with him. (6/6/90 EMF Billing Statement at 4.) Petitioner has not
2
demonstrated that counsel failed to interview Halfacre. See e.g., Schaflander, 743 F.2d at 721
3
(without the necessary factual showing, defendant’s allegations remain mere conclusory statements.)
4
Counsel could reasonably have discounted Paula Bolin’s sworn and unsworn statements that
5
Halfacre had a business interest in the marijuana farm (SHCP Ex. 9 at ¶¶ 10-11) as well as her
6
suggestion that Halfacre may have been at the cabin on the day of the shooting because “the day of
7
the shooting [she] was not with Jerry [Halfacre]” (SHCP Ex. 9 at ¶ 12). Significantly, Paula was a
8
self-acknowledged drug user who was then estranged from Halfacre. (RT at 2490-93; SHCP Ex. 9 at
9
1-5; SHCP Ex. 16 at 2.)
10
Counsel apparently were aware of the contents of Deputy Williamson’s September 7, 1989
11 interview of Halfacre. (See SHCP Ex. 18b, 3/20/90 EMF Billing Statement at 6 indicating that
12 defense counsel investigator reviewed the tape.) Deputy Williamson also testified at trial as to details
13 of this interview. (RT at 1836-37.) For instance, counsel was presumably aware that Halfacre,
14 through his probation officer, assisted police in locating Petitioner’s van, used to flee the scene of the
15 crime. Halfacre also turned over to authorities the threatening letter written to him by Petitioner
16 which was used in the penalty phase. (RT at 1868, 2442-44; SHCP Ex. 18b at 8-10; SHCP Ex. 6 at
17 33-35; Bolin, 18 Cal. 4th at 336 & n.11.) Although Halfacre did not testify at trial, this information
18 came in through the testimony of other witnesses. (RT at 1836-37, 1867-68, 2442-44.)
19
Halfacre was on probation around the time of trial. (RT at 1866.) It is likely that he would
20 not have admitted any of these allegations for fear of facing a probation violation. Paula’s conjecture
21 that Halfacre might have been involved in the crimes reasonably could be accorded little if any
22 weight. The weight of evidence was to the contrary. In his interview with law enforcement, Halfacre
23 stated that he had not been up to the cabin where the murders had occurred in about nine months.
24 (SHCP Ex. 18b, 9/7/89 Halfacre Interview at 5.)
25
Given the foregoing and Halfacre’s seemingly poor relationship with his former common law
26 wife, Petitioner’s daughter Paula, counsel could have determined that they had enough information
27 about Halfacre and that additional information would not have been helpful to their theory of defense.
28 (See e.g., SHCP Ex. 6 at 33-35); United States v. Farr, 297 F.3d 651, 658 (7th Cir. 2002) (counsel “is
96
1
not obligated to . . . personally investigate every conceivable lead”). Moreover, Halfacre indicated in
2
his interview with police that he did not “want to be involved,” (SHCP Ex. 18b 9/7/89 interview with
3
Jerry Halfacre, at 6), suggesting he would not have cooperated with defense counsel. Given the
4
likelihood that Halfacre would have provided only unfavorable information, counsel could have made
5
a reasonable tactical decision not to pursue an interview of Halfacre.
6
Additionally, Petitioner cannot show prejudice relating to this claim. Even if Petitioner could
7
have shown that Halfacre had an interest in the marijuana farm, it likely would not have impacted the
8
verdict. The prosecution did not argue that Petitioner’s motive for killing Huffstuttler was to avoid
9
profit sharing, but that rather the motive was Huffstuttler’s showing the marijuana to the victims,
10 (RT at 2152-54), as otherwise apparent in the record. (See e.g., RT at 2492-93, 2578.)
11
For the reasons stated, a fair-minded jurist could have found that Petitioner failed to establish
12 that he was denied a fair trial, or to the extent alleged, that defense counsel’s performance fell below
13 an objective standard of reasonableness and that, but for counsel’s unprofessional errors, there is a
14 reasonable probability of a different outcome. Strickland, 466 U.S., at 687-98.
15
It does not appear that the California Supreme Court’s rejection of the claim was contrary to,
16 or an unreasonable application of, clearly established federal law, as determined by the Supreme
17 Court, or that the state court’s ruling was based on an unreasonable determination of the facts in light
18 of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).
19
20
21
Claim I6 is denied.
h.
Review of Claim I7
Petitioner claims defense counsel did not investigate or interview other possible guilt phase
22 witnesses who may have been involved in the crime. (ECF No. 113 at 77-79.)
23
Petitioner raised this same claim in his petition for writ of habeas corpus in the California
24 Supreme Court, which was summarily denied on the merits without explanation. (CSC Order Den. Pet.
25 Habeas Corpus.)
26
Petitioner argues that defense counsel did not investigate or interview other possible guilt
27 phase witnesses, friends of Petitioner, who may have been involved in the crime, specifically Mark
28 Daser, Frank Jones, Ulysses Williams, and Brent Wilson.
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1
1)
Mark Daser
2
Petitioner claims that he described the crime and how he acted in self-defense to Daser, telling
3
him that Huffstuttler had pulled a knife on him and stabbed him before Petitioner shot him. (ECF No.
4
113 at 78; SHCP Ex. 4.) Petitioner alleges that he also showed fresh wounds to Daser. (Id.)
5
The record reflects that Daser was contacted by the defense team. (SHCP Ex. 4 at ¶ 19;
6
SHCP Ex. 69B, 4/26/90 EMF Billing Statement at 9; 8/28/90 EMF Billing Statement at 2.) Counsel
7
was also aware of Daser’s statement to local law enforcement. (SHCP Ex. 18b, Supplemental Report
8
of Deputy Williamson dated 1/29/90.) Defense counsel clearly considered calling Daser as a witness
9
but made a reasonable tactical decision not to, determining it would be “counterproductive” given the
10 opinion of Dr. Markman regarding the scars:
11
12
[A]nd we felt if Dr. [Markman] after two hours of talking to [Petitioner] and seeing him and
felt that [the scars] went the wrong way, that that would look like fabricated evidence, and
that was my opinion.
13 (RT at 2289.) The record reflects that counsel contacted “Dr. Markowitz (sic),” who interviewed
14 Petitioner and inspected the wounds. (RT at 2288-89.) Petitioner alleges that Dr. Markowitz was
15 actually Dr. Ronald Markman, the psychiatrist who evaluated Petitioner for trial competency. (ECF
16 No. 113 at 111 n.22.) As noted, Dr. Markman advised defense counsel that the wounds “went the
17 wrong way” (RT at 2289) i.e., appeared self-inflicted rather than inflicted by Huffstuttler as Petitioner
18 suggested. (SHCP Ex. 20 at 3.) Petitioner’s subsequent argument that Dr. Markman was unqualified
19 to opine on the nature of the scars appears unsupported in the record. See e.g., Affinito v. Hendricks,
20 366 F.3d 252, 258-59 (3d Cir. 2004) (where defendant has failed to show that the expert selected is
21 unqualified, selection of expert is a matter of strategy and tactics).
22
Furthermore, the prosecutor argued at closing that no witness saw Huffstuttler with a knife
23 and no blood was on the knife found at the crime scene. (RT at 2175-76.) Witness Ramirez
24 suggested that Petitioner went to see Daser to get a “solid alibi.” (SHCP Ex. 13 at 9.) Significantly,
25 witness Wilson did not testify as to any limp or injury to Petitioner following the shooting of
26 Huffstuttler. (RT at 1770-71.)
27
Defense counsel also considered Daser’s statements regarding what Petitioner had told him
28 about the alleged knife fight to be inadmissible hearsay.
98
(RT at 2289.)
Furthermore Daser’s
1
credibility was likely in issue. Mr. Daser was “one of [Petitioner’s] closest friends” (SHCP Ex. 4 at
2
1) and the knife fight statements, helpful to Petitioner, were contrary to the noted testimony of the
3
witnesses present during the crimes, and unsupported by Daser’s own statements to Deputy
4
Williamson shortly after the crimes. (SHCP Ex. 18b, 1/29/90 Williamson Supp. Report at 2.)
5
Given the foregoing, it is unlikely that Petitioner could have suffered prejudice from his
6
counsel’s failure to further investigate Daser and present his testimony about the knife fight. The
7
California Supreme Court could reasonably have determined that defense counsel made a tactical
8
choice not to further investigate the knife fight scenario and call Daser about the knife wounds.
9
10
2)
Frank Jones
Petitioner next argues that defense counsel failed to interview Jones, another friend of
11 Petitioner who allegedly saw him after the crime and before he fled California for Chicago. (ECF
12 No. 113 at 78:2-4.) He claims that Jones had knowledge of Halfacre’s involvement in the marijuana
13 farm and could have provided impeachment about Ramirez. (ECF No. 113 at 78:9-11.) However,
14 Petitioner does not specify the nature of Halfacre’s involvement nor of Jones’ knowledge thereof. In
15 any event, as explained in claim I6, ante, even if Halfacre had also been Petitioner’s partner in the
16 marijuana venture, Halfacre’s involvement was not relevant to the “voluntary manslaughter” defense
17 theory.
18
Moreover, the record reflects that Jones was contacted by the defense team; he was
19 interviewed numerous times both in person and over the telephone. (SHCP Ex. 69B, 3/20/90 EMF
20 Billing Statement at 5; 6/6/90 EMF Billing Statement at 4; 8/28/90 EMF Billing Statement at 3; see
21 also SHCP Ex. 24 at 11.) Defense counsel also had a police report concerning an interview of Jones.
22 (SHCP Ex. 6 at 32-33.)
23
Petitioner does not specify what impeachment information Jones had about Ramirez.
24 Ramirez’s taped interview with Deputy Nikkel indicates that Jones could have corroborated Ramirez
25 in much the same way that Islas did. (SHCP Ex. 13 at 10-12.) “Speculation that [a] missing witness[]
26 would have been helpful. . . . is insufficient to carry the burden of a habeas corpus petitioner.”
27 Johnson v. Alabama, 256 F.3d 1156, 1187 (11th Cir. 2001) (quoting Aldrich v. Wainwright, 777 F.2d
28 630, 636 (11th Cir. 1985)). Petitioner does not explain what other information Jones had that would
99
1
have assisted the defense. Jaiceris, 290 F. Supp. 2d at 1081-82 (finding no ineffectiveness or
2
prejudice for counsel’s failure to call various witnesses where the “[p]etitioner’s explanation is
3
incoherent as to who they were, where they could be found, and what they could testify to, and lacks
4
any indication that he informed his counsel any more clearly about them than he did the court.”).
5
Given the foregoing, it is unlikely that Petitioner could have suffered prejudice from his
6
counsel’s failure to further investigate Jones and present his testimony regarding Halfacre and
7
Ramirez. The California Supreme Court could reasonably have determined that defense counsel
8
made a tactical choice not to further investigate these allegations.
9
10
3)
Ulysses Williams
Petitioner argues that defense counsel were ineffective in their investigation of Ulysses
11 Williams, a Kern County Sheriff’s Department narcotics officer who “might have been involved in
12 the crime.” (ECF No. 113 at 78; see also RT at 2279-80.)
13
It appears that defense counsel was aware of Petitioner’s belated contention that Williams was
14 involved in the crime and tried to locate Williams without success. (RT at 2288.)
15
Petitioner does not state what information Williams might have provided and how he was
16 prejudiced without it. As noted, “speculation that [a] missing witness[] would have been helpful. . . .
17 is insufficient to carry the burden of a habeas corpus petitioner.” Johnson, 256 F.3d at 1186-87.
18 Petitioner does not explain how information Williams had would have assisted the defense. See
19 Jaiceris, 290 F. Supp. 2d at 1081-82.
20
Given the foregoing, it is unlikely that Petitioner could have suffered prejudice from his
21 counsel’s failure to further investigate Williams and present his testimony regarding the shootings.
22 The California Supreme Court could reasonably have determined that defense counsel made a tactical
23 choice not to further investigate these allegations.
24
25
26
27
28
4)
Brent Wilson
Petitioner argues that defense counsel was deficient for failing to locate or interview Brent
Wilson, a man allegedly mentioned in police reports obtained by trial counsel as being near the crime
scene and arrested for “suspicious activities.” (ECF No. 113 at 78.)
The record indicates that defense counsel attempted to locate and interview Wilson based on
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1
information in discovery provided by Kern County law enforcement, but was unsuccessful. (See
2
SHCP Ex. 69B 10/16/90 EMF Billing Statement at 6; 2/8/91 EMF Billing Statement at 1-2; 10/16/90
3
EMF Billing Statement at 2.) Petitioner suggests trial counsel was deficient in this regard, but does
4
not point to facts showing counsel’s efforts were unreasonable, or what evidence, if any, Brent
5
Wilson could or would have provided about the murders.
6
Given the foregoing, it is unlikely that Petitioner could have suffered prejudice from his
7
counsel’s failure to further investigate Brent Wilson and present his testimony regarding the crimes.
8
The California Supreme Court could reasonably have determined that defense counsel made a tactical
9
choice not to further investigate these allegations.
5)
10
11
Conclusions
Accordingly, the California Supreme Court was not unreasonable in finding that defense
12 counsel was not deficient in foregoing further investigation of Daser, Jones, Williams and Brent
13 Wilson. Petitioner was not prejudiced by defense counsel’s doing so. For the reasons stated, a fair14 minded jurist could have found that Petitioner failed to establish that he was denied a fair trial, or to
15 the extent alleged, that defense counsel’s performance fell below an objective standard of
16 reasonableness and that, but for counsel’s unprofessional errors, the outcome of this proceeding
17 would have been different. Strickland, 466 U.S., at 687-98.
18
In sum, it does not appear that the California Supreme Court’s rejection of the claim was
19 contrary to, or an unreasonable application of, clearly established federal law, as determined by the
20 Supreme Court, or that the state court’s ruling was based on an unreasonable determination of the
21 facts in light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).
22
23
24
25
26
27
28
Claim I7 is denied.
i.
Review of Claims I8 and I9
Petitioner in these next claims alleges that defense counsel, apart from visiting the crime
scene, did not conduct any significant forensic investigation; failed to consult any forensic expert in
order to show the shooting of Huffstuttler was in the heat of passion or self-defense, and that Mincy
was not running away from the shooter when he was shot; and failed to challenge the qualifications of
and inadequately cross-examined criminologist Gregory Laskowski regarding the Huffstuttler and
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1
Mincy shootings. (ECF No. 113 at 79-83.) He supports this argument with the habeas declaration of
2
criminologist Peter Barnett. (See SHCP Ex. 17.)
3
Petitioner raised these same claims in his petition for writ of habeas corpus in the California
4
Supreme Court, which were summarily denied on the merits without explanation. (CSC Order Den.
5
Pet. Habeas Corpus.)
1)
6
Crime Scene Photographs
7
Petitioner claims generally that defense counsel failed to obtain a complete set of crime scene
8
photographs taken by the Kern County Sheriff’s Department during the post-crime investigation.
9
(ECF No. 113 at 79.) He claims this was crucial because, by the time counsel was appointed, the
10 crime scene had been altered by the weather, the media, and vandalism, and might have yielded
11 evidence that the shootings occurred at different times and with different weapons, suggesting more
12 than one shooter was involved. (ECF No. 113 at 82.)
13
However, Petitioner does not demonstrate, by citation to facts in the record, that the defense
14 had less than all of the crime scene photographs taken by the Kern County Sheriff’s Department. Nor
15 does he explain or make a proffer as to what photographs were missing and how they might have
16 supported his defense.
17
The state supreme court reasonably could have rejected Petitioner’s unsupported suggestion
18 that unspecified crime scene photographs might have helped the defense in unspecified ways. See
19 e.g., Wacht v. Cardwell, 604 F.2d 1245, 1247 (9th Cir. 1979) (petitioner must demonstrate
20 entitlement to habeas relief through specific allegations that “state facts that point to a ‘real possibility
21 of constitutional error’”).
22
23
24
25
26
27
28
2)
Failure to Consult a Forensic Expert
Petitioner faults defense counsel for failure to consult with a forensic expert.
The state supreme court denied this claim on direct appeal, stating that:
Defendant faults counsel’s . . . failure to call defense experts to counter the ballistics
and blood-spatter evidence presented by the prosecution.) ... Defendant identifies no
exculpatory or impeachment evidence that counsel could have revealed by further
questioning of prosecution witnesses [or examination of defense experts] and that would
have produced a more favorable result at trial. [¶] ... Such claims must be supported by
declarations or other proffered testimony establishing both the substance of the omitted
evidence and its likelihood for exonerating the accused. [Citations] We cannot evaluate
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1
2
3
alleged deficiencies in counsel’s representation solely on defendant’s unsubstantiated
speculation.” [Citation] Whether to call certain witnesses is also a matter of trial tactics,
unless the decision results from unreasonable failure to investigate. [Citation] The record
does not establish defense experts would have provided exculpatory evidence if called,
and we decline to speculate in that regard as well.
4
5
Bolin, 18 Cal. 4th at 333-35.
6
Petitioner claims that “[a] qualified forensic expert would have cast significant doubt on the
7
prosecution’s reconstruction of the crime, that Huffstuttler was shot outside the cabin where he was
8
found and that Mincy was shot while running from the shooter [SHCP Ex.’s 17, 18; RT at 2054-59],
9
and would have provided evidence to support the defense theory that the killing of Vance Huffstuttler
10 occurred in the cabin during an argument, and was manslaughter, not murder.” (ECF No. 113 at 79.)
11
Mr. Huffstuttler
12
Petitioner, pointing to the declaration of his habeas criminalist, Mr. Barnett, faults defense
13 counsel for failing to retain a forensic expert who could have testified that the prosecution’s forensic
14 case supporting first degree murder was insubstantial and inconclusive. (ECF No. 113 at 81:22-24.)
15 Barnett concludes Huffstuttler may have been shot once during an argument with Petitioner inside the
16 cabin, and then dragged outside over the dirt and later shot three more times with the intent to show a
17 “drug deal that had gone bad.” (ECF No. 113 at 81:16-21; SHCP Ex. 17.)
18
Barnett notes that Huffstuffler was wearing only socks which had no dirt on them, but only hot
19 sauce (ECF No. 113 at ¶ 324; SHCP Ex. 17); the dirt found on Huffstuttler’s pants and shirt suggests he
20 was dragged to where he was found (id.); the trajectory of the bullets suggests three of the four shots
21 were fired from the same angle causing Barnett to conclude that one shot was fired while Huffstuttler
22 was standing in the cabin and three were fired after he had fallen to the ground (id.); the .45 caliber
23 bullet and pistol found near Huffstuttler’s body were not linked to the murders by ballistics analysis or
24 fingerprints (id.); and the crime scene photographs suggest two sets of footprints around HuffStuttler’s
25 body (id.).
26
However, the state supreme court could reasonably have concluded that Barnett provides only
27 minimal support for a manslaughter defense. Firstly, Barnett’s conclusion of two different bullet
28 trajectories is not inconsistent with that of prosecution criminologist Laskowski; Barnett in fact
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1
concedes that Huffstuttler may have been shot once while standing and then three times while on the
2
ground as the prosecution argued. (See SHCP Ex. 17 at 6-7, Ex. 18 at 1-3.)
3
According to Barnett, the gunshot trajectory suggest Huffstuttler could have been shot during an
4
argument in the cabin and then dragged outside where he was found. But this seems speculative.
5
Barnett ignores the trial testimony of eyewitnesses Ramirez and Wilson supporting the prosecution case
6
that the shooting occurred outside the cabin and that Huffstuttler, when shot, was not fighting with or
7
threatening Petitioner. (See claims I2 and I3, ante.) Significantly, Petitioner has not pointed to facts in
8
the record suggesting Huffstuttler’s blood was found in the cabin. Petitioner chose not to testify.
9
Barnett appears to provide little if any support for the alternative defense theory that Petitioner
10 acted out of self-defense when he shot Huffstuttler. (See ECF No. 113 at 80-81.) Nothing in the record
11 before the state supreme court suggests that Huffstuttler attacked Petitioner or that Huffstuttler
12 possessed any weapons. (See RT at 1689-90, 1707, 1731, 1740-43, 1747, 1922-24, 1930, 1950-52,
13 1958.)
14
The state supreme court could reasonably have determined that the noted evidence of bullet
15 trajectory and stains on Huffstuttler’s clothing were consistent with the prosecution theory that
16 Petitioner attempted to make the murder look like a drug deal gone bad by shooting into Huffstuttler’s
17 body while it was on the ground and changing the scene to make it appear a scuffle had taken place.
18 (See SHCP Ex. 13 at 7, 16; Ex. 17 at 4-6.) Moreover, there apparently were no drag marks at the
19 murder scene. As Respondent notes, there was testimony at trial that the dirt stains could have been
20 caused when Huffstuttler fell to the ground after being shot. (ECF No. 194, at 169:10-13, citing RT at
21 1923-24, 1958, 2061); Bolin, 18 Cal. 4th at 310.
22
Petitioner’s observation that the Laskowski’s report suggests the rifle connected to Petitioner
23 may not have been the weapon that killed Huffstuttler (see SHCP Ex. 18) is not inconsistent with the
24 prosecution theory that Petitioner used the rifle to shoot Huffstuttler after the latter was on the ground
25 and not moving. (RT at 1928.) Nor is it inconsistent with the trajectory evidence noted by Bennett.
26 (See SHCP Ex. 17 at 4-9.)
27
Barnett notes the two sets of footprints around Huffstuttler’s body could suggest more than one
28 shooter. (SHCP Ex. 17 at 4-5, 9.) However, the jury was already aware of the multiple shoeprints
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1
found at the scene by the evidence presented at trial. (RT at 1829-30, 1848-49.)
The evidentiary
2
record before the state court demonstrated that a total of five people were at the scene, the three
3
victims, Ramirez and Petitioner. The presence of more than one person at the scene of Huffstuttler’s
4
murder does not necessarily suggest multiple shooters were involved. Barnett does not dispute that
5
“[t]he absence of complete documentation” regarding the shoe impressions made “the paths of the
6
various individuals present during the incident impossible to reconstruct.” (SHCP Ex. 17 at 5.)
7
Barnett does not suggest Petitioner was not the shooter; nor does he opine that there was more
8
than one shooter. (See Id. at 9.) The jury heard Laskowski’s testimony that he could not positively link
9
the .45-caliber bullet and .45-caliber pistol found at the crime scene (RT at 2048-49), and that there
10 were no fingerprints found on the .45 pistol. (Id.) Barnett himself concludes that there was “little
11 significance” to the failure to recover “useable latent fingerprints” from the .45-caliber pistol. (SHCP
12 Ex. 17 at 4.) The jury had before it evidence that Petitioner removed prints from the gun. (RT at 1930,
13 1958-59.) Counsel did argue, albeit unsuccessfully, a possible multiple shooter theory for the jury to
14 consider. (See e.g., RT at 2164, 2167-69.)
15
Accordingly, the state supreme court could have concluded there was no reasonable probability
16 of a more favorable result even with additional forensic analysis of the crime scene regarding the
17 Huffstuttler shooting. That court could reasonably have discounted Barnett’s testimony as not adding
18 anything of more than minor probative value. See Ainsworth v. Calderon, 138 F.3d 787, 792-93 (9th
19 Cir. 1998) (finding no ineffectiveness because proffered defense expert affidavits “are consistent with
20 and add no new evidence to the evidence that was already before the jury.”).
21
For the reasons stated, the state supreme court could reasonably have found that defense counsel
22 was not ineffective regarding forensic investigation of the Huffstuttler shooting. “Counsel for the
23 defense is not required to present expert testimony on all possible defenses in a case.” Hall v. Sumner,
24 512 F. Supp. 1014, 1021 (1981).
25
Mr. Mincy
26
Petitioner faults counsel for not challenging Laskowski’s conclusion, based in part upon blood
27 splatter and bullet trajectory analysis, that Mincy was shot while running, dropped to the ground, and
28 was shot again (SHCP Ex. 18; RT at 2050-59), a conclusion the prosecution used in arguing the killing
105
1
of Mincy was first degree murder. Petitioner points to Barnett’s conclusion that Mincy was not
2
involved in a struggle because the body shows no abrasions or lacerations; and that Mincy was shot
3
where he was found because no blood stains were found in the area leading up to where Mincy’s body
4
was found. (SHCP Ex. 17 at 7.) However, Barnett’s conclusions could be seen as conflicted and based
5
on conjecture.
6
Barnett states that bullet trajectory analysis suggests one of the shots occurred when Mincy was
7
in some position other than his final resting position and that multiple shots occurred when Mincy was
8
on the ground in his final resting position. (Id.) Yet Barnett seems to contradict himself by stating that
9
“[b]lood smears and spatters on Mincy’s body all appear consistent with [the] victim being in
10 essentially the position where found when all of the gunshot wounds occurred.” (Id. at 8.)
11
Barnett states that blood splatter near Mincy’s body “seems unlikely to have resulted from the
12 position in which the body was found” and that “blood splatter on the trucks (sic) and on the right thigh
13 could all have originated from Mincy when he was scrambling around after having been shot in the
14 arm.” (Id.) Barnett concludes that the blood splatter could have occurred when Mincy “mov[ed] his
15 [wounded] arm around in a rapid manner while in a position near the rock . . . .” (Id.)
16
But Petitioner ignores that Barnett’s findings could be seen as supportive of Laskowski’s
17 conclusion that Mincy was initially shot in the back and the right arm while erect and running and then
18 shot again when on the ground. (SHCP Ex. 18 at 4-5; RT at 2050-59.) Moreover, Barnett fails to
19 arrive at any conclusion based on his noted findings. (SHCP Ex. 17 at 9.)
20
The state supreme court could have concluded there was no reasonable probability of a more
21 favorable result even with additional forensic analysis of the crime scene regarding the Mincy
22 shooting. That court could reasonably have discounted Barnett’s testimony as not adding anything of
23 more than minor probative value. See Ainsworth, 138 F.3d at 792-93 (finding no ineffectiveness
24 because proffered defense expert affidavits “are consistent with and add no new evidence to the
25 evidence that was already before the jury.”).
26
For the reasons stated, the state supreme court could reasonably have found that defense
27 counsel was not ineffective regarding forensic investigation of the Huffstuttler shooting. “Counsel
28 for the defense is not required to present expert testimony on all possible defenses in a case.” Hall,
106
1
512 F. Supp. at 1021.
3)
2
Failure to Challenge Criminologist Laskowski’s Qualifications
3
Petitioner faults counsel for failing to cross-examine prosecution criminologist Laskowski
4
regarding Laskowski’s alleged lack of knowledge, skill, education, experience and training in the
5
analysis of blood splatter evidence (ECF No. 113 at 83-87), claiming that Laskowski did not qualify
6
as a blood splatter expert under state law. (Id.)
7
8
9
10
11
12
13
14
The California Supreme Court rejected Petitioner’s challenge of Laskowski’s qualifications as
an expert, observing that:
Utilizing photographs of the crime scene, Criminalist Laskowski testified regarding the
various positions of Mincy's and Huffstuttler's bodies when they were shot. Based on
blood spatters and drips depicted in the photos, he indicated one shot was to Mincy's
body while in a “fetal-like” position on its left side; as to the others, his body was in a
vertical position. Laskowski also concluded Mincy “was moving at a relatively rapid
pace” after being initially wounded. With respect to Huffstuttler, he determined that for
several shots the body was prone and not moving. Defendant now contends this
evidence was inadmissible because the witness was not qualified to render an expert
opinion [Citation] and because he did not personally investigate the crime scene.
...
15
16
17
18
19
20
21
22
23
24
25
26
27
28
[A]ny objection would have been properly overruled. Evidence Code section 720
provides that a person may testify as an expert “if he has special knowledge, skill,
experience, training, or education sufficient to qualify him,” [Citation] which “may be
shown by any otherwise admissible evidence, including his own testimony.” [Citation]
The trial court’s determination of whether a witness qualifies as an expert is a matter of
discretion and will not be disturbed absent a showing of manifest abuse. [Citation]
“‘Where a witness has disclosed sufficient knowledge of the subject to entitle his
opinion to go to the jury, the question of the degree of his knowledge goes more to the
weight of the evidence than its admissibility.’” [Citation]
The record establishes Laskowski was fully qualified to testify based on his educational
background in biochemistry and serology and his training as a criminalist for 13 years,
including attending and giving seminars in blood-spatter analysis and crime scene
investigation. He had also testified as an expert witness on numerous prior occasions.
Given his expertise, Laskowski’s testimony was not cumulative. Utilizing his knowledge
of blood spatters and drips, he was better able to describe the particulars of what
occurred during the shooting of Huffstuttler and Mincy than any photographic depiction
of their bodies. For example, he concluded from the spatter evidence that Mincy was
moving around after he was first shot and before he fell into a fetal position, where he
was shot one more time. He also explained that the large pool of blood around
Huffstuttler’s body indicated he was prone and not moving when he received the final
shots. As discussed in other contexts, this evidence was relevant to the issues of intent
and premeditation and deliberation. The photographs Laskowski referred to adequately
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1
2
3
illustrated his testimony; therefore, the fact he did not personally examine the crime
scene was a matter of evidentiary weight. Since his testimony was admissible on all
grounds, counsel had no basis for objecting.
Bolin, 18 Cal. 4th at 321-22; see also RT at 2040-43.
4
The record reflects that Laskowski, a thirteen-year employee of the Kern County Regional
5
Criminalistics Laboratory, testified that he attended seminars “essentially having to do with . . . blood
6
splatter analysis” (RT at 2041-42) and that he had given “papers and lectures at these same type of
7
seminars.” (RT at 2042.) Petitioner cites to People v. Hogan, 31 Cal. 3d 815, 852 (1982), disapproved
8
on other grounds by People v. Cooper, 53 Cal. 3d 771, 836 (1991) (the qualifications of an expert must
9
be related to the particular subject upon which he is giving expert testimony). He argues that this
10 testimony is ambiguous and that Laskowski may have received minimal or no blood splatter training
11 and given few if any papers and lectures. (See ECF No. 113 at 85 n.17.) He argues that Laskowski did
12 not clearly testify as to the topics upon which he had given seminars.
13
However, the following colloquy between the prosecutor and Laskowski at trial suggests
14 otherwise:
15
16
17
18
19
20
Q What are the nature of those seminars that you have attended?
A They are all essentially having to do with the field of criminalistics and the varied
disciplines in criminalistics that would include hair and fiber examination, shoe track,
tire track analysis, firearms and tool mark analysis, blood spatter analysis, crime scene
investigation, collection and preservation of physical evidence and arson and explosive
analysis.
Q And you yourself, Mr. Laskowski, have also given papers and lectures at these same
types of seminars, have you not?
21
22
A That is correct.
23 (RT at 2041-42.)
24
Laskowski testified that he had qualified as an expert in blood spatter analysis on “several
25 hundred occasions.” (RT at 2042.) Petitioner’s speculation that Laskowski’s training “may have”
26 encompassed only “a ten or fifteen minute lecture” on blood spatter evidence, or that Laskowski
27 “could have attended a seminar where [blood spatter analysis] was supposed to have been addressed,
28 but never was” (ECF No. 113 at 85) is not sufficient to demonstrate that the state supreme court’s
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1
finding based on evidence in the record was objectively unreasonable.
See 28 U.S.C. §
2
2254(d)(2)(e)(1).
3
alternatives to the conclusions drawn by Laskowski. (ECF No. 178 at 109:19-110:4.)
Nor is it necessarily probative of the issue that Petitioner can conceive of
4
Respondent points out that defense counsel Soria was familiar with Laskowski’s
5
qualifications, both from discovery in this matter and from work on other cases. (See EH Ex. 69B at
6
10/16/90 EMF Billing Statement at 3); see also Berryman v. Ayers, No. 95-CV-05309-AWI, 2007
7
WL 1991049, at **3, 5-7 (E.D. Cal. July 10, 2007) [a prior capital case in which Soria was counsel
8
and Laskowski testified].) Soria could reasonably have believed that Laskowski, a thirteen-year
9
criminalist with Kern County who had qualified as an expert hundreds of times (RT at 2041-42), was
10 sufficiently qualified to testify regarding blood-spatter and tactically chose not to question him further
11 because doing so would only stress his qualifications to the jury. This being the case, counsel could
12 reasonably have determined the better argument was to suggest to the jury that little weight should be
13 accorded Laskowski’s allegedly unqualified opinions. See e.g., RT at 2064 [counsel highlights
14 Laskowski’s disagreement with defense forensic pathologist and that unlike the pathologist,
15 Laskowski was not “a doctor”].)
16
Defense counsel also may have made a tactical decision not to object to Laskowski’s
17 testimony, reserving objection for the gruesome photographs upon which Laskowski relied in
18 forming his opinions, photographs which defense counsel viewed as cumulative, inflammatory and
19 prejudicial. (See RT at 2084-85.) The extent and nature of cross-examination is a matter of trial
20 tactics entrusted to the judgment of defense counsel. Dows v. Wood, 211 F.3d, 480, 487 (9th Cir.
21 2003); United States v. Murray, 751 F.2d 1528, 1535 (9th Cir. 1985).
Decisions about cross
22 examination “are given great deference and must . . . meet only objectively reasonable standards.”
23 Dows, 211 F.3d at 487. Even if a witness could have been subjected to more vigorous examination,
24 no prejudice lies where evidence of guilt is strong. Murtishaw v. Woodford, 255 F.3d 926, 953 (9th
25 Cir. 2001). Furthermore, failure to object -- such as to a witness’s expertise -- is not ineffectiveness
26 where an objection would have lacked merit. Aguon, 851 F.2d at 1172.
27
Petitioner citation to Hogan (see ECF. 113 at 84-85; Doc. 178 at 138-40) in support of the
28 argument Laskowski was unqualified is of no assistance on these facts. In Hogan, the California
109
1
Supreme Court found the prosecution’s otherwise qualified criminalist to be unqualified in blood
2
splatter because he admitted he had no formal education or training in this area. 31 Cal. 3d at 852-53.
3
But here Laskowski’s qualifications included “attending and giving seminars in blood-spatter
4
analysis.” Id. at 322. As discussed above, Laskowski’s qualifications were supported by the record.
5
(RT at 2040-43.)
6
Petitioner claims that Laskowski was unqualified as a pathologist because the prosecution’s
7
pathologist, Dr. Holloway, disagreed with Laskowski’s interpretation of gunshot wounds, i.e., the
8
number of Huffstuttler’s gunshot wounds which demonstrated a “shoring” or “buttress” effect.”
9
(ECF No. 113 at 86:14-16; RT at 2065.) Dr. Holloway found possible buttress effect with only one
10 of Huffstuttler’s wounds (SHCP Ex. 19 at 5.) Laskowski, in his September 10, 1990 report, noted Dr.
11 Holloway’s finding. (SHCP Ex. 18 at 3.) In his subsequent trial testimony, Laskowski stated his
12 opinion that at least three of Huffstuttler’s wounds showed buttress effect (RT at 2064), consistent
13 with the prosecution theory that Huffstuttler was shot three times while on the ground. (RT at 2065.)
14 However, the California Supreme Court reasonably could have discounted any such difference of
15 opinion as mere disagreement among experts which alone does not demonstrate that one expert is
16 unqualified. See e.g., Toler v. Troutt, 2015 WL 1408490 at *9 (W.D. Okla., Feb. 20, 2015) (medical
17 difference of opinion not actionable under the Eighth Amendment).
18
Petitioner also claims in passing that counsel Soria must have been ineffective in cross-
19 examining Laskowski because co-counsel Cater stepped in to lodge an objection (see ECF No. 113 at
20 83 [citing RT at 2072].) The California Supreme Court could reasonably have found this claim
21 speculative, or a reflective of trial tactics. Petitioner has not shown how and why an objection by co22 counsel necessarily rises to the level of prejudicial deficient performance under Strickland.
23
Additionally, Petitioner has not demonstrated prejudice. Laskowski seems properly qualified
24 as an expert and had been qualified by courts as such on several hundred prior occasions. The failure
25 to cross-examine him on this basis could not have been prejudicial. (See claim N, post; see also
26 Lochart v. Fretwell, 506 U.S. 364, 374 (1992) (counsel’s failure to make a meritless objection is not
27 prejudicial under Strickland). Petitioner’s argument that without Laskowski’s testimony there would
28 have been no sufficient forensic evidence showing Petitioner’s intent, premeditation, and planning
110
1
(ECF No. 178 at 143-44; Respondent’s Brief on Appeal at 126), is unavailing for reasons stated by
2
the California Supreme Court, as follows (see also claim O, post):
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
[Petitioner] correctly notes the killings took place within a few minutes of the victims’
arrival at his cabin. What occurred within those few minutes, however, is particularly
telling with respect to his state of mind. According to both Wilson and Eloy Ramirez,
[Petitioner] began arguing with Huffstuttler when Mincy and Wilson were shown the
marijuana plants. [Petitioner] continued berating Huffstuttler as the two walked back
toward the cabin. [Petitioner] went inside, retrieved a revolver, and shot Huffstuttler at
close range. He proceeded back across the creek and confronted Wilson and Mincy.
After apologizing that he had “nothing against” them, he opened fire. As a wounded
Wilson fled the scene, he heard Mincy plead for his life. More shots were fired.
[Petitioner] returned to Huffstuttler and fired several rifle rounds into his motionless
body. The autopsy report indicated at least three shots were inflicted before he died,
although according to Ramirez he did not move after the first shot. After the shootings,
[Petitioner] told Ramirez he was going to make the scene look like a bad dope deal had
occurred and scattered marijuana, broke bottles, and poured chili sauce around
Huffstuttler’s body. None of the victims were armed; nor did they engage in any
provocative conduct. From this evidence, a reasonable trier of fact could infer
[Petitioner] had a motive for the killings, both to punish Huffstuttler for revealing the
marijuana operation to strangers and to protect his crop from theft or exposure to law
enforcement. He also may have wanted to eliminate Mincy and Wilson as witnesses to
the Huffstuttler shooting. In conjunction with these possible motives, the manner of
killing supports a finding of premeditation and deliberation. Both victims died of
multiple gunshot wounds, several of which would have been fatal individually. While
[Petitioner] fired some shots at Mincy as he was attempting to flee, at least one shot
entered his body as he lay in a fetal position. This forensic evidence indicates
[Petitioner] did not want merely to wound either victim; he wanted to make certain they
died. The trial testimony also suggests rapid but purposeful planning activity once
[Petitioner] realized the potential consequences of his partner’s carelessness. While
chastising Huffstuttler, he walked back to the cabin where he got a gun. Rather than seek
reconciliation, he shot Huffstuttler without warning. He then shot Mincy and Wilson and
made good his escape after attempting to conceal his own involvement in the crimes.
Viewing the record in its entirety, we find sufficient evidence to support the jury’s
finding of first degree murder. [Citation] [Petitioner]’s argument simply asks this court
to reweigh the facts.
22
23 Bolin, 18 Cal. 4th at 331-33.
24
The state supreme court’s prejudice analysis also noted that:
25
26
27
28
[Petitioner] identifies no exculpatory or impeachment evidence that counsel could have
revealed by further questioning of prosecution [expert] witnesses . . . and that would
have produced a more favorable result at trial. [¶] ... Such claims must be supported by
declarations or other proffered testimony establishing both the substance of the omitted
evidence and its likelihood for exonerating the accused. [Citations] We cannot evaluate
alleged deficiencies in counsel’s representation solely on defendant’s unsubstantiated
111
1
speculation.” [Citation]
2
Bolin, 18 Cal. 4th at 333-35. Apart from Laskowski’s testimony, the noted evidence against Petitioner
3
that was before the state court was substantial. (See claims O, R and S.)
4
For the reasons stated, a fair-minded jurist could have found that Petitioner failed to establish
5
that he was denied a fair trial, or to the extent alleged, that defense counsel’s performance fell below an
6
objective standard of reasonableness and that, but for counsel’s unprofessional errors, the outcome of
7
this proceeding would have been different. Strickland, 466 U.S. at 687-98.
8
It does not appear that the state supreme court’s rejection of these claims was contrary to, or an
9
unreasonable application of, clearly established federal law, as determined by the Supreme Court, or
10 that the state court’s ruling was based on an unreasonable determination of the facts in light of the
11 evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).
12
Claims I8 and I9 are denied.
j.
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Review of Claim I10
In this claim, Petitioner alleges that defense counsel did not conduct an adequate investigation
into Petitioner’s mental health. (ECF No. 113 at 87-94.)
This claim was presented on state habeas corpus and summarily rejected on the merits without
explanation by the California Supreme Court. (CSC Order Den. Pet. Habeas Corpus.)
Petitioner alleges that defense counsel was ineffective by not conducting a sufficient social,
life and mental health investigation, which led to an inadequate mental defense evaluation. As a
result, defense forensic psychiatrist, Dr. Markman, who conducted a single, brief pre-trial evaluation
of Petitioner, based his report on insufficient life and social history, insufficient background and
insufficient investigative information. (See SHCP Ex. 20.) Petitioner also points to the circa 2000
habeas declarations of his experts, Drs. Khazanov and Matthews (see SHCP Ex.’s 10, 22), who
opined that Dr. Markman’s diagnosis was not sufficiently supported in the evidence and professional
protocols.
Petitioner relies upon Drs. Khazanov and Matthews in complaining that Dr. Markman’s
September 22, 1990 pre-trial competency evaluation failed to address Petitioner’s serious head injuries
including brain damage; neuropsychological impairment affecting his ability to assist in his defense;
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1
extended exposure to neurotoxins; chronic alcohol abuse; military career including combat in Vietnam;
2
and a life of significant trauma, abuse and stress, (SHCP Ex.’s 10 and 22), each of which could have
3
negated malice aforethought and supported his manslaughter defense.
4
According to Dr. Markman’s November 20, 1990 assessment letter:
5
Mental status examination revealed [Petitioner] to be fully oriented in all spheres, alert,
cooperative, and above normal intelligence with an excellent fund of knowledge.
Responses were relevant and coherent, memory and concentration were not impaired
and affect was appropriate, though detached. There was no evidence of a major mental
disorder, thought disorder or psychosis, judgment was not impaired and insight into his
status was adequate. He was able to provide a coherent narration of his version of the
events of September 2, 1990 and their sequeiae.
6
7
8
9
10
11
12
13
In broad terms and without reviewing the specifics of the events, [Petitioner] emphasizes
that he acted in self-defense. He goes into great detail about the circumstances and
attributes everything to a “dope deal that went bad,” a series of events when “someone
comes walking into the cabin with a .44 caliber gun in his waistband.” He reports that he
acted offensively only after “Vance [one of the victims] cut me across my legs.” (He
demonstrated scars on both anterior thighs, the left higher than the right.)
14
[¶ . . . ¶]
15
16
There is no history of previous psychiatric treatment or hospitalization. He does admit to
poly-drug abuse “years ago–you name it,” to include intravenous heroin and cocaine.
There is also an extended history of daily alcohol use.
17
[¶ . . . ¶]
18
19
20
21
22
23
24
25
In summation, [Petitioner] demonstrates no current evidence of a major mental disorder.
Treatment, hospitalization or medication on a mandatory basis is not indicated and the
prognosis for change remains guarded. His psychiatric status exhibits long-term
behavioral patterns, difficult to alter or treat. His story narration is not a function of
fantasy, but rather a presentation based on self-protective grounds. If fabricated, he is
fully aware that he is doing so.
He is clearly competent to stand trial within the meaning of Section 1368, P.C. He is
fully oriented, aware of the nature and the purpose of the proceedings pending and can
cooperate rationally in presenting a defense. There is no data to support an insanity plea
under M’Naughten criteria. Furthermore, I find no evidence that would point to
diminished actuality for the crime of murder.
26 (SHCP Ex. 20 at 1-3.) Dr. Markman’s letter to counsel specifically stated that his opinion would not
27 support an insanity or diminished capacity defense. (Id. at 3.)
28
The California Supreme Court was not unreasonable in finding that defense counsel
113
1
appropriately retained the services of an expert and investigated whether to present evidence supporting
2
a mental defense. That expert, Dr. Markman, reviewed Kern County Sheriff reports, “past records and
3
probation reports,” the preliminary hearing transcript, and the coroner’s report. (SHCP Ex. 20.) He
4
also personally examined Petitioner and consulted with counsel. (ECF No. 113 at 87:21-88:4; SHCP
5
Ex. 20.) Nothing in Dr. Markman’s report appears to suggest that further mental defense investigation
6
or examination was necessary or warranted. Petitioner argues in isolation that additional investigation
7
and testing should have been done, but does not support this argument with the evidentiary record then
8
before the state court. That a subsequently retained expert such as Dr. Matthews suggests a more
9
comprehensive mental examination and neuropsychological assessment could have been done (ECF
10 No. 113 at 89:6-90:14; SHCP Ex. 22) is not evidence such reasonably should have been done, or that
11 facts otherwise related by Petitioner to counsel or known to counsel reasonably warranted further
12 investigation or examination.
13
Here, defense counsel could reasonably have made a tactical choice not to conduct further
14 investigation, in reliance upon the qualified expert’s opinion that there was no basis to support such a
15 mental defense. Because that choice was not unreasonable, counsel’s assistance was not ineffective.
16 See Harris v. Vasquez, 949 F.2d 1497, 1525 (9th Cir. 1990) (“It is certainly within the ‘wide range of
17 professionally competent assistance’ for an attorney to rely on properly selected experts.”); see also
18 Williams v. Woodford, 384 F.3d 567, 611 (9th Cir. 2004) (holding counsel’s decision not to
19 investigate mental defense further was reasonable in light of conclusions of mental health experts).
20
The decision not to call Dr. Markman as a witness also could have been a matter of tactics.
21 See Strickland, 466 U.S. at 690-91; see also Lord v. Wood, 184 F.3d 1083, 1095 (9th Cir. 1999)
22 (observing that “few decisions draw so heavily on professional judgment as whether or not to proffer
23 a witness at trial”). For the reasons stated, Dr. Markman’s testimony likely would have supported the
24 charges, not a mental defense to them. “Rare are the situations in which the ‘wide latitude counsel
25 must have in making tactical decisions’ will be limited to any one technique or approach.” Richter,
26 562 U.S. at 106-08 (quoting Strickland, 466 U.S. at 689); see also Williams, 529 U.S. at 415 (defense
27 counsel conducted a reasonable investigation into Petitioner’s troubling background and unique
28 personal circumstances and developed a coherent and organized strategy, proffered evidence, and
114
1
presented a case for mitigation); Wiggins, 539 U.S. at 521 (citing Strickland, 466 U.S. at 688) (“the
2
proper measure of attorney performance remains simply reasonableness under prevailing professional
3
norms.”). As the Supreme Court noted in Van Hook,
4
5
6
7
8
9
This is not a case in which the defendant’s attorney [] failed to act while potentially
powerful mitigating evidence stared [him] in the face [Citation] or would have been
apparent from documents any reasonable attorney would have obtained, [Citation]. It is
instead a case, like Strickland itself, in which defense counsel’s “decision not to seek
more” mitigating evidence from the defendant’s background “than was already in hand”
fell “well within the range of professionally reasonable judgments.”
558 U.S. at 11-12 (quoting Strickland, 466 U.S. at 699).
Petitioner also claims that in 1989 and 1990, he suffered from substance abuse, trauma-
10 induced stress disorder, impairment of brain function, and organic brain damage, citing to his decade11 later neuropsychological evaluation by Dr. Khazanov (SHCP Ex. 10, at ¶ 41), and assessment by Dr.
12 Matthews (SHCP Ex. 22 at 42), who concluded that:
13
14
15
[T]o a reasonable degree of medical certainty that the shooting of Vance Huffstuttler
was “the result of trigger responses to perceived dangers to [Petitioner] himself.”
Petitioner’s exaggerated perceptions and reactions were the result of “[Petitioner’s]
many deficits, his organic brain damage, the stress he was under at the time of the crime
and his ingestion of alcohol and cocaine.
16
17 (ECF No. 178 at 355-56.)
18
The Court is unconvinced by this claim. The California Supreme Court could reasonably have
19 found unpersuasive these mental defense allegations based on evaluations made ten years after Dr.
20 Markman’s evaluation, allegations that were contradicted by a record which included substantial
21 evidence that Petitioner functioned and communicated at a high level and assisted in his own defense.
22 (See claim O, post; 7/18/90 RT at 5-14 [re Petitioner’s participation in hearing on motion to withdraw];
23 12/13/90 RT at 2270-72, 2275-76, 2278-87, 2295 [re Petitioner’s participation in Marsden hearing].)
24 There was testimony that Petitioner shot Mincy several times when he was lying in a creek bed curled
25 in the fetal position and begging for his life, (RT at 1741, 1743, 1792, 2054-58), and that Petitioner
26 removed the wires from Wilson’s car to ensure that he bled to death before finding help. (RT at 1738,
27 1863-64, 1929, 1957, 1959, 1961, 1975.)
28
Petitioner’s cited authority, Jacobs, 395 F.3d at 102-04 does not suggest otherwise. See e.g.,
115
1
Boyde v. Brown, 404 F.3d 1159, 1168-69 (9th Cir. 2004), amended by 421 F.3d 1154 (9th Cir. 2005)
2
(holding that if new mental health evidence, obtained after the trial, were sufficient to establish the
3
petitioner’s innocence, the petitioner could “always provide a showing of factual innocence by hiring
4
psychiatric experts who would reach a favorable conclusion”).
5
The Court finds similarly unpersuasive Petitioner’s argument that ABA Guidelines and related
6
commentary and unspecific general practices required that counsel further investigate and present life
7
history and mental health defenses on the facts of this case. Petitioner has not demonstrated that the
8
ABA Guidelines require further investigation where counsel makes a reasonable tactical decision
9
based on the available information. See Williams, 384 F.3d at 611 (holding counsel’s decision not to
10 investigate mental defense further was reasonable in light of conclusions of mental health experts).
11 Counsel is entitled to rely on the expert consulted, and the consultation may support a limitation on
12 further investigation. See Moran v. Godinez, 57 F.3d 690, 699-700 (9th Cir. 1994). Allowing “battles
13 of psychiatric opinions during successive collateral challenges to a death sentence would place
14 federal courts in a psycho-legal quagmire resulting in the total abuse of the habeas process.” Harris,
15 949 F.2d at 1518.
16
Petitioner claims that defense counsel was deficient in choosing Dr. Markman because his
17 expertise was in serial killers and he was known to advocate tougher sentencing in order to keep
18 society safe. (SHCP Ex. 21.) Yet nothing in the evidentiary record suggests Dr. Markman was
19 unqualified, or that counsel’s selection was objectively unreasonable given the facts of this case. Dr.
20 Markman was apparently well-known in the field of forensic psychiatry and had been retained as a
21 mental health expert in other criminal cases, including other murder cases, by both the prosecution
22 and defense. (Id.) Furthermore, Dr. Markman had both law and medical degrees and, like Petitioner,
23 Dr. Markman had served in the armed forces. (Id.) Moreover, selection of experts is generally at
24 counsel’s discretion. See Ake v. Oklahoma, 470 U.S. 68, 84-85 (1985) (counsel under no obligation
25 to seek out an expert that would render an opinion, or to use tests, that he now figures would have
26 better withstood the prosecutor’s cross-examination).
27
Even if defense counsel’s investigation and presentation of mental defenses was deficient, the
28 state supreme court could reasonably have found unaffected the jury’s imposition of the death
116
1
penalty, given the noted substantial evidence against Petitioner. (See claim O, post.)
2
For these reasons, Petitioner has failed to overcome the strong presumption that counsel made
3
decisions in the exercise of professional judgment. Strickland, 466 U.S. at 690. Even if defense
4
counsel had discovered this evidence and still chose to proceed with his strategy as opposed to the
5
strategy Petitioner now advocates, a fair-minded jurist could conclude that counsel’s decision was
6
reasonable. “Counsel was entitled to formulate a strategy that was reasonable at the time and to
7
balance limited resources in accord with effective trial tactics and strategies.” Richter, 562 U.S. at
8
107. “[T]he Sixth Amendment guarantees reasonable competence, not perfect advocacy judged with
9
the benefit of hindsight.” Yarborough, 541 U.S. at 8.
10
For the reasons stated, a fair-minded jurist could have found that Petitioner failed to establish
11 that he was denied a fair trial, or to the extent alleged, that defense counsel’s performance fell below
12 an objective standard of reasonableness and that, but for counsel’s unprofessional errors, the outcome
13 of this proceeding would have been different. Strickland, 466 U.S. at 687-98.
14
It does not appear that the state supreme court’s rejection of the claim was contrary to, or an
15 unreasonable application of, clearly established federal law, as determined by the Supreme Court, or
16 that the state court’s ruling was based on an unreasonable determination of the facts in light of the
17 evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).
18
19
20
Claim I10 is denied.
k.
Review of Claim I11
In this next claim, Petitioner alleges that defense counsel was ineffective by failing to object
21 to introduction of evidence of weapons unrelated to the crimes, i.e., a shotgun and suspected, albeit
22 unloaded pipe bombs, all found at the murder scene. (ECF No. 113 at 94-96.)
23
Petitioner raised this same claim in his petition for writ of habeas corpus in the California
24 Supreme Court, which the California Supreme Court summarily denied on the merits without
25 explanation. (CSC Order Den. Pet. Habeas Corpus.)
26
Petitioner claims the shotgun introduced into evidence at trial, (RT at 1823-30; 1903), and
27 testimony regarding the pipe bombs given at trial (RT at 1863, 1885, 1887-90), was irrelevant and
28 prejudicial under state law and deficient and prejudicial under Strickland depriving him of rights
117
1
under the Sixth Amendment. However, the state supreme court was not unreasonable in rejecting this
2
claim.
3
Petitioner has not demonstrated this evidence was admitted in violation of state evidentiary
4
requirements. In this case, the prosecution had the burden of proving that Petitioner was knowingly
5
cultivating marijuana, one of the charged offenses. (RT at 2212.) The state supreme court could
6
reasonably have found the presence of a shotgun and suspected pipe bombs near the marijuana patch
7
was relevant to this issue and therefore admissible under California law and that counsel’s failure to
8
object was not deficient performance. There was testimony at trial that these types of weapons are
9
often found on property where illicit substances are being cultivated. (RT at 1885.) In particular,
10 evidence of pipe bombs on the property assisted the prosecution in meeting that burden because Kern
11 County Sheriff’s Sergeant Glen Johnson specifically testified, without objection, that he often finds
12 bombs in illicit cultivation areas (RT at 1885-86) and that the pipes quickly could have been loaded to
13 explode using gunpowder and a car battery located nearby. (RT at 1862-65, 1884-90.)
14
These weapons also could be seen as relevant to the parties’ respective theories regarding the
15 shootings. The weapons could support the prosecution’s theory that Petitioner’s motive for the
16 murders was to protect his marijuana crop. (See ECF No. 113 at 96.)
17
The shotgun, which was recovered from under the mattress in the bedroom (RT at 1825),
18 could have supported the Petitioner’s defense theory that he was afraid of Huffstuttler and acted in
19 self-defense. (See e.g., ECF No. 113 at 79-83.)
20
Even if the evidence was errantly admitted, Petitioner has not demonstrated that the error rose
21 to the level of a constitutional violation. Petitioner may not raise an issue of state law as a basis for
22 habeas relief. “[F]ederal habeas corpus relief does not lie for errors of state law.” Lewis v. Jeffers,
23 497 U.S. 764, 780 (1990); see also Pulley, 465 U.S. at 41. This evidence was not highlighted by the
24 prosecution, (RT at 1824, 1885, 1888, 2030); it was not mentioned in the prosecution’s closing
25 argument (RT at 2142-2144). Federal courts may not interfere with a state evidentiary ruling unless
26 the evidence was so prejudicial that its admission violated fundamental due process and the right to a
27 fair trial. Jeffries, 5 F.3d at 1192; Butcher v. Marquez, 758 F.2d 373, 378 (9th Cir. 1985). Such was
28 not the case here.
118
1
Furthermore, defense counsel successfully objected to portions of the testimony meant to link
2
marijuana cultivation and pipe bombs, obviating any need for curative instruction in that regard. (RT at
3
1888; see also ECF No. 113 at 96.) The jury was properly instructed to disregard the testimony. (RT at
4
2184.) Defense counsel could reasonably have determined not to call further attention these matters for
5
the reasons stated and to avoid giving the jury additional harmful detail. In any event, the noted
6
evidence otherwise against Petitioner was substantial. (See claims O, R and S, post.)
7
For the reasons stated, a fair-minded jurist could have found that Petitioner failed to establish
8
that he was denied a fair trial, or to the extent alleged, that defense counsel’s performance fell below
9
an objective standard of reasonableness and that, but for counsel’s unprofessional errors, the outcome
10 of this proceeding would have been different. Strickland, 466 U.S. at 687-98.
11
It does not appear that the state supreme court’s rejection of the claim was contrary to, or an
12 unreasonable application of, clearly established federal law, as determined by the Supreme Court, or
13 that the state court’s ruling was based on an unreasonable determination of the facts in light of the
14 evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).
15
16
17
Claim I11 is denied.
l.
Review of Claim I12
Petitioner alleges in this claim that defense counsel was ineffective by not objecting to
18 admission of irrelevant, cumulative, gruesome color photographs, depicting the deceased victims at
19 the crime scene, and two autopsy photographs, denying him due process and a fair and reliable
20 penalty determination. (ECF No. 113 at 96-98.)
21
Petitioner raised this same claim in his petition for writ of habeas corpus in the California
22 Supreme Court, which was summarily denied on the merits without explanation. (CSC Order Den.
23 Pet. Habeas Corpus.)
24
Additionally this claim was raised to, and rejected by the California Supreme Court on direct
25 appeal. Bolin, 18 Cal. 4th at 318-19.
26
Petitioner complains that the prosecution was allowed to introduce thirteen gruesome and
27 inflammatory photographs, eleven color photographs of Mincy and Huffstuttler as they were found at
28 the crime scene, and two autopsy photographs. Prior to trial, defense counsel objected to all thirteen
119
1
photographs. (CT at 214-24.) The trial court deferred ruling. (11/1/90 RT at 28-30). At trial,
2
defense counsel objected only to four of the photographs, and then only on state law grounds. (RT at
3
2083-88; Bolin, 18 Cal. 4th 319, n.4.) A total of eleven photographs were admitted into evidence.
4
(People’s Ex.’s. 3-4, 10, 17, 35, 40, 42-44, 72-73; RT at 2079-88.) Petitioner claims all of these
5
photographs were prejudicial and cumulative and that consistent with ABA Guidelines, should have
6
been objected to and excluded under state law as more prejudicial than probative. He claims that
7
admission of these photographs caused the penalty trial to be fundamentally unfair, that there was no
8
tactical reason not to object to these photographs, and that had these photographs not been admitted,
9
there is a reasonable probability Petitioner would not have suffered a capital conviction. (RT at 2083-
10 84.)
11
A due process claim can be stated where graphic photos of victims make the trial
12 fundamentally unfair. Jammal v. Van de Kamp, 926 F.2d 918, 919 (9th Cir. 1991). Photographs that
13 are relevant to the crime charged are generally admissible. See Villafuerte v. Lewis, 75 F.3d 1330,
14 1343 (1996). Under California law, “photographs which disclose the manner in which the victim was
15 wounded are relevant on the issues of malice and aggravation of the crime and the penalty.” People
16 v. Thompson, 50 Cal. 3d 134, 182 (1990).
17
The California Supreme Court considered and rejected Petitioner’s allegations on direct
18 appeal, noting that:
19
20
21
Over defense objection, the trial court admitted into evidence three photographs of
Mincy’s body, which Criminalist Gregory Laskowski utilized to illustrate his testimony
about blood spatters and drips found at the crime scene. Defendant renews his
contention these photos were cumulative and more prejudicial than probative due to
their “gruesome” nature. [Citation]
22
23
24
25
26
27
28
The admission of photographs of a murder victim lies within the sound discretion of the
trial court, exercise of which will not be disturbed on appeal absent a showing of abuse,
i.e., that their probative value is clearly outweighed by their prejudicial effect. [Citation]
In overruling the objection, the court here characterized the evidence as “highly
relevant” because Laskowski used all three pictures to explain how he concluded from
the blood spatters and drips that Mincy had been in motion when defendant fired some
of the shots. In the court’s view, “it certainly goes to the issue of intent and
premeditation and planning ....” These conclusions reflect a proper exercise of the
court’s discretion. Since identity was not at issue, defendant’s state of mind was critical
to the charge of first degree murder [Citation], and firing at a fleeing victim reasonably
reflects an intention to kill. [Citation] Moreover, even though the pictures served to
120
1
2
3
4
corroborate a testimonial witness, they were not cumulative since the photographic
evidence could assist the jury in understanding and evaluating that testimony. [Citation]
Indeed, Laskowski’s testimony may have made little sense without appropriate
illustration. We have examined the exhibits and also do not find them unduly gruesome.
Bolin, 18 Cal. 4th at 318-19.
5
For these reasons, the state supreme court could reasonably have found that Petitioner was not
6
prejudiced by introduction of the photos or failure of defense counsel to further object to them. The
7
photographs could be relevant and probative of the charges and their elements, including intent to kill,
8
aggravation and penalty.
9
Significantly, Laskowski relied upon People’s Exhibits 42 through 44, 72, and 73 to support his
10 testimony and conclusions that Huffstuttler was shot and died where he was found and that he was shot
11 after he was no longer moving. (RT at 2055-65.) The other photographs were not close-ups and not
12 particularly bloody or gruesome and were reasonably probative of the manner of death and the crime
13 scene and the victims in relation to it. (RT at 1661-62, 1671, 1683, 1732, 1790-92, 1817, 1946-47.)
14
Defense counsel could reasonably have recognized the probative value of these photographs
15 (see, e.g., RT at 2083), which the trial court found “highly relevant” (RT at 2084), and, as a matter of
16 tactics, determined that it would have been pointless to argue for their exclusion.
17
Petitioner also faults defense counsel for objecting to the photographs at trial on only state
18 evidentiary grounds. Petitioner argues that counsel should have also objected on federal constitutional
19 grounds. (ECF No. 113 at 97.) However, the “admissibility of evidence in a state trial is matter of state
20 law,” which is binding on the federal court unless there is a due process violation. Clark, 16 F.3d at
21 963-64. Only if no permissible inferences can be drawn from admitted evidence will due process be
22 violated. Jammal, 926 F.2d at 920; cf. Estelle, 502 U.S. at 67 (Ninth Circuit erroneously “relied in part
23 on its conclusion that the [prior injury] evidence was ‘incorrectly admitted . . . pursuant to California
24 law’ in ruling that McGuire’s due process rights were violated by admission of the evidence.”).
25
Here, the California Supreme Court also could reasonably have found that the Petitioner did
26 not show prejudice relating to admission of the photographs. Even without these photographs, it is
27 not reasonably probable the jury would have returned a sentence less than death given the substantial
28 evidence against Petitioner. (See claims O, R and S, post.)
121
1
For the reasons stated, a fair-minded jurist could have found that Petitioner failed to establish
2
that he was denied a fair trial, or to the extent alleged, that defense counsel’s performance fell below
3
an objective standard of reasonableness and that, but for counsel’s unprofessional errors, the outcome
4
of this proceeding would have been different. Strickland, 466 U.S. at 687-98.
5
It follows that the state supreme court’s rejection of the claim was not contrary to, or an
6
unreasonable application of, clearly established federal law, nor based on an unreasonable
7
determination of the facts in light of the evidence presented in the state court proceeding. See 28
8
U.S.C. § 2254(d).
9
10
11
Claim I12 is denied.
m.
Review of Claim I13
In this claim, Petitioner alleges defense counsel was ineffective because of irregularities and
12 improprieties that occurred during the jury’s view of the crime scene and related locations. (ECF No.
13 113 at 98-100.)
14
Petitioner raised this same claim in his petition for writ of habeas corpus in the California
15 Supreme Court, which the California Supreme Court summarily denied on the merits without
16 explanation. (CSC Order Den. Pet. Habeas Corpus.)
17
Related allegations were also raised and rejected on direct appeal. Bolin, 18 Cal. 4th at 323-
18 26.
19
Petitioner faults defense counsel for agreeing to the jury view, and for not objecting “to the
20 taking of testimony during the jury view, the absence of [Petitioner] while testimony was being taken,
21 the admission of evidence when the entire jury was not present, and/or media coverage of the view.”
22 (ECF No. 113 at 98; see also claims L1-L4, post.)
23
The California Supreme Court, on direct appeal, stated that:
24
At the prosecutor’s request and with the express agreement of the defense, the jury was
taken to defendant’s cabin to view the scene of the crimes accompanied by the court,
counsel, a court stenographer, and Sheriff’s Deputies Layman and Williamson, who
acted as bailiffs . . .
25
26
27
28
When the jury arrived at the scene, the court indicated “we are not going to take any
testimony at this time.” The jurors were then permitted to walk around the area,
including where the marijuana plants had been growing, but were admonished not to
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1
2
3
4
5
6
7
8
9
10
11
12
discuss the case. After the jurors had looked around for an unspecified time, the court
inquired, “Do any of you have any questions?” One juror asked for the location of the
trailer where Huffstuttler had lived, which defense counsel indicated. Thereafter, on
inquiry primarily from the court, Layman and Williamson, who had originally
investigated the crime scene, pointed out the location of Wilson’s truck, Huffstuttler’s
body, a woodpile, and the main road into the cabin area, all of which had been testified
to in court. Williamson also described the foliage as taller at the time of the
investigation, obscuring the view of the marijuana plants from the cabin. . . .
In putting certain questions to the ‘shower,’ the trial judge intended to clarify and
expedite the proceedings; as to any other alleged irregularity at the scene of the view ...,
there can be no contention on appeal that there was error, for the silence of the
defendant’s counsel in those circumstances constitutes a waiver. [Citations]
[T]he trial court conducted the jury view in full conformance with the provisions of
[Penal Code] section 1119, which expressly provides that when the court determines a
jury view of the scene is proper, the place or property must be shown to them by a
person appointed by the court for that purpose .... For more than a century, courts have
consistently applied this interpretation, implicitly recognizing that the admonition that
“no person ... speak or communicate with the jury” (§ 1119) is plainly directed to
insulating the jury from extraneous contact and potential tampering. [Citations]
13
14
15
16
17
18
19
20
21
22
23
24
In this case, Layman and Williamson investigated the crime scene; the trial court
therefore reasonably designated them as “showers” to explain how the actual physical
conditions related to their trial testimony. The record establishes that their involvement
was limited to that end, i.e., “showing” the jury what their words had described and the
photographs had depicted. [Citations] Given the court’s broad discretion in these
matters, we find no abuse in having the deputies respond to specific questions rather
than proceeding in some other manner. [Citation] Williamson’s statement that the
foliage differed in height from the time of the crime was also proper “to account for any
change in [the] condition between [its] state as shown by the evidence and [its]
appearance at the time the jury inspected [it].” [Citation]
We also find no violation of defendant’s constitutional rights by virtue of his absence
during the view. Prior to the excursion, defendant expressly waived his presence and
acknowledged he did so voluntarily. The record reflects that before making this decision
he had discussed the matter with counsel. We have repeatedly rejected the argument that
the Sixth Amendment confrontation clause of the United States Constitution or the due
process clause of the California Constitution (art. I, § 15) prevents a criminal defendant
from waiving the right of presence at a critical stage of a capital trial. [Citation] We have
no reason to reconsider that conclusion, particularly when no additional testimony was
taken in conjunction with the view. [Citation]
25
26
27
28
We also find no prejudicial error with respect to defendant’s statutory rights. In People
v. Jackson (1996) 13 Cal. 4th 1164, 1211, this court held “that a capital defendant may
not voluntarily waive his right to be present during the proceedings listed in section 977,
including those portions of the trial in which evidence is taken [before the trier of fact]
....” [Citation] Although a jury view is not among the designated proceedings in section
123
1
2
3
4
977, we have long held that “in so viewing the premises the jury was receiving
evidence” even if nontestimonial. [Citation] Thus, it comes within the purview of
section 977. Nevertheless, in this case it is not reasonably probable that a more favorable
result would have been reached had defendant, in addition to his counsel, been present.
[Citation] On this record, we find “no sound basis to question the contemporaneous
judgment of defense counsel, with which defendant then agreed, that defendant’s trial
interests would be better served by not attending the jury view.” [Citation]
5
6
Bolin, 18 Cal. 4th at 323-26.
7
Petitioner complains that, under California law, the jury view should not have taken place at all
8
because it was uncertain whether and the extent to which, in the months intervening between the crime
9
and the jury view, the crime scene had been altered by America’s Most Wanted, the media, weather and
10 seasonal changes, defense investigator Bruce Binns, and vandals. See People v. Pompa, 192 Cal. 412,
11 421 (1923) (trial court is to consider changed physical conditions in making decision whether to allow a
12 jury view of crime scene). He claims that there had been “many significant changes” to the crime
13 scene: potential evidence trampled, plastic marijuana leaves strewn about, the cabin ransacked, items
14 removed from the scene, bullet holes from Binns’s target practice, and changed vegetation and lighting
15 conditions. (See ECF No. 178 at 127:24-25.)
16
It was not unreasonable for defense counsel to believe that the crime scene viewing would assist
17 the jury (11/1/90 RT at 46-48) and support Petitioner’s defense. (RT at 2164, 2168.) Petitioner’s
18 primary theories of voluntary manslaughter and self-defense related in part to claimed inconsistencies
19 in eye-witness testimony. These inconsistencies implicated consideration of the crime scene layout
20 including location, topography and visual obstructions, improvements, and the location of forensic
21 evidence discussed in court. Furthermore, defense counsel was present to represent Petitioner during
22 the entire jury viewing.
23
Counsel apparently had tactical reasons not to object to the jury view. Petitioner, having
24 waived his presence at the jury view, avoided potentially prejudicing the jury by seeing Petitioner in
25 full restraints. Bolin, 18 Cal. 4th at 325-26; (RT at 1776-79.) Counsel apparently believed the crime
26 scene view might cause the jury to discredit the testimony of prosecution witnesses. A court “need not
27 determine the actual explanation for defense counsel’s failure to object, so long as his failure to do so
28 falls within the range of reasonable representation.”
124
Morris, 966 F.2d at 456; see also Pop v.
1
Yarborough, 354 F. Supp. 2d 1132, 1144 n.11 (C.D. Cal. 2005).
2
Beyond tactical reasons not to object to the jury view, the record clearly demonstrates that
3
defense counsel believed that viewing the scene of the shootings would assist the jury. (See, e.g.,
4
11/1/90 RT at 46-48.) As to the condition of the crime scene, the jurors were aware of the passage of
5
time and seasonal change and presumably took that into account. (See e.g., RT at 1788-89, 1929-30.)
6
Moreover, the jury was aware from voir dire and trial proceedings that the case and the crime scene had
7
received publicity and would continue to receive publicity. Significantly, the jury was aware the
8
America’s Most Wanted program was staged at the crime scene, possibly altering it.
9
Petitioner has not demonstrated that the jury view violated state law. The California Supreme
10 Court could reasonably have determined that no additional testimony was taken as such during the jury
11 view. Furthermore, the Supreme Court has confirmed that “showing,” which is what actually occurred
12 at the jury’s view of the crime scene (see claim L, post) is historically based and does not offend due
13 process. Snyder v. Massachusetts, 291 U.S. 97, 110-11 (1934) (overruled in part on other grounds by
14 Malloy v. Hogan, 378 U.S. 1, 16 (1964) (“statements to the jury pointing out the specific objects to be
15 noted have been a traditional accompaniment of a view for about two centuries, if not longer. The
16 Fourteenth Amendment has not displaced the procedure of the ages.”).
Even if Petitioner had
17 demonstrated a violation of California law regarding the jury view, as noted a federal habeas court may
18 not examine questions of state law; it “is limited to deciding whether a conviction violated the
19 Constitution, laws, or treaties of the United States.” Estelle, 502 U.S. at 67-68.
20
The state court could reasonably have determined that Petitioner’s presence during the jury
21 view was unnecessary. Due process does not require a defendant be present during a jury view of a
22 crime scene “when presence would be useless, or the benefit but a shadow.” Kentucky v. Stincer, 482
23 U.S. 730, 745 (1987) (quoting Snyder, 291 U.S. at 106-07); see also Rice v. Wood, 77 F.3d 1138, 1140
24 n.2 (9th Cir. 1996) (there is a strong presumption that any errors are subject to harmless error analysis if
25 defendant had counsel and was tried by an impartial adjudicator). Petitioner has not made a showing
26 that his presence at the crime scene was necessary - defense counsel was present throughout the
27 viewing. Petitioner’s waiver of attendance at the jury view suggests as much. (11/1/90 RT at 46-48).
28
Petitioner argues, but does not support in the record, that the presence of the media at the jury
125
1
view was unavoidable and affected the jurors’ view of the crime scene. (ECF No. 113 at 100.) His
2
conclusion that media presence detracted from the “remoteness of the scene,” presumably because
3
they were able to travel there with all their equipment, (id.) is similarly unsupported. Moreover, the
4
court also specifically told the jury about the possible media presence at the jury view and that “they
5
are ordered not to talk, and you are ordered not to talk to them.” (RT at 1892-93, 1976-77). The court
6
also admonished the jury numerous times to avoid any and all contact with the media. (RT at 25,
7
228, 235, 249, 326, 1642-43, 1892-93, 1976-77, 2090.) Jurors are presumed to follow the court’s
8
instructions. Therefore, an objection to the presence of the media at the jury view on such a basis
9
would have lacked merit.
10
As to juror Barnes’s request to drive separately to the jury view, Petitioner does not demonstrate
11 a basis for objection. He does not cite to facts in the record showing how and why allowing juror
12 Barnes to drive separately impacted his defense. Furthermore, in light of the amount of miles juror
13 Barnes already had to drive each day just to get to court, and the additional miles he would have to
14 drive to go to the courthouse before seeing the crime scene, it was unlikely the court would have
15 sustained any objection. (RT at 2033-34, 2089-90.) The state court also could reasonably have found
16 that, had juror Barnes traveled with the other jurors, it is not reasonably probable that the result of
17 Petitioner’s proceeding would have been different.
18
Petitioner complains the jury improperly viewed the Sand Canyon Store without juror Barnes.
19 The jurors were told they would drive past the Sand Canyon Store, but not stop and inspect it, without
20 juror Barnes. (RT at 2121.) However, the record is unclear whether the jury did in fact drive past it
21 or receive any information about the Sand Canyon Store, without juror Barnes present. Even if they
22 had, Petitioner has not demonstrated that the trial testimony of eyewitnesses Ramirez and Wilson was
23 dependent upon or related to the location and structure of the Sand Canyon Store or that the Sand
24 Canyon Store had some material relationship to other locations and events described in the trial
25 testimony. Again, Petitioner, at all times during the jury view, was represented by defense counsel.
26
Moreover, all jurors, including juror Barnes, saw photographs of the Sand Canyon Store. (RT
27 at 1724-25; CT at 390.) Even if juror Barnes was absent from an exterior viewing of it, the California
28 Supreme Court could reasonably have found this had only a minor, if any, impact on the jury’s
126
1
determinations. See e.g., Olano, 62 F.3d at 1188 (finding no error where juror missed an afternoon
2
of testimony but reviewed a written transcript of what he missed; cf. Tanner v. United States, 483
3
U.S. 107, 126 (1987) (jurors falling asleep during testimony are not incompetent).
4
speculates that the credibility of witnesses Ramirez and Wilson could have been impugned to the
5
extent their testimony describing the Store varied from what the jurors saw when driving past it. (See
6
claim L3, infra.) But Petitioner does not point to any facts showing such inconsistency or related
7
credibility issues.
Petitioner
8
For all the reasons stated above and in claim L, post, the California Supreme Court could have
9
reasonably concluded that no prejudicial errors occurred in the jury’s view of the crime scene.
10 Petitioner could not have been prejudiced by any actions of counsel in this regard. A fair-minded
11 jurist could have found that Petitioner failed to establish that he was denied a fair trial, or to the extent
12 alleged, that defense counsel’s performance fell below an objective standard of reasonableness and
13 that, but for counsel’s unprofessional errors, the outcome of this proceeding would have been
14 different. Strickland, 466 U.S. at 687-98.
15
It follows that the state supreme court’s rejection of the claim was not contrary to, or an
16 unreasonable application of, clearly established federal law, nor based on an unreasonable
17 determination of the facts in light of the evidence presented in the state court proceeding. See 28
18 U.S.C. § 2254(d).
19
Claim I13 is denied.
n.
20
21
Review of Claim I14
In this next claim, Petitioner alleges defense counsel did not notice and object to the trial
22 court’s misreading of guilt phase instructions, omitting elements, misstating the law, and failing to
23 instruct the jury on its function, as alleged in claims P1, P2, P3, P6, P7, P8, and P9, post. (ECF No.
24 113 at 100-01.)
25
Petitioner raised this claim in his petition for writ of habeas corpus in the California Supreme
26 Court, which was summarily denied on the merits without explanation. (CSC Order Den. Pet. Habeas
27 Corpus.)
28
Petitioner complains that defense counsel failed to object to the trial court’s misreading of
127
1
CALJIC 2.22, 3.31.5, 8.20, 8.30, 8.67, 8.80, 17.40, or 17.41 as discussed in claims P1, P2, P3, P6,
2
P7, P8 and P9, post. (ECF No. 113 at 101:1-4.) He claims that even though these instructions had
3
been agreed to by counsel and the trial court (RT at 2097, 2100-03, 2107), defense counsel failed to
4
catch instances where the court’s oral instructions added to or omitted from the written instructions.
5
In this case, the trial court provided the jury with copies of the correctly worded instructions,
6
which the jury had during deliberations. Moreover, for the reasons set forth in claims P1, P2, P3, P6,
7
P7, P8, and P9, post, even if defense counsel’s performance was deficient, it is not reasonably
8
probable that the jury verdict would have been affected by it. As discussed in those claims, in light of
9
the jury instructions as a whole, it is also not reasonably probable that the jury misunderstood the
10 burden of proof as to any element of the case, particularly premeditation and deliberation as it related
11 to counts I, II, and III.
12
Defense counsel is not ineffective by failing to make meritless objections. Aguon, 851 F.2d at
13 1172. These alleged errors, singly and cumulatively, are not persuasive. Calderon, 523 U.S. at 566
14 (“finding no prejudice from the errors considered separately, we also find no cumulative prejudice”);
15 see also Rupe, 93 F.3d at 1445 (holding that there was no reason to reverse for cumulative error
16 because there was no violation of federal rights in the guilt phase).
17
For the reasons stated, a fair-minded jurist could have found that Petitioner failed to establish
18 that he was denied a fair trial, or to the extent alleged, that defense counsel’s performance fell below
19 an objective standard of reasonableness and that, but for counsel’s unprofessional errors, the outcome
20 of this proceeding would have been different. Strickland, 466 U.S., at 687-98.
21
It follows that the California Supreme Court’s rejection of the claim was not contrary to, or
22 an unreasonable application of, clearly established federal law, nor based on an unreasonable
23 determination of the facts in light of the evidence presented in the state court proceeding. See 28
24 U.S.C. § 2254(d).
25
26
27
Claim I14 is denied.
o.
Review of Claim I15
In this next claim, Petitioner alleges defense counsel was ineffective by failing to request the
28 use of “not guilty” in place of “innocent,” as the former term is used in CALJIC Nos. 1.00
128
1
(“Respective Duties of Judge and Jury”), 2.51 (“Motive”), and 2.52 (“Flight After Crime”), as more
2
specifically alleged in claim P5, post. (ECF No. 113 at 101-02.)
3
Petitioner raised this claim in his petition for writ of habeas corpus in the California Supreme
4
Court, which was summarily denied on the merits without explanation. (CSC Order Den. Pet. Habeas
5
Corpus.)
6
Petitioner complains that the trial court’s use of “innocent” instead of “not guilty” misled the
7
jury regarding the prosecution’s burden of proving guilt beyond a reasonable doubt, depriving
8
Petitioner of his rights to due process and trial by jury.
9
Respondent argues, correctly, that at the time of trial, the instructions given were the standard
10 instructions on the issues as approved by the California Supreme Court. See People v. Wade, 39 Cal.
11 App. 4th 1487, 1491-92 (1995) (determining that use of “innocent” instead of “not guilty” did not
12 mislead the jury regarding the prosecution’s burden of proof).
13
For this reason and those explained in claim P5, post, defense counsel was not ineffective in
14 failing to object to the noted instructions. Pelmer v. White, 877 F.2d 1518, 1522 (11th Cir. 1989)
15 (holding assistance not ineffective where counsel failed to object to instructions approved by state
16 appellate court). Nor was Petitioner prejudiced by counsel’s failure to request instructions deviating
17 from the standardized approved CALJIC instructions at the time of his trial.
18
For the reasons stated, a fair-minded jurist could have found that Petitioner failed to establish
19 that he was denied a fair trial, or to the extent alleged, that defense counsel’s performance fell below
20 an objective standard of reasonableness and that, but for counsel’s unprofessional errors, the outcome
21 of this proceeding would have been different. Strickland, 466 U.S. at 687-98.
22
It follows that the California Supreme Court’s rejection of the claim was not contrary to, or an
23 unreasonable application of, clearly established federal law, nor based on an unreasonable
24 determination of the facts in light of the evidence presented in the state court proceeding. See 28
25 U.S.C. § 2254(d).
26
27
28
Claim I15 is denied.
p.
Review of Claim I16
Petitioner claims defense counsel was ineffective by failing to make adequate objections to
129
1
the trial court’s reading of CALJIC 2.06 and 2.52, regarding consciousness of guilt. (ECF No. 113 at
2
102-103; Bolin, 18 Cal. 4th at 326-27.)
3
Petitioner raised this same claim in his petition for writ of habeas corpus in the California
4
Supreme Court, which was summarily denied on the merits without explanation. (CSC Order Den.
5
Pet. Habeas Corpus.)
6
7
Additionally, the California Supreme Court considered and rejected these allegations on direct
appeal. Bolin, 18 Cal. 4th 297, 326-27.
8
Petitioner complains that use of these instructions was not supported by the evidence and
9
improperly suggested his alleged conduct was an admission of guilt. He alleges that counsel Soria,
10 who objected to CALJIC 2.52 but not CALJIC 2.06, did not state adequate grounds for objecting to
11 these instructions and “admitted” facts that were in dispute when discussing instruction 2.06 with the
12 trial court and the district attorney (RT at 2096), as more specifically alleged in claims P4 and P5,
13 post. He claims there was no tactical advantage in doing so and that he was prejudiced both by
14 waiver of objection and because there is a reasonable probability the jury’s determination would have
15 been different absent the instructions.
16
The trial court gave these instructions as follows:
17
CALJIC No. 2.06 (5th ed. 1988) - “If you find that a defendant attempted to suppress
evidence against himself in any manner such as by destroying evidence or by concealing
evidence, such attempt may be considered by you as a circumstance tending to show a
consciousness of guilt. However, such conduct is not sufficient by itself to prove guilt,
and its weight and its significance, if any, are matters for your consideration.”
18
19
20
21
22
23
CALJIC No. 2.52 (5th ed. 1988) - “The flight of a person immediately after the
commission of a crime or after being accused of a crime is not sufficient in itself to
establish guilt, but it is a fact which, if proved, may be considered by you in light of all
the other proved facts in deciding the question of his guilt or his innocence. [¶] The
weight to be given such a circumstance is entirely up to the jury.”
24
25 (CT at 440, 450.)
26
The California Supreme Court, in rejecting these allegations, stated that:
27
At the time the court discussed jury instructions, defense counsel agreed the evidence
supported CALJIC No. 2.06 and did not object to the court’s proposed wording. Any
claim of error is therefore waived. [Citation] Regardless, no error occurred. Sufficient
28
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1
2
3
4
evidence supported the instruction in light of Ramirez’s testimony defendant attempted
to make the murder scene “look like a bad dope deal” by breaking bottles, scattering
loose marijuana, and shooting the body several more times with a rifle after the initial
revolver shot. Defendant wiped his fingerprints off the handgun, put the weapon in
Huffstuttler’s hand, placed a knife near the body, and poured chili sauce around it. He
then fled south before leaving the state for Chicago. Along the way he threw away some
wires he had taken to disable Wilson’s truck.
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
CALJIC Nos. 2.06 and 2.52 do not impermissibly emphasize noncriminal activity as
“consciousness of guilt.” On the contrary, these instructions “made clear to the jury that
certain types of deceptive or evasive behavior on a defendant’s part could indicate
consciousness of guilt, while also clarifying that such activity was not of itself sufficient
to prove a defendant’s guilt, and allowing the jury to determine the weight and
significance assigned to such behavior. The cautionary nature of the instructions benefits
the defense, admonishing the jury to circumspection regarding evidence that might
otherwise be considered decisively inculpatory. [Citations] Moreover, section 1127c
requires a flight instruction when the prosecution relies on such conduct as tending to
show guilt.
As in past decisions, we find no merit in the contention the instructions improperly
allow the jury to draw inferences about defendant’s state of mind and equate evidence of
suppression or concealment with a confession. “A reasonable juror would understand
‘consciousness of guilt’ to mean ‘consciousness of some wrongdoing’ rather than
‘consciousness of having committed the specific offense charged.’ The instructions
advise the jury to determine what significance, if any, should be given to evidence of
consciousness of guilt, and caution that such evidence is not sufficient to establish guilt,
thereby clearly implying that the evidence is not the equivalent of a confession and is to
be evaluated with reason and common sense. The instructions do not address the
defendant’s mental state at the time of the offense and do not direct or compel the
drawing of impermissible inferences in regard thereto.” [Citation] For cognate reasons
they do not violate the proscription of Griffin v. California (1965) 380 U.S. 609, 615
against referring to the defendant’s exercise of his Fifth Amendment right not to testify
as evidence of guilt. The instructions in no respect implicated defendant’s failure to
testify or directed the jury to draw negative inferences from it.
21
22 Bolin, 18 Cal. 4th at 326-27.
23
The Court finds Petitioners allegations to be unpersuasive. (See also claims P4 and P5, post.)
24 As reasoned by the state supreme court, these instructions appear to unequivocally state that the
25 conduct described therein is not sufficient to prove guilt, but instead that it “may be considered.” The
26 California Supreme Court could reasonably have found that these instructions did not improperly
27 reduce the prosecution’s burden of proof. See County Court of Ulster County v. Allen, 442 U.S. 140,
28 167 (1979) (prosecution may rely on all the evidence in the record to meet the reasonable doubt
131
1
standard where the state presumption is permissive rather than mandatory).
2
The trial record supported giving these instructions. See Bolin, 18 Cal. 4th at 327. The crime
3
scene was remote and secluded. (RT at 1731, 1760-61.) Petitioner told Huffstuttler, just prior to
4
shooting him, that it was a “no-no” to bring people to see the marijuana farm. (RT at 1739, 1922,
5
1950.) Petitioner also told Huffstuttler that he did not know Mincy and Wilson and could not
6
understand Huffstuttler’s reasons for bringing them to see the marijuana plants. (RT at 1739-40.)
7
Immediately after shooting Huffstuttler, Petitioner approached Mincy and Wilson with a gun, told
8
them that he had nothing against them, and then shot them. (RT at 1741.) Petitioner re-arranged the
9
crime scene to make it look like a failed drug transaction and fled to Los Angeles and then Chicago.
10 Bolin, 18 Cal. 4th at 331-33. Counsel did not admit disputed facts precluding these instructions. (See
11 RT at 2096.) This Court finds no basis to discount these facts in the record. See e.g., Miller-El, 537
12 U.S. at 340; 28 U.S.C. § 2254 (e)(1).
13
At the time of trial, these instructions were the standard instructions on these issues, approved
14 by the California Supreme Court. See People v. Crandell, 46 Cal. 3d 833, 871 (1988) (abrogated on
15 other grounds by People v. Crayton, 28 Cal. 4th 346, 364-65; see also Pelmer, 877 F.2d at 1522
16 (holding assistance not ineffective where counsel failed to object to instructions approved by state
17 appellate court). Here, the state supreme court could reasonably have found defense counsel not to be
18 ineffective by failing to object to these instructions given the evidence in the record supporting their
19 use.
20
Additionally, to the extent Petitioner argues that the language of the instructions violated his
21 constitutional rights, the Ninth Circuit has upheld the use of a very similar consciousness of guilt
22 instruction. See United States v. Perkins, 937 F.2d 1397, 1401-02 & n.2 (9th Cir. 1991). As long as
23 the instruction does not convey that inconsistent statements constitute evidence of guilt, but merely
24 that the jury may consider them as indicating a consciousness of guilt, the instruction does not violate
25 constitutional rights. See Id. CALJIC No. 2.06 and 2.52 are not constitutionally infirm under this
26 standard. Bolin, 18 Cal. 4th at 327.
27
For the reasons stated, a fair-minded jurist could have found that Petitioner failed to establish
28 that he was denied a fair trial, or to the extent alleged, that defense counsel’s performance fell below
132
1
an objective standard of reasonableness and that, but for counsel’s unprofessional errors, the outcome
2
of this proceeding would have been different. Strickland, 466 U.S. at 687-98.
3
It follows that the state supreme court’s rejection of the claim was not contrary to, or an
4
unreasonable application of, clearly established federal law, nor based on an unreasonable
5
determination of the facts in light of the evidence presented in the state court proceeding. See 28
6
U.S.C. § 2254(d).
Claim I16 is denied.
7
q.
8
Review of Claim I17
In this final claim, Petitioner alleges counsel Soria was ineffective by making an incoherent
9
10 guilt phase closing argument that was too short, misstated the law and his defense theories and
11 conceded Petitioner’s guilt for criminal behavior without his consent. (ECF No. 113 at 103-109; RT
12 at 2162-69.)
Petitioner raised this same claim in his petition for writ of habeas corpus in the California
13
14 Supreme Court, which was summarily denied on the merits without explanation. (CSC Order Den.
15 Pet. Habeas Corpus.)
The California Supreme Court also considered and rejected on direct appeal Petitioner’s
16
17 allegation that his counsel was ineffective for admitting his culpability during guilt phase closing
18 argument. Bolin, 18 Cal. 4th at 334-35.
1)
19
Petitioner alleges that Soria, without consulting co-counsel or Petitioner, delivered a shorter
20
21
22
23
24
25
26
27
28
Abbreviated Closing
and less detailed version of his originally prepared closing argument. Petitioner alleges Soria did this
in order to force the prosecutor to give her final summation prior to the lunch break, i.e., without
extra time for her to prepare over the lunch break. Petitioner alternatively argues that Mr. Soria
shortened the closing argument as a practical joke on the prosecutor. (ECF No. 113 at 103; RT at
2178.)
Petitioner alleges the failure to give a sufficient closing was especially prejudicial because the
defense presented no evidence during the guilt phase.
The state supreme court reasonably could have found these arguments to be mere conjecture,
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1
lacking support in the evidentiary record. To the extent the closing argument was of short duration,
2
Petitioner failed to show that “a longer or more passionate closing argument would have resulted in
3
an alternative” verdict. Griffin v. Delo, 33 F.3d 895, 903 (1994).
4
The California Supreme Court could reasonably have found that “defense counsel had few
5
viable options, but made reasonable efforts to negate first degree murder despite considerable factual
6
impediments.” Bolin, 18 Cal. 4th at 313, 334-35. The record reasonably supports this determination,
7
as discussed below.
2)
8
9
Conceding Guilt
Petitioner alleges that Soria, without Petitioner’s consent, conceded guilt as to some of the
10 charges, (ECF No. 113 at 103-05, 108), as follows:
11
12
13
14
15
16
17
18
19
Good morning, ladies and gentlemen. There is no doubt that the events that happened on
Labor Day weekend with my client has some liability for, some responsibility for. We
are not going to say not guilty on all counts. That is just not what happened. But you
have to assess the responsibility. You have to determine from the facts and the law that
the Court gives you what his responsibility is, and I think the facts to some extent are not
as clear as the prosecutor presented to you.
Certainly on Count 4, the count of cultivation of marijuana, the defense will simply ask
you to review the evidence, apply the law the Court gives to you and render a verdict.
We will not present any argument on that.
With regards to what happened in the creek bed, certainly [Petitioner] is responsible for
some of it. Once again, you have to decide the liability based on the law the Court gives
you and you have to determine from the facts and that’s interesting because you have
two parallel stories where they intersect at some point, but you have two storytellers.
20 (RT at 2162.)
21
Petitioner also alleges that Mr. Soria went on to vouch for the credibility of victim witness Jim
22 Wilson:
23
24
25
26
Let’s take up the negative thing regarding Jim Wilson. If he is lying, why is he lying? I
think looking at the evidence the only thing he is probably lying about is what he knew
or didn’t know about the marijuana going up the hill or when or when he didn’t see it. I
don’t think he is lying about being shot. There is physical evidence he got shot, and I
don’t think his evidence is unreliable regarding what he heard Mr. Mincy say or what he
observed.
27 (RT at 2163.)
28
Petitioner faults Soria for breaching his duty of loyalty by essentially conceding guilt as to the
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1
three shootings and marijuana cultivation without Petitioner’s consent, citing United States v. Swanson,
2
943 F.2d 1070, 1074 (9th Cir. 1991) (attorney who informs the jury that there is no reasonable doubt
3
about factual issues in dispute fails to act as adversary to prosecution). Particularly prejudicial, he
4
claims, was the concession that Wilson heard Mincy begging Petitioner not to shoot. According to
5
Petitioner, Soria ended up advocating for the prosecution, not the defense. He cites in this regard
6
United States v. Cronic, 466 U.S. 648, 659, 666 (1984) (complete failure to subject prosecution case to
7
meaningful adversarial testing denies sixth amendment rights).
8
9
10
11
12
The California Supreme Court considered and rejected the allegation that Soria was
ineffective by acknowledging some culpability during closing, stating that:
Defendant asserts defense counsel was ineffective for acknowledging some culpability
on defendant’s part in closing argument: “There is no doubt that the events that
happened on Labor Day weekend with my client has some liability for [sic], some
responsibility for. We are not going to say not guilty on all counts. That is just not what
happened.”
13
14
15
16
17
18
19
20
21
22
23
We find no incompetence in these remarks. Given the overwhelming evidence of
defendant’s guilt, including the testimony of two eyewitnesses, the concession appears
to be a reasonable trial tactic by which counsel could urge the jury to return verdicts on
the lesser included offenses of second degree murder or voluntary manslaughter. Since
counsel could also reasonably anticipate having to conduct a penalty phase, it also
allowed him to preserve his credibility in arguing mitigation. [Citation] In resolving
these claims, “we must ‘assess counsel’s overall performance throughout the case’
[citation], evaluating it ‘from counsel’s perspective at the time of the alleged error and in
light of all the circumstances. [Citations] Moreover, when read in context, the argument
in no respect reflects a breakdown of the adversarial process. [Citation] Counsel noted
discrepancies between the testimony of Wilson and Ramirez, suggested the jury could
infer Ramirez was more involved in the crimes than claimed, and pointed to other
evidence defendant was guilty of less than first degree murder. The multiple-murder
special circumstance would be triggered even if the jury found only one of the killings
was first degree murder (§ 190.2, subd. (a)(3)); therefore, counsel reasonably focused his
guilt phase argument on reducing that possibility. Conceding some measure of
culpability was a valid tactical choice under these restrictive circumstances.
24 Bolin, 18 Cal. 4th at 334-35.
25
This Court finds that, based on the evidentiary record, the state supreme court could reasonably
26 have found the noted conduct to be tactically motivated and consistent with the defense strategy of
27 arguing for manslaughter in order to avoid death sentence eligibility. Petitioner had certain liability for
28 the crimes and only limited evidence in defense. (RT at 2162-69.) Defense counsel argued that
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1
Petitioner was less than fully culpable for the crimes, variously focusing on Ramirez and the inference
2
he might have been involved in the Huffstuttler shooting, (RT at 2166-69), and heat of passion and
3
imperfect self-defense theories.
4
Regarding the shooting of Mincy, in the absence of direct evidence of heat of passion or self-
5
defense, counsel could and did reasonably argue that Petitioner was still acting under heat of passion
6
from the Huffstuttler shooting when he shot and killed Mincy, in an attempt to reduce Petitioner’s
7
culpability for that offense. (RT at 2175.) On the facts of this case, the California Supreme Court
8
reasonably could have found such a tactical decision to admit some liability, even in the absence of
9
consent by the accused, not to be ineffective assistance. See Florida v. Nixon, 543 U.S. 175, 190-91
10 (2004) (counsel in capital case where guilt is clear may reasonably focus on penalty phase).
11
It was not unreasonable for the California Supreme Court to discount Petitioner’s contention
12 that Soria’s noted tactic was not based upon an adequate investigation. The guilt phase investigation
13 was constitutionally sufficient for the reasons discussed in claims I1-I16, ante. The same can be said
14 of the penalty phase investigation (see claim W, post), even if it was incomplete at the time of the
15 guilt phase. Significantly, Petitioner has not provided any declaration of counsel relating to trial
16 tactics or the absence of tactics, in these regards.
17
Unsuccessful trial strategies are not alone ineffective assistance. Sloan v. Delo, 54 F.3d 1371,
18 1384 (8th Cir. 1995) (“Although the [defense] closing apparently was not persuasive, a strategy need
19 not be successful to be reasonable.”). “The mere criticism of trial tactics is insufficient to establish
20 ineffectiveness or prejudice.” Ferreira-Alameda, 815 F.2d at 1254.
21
22
3)
Misstating Law and Defense Theories
Petitioner alleges that Soria’s abbreviated closing statement, to the extent it was intelligible,
23 included the following prejudicial misstatements of law regarding the elements of voluntary
24 manslaughter (Pen. Code § 192) and second degree murder (Pen. Code § 189):
25
26
27
28
Now, [Petitioner] is part of the scuffle, is part of an argument, heat of passion,
unreasonable self-defense and if you find that acceptable regarding the initial shooting
of Vance Huffstuttler, you don’t believe that he shot him a second time, he is only guilty
of voluntary manslaughter which isn’t intentional killing, but it is not without malice
aforethought, it is not without premeditation, it is not with intent. It is basically a
homicide we can’t excuse, but there is an excuse.
136
1
2
3
(RT at 2169.)
The California Supreme Court summarily rejected this allegation on the merits without
explanation. (See CSC Order Den. Pet. Habeas Corpus.)
4
Petitioner argues the deficient closing had its genesis in a breakdown in the adversarial process,
5
resulting in an actual conflict of interest adversely affecting Soria’s performance and giving rise to a
6
presumption of prejudice.
7
following the guilt phase, it found irreconcilable differences between Soria and Petitioner and removed
8
Soria from the case. Furthermore, even if prejudice is not presumed, Petitioner claims it is reasonably
9
probable that a more favorable result would have obtained had Soria presented a competent closing
Petitioner contends that the trial court acknowledged as much when,
10 argument.
11
Petitioner also argues that Soria’s closing argument confused defense theories: a heat of passion
12 or unreasonable self-defense theory in which Petitioner shot Huffstuttler, and an alternative theory
13 under which Ramirez fired the shots that killed Huffstuttler. (RT at 2163-69.) However, Soria’s
14 strategy of presenting alternate theories need not be seen as unreasonable given that Ramirez’s
15 participation in Huffstuttler’s death was not established by any direct evidence. Even if the jury had
16 chosen to believe such theory without evidence, Ramirez’s participation would not have exculpated
17 Petitioner, but simply made him an accomplice to it.
That these strategies were not ultimately
18 successful does not make them unreasonable. Sloan, 54 F.3d at 1384.
19
The jury was aware of the primary defense theory that the killings were not first degree murder,
20 even if this theory was misstated during Soria’s closing. (See e.g., RT at 2166-67.) The jury would
21 have understood that Soria’s closing focused on Petitioner’s reduced culpability and responsibility for
22 the killings.
23
Furthermore, as the Respondent notes, Soria told the jury that the court would be providing
24 instructions regarding heat of passion and self-defense, and suggested that the jury should listen to and
25 consider the instructions carefully along with the evidence in reaching its verdict. (RT at 2166.) The
26 court did provide those instructions as well as instructions regarding intent for murder and
27 manslaughter (RT at 2195-2211), and also told the jury that it should follow the court’s instructions
28 over the arguments of counsel if they conflicted. (RT at 2182-83). The jury is presumed to have
137
1
followed these instructions.
2
Given the weight of the noted evidence against Petitioner, the California Supreme Court
3
reasonably could have found that Petitioner did not show prejudice relative to this claim. See U.S. v.
4
Johnson-Wilder, 29 F.3d 1100, 1105 (7th Cir. 1994) (where evidence of guilt is “very substantial . . .
5
there is no reason to conclude that a defense free of the alleged errors would have brought about a
6
different result.”)
7
While “[t]he right to effective assistance extends to closing arguments,” Gentry, 540 U.S. at 5
8
(citing Bell, 535 U.S. at 701-02, and Herring v. New York, 422 U.S. 853, 865 (1975)), “counsel has
9
wide latitude in deciding how best to represent a client, and deference to counsel’s tactical decisions
10 in his closing presentation is particularly important because of the broad range of legitimate strategy
11 at that stage.” Id. at 5-6. Judicial review of defense counsel’s closing argument “is therefore highly
12 deferential - and doubly deferential when it is conducted through the lens of federal habeas.” Id. at 6.
13 The arguments of counsel, like the instructions of the court, must be judged in the context in which
14 they are made. Boyde, 494 U.S. at 384-85.
15
Finally, Petitioner’s suggestion that prejudice should be presumed based on actual conflict of
16 interest arising from a breakdown in the attorney-client relationship fails for reasons discussed in
17 claims J and W1, post.
18
For the reasons stated, a fair-minded jurist could have found that Petitioner failed to establish
19 that he was denied a fair trial, or to the extent alleged, that defense counsel’s performance fell below
20 an objective standard of reasonableness and that, but for counsel’s unprofessional errors, the outcome
21 of this proceeding would have been different. Strickland, 466 U.S. at 687-98.
22
It follows that the California Supreme Court’s rejection of the claim was not contrary to, or an
23 unreasonable application of, clearly established federal law, nor based on an unreasonable
24 determination of the facts in light of the evidence presented in the state court proceeding. See 28
25 U.S.C. § 2254(d).
26
Claim I17 is denied.
27
2.
28
Petitioner next claims that Soria’s divided loyalties caused Petitioner to distrust him, resulting
Review of Claim J
138
1
in a breakdown of the relationship and an actual conflict of interest, denying Petitioner effective
2
representation and due process under the Fifth, Sixth and Fourteenth Amendments. (ECF No. 113 at
3
109-112.)
4
Petitioner raised this same claim in his petition for writ of habeas corpus in the California
5
Supreme Court. The California Supreme Court ruled that Petitioner’s claim was procedurally barred
6
because this claim could have been, but was not, raised on direct appeal. (CSC Order Den. Pet.
7
Habeas Corpus [citing In re Harris, 5 Cal. 4th at 825 n.3 and In re Dixon, 41 Cal. 2d at 759].) The
8
California Supreme Court also summarily rejected Petitioner’s habeas claim on the merits without
9
explanation. (CSC Order Den. Pet. Habeas Corpus.)
10
11
a.
Clearly Established Law
The Sixth Amendment provides that a criminal defendant shall have the right to “the
12 Assistance of Counsel for his defense.”
As a general matter, a defendant alleging a Sixth
13 Amendment violation must demonstrate “a reasonable probability that, but for counsel’s
14 unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S.
15 at 694.
16
However, an exception exists for cases in which counsel actively represents conflicting
17 interests. Mickens v. Taylor, 535 U.S. 162, 166 (2002); Cuyler, 446 U.S. at 345-50. In such a case,
18 prejudice is presumed. Id. However, Petitioner must establish that “an actual conflict of interest
19 actually affected the adequacy of [defense counsel’s] representation.”
20
21
b.
Analysis of Claim J
Petitioner alleges Soria’s desire to withdraw to seek other employment caused a loss of
22 loyalty to and inadequate representation of Petitioner and a breakdown in the attorney-client
23 relationship resulting in an actual conflict of interest. (ECF No. 113 at 109-112; claim I17; see RT at
24 2268, 2271-96.) Petitioner also alleges Soria had a personal conflict because, the evening before a
25 crucial point in the guilt phase, Soria was out celebrating a new job offer. (ECF No. 113 at 110.)
26
27
1)
Actual Conflict of Interest
Petitioner alleges Soria had an actual conflict of interest. As previously discussed, following
28 the guilt phase, the trial court considered ex parte Petitioner’s Marsden motion including his
139
1
2
3
complaints about Soria’s guilt phase performance. That court found that:
[A]s as result of the disagreement between Mr. Soria and [Petitioner] there has been a
complete breakdown in that relationship to the point that I don’t think they are talking to
each other
4
(RT at 2298:19-22.) As a result, on December 14, 1990, the trial court appointed Cater to take over for
5
the penalty phase. However, the trial court did not make a finding that Mr. Soria had an actual, or any,
6
conflict of interest. Instead the trial court found a breakdown in communication and “estrangement,”
7
pointing to Petitioner’s stated refusal to accept a visit from Mr. Soria. (RT at 2298-99); Bolin, 18 Cal.
8
4th at 347.
9
Petitioner supports his actual conflict claim by pointing to Soria’s decision not to present
10 evidence relating to his leg wounds. As discussed more fully in claim I7, ante, petitioner contends
11 scars on his legs were incurred while he defended himself during the Huffstuttler shooting. But Soria
12 was aware Dr. Markman had examined the scars and opined they were self-inflicted. (RT at 2289.)
13 Soria’s concern this evidence appeared fabricated and based upon inadmissible and uncorroborated
14 hearsay suggests his decision not to present it was a matter of trial strategy rather than a result of an
15 “actual conflict” with petitioner. (See 12/13/90 RT at 2288-89; claim I7, ante.)
16
Counsel Soria was entitled to make tactical decisions, “even in the face of his client’s
17 incomprehension or even explicit disapproval.” Schell, 218 F.3d at 1017, 1026 and n.8.
Soria
18 explained his reasons for not informing Petitioner of this tactical decision. (12/13/90 RT at 2289.) A
19 conflict of interest is not created every time an attorney responds to an accusation from a client for to
20 do so would create in the client a unilateral power to create a conflict by expressing dissatisfaction.
21 United States v. Moree, 220 F.3d 65, 71 (2d Cir. 2000).
22
Petitioner cannot create a conflict of interest predicated solely on his expressed dissatisfaction
23 with counsel. United States v. John Doe #1, 272 F.3d 116, 126 (2d Cir. 2001). At the time of Soria’s
24 request to withdraw, the record reflects that Petitioner wanted Soria to represent him. (7/18/90 RT at
25 10-12); see Garcia v. Bunnell 33 F.3d 1193, 1198 (9th Cir. 1994) (no actual conflict where record
26 discloses no active representation of competing interest).
27
Any re-allegation of ineffective assistance, discussed in claim I, fails for the reasons stated
28 therein.
140
1
2)
Personal Conflict of Interest
2
A conflict of interest claim cannot be based on an alleged conflict between the client’s interests
3
and the lawyer’s personal interests. Earp v. Ornoski, 431 F.3d 1158, 1184 (2005) (finding that the
4
Cuyler line of cases is limited to conflicts involving joint representation). Earp specifically noted the
5
case upon which Petitioner relies, Mannhalt v. Reed, 847 F.2d 576, 580 (9th Cir. 1988), and found
6
argument relying on it to be futile under AEDPA. Id. at 1183 n.23.
7
8
9
10
The California Supreme Court could reasonably have found that Soria did not suffer from a
personal conflict of interest and perform deficiently by virtue thereof.
3)
Prejudice – Actual Conflict
Petitioner argues that no showing of prejudice is required because Soria had an actual conflict
11 of interest. Cuyler, 446 U.S. at 348. He claims that the trial court found as much. However,
12 petitioner’s argument for the less stringent standard of Cuyler (regarding presumed prejudice in cases
13 of actual conflict of interest) is unavailing. (See ECF No. 113 at 109); Cuyler, 446 U.S. at 348-49.
14 “Until a defendant shows that his counsel actively represented conflicting interests, he has not
15 established the constitutional predicate for his claim of ineffective assistance.” Cuyler, 446 U.S. at 350.
16 Petitioner has not made such a showing, for the reasons stated.
17
18
19
20
21
22
23
24
25
26
27
28
4)
Prejudice – Personal Conflict
Petitioner’s claim that counsel’s personal conflict of interest violated his Sixth Amendment
right to the assistance of counsel is governed by Strickland. See Mickens, 535 U.S. at 174-75
(explaining that clearly established Supreme Court precedent does not permit application of a
prejudice standard less stringent than Strickland unless the alleged conflict results from joint
representation, a situation which involves both a high probability of prejudice and inherent difficulty
in proving that prejudice).
Petitioner has not shown a reasonable probability the outcome of his trial would have been
different if counsel had taken some action that was not taken because of the alleged personal conflict
of interest. See Bolin, 18 Cal. 4th at 347; United States v. Perry, 857 F.2d 1346, 1350-51 (9th Cir.
1988) (“mere possibility of an actual conflict of interest created by service of a grand jury subpoena
upon a target’s counsel is insufficient to disturb a conviction” absent proof of actual prejudice).
141
1
Petitioner also contends that the breakdown in his attorney client relationship mandated a
2
mistrial. (ECF No. 113 at 109.) For the reasons stated, the California Supreme Court reasonably
3
could have found otherwise. Furthermore, the record does not demonstrate that Petitioner moved for
4
a new trial or that he was dissatisfaction with Cater’s continuing representation. (12/13/90 Marsden
5
RT at 2292, 2295-99.)
5)
6
Conclusions
7
For the reasons stated, a fair-minded jurist could have found that Petitioner failed to establish
8
that he was denied a fair trial, or to the extent alleged, that defense counsel had an actual conflict of
9
interest, Cuyler, 446 U.S. at 348, or that defense counsel’s performance fell below an objective
10 standard of reasonableness and that, but for counsel’s unprofessional errors, the outcome of this
11 proceeding would have been different. Strickland, 466 U.S. at 687-98.
12
It follows that the California Supreme Court’s rejection of the claim was not contrary to, or an
13 unreasonable application of, clearly established federal law, nor based on an unreasonable
14 determination of the facts in light of the evidence presented in the state court proceeding. See 28
15 U.S.C. § 2254(d).
16
Claim J is denied.
17
3.
18
Petitioner next claims that during discovery, the prosecution withheld from the defense certain
Review of Claim K
19 material exculpatory evidence discussed below. (ECF No. 113 at 112-17.)
20
Petitioner raised this claim in his petition for writ of habeas corpus in the California Supreme
21 Court, which was summarily denied on the merits without explanation. (CSC Order Den. Pet. Habeas
22 Corpus.)
23
24
25
a.
Clearly Established Law
1)
Brady
The Supreme Court held that if the state fails to disclose exculpatory evidence in violation of
26 Brady v. Maryland, 373 U.S 83 (1963), the conviction cannot stand if there is a reasonable
27 probability that the evidence, considered cumulatively, would have produced a different result at trial.
28 Kyles v. Whitley, 514 U.S. 419, 434 (1995). If a habeas petitioner establishes the “reasonable
142
1
probability” of a different result, the error cannot subsequently be found harmless. Id. at 436. In
2
Brady, the Supreme Court held that the suppression by the prosecution of evidence favorable to an
3
accused violates due process where the evidence is material either to guilt or to punishment,
4
irrespective of the good faith or bad faith of the prosecution. Brady, 373 U.S. at 87.
5
There are three components to a Brady violation: (1) the evidence at issue must be favorable
6
to the accused either because it is exculpatory or because it is impeaching; (2) the evidence must have
7
been suppressed by the State either willfully or inadvertently; and (3) prejudice must have ensued.
8
Banks v. Dretke, 540 U.S. 668, 691 (2004); Strickler v. Greene, 527 U.S. 263, 281–82 (1999). “Such
9
evidence is material if there is a reasonable probability that, had the evidence been disclosed to the
10 defense, the result of the proceeding would have been different.” Strickler, 527 U.S. at 280 (quoting
11 Bagley, 473 U.S. at 682). “[T]here is never a real Brady violation unless the nondisclosure was so
12 serious that there is a reasonable probability that the suppressed evidence would have produced a
13 different verdict.” Id. at 281.
2)
14
15
Due Process
A petitioner is entitled to habeas corpus relief if the prosecutor’s misconduct “so infected the
16 trial with unfairness as to make the resulting conviction a denial of due process.” Donnelly, 416 U.S.
17 at 643. To constitute a due process violation, the prosecutorial misconduct must be “of sufficient
18 significance to result in the denial of the defendant’s right to a fair trial.” Greer, 483 U.S. at 765
19 (quoting Bagley, 473 U.S. at 667).
20
Any claim of prosecutorial misconduct must be reviewed within the context of the entire trial.
21 See Greer, 485 U.S. at 765-66; Weitzenhoff, 35 F.3d at 1291. A court must keep in mind that “[t]he
22 touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the
23 trial, not the culpability of the prosecutor” and “the aim of due process is not punishment of society
24 for the misdeeds of the prosecutor but avoidance of an unfair trial to the accused.” Phillips, 455 U.S.
25 at 219. “Improper argument does not, per se, violate a defendant’s constitutional rights.” Thompson,
26 74 F.3d at 1576 (quoting Jeffries, 5 F.3d at 1191).
27
28
b.
Analysis of Claim K
1)
Inducements to Ramirez
143
1
Petitioner alleges that the prosecution withheld evidence that charges pending against
2
prosecution witness Ramirez were dropped in exchange for his testimony against Petitioner. (ECF
3
No. 113 at 113.) Petitioner claims this information had significant impeachment value for reasons
4
discussed in claim I2, ante, and that withholding it had a substantial and injurious effect in
5
determining the jury’s verdict. Brecht, 507 U.S. 619 (1993).
6
Petitioner argues that there must have been such an agreement because Ramirez’s attorney,
7
Gutierrez, declared that he would not have advised Ramirez to speak to the authorities if he
8
(Gutierrez) did not believe that Ramirez would be released as a result. (SHCP Ex. 7 at 2.) He argues
9
that even a tacit agreement must be disclosed. United States v. Shaffer, 789 F.2d 682, 690 (9th Cir.
10 1986) (facts which imply an agreement regarding material evidence must be disclosed).
11
However, the record could reasonably suggest that the alleged incentive was the promise by
12 law enforcement that if Ramirez was uninvolved in the crime then he would be released upon giving
13 a statement to authorities, and that this incentive was disclosed to the defense. (See RT at 1850-61,
14 1934-38.) Petitioner’s proffer of the Gutierrez declaration is not evidence otherwise. The inference
15 which Petitioner draws from the Gutierrez declaration is not supported by facts stated in that
16 declaration.
17
The California Supreme Court could reasonably have found such allegations to be
18 unsupported in the evidentiary record. Surmise alone is not sufficient to show entitlement to habeas
19 relief under § 2254(d).
20
21
2)
Inducements to Halfacre
Petitioner alleges that the prosecution withheld evidence that its witness, Jerry Halfacre,
22 received inducements from the prosecution to provide information used at the penalty phase. This
23 allegation is briefly discussed here because Petitioner includes it in his guilt phase claims. (See ECF
24 No. 113 at 113:24-114:18.) However, this allegation relates primarily to the penalty phase and is
25 discussed at length in claim R, post.
26
As noted, Halfacre had been living with Petitioner’s daughter, Paula Bolin, and was the father
27 of Paula’s child, Ashley. Halfacre gave his probation officer Georgia O’Connor a threatening letter
28 he had received from Petitioner. As discussed more specifically in claim R, post, in the letter
144
1
Petitioner threatened, among other things, to have Halfacre “permanently removed from the face of
2
this Earth.” (RT at 2390-93, 2442-43); Bolin, 18 Cal. 4th at 336 n.11.
3
The letter was used by the prosecution at Petitioner’s penalty trial as aggravating evidence of
4
“criminal activity which involved the use or attempted use of force or violence or the express or
5
implied threat to use force or violence” pursuant to Pen. Code § 190.3(b). (ECF No. 113 at 113:27-
6
28.) At that time, Halfacre was on probation for vehicular manslaughter. Petitioner alleges Halfacre
7
was released from probation and allowed to leave the state in exchange for giving his probation
8
officer the letter. (See ECF No. 113 at 114:4-5; RT at 2442-43.) Petitioner alleges the prosecution’s
9
failure to disclose this inducement prevented him challenging admission of the letter on grounds it did
10 not satisfy the elements of a threat under Penal Code § 422. That is, Halfacre turned the letter over to
11 authorities not because of he was in fear of immediate harm, but solely to receive concessions from
12 the prosecution. Petitioner alleges this prosecutorial wrongdoing had a substantial and injurious
13 effect in determining the jury’s verdict. Brecht, 507 U.S. at 637.
14
Petitioner states that Penal Code § 422 provided in pertinent part:
15
Any person who willfully threatens to commit a crime which will result in death or great
bodily injury to another person, with the specific intent that the statement is to be taken
as a threat, even if there is no intent of actually carrying it out, which, on its face and
under the circumstances in which it is made, is so unequivocal, unconditional,
immediate, and specific as to convey to the person threatened, a gravity of purpose and
an immediate prospect of execution of the threat, and thereby causes that person
reasonably to be in sustained fear for his or her own safety or for his or her immediate
family’s safety, shall be punished by imprisonment in the county jail not to exceed one
year, or by imprisonment in the state prison.
16
17
18
19
20
21 (ECF No. 113 at 154:18-23); see also Bolin, 18 Cal. 4th at 337.
22
The state supreme court was not unreasonable in denying this allegation. Preliminarily, the
23 alleged inducement does not appear to be Brady information because it was not exculpating of
24 Petitioner and could not have impeached or impugned the credibility of Halfacre because Halfacre did
25 not testify at Petitioner’s trial. (RT at 1867-69, 2442-44; SHCP Ex. 6 at 34.)
26
Petitioner has not demonstrated the undisclosed inducement denied him a fair trial. He does
27 not deny that he wrote the letter. He does not support with facts in the record his allegation the letter
28 was provided by Halfacre in exchange for Halfacre’s release from probation and travel restrictions.
145
1
That allegation could be seen as merely speculative. See Mayle v. Felix, 545 U.S. 644, 655 (2005)
2
“[P]etition[er] is expected to state facts that point to a real possibility of constitutional error.").
3
Finally, for the reasons discussed in claim R1, post, the state court could reasonably have
4
concluded that the letter threatened force or violence within § 422, placing Halfacre in sustained fear
5
that Petitioner would follow-through on the threats in the letter; and that the letter was not otherwise
6
improperly admitted at Petitioner’s penalty phase.
7
8
9
10
11
12
13
14
15
16
17
18
In any event, Petitioner has not demonstrated prejudice. The California Supreme Court,
reviewing the admissibility of the letter on direct appeal, stated that:
Although some of the language in the letter is menacing, it also reflects [Petitioner’s]
concern for his daughter’s and granddaughter’s well-being, a point stressed by the
defense in mitigation. Moreover, the nature and circumstances of the threats would not
necessarily provoke serious concern, especially considering [Petitioner] was incarcerated
and would at least have to make outside arrangements to effect them. Halfacre waited
four months before giving the letter to his probation officer, during which time
apparently nothing had happened.
More importantly, the letter paled compared to other aggravating evidence, which the
prosecutor focused on in closing argument. In particular, the guilt phase testimony
revealed [Petitioner] as a calculating and callous individual, willing to kill defenseless
victims, including his friend and partner Huffstuttler, in cold blood to protect his drug
enterprise. In addition, the assault with great bodily injury against Matthew Spencer and
attempted manslaughter against Kenneth Ross confirmed [Petitioner’s] pattern of
resorting to violence in dealing with problems. Given this history, it is unlikely the jury
accorded the letter much, if any, weight in fixing the penalty at death.
19 Bolin, 18 Cal. 4th at 340-41. This Court finds that California Supreme Court’s conclusions to be
20 reasonable, especially given the noted substantial evidence against Petitioner. (See claims O, R, and
21 S, post.)
22
23
3)
Police Contacts with Wilson
Petitioner alleges that the prosecution withheld information regarding the disposition of
24 Wilson’s truck and further communications between him and authorities or the prosecution. (ECF
25 No. 113 at 114-16.) Petitioner points to Wilson’s testimony at trial that at some later date he returned
26 to the property to retrieve his truck, (RT at 1738), and infers that Wilson must have been escorted by
27 law enforcement to the crime scene to obtain his truck and that law enforcement must have
28 documented these events. (ECF No. 113 at 114-15.)
146
1
However, Petitioner knew from Wilson’s above noted testimony that Wilson picked up the
2
truck. It appears that Petitioner had enough information to obtain this evidence, if it existed, on his
3
own. See Raley v. Ylst, 470 F.3d 792, 804 (9th Cir. 2006) (finding no Brady error since the
4
petitioner knew of the existence of medical records and “his counsel could have sought the
5
documents through discovery.”). Petitioner does not demonstrate that the government had a duty to
6
turn it over to him. Accordingly, the California Supreme Court could reasonably have found no
7
Brady error.
8
Petitioner’s further allegation that there must have been an inducement because Wilson’s trial
9
testimony was more consistent with witness Ramirez than had been Wilson’s pretrial statements, (see
10 claim I3, ante), is similarly unpersuasive. Petitioner does not point to anything in the evidentiary
11 record showing that Wilson had any contact with law enforcement during this time in the nature of an
12 inducement or otherwise.
13
Even if there was such a withholding of information, the California Supreme Court could
14 reasonably have found it harmless. Nothing in the record suggests that any information relating to
15 Mr. Wilson’s retrieval of his truck would have resulted in a different outcome. The jury was already
16 aware that Wilson had returned to the crime scene from his own testimony. (RT at 1738.) The state
17 court could reasonably have found the result of proceedings would not have been different absent the
18 alleged Brady error. Brecht, 507 U.S. at 637.
4)
19
20
Police Interviews Regarding Threats by Huffstuttler against Petitioner
Petitioner alleges that the prosecution withheld evidence that, a week before the shootings,
21 Petitioner had assaulted Huffstuttler and placed the barrel of a gun in Huffstuttler’s mouth (see CT at
22 225-26; RT at 2363-70), in response to which Huffstuttler threatened violence against Petitioner,
23 causing Petitioner to fear Huffstuttler. (SHCP Ex. 15.) Specifically, Petitioner alleges that the
24 prosecution withheld law enforcement interviews with Petitioner’s friends and neighbors in Los
25 Angeles County, including Sondra Hooten and her boyfriend Dennis Dademasch, who apparently
26 witnessed the alleged confrontation and consequent threats while guests at the cabin. (ECF No. 113
27 at 116-17.)
Petitioner claims this undisclosed evidence would have supported a defense of
28 unreasonable or imperfect self-defense, and that withholding it had a substantial and injurious effect
147
1
in determining the jury’s verdict.
2
The record suggests that defense counsel had discovery on the incident in question; defense
3
counsel Cater apparently admitted as much. (See RT at 2363-65; see also SHCP Ex. 69B 6/6/90
4
EMF Billing Statement at 2.) For example, as discussed in claim I4, ante, Deputy Nikkel’s report
5
clearly includes his interview with Huffstuttler’s girlfriend, Ms. Ward, about this confrontation of
6
sorts between Petitioner and Huffstuttler, as follows:
7
8
9
10
11
[Ward] said one time, when [Ward, Petitioner, and Huffstuttler] were at the cabin,
[Huffstuttler] had gone out to get their pillows out of the van. She said when
[Huffstuttler] closed the door to the van, he slammed it. She said that [Petitioner] came
into the bedroom where they were at and stuck the .45 into [Huffstuttler’s] mouth,
telling him that he should not slam the door to his van. She said she and two (2) other
people, who were friends of [Petitioner’s], named Sandra and Dennis, from Covina,
pulled [Petitioner] off of [Huffstuttler].
12 (SHCP, Ex. 18b, 9/7/89 Nikkel Supp. Report at 13.)
13
Petitioner has not shown the existence of additional law enforcement interviews with
14 Petitioner’s friends and neighbors in Los Angeles County.
The declaration of Sondra Hooten
15 included with his habeas proffer does not suggest that at the time of trial she had talked to authorities
16 or the prosecution team about the alleged confrontation. (See SHCP Ex. 15 at 2-3.) Absent from
17 Petitioner’s habeas proffer is any declaration from Mr. Dademasch.
18
Since Petitioner had the police report concerning this incident, it appears that there could be
19 no Brady error.
20
The California Supreme Court could reasonably have found that Petitioner, who at the time of
21 trial was in possession of Detective Nikkel’s report concerning the alleged confrontation, had enough
22 information to obtain this evidence on his own, had there actually been any evidence to obtain. See
23 Raley, 470 F.3d at 804.
Defense counsel could have interviewed these individuals.
Counsel
24 apparently did contact Ms. Ward and could have spoken to her about the incident. (SHCP Ex. 69B
25 10/16/90 EMF Billing Statement at 3.)
26
Additionally, even if the prosecutor should have turned over evidence of these alleged
27 interviews, Petitioner has failed to show prejudice. See Kyles, 514 U.S. at 433-34. Petitioner’s
28 habeas proffer of Ms. Hooten declaration referring to this incident does not suggest that Huffstuttler
148
1
acted violently toward or threatened violence upon Petitioner. Furthermore, the noted evidence
2
against Petitioner was substantial. (See claims O, R and S, post.)
3
It follows that the state supreme court’s rejection of the claim was not contrary to, or an
4
unreasonable application of, clearly established federal law, nor based on an unreasonable
5
determination of the facts in light of the evidence presented in the state court proceeding. See 28
6
U.S.C. § 2254(d).
7
Claim K is denied.
8
4.
9
Petitioner next claims his rights were violated by the jury’s view of the crime scene. He
Review of Claim L
10 asserts four subclaims which are addressed separately below. He claims cumulative error.
11
12
a.
Claim L1
Petitioner alleges that he did not waive his right to be present at the jury view, or to the taking
13 of testimony during the view, or to the viewing of the Sand Canyon Store by less than all jurors.
14 (ECF No. 113 at 120-23.) He claims a denial of due process and the right to confront witnesses
15 against him. (Id.)
16
Petitioner raised this same claim on direct appeal. The California Supreme Court held that
17 Petitioner’s state and federal constitutional rights had not been violated because he had expressly
18 waived his right to be present at the jury view of the crime scene. Bolin, 18 Cal. 4th at 325. That
19 court also found that the trial court had not committed prejudicial error under state law. Id.
20
Petitioner also raised this same claim in his petition for writ of habeas corpus in the California
21 Supreme Court, which the California Supreme Court summarily denied on the merits without
22 explanation (CSC Order Den. Pet. Habeas Corpus) as well as on procedural grounds (because the
23 claim was repetitive of a claim that had been raised and rejected on direct appeal). (CSC Order Den.
24 Pet. Habeas Corpus, citing In re Harris, 5 Cal. 4th at 824-29; In re Waltreus, 62 Cal. 2d at 225.)
25
26
1)
Clearly Established Law
A defendant has a federal due process right to be present at court proceedings if his presence
27 has a reasonably substantial relation to his ability to defend himself. United States v. Gagnon, 470
28 U.S. 522, 526 (1985). A waiver is ordinarily an intentional relinquishment or abandonment of a
149
1
known right or privilege. Johnson v. Zerbst, 304 U.S. 458, 464 (1938).
2)
2
Analysis of Claim L1
3
Petitioner alleges that he did not knowingly waive being present at the jury view because he
4
did not anticipate that during the jury view, Kern County Sheriff’s Department deputies Layman and
5
Williamson, both of whom had previously been sworn in the case, would answer questions from the
6
jury about issues such as the relative location of Huffstuttler’s body and Wilson’s truck and whether
7
and the extent to which vegetation obscured views of portions of the crime scene, (RT at 1892-93;
8
2120-22), matters only he (Petitioner) could challenge. He complains that the jurors may have
9
understood the deputies to be continuing their prior testimony even though the deputies were not then
10 under oath.
11
Petitioner also complains that, unbeknownst to him, Penal Code § 977 precluded waiver of
12 presence at a proceeding where evidence is taken and requires a written waiver, not provided here.
13
Petitioner alleges that the information provided by the deputies during the crime scene view
14 was relevant to his voluntary manslaughter defense and that at least to this extent his absence was not
15 harmless beyond a reasonable doubt, Chapman v. California, 386 U.S. 18, 24 (1967), and had a
16 substantial and injurious effect on the jury’s verdict (see Brecht, 507 U.S. at 637).
17
The record reflects that, on December 10, 1990, prior to the conclusion of the guilt phase
18 evidence, pursuant to the agreement of the prosecutor and defense counsel (11/1/90 RT 46-48), the
19 jurors were taken to view the crime scene. (RT at 2119-22.) Defense counsel believed that it would
20 be helpful to the jury and “agreed that the jury really needed to see the scene.” (11/1/90 RT at 47-48.)
21
After Soria advised the trial court that Petitioner wished to waive attending the crime scene
22 view (11/1/90 RT at 48), the following colloquy occurred:
23
24
25
MR. SORIA: Yes, your Honor, in order to facilitate the trip up on Monday, I believe my
client will waive his presence to going up the mountain.
THE COURT: Yes, we had really kind of assumed he would. But, Mr. Bolin, would
you waive your presence there, I take it?
26
DEFENDANT BOLIN: Yes, sir.
27
28
THE COURT: All right, and nobody has threatened you in order to get you to do this,
have they?
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1
DEFENDANT BOLIN: No, sir.
2
3
4
5
THE COURT: All right, are you satisfied with the waiver, Mrs. Ryals?
MRS. RYALS: Yes, your Honor.
(RT at 1893; see also CT at 380.)
6
Petitioner did not attend the jury view on December 10, 1990. (RT at 2119.)
7
The California Supreme Court reviewed and rejected these same allegations, finding that:
8
9
10
11
12
13
14
15
16
17
18
19
20
We also find no violation of defendant’s constitutional rights by virtue of his absence
during the view. Prior to the excursion, [Petitioner] expressly waived his presence and
acknowledged he did so voluntarily. The record reflects that before making this decision
he had discussed the matter with counsel. We have repeatedly rejected the argument that
the Sixth Amendment confrontation clause of the United States Constitution or the due
process clause of the California Constitution prevents a criminal defendant from waiving
the right of presence at a critical stage of a capital trial. [Citation] We have no reason to
reconsider that conclusion, particularly when no additional testimony was taken in
conjunction with the view.
We also find no prejudicial error with respect to defendant’s statutory rights. In People
v. Jackson (1996) 13 Cal. 4th 1164, 1211, this court held “that a capital defendant may
not voluntarily waive his right to be present during the proceedings listed in section 977,
including those portions of the trial in which evidence is taken [before the trier of fact]
....” [Citation] Although a jury view is not among the designated proceedings in section
977, we have long held that “in so viewing the premises the jury was receiving
evidence” even if nontestimonial. [Citation] Thus, it comes within the purview of
section 977. Nevertheless, in this case it is not reasonably probable that a more favorable
result would have been reached had defendant, in addition to his counsel, been present.
[Citation] On this record, we find “no sound basis to question the contemporaneous
judgment of defense counsel, with which defendant then agreed, that defendant’s trial
interests would be better served by not attending the jury view.” [Citation]
21
22 Bolin, 18 Cal. 4th at 325.
23
As noted, that court also concluded that no additional testimony was taken in conjunction with
24 the jury view:
25
26
27
28
In this case, Layman and Williamson investigated the crime scene; the trial court
therefore reasonably designated them as “showers” to explain how the actual physical
conditions related to their trial testimony. The record establishes that their involvement
was limited to that end, i.e., “showing” the jury what their words had described and the
photographs had depicted. Given the court’s broad discretion in these matters, we find
no abuse in having the deputies respond to specific questions rather than proceeding in
151
1
2
3
4
5
some other manner. Williamson’s statement that the foliage differed in height from the
time of the crime was also proper “to account for any change in [the] condition between
[its] state as shown by the evidence and [its] appearance at the time the jury inspected
[it].”
Id. at 324-25.
The Court finds this claim to be unpersuasive.
Petitioner has not demonstrated a clearly
6
established federal right to be present at a jury view of a crime scene. See Snyder, 291 U.S. at 117-18
7
(due process does not require the defendant’s presence at a jury view of the crime scene); see also
8
Moore v. Campbell, 344 F.3d 1313, 1323 (11th Cir. 2003) (“the issue of whether a defendant must be
9
present at all times in a capital trial has not yet been settled by the Supreme Court”). Mr. Soria stated
10 that he had talked with Petitioner about the importance of viewing the scene. (11/1/90 RT at 48.)
11 Having waived his presence, Petitioner did not attend the jury view of the scene. (RT at 1893, 2119; CT
12 at 380.)
13
Nor has Petitioner demonstrated that his presence at the jury view would have contributed to
14 the fairness of the proceeding, even where the “showers” then “point[ed] out particular features of the
15 scene and [] request[ed] the jury to observe them.” Snyder, 291 U.S. at 110-11; see also Monroe v.
16 Kuhlman, 433 F.3d 236, 245-47 (2d Cir. 2006) (attorney’s absence from jury view harmless error
17 even though defendant could have learned something from observing what jury focused upon).
18
A defendant has a right to be present “whenever his presence has a relation, reasonably
19 substantial, to the fullness of his opportunity to defend against the charge.” Stincer, 482 U.S. at 745
20 (quoting Snyder, 291 U.S. at 105-06). However, he need not be present “when presence would be
21 useless, or the benefit but a shadow.” Id. (quoting Snyder, 291 U.S. at 106-07); see Rice, 77 F.3d at
22 1140 n.2 (listing cases finding right to presence not violated).
The state supreme court could
23 reasonably have found this to be such a case.
24
Once at the crime scene, the jurors were allowed to “look through the property” and to “walk
25 down [to the marijuana area”, which they had previously seen in crime scene photographs. (RT at
26 1119.) The jurors were then allowed to ask questions, initially of the court and trial counsel and then
27 of deputies Layman and Williamson as “showers.” The deputies variously spoke to the location of
28 Wilson’s truck; the location and angle of Huffstuttler’s body; the location of the gun relative to
152
1
Huffstuttler’s body; the location of the main road; and the height of the surrounding vegetation and
2
line of sight to the marijuana area at the time of the crime. (RT at 2120-22.) Detective Williamson
3
stated that the crime scene was “intact” other than the wintertime foliage. (Id.)
4
The jurors, without juror Barnes, may have driven past the Sand Canyon store, where the
5
victim met up with Petitioner prior to the shootings. (Id.) It appears the jurors were familiar with the
6
crime scene through the photographs admitted into evidence and readily able to discern how the
7
photographs might have differed from their view of the crime scene including the noted statements at
8
the crime scene. Petitioner’s suggestion that his presence was required to provide further clarity in
9
these regards lacks factual support. Moreover, defense counsel was present at the jury view and
10 apparently did not object to the noted statements or seek correction of the transcript of the jury’s
11 viewing.
12
Petitioner’s state law claim is not a basis for federal habeas relief. See Estelle, 502 U.S. at 67-
13 68. Under California law, a defendant shall be personally present at other proceedings involving the
14 taking of all evidence, unless he signs a written waiver. Cal. Const., art. I, § 15; Pen. Code §§ 977(b),
15 1043(a); People v. Johnson, 6 Cal. 4th 1, 17 (1993), abrogated on other grounds by People v. Rogers,
16 39 Cal. 4th 826, 879 (2006). But a defendant’s “absence from various court proceedings, even
17 without waiver, may be declared non-prejudicial in situations where his presence does not bear a
18 reasonably substantial relation to the fullness of his opportunity to defend against the charge.”
19 Johnson, 6 Cal. 4th at 18 (citing People v. Garrison, 47 Cal. 3d 746, 782 (1989)) (quoting People v.
20 Bloyd, 43 Cal. 3d 333, 359-60 (1987)).
21
Even if the Court were to assume the state law gave rise to a protectable federal right,
22 Petitioner has not demonstrated prejudice.
23
It was not unreasonable for the California Supreme Court to determine that “on this record,
24 we find no sound basis to question the contemporaneous judgment of defense counsel, with which
25 defendant then agreed, that defendant’s trial interests would be better served by not attending the jury
26 view.” Bolin, 18 Cal. 4th at 325.
27
It follows that the state supreme court’s rejection of the claim was not contrary to, or an
28 unreasonable application of, clearly established federal law, nor based on an unreasonable
153
1
determination of the facts in light of the evidence presented in the state court proceeding. See 28
2
U.S.C. § 2254(d).
3
4
Claim L1 is denied.
b.
Claim L2
5
Petitioner claims that the manner in which the jury viewed the crime scene violated Penal
6
Code § 1119 (“§ 1119”) (ECF No. 113 at 123-25), which in turn denied Petitioner state-created due
7
process and fair trial rights under the Fifth and Fourteenth Amendments. (ECF No. 113 at 125:1-2.)
8
Petitioner raised this same claim on direct appeal, which the California Supreme Court
9
rejected based on counsel’s failure “to object to any aspect of the jury view.” Bolin, 18 Cal. 4th at
10 323. In the alternative, the California Supreme Court found that the trial court did not abuse its
11 discretion by having “the deputies respond to specific questions[.]” Id. at 325.
12
Petitioner also raised this same claim on state habeas corpus, which the California Supreme
13 Court summarily denied on the merits without explanation. (CSC Order Den. Pet. Habeas Corpus.)
14
15
16
17
1)
Clearly Established Law
The due process standard is set out in claim L1, ante.
2)
Analysis of Claim L2
Petitioner alleges the jury received communications not authorized under § 1119, violating
18 state created federal due process and fair trial rights. Hicks v. Oklahoma, 447 U.S. 343, 346 (1979)
19 (a criminal jury may deprive defendant of liberty only to the extent determined by the jury in the
20 exercise of its statutory discretion).
21
Section 1119 provides in pertinent part:
22
When, in the opinion of the court, it is proper that the jury should view the place in
which the offense is charged to have been committed, or in which any other material fact
occurred, or any personal property which has been referred to in the evidence and cannot
conveniently be brought into the courtroom, it may order the jury to be conducted in a
body, in the custody of the sheriff or marshal . . . to the place, or to the property, which
must be shown to them by a person appointed by the court for that purpose; and the
officer must be sworn to suffer no person to speak or communicate with the jury, nor to
do so himself or herself, on any subject connected with the trial. . . .”
23
24
25
26
27 Bolin, 18 Cal. 4th at 323 n.5.
28
The California Supreme Court reviewed and rejected this claim, by stating:
154
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
[T]he trial court conducted the jury view in full conformance with the provisions of
section 1119, which expressly provides that when the court determines a jury view of
the scene is proper, the place or property “must be shown to them by a person appointed
by the court for that purpose ....” Originally, in People v. Green (1878) 53 Cal. 60, 61,
this court construed the statute to preclude any person, even on direction of the trial
court, from speaking to the jury on any subject connected with the trial. In People v.
Bush (1887) 71 Cal. 602, 606, however, this rigid construction was rejected as illogical
and inconsistent with the statutory language: “[W]e cannot conceive how [the shower]
could have shown the jury the ... places which they were sent to view in any other way
[than pointing out and naming such places], under the statute.” [Citation] For more than
a century, courts have consistently applied this interpretation, implicitly recognizing that
the admonition that “no person ... speak or communicate with the jury” (§ 1119) is
plainly directed to insulating the jury from extraneous contact and potential tampering.
[Citations]
At the same time, the broad discretion conferred by the statute authorizes the trial court
to conduct the view as appropriate to the circumstances. For example, in People v.
Pompa, supra, 192 Cal. 412, we rejected the defendant’s claim of error that the view was
not, as originally directed by the court, strictly limited to an inspection of the premises.
[Citation] Although considerable testimony was taken and evidence received by the jury,
“the record expressly disclose[d] that during the entire proceedings ... the court in its
completeness, including the judge, the clerk, the bailiff, the reporter, the interpreter, the
jury, the defendant, and the respective counsel was at all times present, the only element
absent being the walls and fittings of the courtroom wherein the court is usually
convened.” [Citation] Since “the forms of law governing the trial of causes” was
otherwise observed, we declined to hold this “absence of formality” had compromised
the proceedings. [Citation]
17
18
19
20
21
22
23
24
25
26
27
In this case, Layman and Williamson investigated the crime scene; the trial court
therefore reasonably designated them as “showers” to explain how the actual physical
conditions related to their trial testimony. The record establishes that their involvement
was limited to that end, i.e., “showing” the jury what their words had described and the
photographs had depicted. [Citations] Given the court’s broad discretion in these
matters, we find no abuse in having the deputies respond to specific questions rather
than proceeding in some other manner. [Citation] Williamson’s statement that the
foliage differed in height from the time of the crime was also proper “to account for any
change in [the] condition between [its] state as shown by the evidence and [its]
appearance at the time the jury inspected [it].” [Citation]
We also find no prejudicial error with respect to defendant’s statutory rights. [Citation]
[I]n this case it is not reasonably probable that a more favorable result would have been
reached had defendant, in addition to his counsel, been present. [Citation] On this
record, we find “no sound basis to question the contemporaneous judgment of defense
counsel, with which defendant then agreed, that defendant’s trial interests would be
better served by not attending the jury view.” [Citation]
28 Bolin, 18 Cal. 4th at 324-325.
155
1
Petitioner has not convinced the Court that the comments of deputies Layman and Williamson,
2
while showing the jury the crime scene, violated § 1119, denying him federal rights. As noted, the
3
California Supreme Court, in rejecting this claim, broadly construed § 1119 to allow the appointed
4
showers “to explain how the actual physical conditions related to their trial testimony.” Id. at 324-25.
5
Because “their involvement was limited to that end,” id. at 325, and § 1119’s provision against
6
communicating with the jury has been recognized by the California Supreme Court as directed to
7
insulating the jury from “extraneous contact and potential tampering,” id. at 324, citing People v. Tarm
8
Poi, 86 Cal. 225 (1890), the California Supreme Court could reasonably have determined that no abuse
9
of discretion or violation of the statute occurred.
10
Petitioner has not cited any applicable clearly established Supreme Court laws. Accordingly,
11 the state supreme court’s decision is not contrary to or an unreasonable application of United States
12 Supreme Court precedent. Carey, 549 U.S. at 76.
13
Furthermore, to the extent Petitioner’s argument raises an issue of state law his claim is not a
14 basis for habeas relief. (ECF No. 113 at 123-25.) “[F]ederal habeas corpus relief does not lie for
15 errors of state law.” Lewis, 497 U.S. at 780. A federal habeas court may not examine questions of
16 state law; it “is limited to deciding whether a conviction violated the Constitution, laws, or treaties of
17 the United States.” Estelle, 502 U.S. at 67-68.
18
As with claim L1, ante, even if the Court were to assume the state law gave rise to a
19 protectable federal right, Petitioner has not demonstrated prejudice.
Petitioner concedes “the
20 requirements of Penal Code § 1119 have not been strictly construed by the California courts . . . .”
21 (ECF No. 178 at 158:1-2.) He complains of a lack of courtroom decorum and that the court clerk was
22 not present. Yet he does not explain with reference to the record how this, or the comments of the
23 “showers,” prejudicially impacted him.
24
In sum, the California Supreme Court could reasonably find that Petitioner did not make a
25 showing of why and how the manner in which the jury view was conducted denied him a fair trial.
26 This Court agrees with the state supreme court that, “[o]n this record, we find no sound basis to
27 question the contemporaneous judgment of defense counsel, with which defendant then agreed, that
28 defendant’s trial interests would be better served by not attending the jury view.” Bolin, 18 Cal. 4th
156
1
at 325.
2
It follows that the state supreme court’s rejection of the claim was not contrary to, or an
3
unreasonable application of, clearly established federal law, nor based on an unreasonable
4
determination of the facts in light of the evidence presented in the state court proceeding. See 28
5
U.S.C. § 2254(d).
6
7
Claim L2 is denied.
c.
Claim L3
8
In this next claim, Petitioner alleges that the viewing of the Sand Canyon Store by only 11 of
9
the 12 jurors violated Penal Code § 1119, that he did not waive this violation, and that the violation
10 denied him a fair jury trial and due process under state and federal law. (ECF No. 113 at 125-28.)
11
Petitioner raised this same claim on habeas corpus in the California Supreme Court. The
12 California Supreme Court ruled that Petitioner’s claim was procedurally barred because this claim
13 could have been, but was not raised on direct appeal. (CSC Order Den. Pet. Habeas Corpus [citing In
14 re Harris, 5 Cal. 4th at 825 n.3 and In re Dixon, 41 Cal. 2d at 759].) The California Supreme Court
15 also summarily rejected Petitioner’s claim on the merits without explanation. (CSC Order Den. Pet.
16 Habeas Corpus.)
17
18
19
20
1)
Clearly Established Law
The due process standard is set out in claim L1, ante.
2)
Analysis of Claim L3
Petitioner alleges that the jury, as a body, did not view the Sand Canyon Store, the location
21 where Petitioner and Ramirez met the victims on the day of the shootings. (RT at 2121.) Petitioner
22 states that he did not anticipate this alleged structural error and did not knowingly waive his rights
23 regarding it. (RT at 1892-93.)
24
As noted, juror Barnes, with the agreement of the parties and the trial court, was allowed to
25 drive home from the crime scene view separately from the other jurors. (RT at 2121.) After juror
26 Barnes departed, the remaining jurors were told they would drive past the Sand Canyon Store. (Id.)
27
Petitioner argues that once Barnes left, the jury was no longer constituted as a jury, such that
28 any action taken by the partial jury denied him fair trial and due process under Article I § 16 of the
157
1
California Constitution and the Fifth, Sixth and Fourteenth Amendments. Hicks, 447 U.S. at 346. He
2
argues the eleven jurors received additional information relevant to testimony of witnesses Ramirez
3
and Wilson outside his presence, i.e., effectively conducting the jury trial without the full jury. He
4
alleges this created structural error, exempt from harmless error review, and highly prejudicial under
5
Brecht.
6
This claim fails.
Preliminarily, the record is unclear whether juror Barnes and/or the
7
remaining 11 jurors actually drove past and saw the Sand Canyon Store. Equally uncertain is whether
8
deputies Layman and Williamson commented on the Store during the jury view. In short, Petitioner
9
makes no showing that during the jury view, any juror received information about the Store that was
10 relevant to the testimony of Ramirez and Wilson. The California Supreme Court would not have
11 been unreasonable in determining that speculation alone is not a basis for error.
12
Similarly, any violation of § 1119 could be seen as speculative. Even if juror Barnes was absent
13 from a jury viewing of the San Canyon Store, the state supreme court could reasonably find such a state
14 law violation did not result in a fundamentally unfair trial violating Petitioner’s constitutional rights.
15 Petitioner argues that because Ramirez and Wilson described the Sand Canyon Store in their testimony,
16 their credibility would have been impacted by any inconsistencies between their description of the Sand
17 Canyon Store and what the jury saw when viewing the Store. But Petitioner does not point to any facts
18 in his proffer suggesting such inconsistencies existed, much less reflected upon witness credibility.
19 This argument could be seen as speculative.
20
Petitioner’s citation to Hicks in support of the argument that § 1119 supports a state created due
21 process right is unavailing. Hick’s does not so hold. Petitioner does not demonstrate that the state
22 legislature intended this result, or that courts have interpreted § 1119 in this fashion.
23
Petitioner’s waiving attendance at the scene view did not run afoul of due process protections
24 for reasons discussed in claim L1, ante. Moreover, it appears that defense counsel was present during
25 the jury view and did not object in relation to any viewing of the Sand Canyon Store. (RT at 2121.)
26
Finally, Petitioner has not established any prejudice related to this allegation. Petitioner has
27 not demonstrated that the trial testimony of eyewitnesses Ramirez and Wilson was dependent upon or
28 related to the location and structure of the Sand Canyon Store or that the Sand Canyon Store had
158
1
some material relationship to other locations and events described in the trial testimony. Moreover,
2
all the jurors had seen photographs of the Sand Canyon Store. (RT at 1724-25; CT at 390). Even if
3
juror Barnes was absent from a viewing of the Store, the California Supreme Court could reasonably
4
have found this had only a minor, if any, impact on the jury’s determinations, for the reasons stated.
5
See e.g., Olano, 62 F.3d at 1188 (finding no error where juror missed an afternoon of testimony but
6
reviewed a written transcript of what he missed).
7
In sum, Petitioner makes no showing that during the jury view, any juror received information
8
about the Store that was relevant to the testimony of Ramirez and Wilson, or that any absence of juror
9
Barnes from a jury viewing of the San Canyon Store resulted in a fundamentally unfair trial violating
10 Petitioner’s constitutional rights.
11
It follows that the state supreme court’s rejection of the claim was not contrary to, or an
12 unreasonable application of, clearly established federal law, nor based on an unreasonable
13 determination of the facts in light of the evidence presented in the state court proceeding. See 28
14 U.S.C. § 2254(d).
15
16
17
Claim L3 is denied.
d.
Claim L4
In this final claim, Petitioner complains that the trial court did not take steps to reduce the
18 intrusive effect of press coverage during the jury view, denying Petitioner due process and a fair jury
19 trial under the Fifth, Sixth, and Fourteenth Amendments. (ECF No. 113 at 128-30.)
20
Petitioner raised this same claim on habeas corpus in the California Supreme Court. (CSC
21 Pet. Habeas Corpus at 197-200.) The California Supreme Court ruled that Petitioner’s claim was
22 procedurally barred because this claim could have been, but was not, raised on direct appeal. (CSC
23 Order Den. Pet. Habeas Corpus [citing In re Harris, 5 Cal. 4th at 825 n.3 and In re Dixon, 41 Cal. 2d
24 at 759].) The California Supreme Court also summarily rejected the claim on the merits without
25 explanation. (CSC Order Den. Pet. Habeas Corpus.)
26
27
28
1)
Clearly Established Law
The standard for due process is set out in claim L1, ante.
2)
Analysis of Claim L4
159
1
2
Petitioner argues that the jury view was tainted by excessive media involvement, denying
fairness and integrity of the proceedings.
3
The trial court, prior to the jury view, warned jurors that the press would be “tailing” them up
4
the mountain to the crime scene. (RT at 1892-93.) Petitioner claims that the media presence at the
5
jury view denied “judicial serenity and calm,” Estes, 381 U.S. at 536, and changed the jury’s
6
perception of the crime scene and how it relates to the testimony at trial. (ECF No. 113 at 129.) This,
7
he claims, had a substantial and injurious effect or influence in determining the jury’s verdict.
8
Brecht, 507 U.S. at 637.
9
But the state court could reasonably have found these allegations, relating to media at the jury
10 view and how the media might have influence matters there, to be speculative and without merit.
11 Petitioner seizes upon two comments the trial court made prior to the trip to the crime scene. (ECF
12 No. 113 at 128-29.) The court first stated: “[w]e will be tailed by a television crew who will be
13 filming again.” (RT at 1892.) Later, the court commented:
14
15
16
17
18
[T]his trip Monday has gotten a little more complicated and publicized than I might
wish, and I cannot close down these highways, at least I don’t think that’s within my
power, and there are going to be television stations following us up and down and
around, so I just have to warn you about that. Avoid contact with them, and I am sure
that we will make some security arrangements for you but there’s going to be more than
one television crew, I think, tailing us, so to speak, up the mountain. [Citation] The trial
court also told jurors that the media “are ordered not to talk [to you], and you are
ordered not to talk to them.
19
20 (RT at 1976-77.)
21
Notwithstanding these comments, nothing in the record reasonably suggests that media was in
22 fact present at the jury view. It follows that Petitioner’s suggestion the presence of the media “would
23 have dramatically altered the jury’s perceptions” of the crime scene, and his ruminations regarding
24 how media might have impacted the jury view, e.g., detracting from the sense of remoteness and
25 creating background noise, are all unavailing absent any showing the media was present for the
26 viewing. (ECF No. 113 at 129.) Petitioner was given the opportunity to obtain discovery regarding
27 this claim. (ECF No. 174 at 11.) Nonetheless, the claim remains unsupported in the record.
28
Even if the media was present for the jury’s view of the crime scene, the state supreme court
160
1
could reasonably have concluded there was no prejudice. Nothing in the record suggests media
2
activity that impacted or altered the jury’s view of the crime scene. The court referenced security
3
arrangements for the trip which could have ameliorated distraction the media might otherwise
4
present. (RT at 1893, 1976-77.) Moreover, the trial court admonished the jury numerous times to
5
avoid any and all contact with the media. (RT at 25, 228, 235, 249, 326, 1642-43, 1892-93, 1976-77,
6
2090.) Jurors are presumed to follow the court’s instructions. Olano, 507 U.S. at 740.
7
It follows that the California Supreme Court’s rejection of the claim was not contrary to, or an
8
unreasonable application of, clearly established federal law, nor based on an unreasonable
9
determination of the facts in light of the evidence presented in the state court proceeding. See 28
10 U.S.C. § 2254(d).
11
Claim L4 is denied.
12
5.
13
Petitioner, in his next claim, alleges trial court error by admitting cumulative, irrelevant, and
Review of Claim M
14 gruesome crime scene and autopsy photographs, discussed in claim I12, ante, which he alleged were
15 unduly prejudicial and violated Petitioner’s state law rights and rights under the Fifth, Eighth and
16 Fourteenth Amendments. (ECF No. 113 at 130-32.)
17
Petitioner presented these same allegations to the California Supreme Court on direct appeal.
18 The California Supreme Court held that Petitioner’s failure to object on federal constitutional grounds
19 in the trial court waived the claim. Bolin, 18 Cal. 4th at 319. The California Supreme Court also
20 held that Petitioner’s failure to object to the admission of photographs other than People’s Exhibits
21 42, 43, and 44 waived any state law objection to the remaining photographs. Id. at 319 n.4.
22
Petitioner raised this same claim on habeas corpus in the California Supreme Court. (CSC
23 Pet. Habeas Corpus at 148-150.) That court summarily rejected the claim on the merits without
24 explanation. (CSC Order Den. Pet. Habeas Corpus.)
25
26
27
28
a.
Clearly Established Law
As noted, a due process claim can be stated where graphic photos of victims make the trial
fundamentally unfair. Jammal, 926 F.2d at 919. However, photos that are relevant to the crime
charged and elements thereof are admissible. See Villafuerte, 75 F.3d at 1343.
161
1
Under California law, “photographs which disclose the manner in which the victim was
2
wounded are relevant on the issues of malice and aggravation of the crime and the penalty.”
3
Thompson, 50 Cal. 3d at 182. But otherwise relevant evidence will be precluded if “its probative
4
value is substantially outweighed by the probability that its admission will . . . create substantial
5
danger of undue prejudice, of confusing the issues, or of misleading the jury.” Evid. Code §§ 350,
6
352; People v. Cardenas, 31 Cal. 3d 897, 903-04 (1982).
7
b.
Analysis of Claim M
8
Petitioner revisits the photographs which were the subject of ineffective assistance of counsel
9
claim I12, ante, but this time alleging trial court error in allowing the prosecution to introduce the
10 color photographs of Mincy and Huffstuttler at the crime scene and during autopsy. (People’s Ex.’s.
11 3, 4, 10, 17, 35, 40, 42, 43, 44, 72, and 73; see RT at 2079-80, 2083-85, 2088; ECF No 113 at 130:2012 24; CT at 391.) These photographs were used by prosecution criminalist Laskowski to support his
13 allegedly improper blood splatter testimony.
(See e.g., RT at 2084.)
Petitioner claims the
14 photographs had a substantial and injurious effect or influence in determining the jury’s verdict.
15 Brecht, 507 U.S. at 637.
16
This claim fails for the same reasons discussed in claim I12, summarized below.
17
The state supreme court could reasonably have found the photographs corroborative of the
18 trial testimony and forensic evidence; relevant to expert testimony; probative for sentence selection;
19 and not unnecessarily inflammatory or gruesome.
These photographs clearly relate to the
20 circumstances of the murders and the identities of the victims. These photographs could reasonably
21 inform as to state(s) of mind of the perpetrator(s) and thus have probative value regarding charges and
22 elements including intent to kill, aggravation and penalty. Photographs that are relevant to the crime
23 charged are admissible.
See Villafuerte 75 F.3d at 1343; Thompson, 50 Cal. 3d at 182
24 (“[P]hotographs which disclose the manner in which the victim was wounded are relevant on the
25 issues of malice and aggravation of the crime and the penalty.”).
26
Significantly, criminologist Laskowski relied upon People’s Exhibits 42 through 44, 72, and 73
27 to support his testimony and conclusions that Huffstuttler was shot and died where he was found and
28 that he was shot after he was no longer moving. (RT at 2055-65.) The other photographs were not
162
1
close-ups and not particularly bloody or gruesome and were reasonably probative of the manner of
2
death and the crime scene and the victims in relation thereto. (RT at 1661-62, 1671, 1683, 1732, 1790-
3
92, 1817, 1946-47.)
4
Petitioner argues that the photographs were cumulative of and offered little beyond the
5
testimony of those who saw what was depicted. However, he does not point to facts in his proffer
6
showing the photographs lacked all probative value and permissible inference and were unduly
7
prejudicial and that their admission prevented Petitioner from having a fair trial. It appears that the
8
photographs informed the expert testimony of criminologist Laskowski (see People’s Ex.’s 42-44, 72-
9
73), and might have been of value to the jury in understanding and evaluating the credibility of this
10 and other testimony. See Batchelor v. Cupp, 693 F.2d 859, 865 (9th Cir. 1982) (“[A]dmission of
11 photographs lies largely within the discretion of the trial court, whose ruling will not be disturbed . . .
12 unless the admission of the photographs rendered the trial fundamentally unfair”). Some of the
13 photos were wide area shots of the crime scene, not focusing on the bodies, which reasonably could
14 have provided useful context to the testimony of the eyewitnesses. (See People’s Ex.’s 17, 35, 40.)
15
Even without the photographs, it is not reasonably probable the jury would have returned a
16 more favorable verdict.
Petitioner argues the jurors were likely to accord more weight to the
17 photographs than deserved because the jurors were unused to seeing such photos. But the noted
18 evidence against Petitioner including the circumstances surrounding the murders and their aftermath
19 was substantial. (See claims O, R and S, post.) As the California Supreme Court observed: “[w]ith
20 two eyewitnesses to the killing, the defendant’s state of mind and intent were the only issues open to
21 question. The forensic evidence bearing on those elements was straightforward, to the point, and not
22 susceptible to much controversy.” Bolin, 18 Cal. 4th at 313.
23
Petitioner’s argument that admission of the photos was unduly prejudicial and violated state
24 law, citing Pen. Code §§ 350, 352, cannot alone be a basis for federal habeas relief. Lewis, 497 U.S.
25 at 780; see also Pulley, 465 U.S. at 41.
26
For the reasons stated, admission of the photographs of the victims did not cause Petitioner’s
27 trial to be fundamentally unfair. Jammal, 926 F.2d at 919. This Court does not find that the state
28 supreme court’s rejection of the claim was contrary to, or an unreasonable application of, clearly
163
1
established federal law, as determined by the Supreme Court, or that the state court’s ruling was
2
based on an unreasonable determination of the facts in light of the evidence presented in the state
3
court proceeding. See 28 U.S.C. § 2254(d).
4
Claim M is denied.
5
6.
6
In this next claim, Petitioner alleges trial court error by allowing criminologist Laskowski to
7
testify as an “expert” regarding blood splatter evidence and by admitting his irrelevant, cumulative
8
and prejudicial testimony relating to blood splatter causing Petitioner’s trial to be unfair. (ECF No.
9
113 at 132:14-134:-1.)
10
Review of Claim N
Petitioner presented this claim to the California Supreme Court on direct appeal.
The
11 California Supreme Court held that Petitioner’s claim was waived because he failed to object
12 contemporaneously to Laskowski’s testimony on the grounds urged on appeal. Bolin, 18 Cal. 4th at
13 319.
14
Petitioner raised this same claim on habeas corpus in the California Supreme Court. (CSC Pet.
15 Habeas Corpus at 126-133.) The California Supreme Court summarily rejected the claim on the
16 merits without explanation. (CSC Order Den. Pet. Habeas Corpus.)
17
18
19
20
a.
Clearly Established Law
The standard for trial court error is set out at claim A.
b.
Analysis of Claim N
This claim is related to claims I8 and I9, denied ante, wherein Petitioner raised failure to
21 challenge Laskowski’s qualifications to opine on blood splatter evidence in the context of claimed
22 ineffective assistance of counsel.
23
Laskowski testified regarding analysis of bullets removed from the victims and the patterns of
24 blood spatters and drips on and near the victims. (RT at 2053-63.) Laskowski did so having never
25 visited the crime scene, relying instead on crime scene photographs. (RT at 2053-63.)
26
Petitioner alleges that Laskowski was not qualified to give expert testimony as to blood
27 splatter evidence. He alleges the testimony was not probative, but inflammatory, and so prejudicial
28 as to violate Petitioner’s federal due process rights.
164
He faults the trial court for allowing the
1
testimony and defense counsel for failing to challenge Laskowski’s qualifications as a blood splatter
2
expert. (ECF No. 113 at 132-34.)
3
Petitioner also alleges that California Supreme Court did not adjudicate the federal claims,
4
instead disposing of these allegations on state law procedural grounds given trial counsel’s failure to
5
contemporaneously object to Laskowski’s testimony. (ECF No. 113 at 133:22-26); see also Bolin, 18
6
Cal. 4th at 319.
7
However, the record reflects that the California Supreme Court on direct appeal did review
8
these same allegations, as a federal constitutional violation (ineffective assistance of counsel), and
9
denied them. See Bolin, 19 Cal. 4th at 321-22; see also claims I8-I9, ante. Thus the summary denial
10 does not alone rest on an unadjudicated procedural denial of these allegations. See e.g., Kernan v.
11 Hinojosa, No. 15-833, 2016 WL 2842454, at *2 (U.S. May 16, 2016) (strong evidence can refute
12 presumption that a later decision rejecting claim did so on the basis of an earlier reasoned opinion
13 imposing a procedural default).
14
In rejecting Petitioner’s related ineffective assistance of counsel claim based on failure to
15 challenge Laskowski’s qualifications, the state supreme court observed that:
16
22
Utilizing photographs of the crime scene, Criminalist Laskowski testified regarding the
various positions of Mincy's and Huffstuttler's bodies when they were shot. Based on
blood spatters and drips depicted in the photos, he indicated one shot was to Mincy's
body while in a “fetal-like” position on its left side; as to the others, his body was in a
vertical position. Laskowski also concluded Mincy “was moving at a relatively rapid
pace” after being initially wounded. With respect to Huffstuttler, he determined that for
several shots the body was prone and not moving. Defendant now contends this
evidence was inadmissible because the witness was not qualified to render an expert
opinion (Evid. Code, § 720) and because he did not personally investigate the crime
scene. He further asserts it should have been excluded pursuant to Evidence Code
section 352. Since he failed to make these objections at trial, the issue is waived.
[Citation]
23
…
24
Evidence Code section 720 provides that a person may testify as an expert “if he has
special knowledge, skill, experience, training, or education sufficient to qualify him,”
[Citation] which “may be shown by any otherwise admissible evidence, including his
own testimony.” [Citation] The trial court's determination of whether a witness qualifies
as an expert is a matter of discretion and will not be disturbed absent a showing of
manifest abuse. [Citation] “Where a witness has disclosed sufficient knowledge of the
subject to entitle his opinion to go to the jury, the question of the degree of his
knowledge goes more to the weight of the evidence than its admissibility.” [Citation]
17
18
19
20
21
25
26
27
28
The record establishes Laskowski was fully qualified to testify based on his educational
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3
4
5
6
7
8
9
10
background in biochemistry and serology and his training as a criminalist for 13 years,
including attending and giving seminars in blood-spatter analysis and crime scene
investigation. He had also testified as an expert witness on numerous prior occasions.
Given his expertise, Laskowski's testimony was not cumulative. Utilizing his knowledge
of blood spatters and drips, he was better able to describe the particulars of what
occurred during the shooting of Huffstuttler and Mincy than any photographic depiction
of their bodies. For example, he concluded from the spatter evidence that Mincy was
moving around after he was first shot and before he fell into a fetal position, where he
was shot one more time. He also explained that the large pool of blood around
Huffstuttler's body indicated he was prone and not moving when he received the final
shots. As discussed in other contexts, this evidence was relevant to the issues of intent
and premeditation and deliberation. The photographs Laskowski referred to adequately
illustrated his testimony; therefore, the fact he did not personally examine the crime
scene was a matter of evidentiary weight. Since his testimony was admissible on all
grounds, counsel had no basis for objecting.
Bolin, 18 Cal. 4th at 321-22.
This Court, for purposes of this claim, finds that the California Supreme Court’s conclusion
11 that Laskowski was “fully qualified” as an expert in blood spatter analysis, Bolin, 18 Cal. 4th at 32112 22, was not unreasonable given the facts on record and inference therefrom, as more fully discussed
13 in claims I8 and I9, ante. Laskowski’s testimony regarding the forensic evidence and photographs
14 was probative of the charged offenses and neither cumulative nor more prejudicial than probative.
15 See claims I8, I9 and M, ante, and O, post. The state court could reasonably have found his
16 testimony instructive on matters of intent, premeditation, deliberation, and self-defense, as explained
17 in claims I8, I9, M and O. Federal courts may not interfere with a state evidentiary ruling unless the
18 evidence was so prejudicial that its admission violated fundamental due process and the right to a fair
19 trial. Jeffries, 5 F.3d at 1192; Butcher, 758 F.2d at 378. Only if no permissible inferences can be
20 drawn from admitted evidence will due process be violated. Jammal, 926 F.2d at 920. This is not
21 such a case, for the reasons stated.
22
Even without Laskowski’s testimony, the California Supreme Court could have found no
23 reasonable probability and likelihood that the result of the proceeding would have changed. The
24 noted evidence of Petitioner’s guilt was substantial. (See claims O, R and S, post.) Laskowski’s
25 testimony was not the only evidentiary support for Petitioner’s intent, premeditation, and planning.
26 See Bolin, 18 Cal. 4th at 331-33.
As the California Supreme Court observed: “[w]ith two
27 eyewitnesses to the killing, the defendant’s state of mind and intent were the only issues open to
28 question. The forensic evidence bearing on those elements was straightforward, to the point, and not
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1
susceptible to much controversy.” Id. at 313.
2
For the reasons stated, the California Supreme Court’s rejection of the claim was not contrary
3
to, or an unreasonable application of, clearly established federal law, as determined by the Supreme
4
Court, or based on an unreasonable determination of the facts in light of the evidence presented in the
5
state court proceeding. See 28 U.S.C. § 2254(d).
6
Claim N is denied.
7
7.
8
Petitioner claims the evidence presented at trial was insufficient to prove beyond a reasonable
9
doubt all the elements of first-degree murder, denying him due process and a fair jury trial. (ECF No.
Review of Claim O
10 113 at 134-36.)
11
Petitioner raised this same claim on direct appeal. The California Supreme Court denied the
12 claim on the merits. Bolin, 18 Cal. 4th at 331-33.
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
a.
Clearly Established Law
Then applicable California law provided, “[m]urder is the unlawful killing of a human being .
. . with malice aforethought.” Pen. Code § 187, subd. (a). “[A]ll murder which is perpetrated . . . by
any kind of willful, deliberate, and premeditated killing . . . is murder of the first degree.” Pen. Code
§ 189; see People v. Berryman, 6 Cal. 4th 1048, 1085 (1993), overruled on other grounds, People v.
Hill, 17 Cal. 4th 800, 822-23 (1998). Premeditation and deliberation are generally established by
proof of (1) planning activity; (2) motive (established by a prior relationship and/or conduct with the
victim); and (3) manner of killing. People v. Anderson, 70 Cal. 2d 15, 26-27 (1968). The California
Supreme Court “sustains verdicts of first degree murder typically when there is evidence of all three
types and otherwise requires at least extremely strong evidence of (1) or evidence of (2) in
conjunction with either (1) or (3).” Id. at 27.
A federal habeas court reviews challenges to the sufficiency of the evidence by determining
whether in “viewing the evidence in a light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.” Lewis, 497 U.S. at
781. “A reviewing court must consider all of the evidence admitted by the trial court, regardless
whether that evidence was admitted erroneously.” McDaniel v. Brown, 558 U.S. 120, 131 (2010).
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Sufficiency of the evidence claims raised in § 2254 proceedings must be measured with
2
reference to substantive requirements as defined by state law. Jackson v. Virginia, 443 U.S. 307, 324
3
n.16 (1979). In cases where the evidence is unclear or would support conflicting inferences, the
4
federal court “must presume -- even if it does not affirmatively appear in the record -- that the trier of
5
fact resolved any such conflict in favor of the prosecution, and must defer to that resolution.” Id. at
6
326. To prevail here, Petitioner must show “that the prosecution’s case against him “was so lacking
7
that the trial court should have entered a judgment of acquittal.” McDaniel, 558 U.S. at 131.
8
AEDPA adds another layer of deference over the already deferential Jackson standard. Under
9
AEDPA, the federal court may not grant a habeas petition unless it finds that the state court
10 unreasonably applied the principles underlying the Jackson standard when reviewing the petitioner’s
11 claim. See, e.g., Juan H. v. Allen, 408 F.3d 1262, 1275 n.12 (9th Cir. 2005); Jones v. Wood, 114
12 F.3d 1002, 1013 (9th Cir. 1997) (recognizing that “unreasonable application” standard applies to
13 insufficient evidence claim). “Expressed more fully, this means a reviewing court faced with a record
14 of historical facts that supports conflicting inferences must presume -- even if it does not
15 affirmatively appear in the record -- that the trier of fact resolved any such conflicts in favor of the
16 prosecution, and must defer to that resolution.” McDaniel, 558 U.S. at 133.
17
18
b.
Analysis of Claim O
Petitioner alleges the evidence presented was insufficient to prove that he acted with
19 deliberation and premeditation. (ECF No. 113 at 134); Anderson, 70 Cal. 2d at 26-27. He re-argues
20 his voluntary manslaughter theory, namely, that the Huffstuttler shooting resulted from a sudden
21 argument with Petitioner (ECF No. 113 at 135:1-4) caused by Huffstuttler bringing Mincy and
22 Wilson to the cabin and showing them the marijuana field (RT at 1729-42, 1755, 1764-65).
23 Petitioner goes on to assert that he then immediately shot Mincy and Wilson (RT at 1741), not
24 because he planned to, but by reacting on impulse to a perceived threat from Huffstuttler and because
25 they were uninvited intruders. (ECF No. 113 at 135:13-17.)
26
Petitioner points out that Wilson initially told authorities he heard a scuffle before shots were
27 fired (RT at 1809-10), though by the time of trial he was unable to remember a scuffle. (RT at 1770.)
28 Petitioner also points out that the prosecution expert identified dust on Huffstuttler’s clothing which
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2
Petitioner contends is consistent with a struggle having occurred prior to the gunshots. (RT at 2071.)
Petitioner contends that this claim was not adjudicated by the state court because that court
3
did not address the constitutional issues presented. (ECF No. 135 at 135:24-25.)
4
disagrees for the reasons that follow.
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
This Court
The California Supreme Court considered and rejected these allegations on direct appeal,
noting that:
Defendant contends the evidence of first degree murder was insufficient to establish a
preconceived design or careful thought or reflection. [Citation] In particular, he argues
that he could not have formed the requisite state of mind because the unexpected arrival
of Mincy and Wilson immediately precipitated both the argument with Huffstuttler
about the strangers’ observations of the marijuana plants and the shootings.
In assessing the sufficiency of the evidence, we review the entire record in the light most
favorable to the judgment to determine whether it discloses evidence that is reasonable,
credible, and of solid value such that a reasonable trier of fact could find the defendant
guilty beyond a reasonable doubt. [Citations] Reversal on this ground is unwarranted
unless it appears “that upon no hypothesis whatever is there sufficient substantial
evidence to support [the conviction].” [Citation] In People v. Anderson, supra, 70 Cal.
2d at pages 26-27, we identified three categories of evidence relevant to resolving the
issue of premeditation and deliberation: planning activity, motive, and manner of killing.
However, as later explained in People v. Pride (1992) 3 Cal. 4th 195, 247: “Anderson
does not require that these factors be present in some special combination or that they be
accorded a particular weight, nor is the list exhaustive. Anderson was simply intended to
guide an appellate court’s assessment whether the evidence supports an inference that
the killing occurred as the result of preexisting reflection rather than unconsidered or
rash impulse. [Citation]” Thus, while premeditation and deliberation must result from “
‘careful thought and weighing of considerations’ “ (70 Cal. 2d at p. 27), we continue to
apply the principle that “[t]he process of premeditation and deliberation does not require
any extended period of time. ‘The true test is not the duration of time as much as it is the
extent of the reflection. Thoughts may follow each other with great rapidity and cold,
calculated judgment may be arrived at quickly ....’ [Citations]”
Defendant correctly notes the killings took place within a few minutes of the victims’
arrival at his cabin. What occurred within those few minutes, however, is particularly
telling with respect to his state of mind. According to both Wilson and Eloy Ramirez,
defendant began arguing with Huffstuttler when Mincy and Wilson were shown the
marijuana plants. Defendant continued berating Huffstuttler as the two walked back
toward the cabin. Defendant went inside, retrieved a revolver, and shot Huffstuttler at
close range. He proceeded back across the creek and confronted Wilson and Mincy.
After apologizing that he had “nothing against” them, he opened fire. As a wounded
Wilson fled the scene, he heard Mincy plead for his life. More shots were fired.
Defendant returned to Huffstuttler and fired several rifle rounds into his motionless
body. The autopsy report indicated at least three shots were inflicted before he died,
although according to Ramirez he did not move after the first shot. After the shootings,
defendant told Ramirez he was going to make the scene look like a bad dope deal had
occurred and scattered marijuana, broke bottles, and poured chili sauce around
Huffstuttler’s body. None of the victims were armed; nor did they engage in any
provocative conduct.
28
From this evidence, a reasonable trier of fact could infer defendant had a motive for the
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3
4
5
6
7
8
killings, both to punish Huffstuttler for revealing the marijuana operation to strangers
and to protect his crop from theft or exposure to law enforcement. He also may have
wanted to eliminate Mincy and Wilson as witnesses to the Huffstuttler shooting. In
conjunction with these possible motives, the manner of killing supports a finding of
premeditation and deliberation. Both victims died of multiple gunshot wounds, several
of which would have been fatal individually. While defendant fired some shots at Mincy
as he was attempting to flee, at least one shot entered his body as he lay in a fetal
position. This forensic evidence indicates defendant did not want merely to wound either
victim; he wanted to make certain they died. The trial testimony also suggests rapid but
purposeful planning activity once defendant realized the potential consequences of his
partner’s carelessness. While chastising Huffstuttler, he walked back to the cabin where
he got a gun. Rather than seek a reconciliation, he shot Huffstuttler without warning. He
then shot Mincy and Wilson and made good his escape after attempting to conceal his
own involvement in the crimes. Viewing the record in its entirety, we find sufficient
evidence to support the jury’s finding of first degree murder. [Citation] Defendant’s
argument simply asks this court to reweigh the facts.
9
10 Bolin, 18 Cal. 4th at 331-33. Petitioner argues the facts demonstrate that he had insufficient time to
11 plan the killings, and that he had no prior relationship with any of the victims that would suggest a
12 motive for the killings. (ECF No. 178 at 177:14-178:5, citing the Anderson factors.) The Court
13 disagrees for the reasons stated by the California Supreme Court. The trial record suggests Petitioner
14 was motivated to kill Huffstuttler for bringing strangers to the marijuana field, followed by some
15 amount of time to retrieve a gun, return and take Huffstuttler down to the ground with a single shot.
16 Petitioner then pursued Mincy, apologized for what he was about to do, and shot him dead while
17 Mincy begged to live. Petitioner’s conduct after the shootings could reasonably inform the manner in
18 which he killed his victims. See People v. Perez, 2 Cal.4th 1117, 1128 (1992). Petitioner searched
19 for Wilson after he escaped wounded into to the forest; when he could not find him, Petitioner
20 commented to Ramirez that Wilson would bleed to death before he got off the hill. (RT at 1928-29.)
21 Apparently to ensure this, Petitioner disabled Wilson’s truck, removing wires and discarding them
22 during his flight to Los Angeles. (RT at 1738, 1863-64, 1929, 1957, 1959, 1961, 1975.) Petitioner
23 altered the crime scene and then fled. All these facts reasonably suggest Petitioner was motivated to,
24 planned to and purposefully obtained a gun and shot Huffstuttler and Mincy in order to kill them.
25 These facts do not suggest the victims threatened to physically harm Petitioner.
26
A rational trier of fact could have found the essential elements of the crime beyond a
27 reasonable doubt based on the noted evidence in the record. The state supreme court’s denial of these
28 claims was not contrary to, or an unreasonable application of, clearly established federal law, or based
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1
on an unreasonable determination of the facts in light of the evidence presented in the state court
2
proceeding. See 28 U.S.C. § 2254(d).
3
4
For the stated reasons, the California Supreme Court reasonably rejected Petitioner’s
constitutional challenge to the sufficiency of the evidence. See 28 U.S.C. § 2254(d).
5
Claim O is denied.
6
8.
7
Petitioner next claims instructional error, in 10 subclaims, which he alleges individually,
8
cumulatively, and in combination with defense counsel’s deficient guilt phase closing argument (see
9
claim I17, ante), confused the elements of first degree murder, second degree murder, and voluntary
Review of Claim P
10 manslaughter, and denied him due process and a fair jury trial. (ECF No. 113 at 136-52.) Each
11 subclaim is discussed separately below.
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
a.
Clearly Established Law
Initially, the Court notes that any error in the state court’s determination of whether state law
supported an instruction in this case cannot form the basis for federal habeas relief. Estelle, 502 U.S.
at 71 (1991) (citing Marshall v. Lonberger, 459 U.S. 422, 438 n.6 (1983)) (“[T]he Due Process
Clause does not permit the federal courts to engage in a finely tuned review of the wisdom of state
evidentiary rules”). “Failure to give [a jury] instruction which might be proper as a matter of state
law, by itself, does not merit federal habeas relief.” Menendez v. Terhune, 422 F.3d 1012, 1029 (9th
Cir. 2005) (quoting Miller v. Stagner, 757 F.2d 988, 993 (9th Cir. 1985)).
The Supreme Court has stated instead that a claim that a court violated a petitioner’s due
process rights by omitting an instruction requires a showing that the error “so infected the entire trial
that the resulting conviction violate[d] due process.” Henderson v. Kibbe, 431 U.S. 145, 154 (1977)
(quoting Cupp, 414 U.S. at 147). The burden on Petitioner is especially heavy “where . . . the alleged
error involves the failure to give an instruction.” Clark v. Brown, 450 F.3d 898, 904 (9th Cir. 2006).
Even if constitutional instructional error has occurred, the federal court must still determine
whether Petitioner suffered actual prejudice, that is, whether the error “had substantial and injurious
effect or influence in determining the jury’s verdict.” Brecht, 507 U.S. at 637. A “substantial and
injurious effect” means a “reasonable probability” that the jury would have arrived at a different
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1
2
verdict had the instruction been given. Clark, 450 F.3d at 916.
b.
Review of Claim P1
3
Petitioner alleges that the trial court’s failure to instruct with CALJIC No. 3.31 allowed the
4
jury to convict him of two counts of premeditated first-degree murder without finding a joint
5
concurrence of an act and specific intent. (ECF No. 113 at 136-39; ECF No. 178 at 215.)
6
Petitioner raised this claim in his petition for writ of habeas corpus filed in the California
7
Supreme Court. The California Supreme Court found that Petitioner’s claim was procedurally barred
8
because it could have been, but was not, raised on direct appeal. (CSC Order Den. Pet. Habeas
9
Corpus [citing In re Harris, 5 Cal. 4th at 825 n.3 and In re Dixon, 41 Cal. 2d at 759].) The California
10 Supreme Court also summarily denied the claim on the merits without explanation. (CSC Order Den.
11 Pet. Habeas Corpus.)
12
Petitioner argues the trial court had a sua sponte duty to instruct on concurrent act and intent
13 where specific intent crimes, such as murder, were charged. (ECF No. 113 at 137:8-10); see People
14 v. Alvarez, 14 Cal. 4th 155, 220 (1996). He claims the trial court should have given CALJIC 3.31,
15 which requires that for murder there be a concurrence of act and intent, and states in pertinent part:
19
In the crime(s) and allegation(s) charged in Counts [ ] of the information, and [or] which
[is a] [are] lesser crime[s] thereto], [namely ___,], there must exist a union or joint
operation of act or conduct and a certain specific intent in the mind of the perpetrator.
Unless such specific intent exists the [crime(s)] [or] [allegation(s)] to which it relates [is
not committed] [or] [is not true]. [The specific intent required is included in the
definition[s] of the [crime[s]] [or] [allegation[s]] set forth elsewhere in these
instructions.]
20
Petitioner claims that, instead, the trial court gave CALJIC 3.31.5, which is to be read for
16
17
18
21 crimes in which a specific mental state is an element of the crime, as follows:
22
23
In each of the crimes charged in Counts one and two and in the lesser included crimes of
2nd degree murder and voluntary manslaughter there must exist a certain mental state in
the mind of the perpetrator and unless that mental state exists the crime to which it
relates is not committed . . . .
24
25 (RT at 2195-96.) He claims instruction 3.31.5 does not require concurrent act and intent and because of
26 that is intended to be read in addition to instruction 3.31 where the charged crime involves act and
27 intent. (ECF No. 113 at 137:19-24.) Petitioner claims that, because of this error, the jury was never
28 instructed that intent to kill had to be concurrent with the act of shooting the victims. As a result, he
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1
claims, the jury may have believed it could find the requisite mental states from actions that occurred
2
after the crimes. (ECF No. 113 at 139:1-4.)
3
Petitioner also argues that the government failed to carry its burden of showing this instructional
4
error was harmless beyond a reasonable doubt, Chapman, 386 U.S. at 23, and denied him due process,
5
a fair trial, and a reliable adjudication of the charges under Brecht, violating the Fifth, Sixth, Eighth and
6
Fourteenth Amendments. In re Winship, 397 U.S. 358, 364 (1970) (“[T]he Due Process Clause
7
protects the accused against conviction except upon proof beyond a reasonable doubt of every fact
8
necessary to constitute the crime with which he is charged.”).
9
Respondent concedes the trial court did not instruct with CALJIC No. 3.31 (which explains
10 the requirement of a joint concurrence of intent and act) in relation to counts I and II, but argues that
11 other instructions substantially covered the same principle. (ECF No. 194 at 209:1-3.)
12
The California Supreme Court, on direct appeal, considered claimed instructional error for
13 CALJIC 3.31.5, 8.30, 8.40 and 8.43, regarding mental state for lesser included offenses, and found
14 the instructions correctly stated the law and were not likely to confuse the jury when considered in
15 context and in relation to each other. Bolin, 18 Cal. 4th at 328-29.
16
The Court finds this claim to be unpersuasive.
The record reflects that the trial court
17 instructed the jury on the essential elements of murder (RT at 2197; CT at 458-59; CALJIC No.
18 8.10), on the intent required for first degree murder under the theory of willful, deliberate, and
19 premeditated killing (RT at 2198; CT at 463; CALJIC No. 8.20), and on the sufficiency of
20 circumstantial evidence to prove specific intent or mental state (RT at 2196-97; CT at 472; CALJIC
21 No. 2.02).
22
Furthermore, the trial court instructed that jury with CALJIC No. 3.31.5 as follows:
23
In each of the crimes charged in Counts 1 and 2 and in the lesser included crimes of
second-degree murder and voluntary manslaughter as to counts 1 and 2, there must exist
a certain mental state in the mind of the perpetrator, and unless that mental state exists,
the crime to which it relates is not committed.
24
25
26
27
28
The mental state required or the mental states required are included in the definition of
the crimes charged, which I will read to you later. The specific intent or mental state
with which an act is done may be shown by the circumstances surrounding the
commission of that particular act, but you may not find the defendant guilty of the
offenses charged in Counts 1, 2, and 3 [. . .] unless the proved circumstances which are
not only, first of all, consistent with the theory that the defendant had the required
specific intent or mental state but, secondly, cannot be reconciled with any other
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1
rational conclusion.
2
(RT at 2195-96, emphasis added.)
3
4
5
6
7
8
The trial court also instructed the jury with CALJIC No. 8.20 (ECF No. 113 at 139:12-19),
stating that:
All murder which is perpetrated by any kind of willful, deliberate and premeditated
killing with express malice aforethought is murder of the first degree. [¶] The word
“willful,” as used in this instruction, means intentional. [¶]
The word “deliberate” means formed or arrived at or determined upon as a result of
careful thought and weighing of considerations for and against the proposed course of
action. The word “premeditated” means considered beforehand. [¶]
9
10
The significance of an omitted instruction is evaluated by a comparison of the omitted
11 instruction with the instructions that were given. Murtishaw, 255 F.3d at 971 (citing Henderson, 431
12 U.S. at 156).
13
Here, the instructions given, in particular CALJIC Nos. 3.31.5 and 8.20 (see also claim P2, post)
14 expressed to the jury that the killing must be committed with the requisite mental state, i.e.,
15 intentionally, willfully and with premeditation, in order to be first degree murder.
The noted
16 instructions given specifically referenced the “specific intent or mental state with which an act is done.”
17 (RT at 2196.) The jury would have understood that there must be joint union of such intent and the act
18 of murder in order to find Petitioner guilty of first degree murder. The jury would not reasonably have
19 understood this instruction to consider only Petitioner’s mental state formed after the killings. See e.g.,
20 Alvarez, 14 Cal. 4th at 219-20 (holding that the omission of CALJIC No. 3.31 with regard to the
21 charge of murder did not require reversal because the murder instructions “substantially covered” the
22 concept of concurrence of act and specific intent); People v. Rodrigues, 8 Cal. 4th 1060, 1142-43
23 (1994) (holding that the court’s instructions as a whole properly guided the jury’s consideration of the
24 evidence because CALJIC No. 8.20 “adequately expressed the need for joint operation of act and intent
25 on that theory”) (citing People v. Kozel, 133 Cal. App. 3d 507, 522 (1982)); see also People v.
26 Benjamin, 52 Cal. App. 3d 63, 84-85 (1975).
27
The state supreme court could reasonably have found that the noted instructions given
28 adequately express the requirement for a joint concurrence of requisite intent and act with regard to first
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1
degree murder.
2
Petitioner may believe that CALJIC No. 3.31 would have communicated the relevant
3
principle to the jury better. However, “[t]he availability of a better instruction is not a ground for
4
reversal” under federal law. United States v. Ward, 914 F.2d 1340, 1344 (9th Cir. 1990).
5
Additionally, to the extent that Petitioner complains of a state law violation, this Court must
6
defer to the ruling by the California Supreme Court. Therefore, the issue before this Court is whether
7
any violation of state law occurred that rose to the level of a deprivation of a right guaranteed by the
8
federal Constitution. For the reasons stated, it did not.
9
It follows that the California Supreme Court’s rejection of the claim was not contrary to, or an
10 unreasonable application of, clearly established federal law, nor based on an unreasonable
11 determination of the facts in light of the evidence presented in the state court proceeding. See 28
12 U.S.C. § 2254(d).
13
14
15
Claim P1 is denied.
c.
Review of Claim P2
In this next claim, Petitioner alleges that the trial court prejudicially misspoke when
16 instructing the jury on the definition of first degree murder. (ECF No. 113 at 139-40.)
17
Petitioner raised this same claim in his petition for writ of habeas corpus in the California
18 Supreme Court. (CSC Pet. Habeas Corpus at 206-08.) The California Supreme Court ruled that
19 Petitioner’s claim was procedurally barred because this claim could have been, but was not, raised on
20 direct appeal. (CSC Order Den. Pet. Habeas Corpus [citing In re Harris, 5 Cal. 4th at 825 n.3 and In
21 re Dixon, 41 Cal. 2d at 759].) That court also summarily denied the claim on the merits without
22 explanation. (CSC Order Den. Pet. Habeas Corpus.)
23
Petitioner contends that the trial court read the word “reflex” instead of the word “reflection,”
24 when instructing with CALJIC No. 8.20 (ECF No. 113 at 139:12-19), specifically as follows:
25
26
27
28
All murder which is perpetrated by any kind of willful, deliberate and premeditated
killing with express malice aforethought is murder of the first degree. [¶] The word
“willful,” as used in this instruction, means intentional. [¶]
The word “deliberate” means formed or arrived at or determined upon as a result of
careful thought and weighing of considerations for and against the proposed course of
action. The word “premeditated” means considered beforehand. [¶]
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3
4
5
6
7
8
9
If you find that the killing was preceded and accompanied by a clear, deliberate intent on
the part of the defendant to kill, which was the result of deliberation and premeditation,
so that it must have been formed upon pre-existing reflex and not under a sudden heat of
passion or other condition precluding the idea of deliberation, it is murder of the first
degree. [¶]
The law does not undertake to measure in units of time the length of the period during
which the thought must be pondered before it can ripen into an intent to kill which is
truly deliberate and premeditated. The time will vary with different individuals and
under varying circumstances.
The true test is not the duration of time, but rather the extent of the reflection. A cold,
calculated judgment and decision may be arrived at in a short period of time, but a mere
unconsidered and rash impulse, even though it includes an intent to kill, is not
deliberation and premeditation as will fix an unlawful killing as murder of the first
degree. [¶] To constitute a deliberate and premeditated killing, the slayer must weigh
and consider the question of killing and the reasons for and against such a choice and,
having in mind the consequences, he decides to and does kill.
10
11 (RT at 2198-2200.) Petitioner argues this error prejudiced his defense. He claims the jury could have
12 convicted him of first degree murder even though he may have acted without malice aforethought.
13 He contends this instructional error was prejudicially erroneous not merely ambiguous, Boyde, 494
14 U.S. at 378-80, and had a substantial and injurious effect or influence in determining the jury’s
15 verdict. Brecht, 507 U.S. at 637.
16
Respondent concedes that the Reporter’s Transcript indicates the trial court misspoke by
17 stating the word “reflex,” instead of “reflection,” when reading CALJIC No. 8.20 to the jury. (ECF
18 No. 194 at 213:19-21; RT at 2198-2200.)
19
The Court finds this claim unavailing. The record reflects that the trial court also provided the
20 jury the instructions in written form, which correctly used the word “reflection” rather than “reflex.”
21 (CT at 412, 463.) Furthermore, the jury was instructed that “deliberate” means “formed or arrived at
22 or determined upon as a result of careful thought and weighing of considerations for and against the
23 proposed course of action,” and that premeditated means “considered beforehand.” (RT at 2198.)
24
Properly considering the jury instructions as a whole, the trial court’s misstatement was
25 unlikely to mislead the jury into believing, as Petitioner suggests, that they could convict him of
26 premeditated murder based on a “reflexive” urge to kill (ECF No. 178 at 187). See United States v.
27 Marin-Cuevas, 147 F.3d 889, 893 (9th Cir. 1998) (considering whether the jury instructions “taken as
28 a whole were misleading or represented a statement inadequate to guide the jury’s deliberations”
176
1
(quoting Stoker v. United States, 587 F.2d 438, 440 (9th Cir. 1978)) (emphasis in original).
2
In light of the definitions provided to the jury and the instruction as a whole, the California
3
Supreme Court reasonably could have found that no reasonable juror would give the instructions the
4
meaning that Petitioner proposes, rather than the obvious meaning stated in the written form. People
5
v. Crittenden, 9 Cal. 4th 83, 138 (1994) (inadvertent misreading of instruction not error where no
6
reasonable juror would have given the instruction the meaning asserted by defendant). It is not
7
reasonably likely that the jury would have misunderstood the instruction in this context. See Boyde,
8
494 U.S. at 380; United States v. Ancheta, 38 F.3d 1114, 1117 (9th Cir. 1994) (misreading of a single
9
phrase in the conspiracy instruction not plain error where corrected in the written instructions
10 provided to the jury).
11
Petitioner’s argument that the Ninth Circuit requires precedence be given to the oral
12 instructions, citing People of Territory of Guam v. Marquez, 963 F.2d 1311, 1314-15 (9th Cir. 1992),
13 is likewise misplaced. Marquez stands for the proposition that “all jury instructions must be read
14 aloud to the jury in the presence of counsel and the defendant.” 963 F.2d at 1314-15. The trial court
15 in Marquez failed entirely to instruct the jury orally on any elements of the crimes charged and the
16 definitions of the terms used in a description of the charges, providing only written instructions, such
17 that the reviewing court could not tell from the record whether each juror was aware of the elements.
18 Id. at 1315-16. The Marquez court found the refusal of the trial court to read the elements of the
19 alleged offense to be structural error that precluded harmless error analysis. Id.
20
Here, the trial court did not refuse to read the elements of the charged offense, but rather non-
21 prejudicially misspoke in doing so. Nor is Marquez clearly established law of the Supreme Court.
22 Casey, 386 F.3d at 907. Petitioner’s cited California v. Roy, 519 U.S. 2, 7 (1996), wherein that court
23 applied harmless error analysis in reviewing instructional error omitting the intent element from the
24 definition of the crime, is not authority that the error in this case was structural, or more than
25 harmless.
26
The California Supreme Court’s rejection of this claim was not contrary to, or an
27 unreasonable application of United States Supreme Court law, or based upon an unreasonable
28 determination of the facts.
177
1
For the reasons stated, claim P2 is denied.
d.
2
Review of Claim P3
3
In this claim, Petitioner alleges that the trial court prejudicially misspoke when instructing the
4
jury on the premeditation element of attempted murder (ECF No. 113 at 140-42), denying him due
5
process and a fair jury trial, in violation of his rights under the Fifth, Sixth, and Fourteenth
6
Amendments.
7
Petitioner raised this claim in his petition for writ of habeas corpus in the California Supreme
8
Court. The California Supreme Court ruled that Petitioner’s claim was procedurally barred because
9
this claim could have been, but was not, raised on direct appeal. (CSC Order Den. Pet. Habeas
10 Corpus [citing In re Harris, 5 Cal. 4th at 825 n.3 and In re Dixon, 41 Cal. 2d at 759].) The California
11 Supreme Court also summarily rejected Petitioner’s claim on the merits without explanation. (CSC
12 Order Den. Pet. Habeas Corpus.)
13
Petitioner alleges that the trial court read the word “events” in place of the word “reflection,”
14 when instructing with CALJIC No. 8.67. (ECF No. 141:1-4.) Specifically, the trial court instructed
15 the jury as follows:
16
17
18
19
20
21
22
23
24
25
26
27
28
It is also alleged in Count 3 that the crime attempted was willful, deliberate, and
premeditated murder. If you find the defendant guilty of attempted murder, you must
determine whether this allegation is true or not true. [¶] “Willful” means intentional.”
Deliberate” means formed or arrived at or determined upon as a result of careful thought
and weighing of considerations for and against the proposed course of action.
“Premeditated” means considered beforehand. [¶] If you find that the attempted murder
was preceded and accompanied by a clear, deliberate intent to kill, which was the result
of deliberation and premeditation, so that it must have been formed upon pre-existing
reflection and not under a sudden heat of passion or other condition precluding the idea
of deliberation, it is attempt to commit willful, deliberate, and premeditated murder. [¶]
The law does not undertake to measure in units of time the length of the period during
which the thought must be pondered before it can ripen into an intent to kill which is
truly deliberate and premeditated. The time will vary with different individuals and
under varying circumstances. [¶] The true test is not the duration of time, but rather the
extent of the events. A cold, calculated judgment and decision may be arrived at in a
short period of time, but a mere unconsidered and rash impulse, even though it includes
an intent to kill, is not deliberation and premeditation. [¶]To constitute willful,
deliberate, and premeditated attempted murder, the would-be slayer must weigh and
consider the question of killing and the reasons for and against such a choice and, having
in mind the consequences, decides to kill and makes a direct but ineffectual act to kill
another human being. [¶] The People have the burden of proving the truth of this
178
1
2
allegation. If you have a reasonable doubt that it is true, you must find it to be not true.
(RT at 2208-10) (emphasis added.)
3
Petitioner alleges that this error “instructed the jury to rely on the extent of Petitioner’s actions
4
or other events prior to the shootings, rather than the extent of any thought taken before [the
5
shootings],” precluding the jury from considering the requirement for deliberation. (ECF No. 113 at
6
141:5-8); see Roy, 519 U.S. at 7 ([prejudicial instructional error mis-describing element violates
7
constitution).
8
Petitioner alleges this instruction was not provided to the jury in writing, (ECF No. 178 at
9
181:6-17; CT 412-30), and that in any event the incorrect oral instruction must be given precedence.
10 Marquez, 963 F.2d at 1314-15.
11
Petitioner alleges this instruction was prejudicially erroneous, Boyde, 494 U.S. at 378-80, was
12 not harmless beyond a reasonable doubt, id., and had a substantial and injurious effect or influence in
13 determining the jury’s verdict. Brecht, 507 U.S. at 637.
14
Respondent does not dispute that the trial court read the word “events” in place of the word
15 “reflection,” when reading CALJIC No. 8.67. (RT at 2209.) However, Respondent contends, and the
16 record demonstrates that the trial court also provided the jury the instructions in written form, which
17 correctly used the word “reflection,” rather than “events.” (CT at 412, 486.) Moreover, it appears that
18 the jury was properly instructed that the crime of attempted murder must be committed with the
19 requisite mental state, i.e., willfully, deliberately and with premeditation. (CALJIC No. 8.67; RT at
20 2208-10.) Specifically, the instruction given provided that, in order to find Petitioner guilty of the
21 crime, the jury must find “that the attempted murder was preceded and accompanied by a clear,
22 deliberate intent to kill, which was the result of deliberation and premeditation, so that it must have
23 been formed upon pre-existing reflection and not under a sudden heat of passion or other condition
24 precluding the idea of deliberation[.]” (RT at 2209.)
25
The state supreme court, viewing the jury instructions as a whole, could have found no
26 reasonable likelihood that the jury’s finding of willful, deliberate and premeditated attempted murder
27 was based on “the events” surrounding the shooting of Mr. Wilson, rather than the extent of
28 Petitioner’s reflection. This is because the instructions given, viewed in toto, appear to clearly
179
1
require that the jury find Petitioner committed the act with this state of mind in order to find the
2
special allegation true. See Marin-Cuevas, 147 F.3d at 893 (stating the test for error is whether the
3
jury instructions “taken as a whole were misleading or represented a statement inadequate to guide
4
the jury’s deliberations”). It is not reasonably likely that the jury would have misunderstood the
5
instruction given the plain language of the instructional charge in its entirety. See Boyde, 494 U.S.
6
at 380; see Ancheta, 38 F.3d at 1117 (misreading of a single phrase in the conspiracy instruction not
7
plain error where corrected in the written instructions provided to the jury). Petitioner’s citation to
8
Roy is not authority otherwise, for the reasons stated, ante.
9
As was the case above, Petitioner’s reliance upon Marquez in support of this claim is
10 misplaced. The trial court in this action did not refuse to read the elements of the charged offense.
11
For the reasons stated, the California Supreme Court could reasonably conclude the jury was
12 not misled by the attempted murder instructional error.
13
The California Supreme Court’s rejection of this claim was not contrary to, or an
14 unreasonable application of, United States Supreme Court law, or based upon an unreasonable
15 determination of the facts.
16
17
18
Claim P3 is denied.
e.
Review of Claim P4
Petitioner alleges the trial court erred in giving duplicative, unnecessary and prejudicial
19 instructions, partially over defense objection, regarding both consciousness of guilt by suppression of
20 evidence (CALJIC 2.06) and flight from the crime scene (CALJIC 2.52). (ECF No. 113 at 142-44.)
21
Petitioner first raised this claim on direct appeal. The California Supreme Court found that
22 Petitioner had forfeited his right to object to any claim relating to CALJIC No. 2.06 by failing to
23 object below, and in fact agreeing that the evidence supported giving the instruction. Bolin, 18 Cal.
24 4th at 326-27 (citing People v. Jackson, 13 Cal. 4th 1164, 1223 (1996)). The California Supreme
25 Court also rejected the entire claim on the merits. Id.
26
Petitioner revisits allegations in claim I16 (ineffective assistance), alleging that the trial court
27 erred by giving CALJIC 2.06 (regarding consideration of suppression of evidence against defendant
28 as showing consciousness of guilt) and CALJIC 2.52 (regarding consideration of flight after
180
1
commission of a crime as showing consciousness of guilt). (RT at 2172-92; CT at 440, 450.)
2
Petitioner claims giving these instructions “effectively circumvented” the requirement that
3
jurors find deliberation and premeditation, Penal Code § 189, by “providing duplicitous jury
4
instructions which unduly emphasized noncriminal actions allegedly taken by [Petitioner] after the
5
shootings as the basis for using consciousness of guilt in place of a finding of deliberation and
6
premeditation.” (ECF No. 113 at 143:12-15.)
7
Petitioner claims these instructions may have drawn the jury’s attention from the
8
premeditation and deliberation elements, denying him due process and a fair trial under the Brecht
9
standard.
10
Petitioner also states that this claim was not adjudicated by the state court because that court
11 did not address the constitutional issues. (ECF No. 135 at 144:8-9.) The Court disagrees, for the
12 reasons stated below.
13
On direct appeal, the California Supreme Court considered whether the consciousness of guilt
14 instructions prejudicially emphasized “noncriminal conduct occurring after the shootings” and
15 concluded they did not, as follows:
16
17
18
19
20
21
22
23
24
25
26
27
28
CALJIC Nos. 2.06 and 2.52 do not impermissibly emphasize noncriminal activity as
“consciousness of guilt.” On the contrary, these instructions “made clear to the jury that
certain types of deceptive or evasive behavior on a defendant’s part could indicate
consciousness of guilt, while also clarifying that such activity was not of itself sufficient
to prove a defendant’s guilt, and allowing the jury to determine the weight and
significance assigned to such behavior. The cautionary nature of the instructions benefits
the defense, admonishing the jury to circumspection regarding evidence that might
otherwise be considered decisively inculpatory. [Citations] Moreover, section 1127(c)
requires a flight instruction when the prosecution relies on such conduct as tending to
show guilt.
As in past decisions, we find no merit in the contention the instructions improperly
allow the jury to draw inferences about defendant’s state of mind and equate evidence of
suppression or concealment with a confession. “A reasonable juror would understand
‘consciousness of guilt’ to mean ‘consciousness of some wrongdoing’ rather than
‘consciousness of having committed the specific offense charged.’ The instructions
advise the jury to determine what significance, if any, should be given to evidence of
consciousness of guilt, and caution that such evidence is not sufficient to establish guilt,
thereby clearly implying that the evidence is not the equivalent of a confession and is to
be evaluated with reason and common sense. The instructions do not address the
defendant’s mental state at the time of the offense and do not direct or compel the
drawing of impermissible inferences in regard thereto.” [Citation] For cognate reasons
they do not violate the proscription of Griffin v. California (1965) 380 U.S. 609, 615,
against referring to the defendant’s exercise of his Fifth Amendment right not to testify
181
as evidence of guilt. The instructions in no respect implicated defendant’s failure to
testify or directed the jury to draw negative inferences from it.
1
2
3
Bolin, 18 Cal. 4th at 326-27.
4
The Court finds this claim unpersuasive for the reasons stated above and those discussed in
5
claim I16, ante. These instructions appear to unequivocally state that the conduct described therein is
6
not sufficient to prove guilt, but instead that it “may be considered.” The California Supreme Court
7
could reasonably have found that these instructions did not improperly reduce the prosecution’s burden
8
of proof. See Allen, 442 U.S. at 167 (prosecution may rely on all the evidence in the record to meet the
9
reasonable doubt standard where the state presumption is permissive rather than mandatory).
10
Furthermore, the California Supreme Court found these instructions appropriately supported by
11 the trial record:
12
13
14
15
[S]ufficient evidence supported the instruction in light of Ramirez’s testimony defendant
attempted to make the murder scene “look like a bad dope deal” by breaking bottles,
scattering loose marijuana, and shooting the body several more times with a rifle after
the initial revolver shot. Defendant wiped his fingerprints off the handgun, put the
weapon in Huffstuttler’s hand, placed a knife near the body, and poured chili sauce
around it. He then fled south before leaving the state for Chicago. Along the way he
threw away some wires he had taken to disable Wilson’s truck.
16 Bolin, 18 Cal. 4th at 327. This Court finds no basis to depart from these factual determinations, which
17 are to be “presumed correct absent clear and convincing evidence to the contrary.” Miller-El, 537 U.S.
18 at 340; 28 U.S.C. § 2254 (e)(1). The crime was remote and secluded. (RT at 1731, 1760-61.)
19 Petitioner told Huffstuttler, just prior to shooting him, that it was a “no-no” to bring people to see the
20 marijuana plantation. (RT at 1739, 1922, 1950.) Petitioner also told Vance that he did not know Mincy
21 and Wilson and could not understand Huffstuttler’s reasons for bringing them to see the marijuana
22 plants. (RT at 1739-40.) Immediately after shooting Huffstuttler, Petitioner approached Mincy and
23 Wilson with a gun, told them that he had nothing against them, and then shot them. (RT at 1741.)
24
Accordingly, this Court finds that the California Supreme Court could reasonably conclude that
25 sufficient evidence was presented to justify giving instructions regarding consciousness of guilt and
26 flight.
27
The California Supreme Court’s rejection of this claim was not contrary to or an unreasonable
28 application of, United States Supreme Court law, or based upon an unreasonable determination of the
182
1
2
3
facts.
Claim P4 is denied.
f.
Review of Claim P5
4
Petitioner’s next claim alleges that the trial court erred by instructing the jury with CALJIC
5
1.00 (Respective Duties of Judge and Jury), CALJIC 2.51 (Motive), and CALJIC 2.52 (Flight After
6
Crime), which directed the jury to decide between “guilt and innocence,” rather than between “guilty
7
and not guilty.” (ECF No. 113 at 144-45.) He claims this error lowered the prosecution’s burden to
8
prove guilt beyond a reasonable doubt, depriving Petitioner of his Fifth, Sixth, and Fourteenth
9
Amendment rights to a jury trial, due process, and a reliable penalty determination. (Id.; ECF No.
10 178 at 195-98.)
11
Petitioner raised this same claim in his petition for writ of habeas corpus in the California
12 Supreme Court. The California Supreme Court ruled that Petitioner’s claim was procedurally barred
13 because this claim could have been, but was not raised on direct appeal. (CSC Order Den. Pet.
14 Habeas Corpus [citing In re Harris, 5 Cal. 4th at 825 n.3 and In re Dixon, 41 Cal. 2d at 759].) The
15 California Supreme Court also summarily rejected Petitioner’s claim on the merits without
16 explanation. (CSC Order Den. Pet. Habeas Corpus.)
17
Petitioner alleges that the jury’s obligation is to find whether there is sufficient evidence to
18 support a guilty verdict, and that use of an “innocence” standard impermissibly relieves the
19 prosecution of the burden to prove guilt and places the burden on Petitioner to prove innocence.
20 (ECF No. 113 at 144:24-25); Mullaney v. Wilbur, 421 U.S. 684, 704 (1975) (due process requires
21 that prosecution prove beyond a reasonable doubt the absence of heat of passion when the issue is
22 presented in a homicide case). Petitioner points to the trial court’s reading of CALJIC Nos. 1.00,
23 2.51, and 2.52 referring to “innocent” or “innocence”, as follows:
24
CALJIC No. 1.00, discussing the respective duties of the judge and the jury, included, as
25 given, in its final paragraph:
26
27
28
You must not be influenced by pity for a defendant or by prejudice against him. You
must not be biased against the defendant because he was arrested for this offense,
because he was charged with certain crimes, or because he was brought here to stand
trial. None of these circumstances is evidence of his guilty [sic], and you must not infer
or speculate from any or all of them that he is more likely to be guilty than innocent.
183
1
(RT at 2183.)
2
CALJIC No. 2.51, instructing on motive, as given, provided:
3
Motive is not an element of the crimes charged and it does not have to be shown.
4
However, you may consider motive or lack of motive as a circumstance in this case.
Presence of motive may tend to establish guilt and absence of motive may tend to
establish innocence. You will, therefore, give its presence or absence, as the case may
be, the weight to which you find it to be entitled.
5
6
7
(RT at 2191.)
8
CALJIC No. 2.52, instructing on flight, as given, provided:
9
The flight of a person immediately after the commission of a crime or after being
accused of a crime is not sufficient in itself to establish guilt, but it is a fact which, if
proved, may be considered by you in light of all the other proved facts in deciding the
question of his guilt or his innocence.
10
11
12 (RT at 2191-92.)
13
Petitioner contends it was not enough that subsequent instructions may have correctly stated
14 the law because the jurors’ deliberative process had been “inescapably tainted” by the “notion that
15 they had to find [Petitioner] innocent of the offenses to return a verdict of not guilty.” (ECF No. 113
16 at 145:2-6.)
17
Petitioner contends that requiring the jury to decide between “guilty” and “innocence” had a
18 substantial and injurious effect or influence on the jury’s determination of a verdict, Brecht, 507 U.S.
19 at 637, denying him due process and a fair jury trial.
20
The Court is not persuaded by this claim. The record shows that the trial court instructed the
21 jury with CALJIC No. 1.01, requiring that the jury consider the instructions as a whole. (RT at 218322 84.) A reasonable juror would have understood that any reference to guilt or innocence in these
23 instructions was to be considered in light of CALJIC No. 2.90, instructing the jury that it must use the
24 proof-beyond-a-reasonable-doubt standard in its determination of guilt. (RT at 2195.)
25
Also, as Respondent points out, the trial court also made several references to reasonable
26 doubt. It did so when instructing on: (1) sufficiency of circumstantial evidence (CALJIC No. 2.01;
27 RT at 2186-87), (2) reliance on the state of the evidence (CALJIC No. 2.61; RT at 2192), (3) murder
28 and manslaughter distinguished (CALJIC No. 8.50; RT at 2204), (4) reasonable doubt as to whether a
184
1
murder was of the first or second degree (CALJIC No. 8.71; RT at 2205), (5) reasonable doubt as to
2
whether killing was murder or manslaughter (CALJIC No. 8.72; RT at 2205), (6) special
3
circumstances (CALJIC No. 8.80; RT at 2206), (7) willful, deliberate, and premeditated attempted
4
murder (CALJIC No. 8.67; RT at 2210), (8) use of a firearm (CALJIC No. 17.19; RT at 2213), and
5
(9) implied acquittal before conviction of a lesser included or lesser related offense (CALJIC No.
6
17.10; RT at 2214). (See ECF No. 194 at 224.)
7
The Court finds that the California Supreme Court could reasonably have determined that
8
CALJIC Nos. 1.00, 2.51, and 2.52, considered in conjunction with the entire set of instructions,
9
including CALJIC No. 2.90, sufficiently made the jury was aware that it must apply the beyond-a-
10 reasonable-doubt standard of proof. (See RT at 2183, 2191-92; CT at 432-33, 449-50.)
11
“Although the Constitution does not require jury instructions to contain any specific language,
12 the instructions must convey both that a defendant is presumed innocent until proven guilty and that
13 he may only be convicted upon a showing of proof beyond a reasonable doubt.” Gibson v. Ortiz, 387
14 F.3d 812, 820 (9th Cir. 2004), overruled on other grounds by Byrd v. Lewis, 566 F.3d 855, 866 (9th
15 Cir. 2009). “Any jury instruction that reduces the level of proof necessary for the Government to
16 carry its burden is plainly inconsistent with the constitutionally rooted presumption of innocence.”
17 Id. “Any challenged instruction must be considered in light of the full set of jury instructions and the
18 trial record as a whole.” Id. at 821.
19
Here, for the reasons stated, the use of the noted instructions could not reasonably have
20 resulted in the violation of any constitutional right.
21
The California Supreme Court’s rejection of this claim was not contrary to, or an
22 unreasonable application of, United States Supreme Court law, or based upon an unreasonable
23 determination of the facts.
24
25
26
Claim P5 is denied.
g.
Review of Claim P6
In this claim Petitioner alleges that the trial court misread CALJIC 2.22, the instruction on
27 weighing conflicting testimony. (ECF No. 113 at 145-47.)
28
Petitioner first raised this claim in his petition for writ of habeas corpus in the California
185
1
Supreme Court. The California Supreme Court ruled that Petitioner’s claim was procedurally barred
2
because this claim could have been, but was not, raised on direct appeal. (CSC Order Den. Pet.
3
Habeas Corpus [citing In re Harris, 5 Cal. 4th at 825 n.3 and In re Dixon, 41 Cal. 2d at 759].) The
4
California Supreme Court also summarily rejected Petitioner’s claim on the merits without
5
explanation. (CSC Order Den. Pet. Habeas Corpus.)
6
Petitioner alleges that the trial court prejudicially misspoke when instructing with CALJIC
7
No. 2.22, regarding the weight to be given to conflicting testimony. The Reporter’s Transcript
8
indicates that the court instructed the jury with CALJIC No. 2.22, as follows:
9
10
11
12
Now, you are not bound to decide an issue of fact in accordance with the testimony of [a
number of] witnesses which does not convince you as against the testimony of a lesser
number or some other evidence which appeals to your mind with more convincing force.
[¶] You may not disregard the testimony of the greater number of witnesses merely from
caprice or whim or prejudice or from a desire to favor one side as against the other. [¶]
You must not decide an issue by the simple process of counting the number of witnesses
who have testified on the opposing sides [because] [t]he final test is not in the relative
[number of witnesses but in the] convincing force of the evidence.
13
14 (RT at 2190-91 [material omitted by the court is striked-through, bolded and bracketed; material
15 added by the trial court is bolded and bracketed].)
16
Petitioner argues this instruction, as read, suggested jurors should not resolve conflicting
17 testimony by focusing on the convincing force of evidence but rather on matters outside the
18 evidentiary record, and allowed the jurors to disregard one witness’s credible testimony in favor of
19 testimony from two witnesses lacking in credibility, the opposite of what the instruction was intended
20 to convey. He contends this was especially prejudicial given the pretrial publicity from the America’s
21 Most Wanted program and what he believes was the substantially conflicting testimony from the two
22 eyewitnesses, Ramirez (who testified the shooting occurred outside the cabin and that Wilson and
23 Mincy were on their way to the cabin) (RT at 1923, 1952), and Wilson (who testified he originally
24 thought that the shooting occurred inside the cabin and that he was in the creek bed at the time). (RT
25 at 1768-69.) He suggests a properly instructed jury would have found Wilson more credible. (ECF
26 No. 113 at 147:8-11.) He claims the instructional error was prejudicial because Wilson’s testimony
27 supported Petitioner’s “heat of passion” defense. (ECF No. 113 at 147:14-17.)
28
Petitioner also claims this instruction was not provided to the jury in writing. However, the
186
1
record reflects that the trial court provided the jury the instruction in written form. The copy of
2
CALJIC No. 2.22 provided to the jury during deliberations was worded correctly and properly set
3
forth the jury’s duty in weighing conflicting testimony. (CT at 412, 447.)
4
The trial court also clearly instructed the jury that it must:
5
[D]ecide all of the questions of fact in this case from the evidence received in this trial
and not from any other source. That means that you must not make any independent
investigation of the fact or the law or consider or discuss facts as to which there is no
evidence.
6
7
8
(RT at 2184-85.) The California Supreme Court, upon consideration of this instruction, could have
9
determined there is no reasonable likelihood that the jury based its decision on sources outside of
10 evidence presented at trial simply because the trial court omitted the phrase “number of” when
11 instructing with CALJIC No. 2.22.
12
CALJIC No. 2.22, as read to the jury, plainly told the jury that it “is not bound to decide an
13 issue of fact in accordance with the testimony of witnesses which does not convince you as against
14 the testimony of a lesser number or some other evidence which appeals to your mind with more
15 convincing force.” (RT at 2190.) In light of this instruction, there is no reasonable likelihood that the
16 jury would have disregarded the credible testimony of one witness in favor of the less-credible
17 testimony of two other witnesses.
18
The Court also finds that, viewing the jury instructions as a whole, there is no reasonable
19 likelihood that the jury would have been confused or misled into believing, as Petitioner suggests,
20 that they could find him guilty of the premeditated attempted murder based on information presented
21 outside of the trial, or by incorrectly weighing witness testimony. Given the instructions as a whole,
22 a reasonable juror would give the instructions the obvious meaning stated in the written form.
23 Crittenden, 9 Cal. 4th at 13; see also Marin-Cuevas, 147 F.3d at 893 (stating the test for error is
24 whether the jury instructions “taken as a whole were misleading or represented a statement
25 inadequate to guide the jury’s deliberations” (emphasis in original)). It is not reasonably likely that
26 the jury would have misunderstood the instruction in this context. As was the case above, the Court
27 finds that Petitioner’s cited case of Roy, 519 U.S. at 7, is not authority otherwise.
28
Additionally, any possible misunderstanding that could have resulted from the court’s
187
1
misstatement was harmless because the written instructions given to the jury provided the correctly
2
worded instruction. See Ancheta, 38 F.3d at 1117.
3
The California Supreme Court’s rejection of this claim was not contrary to, or an
4
unreasonable application of, United States Supreme Court law, or based upon an unreasonable
5
determination of the facts.
Claim P6 is denied.
6
h.
7
Review of Claim P7
8
Petitioner next alleges that the trial court misread the instruction on the special circumstance
9
of multiple murder, CALJIC 8.80, denying Petitioner due process and reliable sentencing, violating
10 the Sixth, Eighth and Fourteenth Amendments. (ECF No. 113 at 148-49.)
11
On direct appeal, Petitioner claimed that CALJIC No. 8.80 did not define “reasonable doubt.”
12 The California Supreme Court held that the trial court’s instruction with CALJIC No. 8.80 correctly
13 stated the law and that Petitioner waived the issue on appeal based on his defense counsel’s failure to
14 request clarification or amplification of the instruction. Bolin, 18 Cal. 4th at 327-28 (citing People v.
15 Arias, 13 Cal. 4th 92, 171 (1996)); People v. Byrnes, 30 Cal. 206, 208 (1866)). The California
16 Supreme Court also rejected Petitioner’s claim on the merits. Id. at 328.
17
Petitioner raised that claim a second time in his petition for writ of habeas corpus in the
18 California Supreme Court and added the allegations in this claim. The California Supreme Court
19 ruled the habeas claim was procedurally barred because it could have been, but was not raised on
20 direct appeal. (CSC Order Den. Pet. Habeas Corpus [citing In re Harris, 5 Cal. 4th at 825 n.3 and In
21 re Dixon, 41 Cal. 2d at 759].) The California Supreme Court also summarily rejected the habeas
22 claim on the merits without explanation. (CSC Order Den. Pet. Habeas Corpus.)
23
Petitioner argues that the trial court’s reading of CALJIC No. 8.80 was incomprehensible, did
24 not define “reasonable doubt,” and did not inform the jurors that they must find the special
25 circumstance to be true beyond a reasonable doubt by unanimous finding. (ECF No. 113 at 148:1426 18.)
27
At the time of trial, CALJIC 8.80 read as follows:
28
If you have a reasonable doubt as to whether a special circumstance is true, you must
188
1
2
find it to be not true . . . In order to find a special circumstance alleged in the case to be
true or untrue, you must agree unanimously.
CALJIC 8.80 (1989 Revision)
3
4
Petitioner claims the trial court read CALJIC 8.80 as follows:
5
If you have a reasonable doubt as to whether a special circumstance is true, you must
find it to be unreasonable. In order to find the special circumstance alleged in the case
to be true or untrue, it has unanimously.
6
7
8
9
(RT at 2206, emphasis added.)
Petitioner claims that the jury was not instructed that the special circumstance finding had to be
10 beyond a reasonable doubt, Santosky v. Kramer, 455 U.S. 745, 755 (1982); In re Winship, 397 U.S.
11 358, 361 (1970), and had to be unanimous, People v. Collins, 17 Cal. 3d 687, 693 (1976). He claims
12 this resulted in structural error, Boyde, 490 U.S. at 380, and an unreliable death finding and death
13 sentence. Ford v. Wainwright, 477 U.S. 399, 414 (1986). Petitioner also claims this instruction as not
14 provided to the jury in writing. (CT at 412-30.)
15
Here, the record reflects that the trial court read the word “unreasonable,” instead of the phrase
16 “not true,” when reading CALJIC No. 8.80, as follows:
17
18
19
20
21
22
Now, if you find the defendant in this case guilty of murder of the first degree, you must
then determine if the following circumstance is true or not true. That special
circumstance is multiple murder. The People have the burden of proving the truth of that
special circumstance.
If you have a reasonable doubt as to whether or not a special circumstance is true, then
you must find it to be unreasonable. In order to find the special circumstance alleged in
this case to be true or untrue, it has to be unanimous. You will state your special finding
as to whether the special circumstance is or is not true on the form that will be handed to
you at the end of these instructions.
23 (RT at 2206-2207) (emphasis added); see also CSC Order dated 9/24/97.
24
The California Supreme Court rejected on direct appeal the allegation that the jury was not
25 sufficiently instructed that it must find the special circumstance to be true beyond a reasonable doubt,
26 and on the definition of reasonable doubt, stating that:
27
28
Shortly before giving the special circumstance instruction, the court had already charged
the jury that the defendant is presumed innocent and that the prosecution has the burden
of proving guilt beyond a reasonable doubt. It then delineated the applicable standard:
189
1
2
3
4
5
6
7
8
9
10
“Reasonable doubt is defined as follows: It is not a mere possible doubt because
everything relating to human affairs and depending on moral evidence is open to some
possible or imaginary doubt. It is that state of the case which after the entire comparison
and consideration of all the evidence leaves the minds of the jurors in that condition that
they cannot say they feel an abiding conviction to a moral certainty of the truth of the
charge.”
It is well established in California that the correctness of jury instructions is to be
determined from the entire charge of the court, not from a consideration of parts of an
instruction or from a particular instruction. [T]he fact that the necessary elements of a
jury charge are to be found in two instructions rather than in one instruction does not, in
itself, make the charge prejudicial. The absence of an essential element in one
instruction may be supplied by another or cured in light of the instructions as a whole.
In [People v. Burgener, 41 Cal. 3d 505 (1986)], the court had not defined reasonable
doubt in conjunction with the instruction on express malice but had given the definition
elsewhere. Hence, the instruction was not defective. Given the entirety of the charge to
the jury, it is clear that there is no reasonable possibility that the jury could have been
misled as to the appropriate standard for their special finding on express malice. The
instructions taken as a whole indicate that the prosecution’s burden of proof throughout
was proof beyond a reasonable doubt. We reach a similar conclusion on this record.
11
12 Bolin, 18 Cal. 4th at 328.
13
On this basis, the California Supreme Court could reasonably have found any error was no more
14 than harmless. See Neder v. United States, 527 U.S. 1, 8 (1999) (“most constitutional errors can be
15 harmless”) (quoting Arizona v. Fulminante, 499 U.S. 279, 306 (1991)). Any error by failing to instruct
16 the jury specifically that it must find the special circumstance unanimously true beyond a reasonable
17 doubt appears similar to a jury instruction that omits an element of an offense, which is subject to
18 harmless error analysis. See Neder, 527 U.S. at 10.
19
The jury was correctly instructed on reasonable doubt before the special circumstance
20 instruction was given. Bolin, 18 Cal. 4th at 328. A reasonable juror would have understood from the
21 trial judge’s instruction that the multiple murder special circumstance could not be found unless, based
22 on the evidence presented at trial, all jurors unanimously believed the special circumstance was true
23 beyond a reasonable doubt. (RT at 2206-2207.) The jurors were given the CALJIC No. 8.80 special
24 circumstance form referred to by the judge in his instructions (id.) upon which to render its true or not
25 true finding on the special circumstance. (See CT at 537.) Furthermore, the jury was polled following
26 the penalty verdict and revealed that its decision was unanimous. (RT at 2620.) Given this record, it
27 does not reasonably appear that the jury could have been misled as to the appropriate standards for
28 finding the special circumstance to be true.
190
1
Additionally, the trial court did provide the jury with the correctly worded instruction in
2
written form. (CT at 412, 481-82.) The trial court also read to the jury similar instructions regarding
3
true or not true findings as to willful, deliberate, and premeditated attempted murder (CALJIC No.
4
8.67; RT at 2210), and personal use of a firearm (CALJIC No. 17.19; RT at 2213).
5
Petitioner does not make an evidentiary showing of any trial court misstatement related to the
6
unanimity requirement. (CT at 481; RT at 2206; CSC Order dated 9/24/97.) It appears that the
7
California Supreme Court corrected the language “it has unanimously” by replacing it with “it has to
8
be unanimous.” (See CSC Order dated September 24, 1997.)
9
The entire charge to the jury was clear that it had to make a true or not true finding, not an
10 “unreasonable” finding, on the special circumstance. Cupp, 414 U.S. at 146-47. Furthermore, a true
11 finding on the special circumstance of multiple murder followed from the jury’s verdicts of guilt on
12 both of Petitioner’s first degree murder counts. (CT at 533, 535, 537.)
13
The California Supreme Court’s rejection of this claim was not contrary to, or an
14 unreasonable application of, United States Supreme Court law, or based upon an unreasonable
15 determination of the facts.
16
17
18
Claim P7 is denied.
i.
Review of Claim P8
Petitioner next alleges that the trial court misread CALJIC 17.40, errantly instructing the jury
19 to discuss the evidence with individuals other than their fellow jurors. (ECF No. 113 at 149-50.)
20
Petitioner first raised this claim in his petition for writ of habeas corpus in the California
21 Supreme Court. The California Supreme Court ruled that Petitioner’s claim was procedurally barred
22 because this claim could have been, but was not, raised on direct appeal. (CSC Order Den. Pet.
23 Habeas Corpus [citing In re Harris, 5 Cal. 4th at 825 n.3 and In re Dixon, 41 Cal. 2d at 759].) The
24 California Supreme Court also summarily rejected Petitioner’s claim on the merits without
25 explanation. (CSC Order Den. Pet. Habeas Corpus.)
26
Petitioner alleges that the trial court’s misreading invited each juror to discuss the evidence,
27 not with “the other jurors” but rather with “your colleagues.” (RT at 2216; CT at 506.)
28
At the time of trial, CALJIC 17.40, entitled “Individual Opinion Required – Duty to
191
1
2
Deliberate,” read as follows:
Each of you must decide the case for yourself, but should do so only after discussing the
evidence and instructions with the other jurors.
3
4
CALJIC 17.40 (1989 Revision, emphasis added)
5
Petitioner claims the trial court read CALJIC 17.40 as follows:
6
Each of you must decide the case for yourself, but should do so only after discussing the
evidence and instructions with your colleagues.
7
8
9
(RT at 2216, emphasis added.)
Petitioner argues that, because of this error, the jurors may not have based their verdict “solely
10 on the evidence before them in a fair and unbiased manner” (ECF No. 113 at 150:3-4), denying him
11 due process, violating the Fifth, Sixth and Fourteenth Amendments.
He claims the error had a
12 substantial and injurious effect or influence in determining the jury’s verdict. Brecht, 507 U.S. at 637.
13
This claim fails. When considered in context, it is clear that the jurors’ “colleagues” were
14 limited to the other jurors. The instruction itself provided that each of them had to decide the case for
15 themselves after discussing the evidence and instructions. (RT at 2216.) Because individuals other
16 than jurors were not present for all of the evidence and instructions, the jurors would not have
17 understood the court to be instructing them to discuss the case outside of the jury room.
18
Additionally, as Respondent notes, other instructions clarified that the jury alone was able to
19 render a verdict. The jury was instructed:
20
21
22
23
24
25
26
You must decide all questions of fact in this case from the evidence received in this trial
and not from any other source. [¶] You must not make any independent investigation of
the facts or the law or consider or discuss facts as to which there is no evidence. This
means, for example, that you must not on your own visit the scene, conduct experiments,
or consult reference works or persons for additional information. [¶] You must not
discuss this case with any other person except a fellow juror, and you must not discuss
the case with a fellow juror until the case is submitted to you for your decision and only
when all jurors are present in the jury room.
(ECF No. 194 at 234:2-6; see CT at 436; RT at 2184-85, 2215-17; CALJIC No. 1.03.) Furthermore, at
the end of the jury instructions, the court swore the bailiff using these words:
27
28
You do solemnly swear that you will take charge of this jury and take them to some
private and convenient place where they may deliberate upon a verdict, and suffer no
person or persons to communicate with them, nor do so yourself except to ask them if
192
they have agreed upon a verdict, or by order of the Court, and you will return them to
this courtroom when they have agreed upon a verdict or by order of the Court, so help
you God?
1
2
3
(RT at 2218-19.)
4
To the extent Petitioner also claims that the correction version of CALJIC 17.40 was not
5
provided to the jury in writing, the record suggests otherwise. (CT at 412, 506.) But in any event, the
6
claim fails because, for the reasons stated above, it was clear from the entire charge to the jury that it
7
was not to speak with anyone other than fellow jurors during the deliberations. Cupp, 414 U.S. at 146-
8
47.
9
The California Supreme Court’s rejection of this claim was not contrary to, or an unreasonable
10 application of, United States Supreme Court law, or based upon an unreasonable determination of the
11 facts.
12
Claim P8 is denied.
j.
13
14
Review of Claim P9
Petitioner next alleges that the trial court misread CALJIC 17.41 (How Jurors Should Approach
15 Their Task) so as to omit the instruction that they be “impartial” jurors. (ECF No. 113 at 150-51.)
16
Petitioner first raised this claim in his petition for writ of habeas corpus in the California
17 Supreme Court. The California Supreme Court ruled that Petitioner’s claim was procedurally barred
18 because the claim could have been, but was not raised on direct appeal. (CSC Order Den. Pet.
19 Habeas Corpus [citing In re Harris, 5 Cal. 4th at 825 n.3 and In re Dixon, 41 Cal. 2d at 759].) The
20 California Supreme Court also summarily rejected Petitioner’s claim on the merits without
21 explanation. (CSC Order Den. Pet. Habeas Corpus.)
22
At the time of trial, CALJIC 17.41, entitled “How Jurors Should Approach Their Task” read
23 as follows:
24
25
26
The attitude and conduct of jurors at all times are very important. It is rarely helpful for
a juror at the beginning of deliberation to express an emphatic opinion on the case or to
announce a determination to stand for a certain verdict. When one does that at the
outset, a sense of pride may be aroused, and one may hesitate to change a position even
if shown it is wrong. Remember that you are not partisans or advocate in this matter.
You are impartial judges of the facts.
27
28 CALJIC 17.40 (1989 Revision, emphasis added.)
193
Petitioner claims the trial court read CALJIC 17.40 as follows, leaving out the strikethrough
1
2
3
4
5
word:
The attitude and conduct of jurors at all times are very important. It is rarely helpful for
a juror at the beginning of deliberation to express an emphatic opinion on the case or to
announce a determination to stand for a certain verdict. When one does that at the
outset, a sense of pride may be aroused, and one may hesitate to change a position even
if shown it is wrong. Remember that you are not partisans or advocate in this matter.
You are impartial judges of the facts.
6
7
(RT at 2217, emphasis added.)
8
Petitioner argues that this error deprived him of a fair trial and of due process and caused him
9
prejudice under Brecht, i.e., the error had a substantial and injurious effect or influence in determining
10 the jury’s verdict. See Irvin, 366 U.S. at 722 (“[T]he right to jury trial guarantees to the criminally
11 accused a fair trial by a panel of impartial, ‘indifferent’ jurors.”); see also Skilling, 561 U.S. at 377-78.
12
Respondent concedes the error (ECF No. 194 at 289:16-19), but notes that the trial court did
13 charge the jury to “keep in mind that you are not partisans and you are not advocates, you are judges.”
14 (RT at 2217.)
15
The California Supreme Court could reasonably have determined that the entire charge of the
16 jury instructions adequately apprised the jurors of their duty to be impartial and unbiased in their
17 deliberations. The jurors were instructed with CALJIC No. 1.00 which told them that they “must
18 accept and follow the law . . . whether or not [they] agree with the law,” and that in reaching their
19 verdict they must not be influenced by pity, prejudice, sentiment, conjecture, sympathy, passion,
20 public opinion or public feeling. (CT at 432; RT at 2182-83.)
21
Furthermore, the jury was instructed with CALJIC No. 2.22, which informed them that they
22 “may not disregard the testimony of the greater number of witnesses merely from caprice, whim or
23 prejudice, or from a desire to favor one side against the other.” (ECF No. 194 at 289:23-26; see also
24 CT at 447; RT at 2190-91.)
25
Respondent correctly notes that the jurors were repeatedly advised their determination was to
26 be based upon reasonable interpretations of the evidence, only the evidence, and not on any sort of
27 bias. (ECF No. 194 at 235:26-236:4, citing CT at 427 [CALJIC No. 2.02]; CT at 436 [CALJIC No.
28 1.03]; CT at 438-39 [CALJIC No. 2.01]; CT at 447 [CALJIC No. 2.22]; CT at 451 [CALJIC No.
194
1
2.60]; CT at 472 [CALJIC No. 2.02]; CT at 504 [CALJIC No. 17.30]; CT at 505 [CALJIC No.
2
17.31]; CT at 506 [CALJIC No. 17.40].)
3
Petitioner also claims this instruction was not provided to the jury in writing. (CT at 412-30.)
4
But here again the record shows the jury was provided with a written copy of CALJIC No. 17.41
5
during its deliberations, which included the word “impartial” that was omitted by the trial court’s
6
reading of the instruction. (CT at 412, 507.)
7
For all the reasons stated, the California Supreme Court could have reasonably determined
8
that it was clear from the entire charge to the jury that jurors understood they had a duty to be
9
impartial. Cupp, 414 U.S. at 146-47.
10
The California Supreme Court’s rejection of this claim was not contrary to, or an
11 unreasonable application of, United States Supreme Court law, or based upon an unreasonable
12 determination of the facts.
13
14
15
Claim P9 is denied.
k.
Review of Claim P10
In this final claim, Petitioner claims that cumulative instructional error arising from claims P1
16 through P9 ante, left the jury with insufficient guidance to render a fair and accurate guilt
17 determination, (ECF No. 113 at 151-152) denying him a fair jury trial and due process under the
18 Sixth, Sixth, Eighth and Fourteenth Amendments to the U.S. Constitution.
19
Petitioner raised this same claim in his petition for writ of habeas corpus in the California
20 Supreme Court. The California Supreme Court ruled that Petitioner’s claim was procedurally barred
21 because this claim could have been, but was not raised on direct appeal. (CSC Order Den. Pet.
22 Habeas Corpus [citing In re Harris, 5 Cal. 4th at 825 n.3 and In re Dixon, 41 Cal. 2d at 759].) The
23 California Supreme Court also summarily rejected Petitioner’s claim on the merits without
24 explanation. (CSC Order Den. Pet. Habeas Corpus.)
25
Petitioner cites to claims P1-P9, alleging that “the jury was not properly instructed on the
26 mental states for first degree murder or attempted murder, the concurrence of act and mental state or
27 specific intent for murder, how to judge conflicting testimony, or even how to comport themselves as
28 jurors.” (ECF No. 113 at 151:17-20.) He claims the cumulative effect of this error was to deny him a
195
1
fair trial and due process, prejudice under Brecht.
2
“The Supreme Court has clearly established that the combined effect of multiple trial errors
3
may give rise to a due process violation if it renders a trial fundamentally unfair, even where each
4
error considered individually would not require reversal.” Parle v. Runnels, 505 F.3d 922, 928 (9th
5
Cir. 2007) (citing Donnelly, 416 U.S. at 643).
6
Although individual errors looked at separately may not rise to the level of reversible error,
7
their cumulative effect may nevertheless be so prejudicial as to require reversal. United States v.
8
Necoechea, 986 F.2d 1273, 1282 (9th Cir. 1993). However, the fact that errors have been committed
9
during a trial does not mean that reversal is required. “[W]hile a defendant is entitled to a fair trial;
10 [she] is not entitled to a perfect trial, for there are no perfect trials.” United States v. Payne, 944 F.2d
11 1458, 1477 (9th Cir. 1991).
12
Here, for the reasons stated above, claims P1-P9 are insubstantial whether considered singly
13 or cumulatively. See United States v. Karterman, 60 F.3d 576, 580 (9th Cir. 1995) (“[b]ecause each
14 error is, at best, marginal, we cannot conclude that their cumulative effect was ‘so prejudicial’ to
15 [defendant] that reversal is warranted.”); see also Rupe, 93 F.3d at 1445; Detrich v. Ryan, 740 F.3d
16 1237, 1273 (9th Cir. 2013). “Cumulative error analysis applies where there are two or more actual
17 errors. It does not apply . . . to the cumulative effect of non-errors.” Moore v. Gibson, 195 F.3d
18 1152, 1175 (10th Cir. 1999) (quoting Castro v. Ward, 138 F.3d 810, 832 (10th Cir. 1998)).
19
This Court does not find that the California Supreme Court’s rejection of the claim was
20 contrary to, or an unreasonable application of, clearly established federal law, as determined by the
21 Supreme Court, or that the state court’s ruling was based on an unreasonable determination of the
22 facts in light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).
23
Claim P10 is denied.
24
9.
25
Petitioner, in his next claim, alleges that cumulative error during the guilt phase denied him
Review of Claim Q
26 due process, an impartial jury, effective assistance of counsel, and a reliable determination of guilt
27 and sentence, violating his rights under the Fifth, Sixth, Eighth and Fourteenth Amendments. (ECF
28 No. 113 at 152-53.)
196
1
Petitioner raised this same claim on direct appeal and in his petition for writ of habeas corpus
2
in the California Supreme Court, which that court denied on the merits. Bolin, 18 Cal. 4th at 335;
3
(CSC Order Den. Pet. Habeas Corpus).
4
Petitioner alleges that the cumulative effect of guilt phase errors denied him fundamental
5
fairness at trial and prejudiced the jury’s determination of their verdict under the Brecht standard.
6
Lincoln v. Sunn, 807 F.2d 805, 814, n.6 (9th Cir. 1987); Odle v. Calderon, 65 F. Supp. 2d 1065,
7
1076-77 (1999).
8
As noted, “the Supreme Court has clearly established that the combined effect of multiple trial
9
errors may give rise to a due process violation if it renders a trial fundamentally unfair, even where
10 each error considered individually would not require reversal.” Parle, 505 F.3d at 928 (citing
11 Donnelly, 416 U.S. at 643). Although individual errors looked at separately may not rise to the level
12 of reversible error, their cumulative effect may nevertheless be so prejudicial as to require reversal.
13 Necoechea, 986 F.2d at 1282.
14
The California Supreme Court considered and rejected this claim on direct appeal, noting that:
15
[D]efendant contends that even if harmless individually, the cumulative effect of the
trial errors mandates reversal. Because we have rejected all of his claims, we perforce
reject this contention as well.
16
17
18
19
20
21
22
23
24
25
26
27
28
Bolin, 18 Cal. 4th at 335
Likewise, for the reasons stated, ante, this Court has found no guilt phase constitutional
errors. There is nothing to accumulate to a level of reversible error. Petitioner was “entitled to a fair
trial but not a perfect one, for there are no perfect trials.”
McDonough Power Equipment v.
Greenwood, 464 U.S. 548, 553 (1984) (quoting Brown v. United States, 411 U.S. 223, 231-232
(1973)).
Even if there were guilt phase error, Petitioner has failed to demonstrate prejudicial error,
whether individually or in sum. The Court’s analysis of guilt phase claims, ante, determines no
reasonable likelihood of a more favorable result, for the reasons stated and given the noted substantial
evidence against Petitioner. (See claim O, ante; claims R and S, post.)
Accordingly, the Court does not find that the state supreme court’s rejection of the claim was
197
1
contrary to, or an unreasonable application of, clearly established federal law, as determined by the
2
Supreme Court, or that the state court’s ruling was based on an unreasonable determination of the
3
facts in light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).
Claim Q is denied.
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
C.
Claims Relating to Penalty Phase
1.
Review of Claim R
In this next claim, Petitioner alleges that, over defense objection, the trial court allowed the
prosecution to admit as Pen. Code § 190.3(b) aggravating evidence (i.e., evidence of uncharged
“criminal activity which involved the express or implied threat to use force or violence”), Petitioner’s
June 25, 1990 letter in which he appears to threaten Jerry Halfacre. (See RT at 2442-54.) Petitioner
claims this was error because the letter did not satisfy the elements of a “threat” under Penal Code §
422 and did not place Halfacre in fear of immediate harm.
The letter read as follows:
Jerry 6/25/90
Well I finally heard from Paula [defendant's daughter and mother of Halfacre's child]
and what I heard from her I'm not to[o] pleased with. I heard her side of things w[h]ich
are real different from what you had to say. I'm only going to say this one time so you
better make sure you understand. If you ever[] touch my daughter again, I'll have you
permanently removed from the face of this Earth. You better thank your lucky stars
you['re] Ashley's father or you[']d already have your fucking legs broke.
I found out what happen[e]d to most of the money from the van, and I also found out
you got 1500 for the truck not 1300 like you said. I'm still going to find out how much
you got for the Buick and if it's 1¢ over 1000 you can kiss your ass good by[e]. I also
found out it was running like a top and the burnt valves was a bunch of bull shit, just like
I thought in the first place. You sounded a little shak[]y over the phone and gave
yourself away.
I told you a long time ago don't play fucking games with me. You're playing with the
wrong person asshole. I've made a couple of phone calls to San Pedro to some friends of
mine and the[y're] not to[o] happy with your fucking game playing with other people's
money and especially you hitting Paula.
What I want done and it better be done. Everything that's mine or hers tools, clothes,
books, gun, TV, VCR, I don't fucking care if it's a bobby pin, you better give it to Paula.
I want all my shit given to her and I mean every fucking thing. You have a week to do it
or I make another phone call. I hope you get the fucking message. Your game playing is
eventually going to get you in more than a poo butt game player can handle.
1 week asshole. “And keep playing your game with [my granddaughter] and see what
happens.
198
1
Petitioner concedes the jury was instructed (albeit deficiently, see claim R4) on the elements
2
of California Penal Code § 422. (See ECF No. 113 at 213:7-8; CT 643.) Section 422 provides in
3
pertinent part that:
4
5
6
7
8
9
Any person who willfully threatens to commit a crime which will result in death or great
bodily injury to another person, with the specific intent that the statement is to be taken
as a threat, even if there is no intent of actually carrying it out, which, on its face and
under the circumstances in which it is made, is so unequivocal, unconditional,
immediate, and specific as to convey to the person threatened, a gravity of purpose and
an immediate prospect of execution of the threat, and thereby causes that person
reasonably to be in sustained fear for his or her own safety or for his or her immediate
family’s safety, shall be punished by imprisonment in the county jail not to exceed one
year, or by imprisonment in the state prison.
10
11 (See ECF No. 113 at ¶ 586; see also Bolin, 18 Cal. 4th at 337.)
12
Petitioner alleges this error by the trial court denied him free speech, due process, and a fair
13 sentence determination, violating his rights under the First, Fifth, Sixth, Eighth, and Fourteenth
14 Amendments. (ECF No. 113 at 154-62.)
15
Petitioner raises multiple subclaims which are addressed separately below.
16
Petitioner raised certain of these allegations on direct appeal, and raised the claim in his state
17 petition for writ of habeas corpus. On direct appeal, the California Supreme Court rejected the
18 allegations, holding that a threat under Penal Code § 422 need not be unconditional, Bolin, 18 Cal.
19 4th at 336-41, and that Petitioner suffered no prejudice based on the introduction of the letter at the
20 penalty phase. Id. at 340-41.
21
The California Supreme Court ruled that Petitioner’s state habeas claim was procedurally
22 barred because certain of the allegations could have been, but were not, raised on direct appeal. (CSC
23 Order Den. Pet. Habeas Corpus [citing In re Harris, 5 Cal. 4th at 825 n.3 and In re Dixon, 41 Cal. 2d
24 at 759].) The California Supreme Court also summarily rejected Petitioner’s habeas claim on the
25 merits without explanation. (CSC Order Den. Pet. Habeas Corpus.)
26
27
a.
Clearly Established Law
A state law error that renders the trial fundamentally unfair violates the Due Process Clause.
28 Chambers, 410 U.S. at 298, 302-03; Hicks, 447 U.S. at 346 (due process protects defendant from
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1
arbitrary deprivation of expectations under state law).
2
Under California law, otherwise relevant evidence is precluded if “its probative value is
3
substantially outweighed by the probability that its admission will . . . create substantial danger of
4
undue prejudice, of confusing the issues, or of misleading the jury.”
5
Cardenas, 31 Cal. 3d at 903-04.
6
b.
Evid. Code §§ 350, 352;
Factual Background
7
During the penalty phase, the prosecution introduced in aggravation Petitioner’s June 25, 1990
8
letter to Jerry Halfacre, the common-law husband of Petitioner’s daughter, Paula, and father of their
9
child, Ashley. (RT at 1836, 1867, 2442-45.) Halfacre had given the letter to his former probation
10 officer, Ms. Lancia O’Connor, on October 12, 1990. (RT at 2442-44, 2455); Bolin, 18 Cal. 4th at 336
11 n.11.
12
As noted, in the letter, Petitioner appears to threaten Halfacre never to touch his daughter
13 again or Petitioner would have him “permanently removed from the face of this Earth.” Petitioner
14 also threatened to kill Halfacre if Petitioner found out that Halfacre had lied to Petitioner about a
15 Buick that Halfacre had sold. Petitioner warned Halfacre that he had made phone calls to friends
16 outside of prison about Halfacre’s behavior, implying that these friends would carry out Petitioner’s
17 threats. Finally, Petitioner ordered Halfacre to deliver all of Petitioner’s and Paula’s belongings to
18 Paula within one week or Halfacre would be killed. See Bolin, 18 Cal. 4th at 336 n.11.
19
Defense counsel objected to introduction of the letter on various grounds, all overruled by the
20 trial court, (RT at 2390-93, 2453-54), which then instructed the jury on the elements of Penal Code §
21 422. (See CT at 643.)
22
23
c.
Analysis of Claim R1
In this claim, Petitioner alleges that the Halfacre letter as introduced was more prejudicial than
24 probative under California Evidence Code §§ 350, 352. He also claims the letter as introduced did
25 not satisfy the elements of a “threat” under California Penal Code § 422. Petitioner’s arguments are
26 analyzed separately below.
27
28
1)
Sustained Fear
Petitioner argues that Halfacre may not have actually received the letter, and that if he did it
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1
did not place him in sustained fear. He points out that Halfacre waited four months before giving the
2
letter to his probation officer. (RT at 2443-44; ECF No. 113 at 157); see Bolin, 18 Cal. 4th at 340.
3
He points out that Halfacre did not testify, about his state of mind regarding the letter or otherwise.
4
However, the Court finds that the California Supreme Court could reasonably have drawn
5
inference from the record that Halfacre received the letter and feared that Petitioner would follow
6
through on the threats in it. The envelope which contained the letter was introduced into evidence
7
and indicates that the letter was addressed to Halfacre and was postmarked. (People’s Ex. 1; RT at
8
2443-54.)
9
The threats appear to be serious, angry, and immediate.
The letter could be seen as
10 threatening on its face. The prospect that Halfacre might be killed by Petitioner’s friends on the
11 outside was reasonably apparent. Bolin, 18 Cal. 4th at 336 n.11.
12
Petitioner has not demonstrated otherwise. Given Halfacre’s relationship with Paula (RT at
13 2490-91), it was reasonable to conclude that Halfacre knew of the allegations that Petitioner had acted
14 violently in the past and was wanted by the police for murder. (RT at 1867-68.)
2)
15
16
Unconditional and Immediate
Petitioner argues that, at the time the letter was sent, he was incarcerated and unable to
17 execute any immediate action on the alleged threats. (ECF No. 113 at 155:4-5); see People v.
18 Stanfield, 32 Cal. App. 4th 1152, 1157 (1995).
He also argues that his alleged threats were
19 “conditional” and that his “goal was plainly to persuade Mr. Halfacre to behave himself, not to create
20 a circumstance under which he could harm Mr. Halfacre.” (ECF No. 178 at 217.)
21
However, the California Supreme Court considered and rejected these arguments on direct
22 appeal, noting that:
23
24
25
26
27
28
[T]he reference to an “unconditional” threat in section 422 is not absolute. As the court
in People v. Stanfield noted, “By definition, extortion punishes conditional threats,
specifically those in which the victim complies with the mandated condition. [Citations]
Likewise, many threats involved in assault cases are conditional. A conditional threat
can be punished as an assault, when the condition imposed must be performed
immediately, the intent is to immediately enforce performance by violence and
defendant places himself in a position to do so and proceeds as far as is then necessary.
[Citation] It is clear, then, that the Kelner court’s use of the word ‘unconditional’ was
not meant to prohibit prosecution of all threats involving an ‘if’ clause, but only to
prohibit prosecution based on threats whose conditions precluded them from conveying
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1
2
3
4
5
6
7
8
9
10
11
12
a gravity of purpose and imminent prospect of execution.” As the court commented in
U.S. v. Schneider (7th Cir. 1990) 910 F.2d 1569, 1570: “Most threats are conditional;
they are designed to accomplish something; the threatener hopes that they will
accomplish it, so that he won’t have to carry out the threats.”
Moreover, imposing an “unconditional” requirement ignores the statutory qualification
that the threat must be “so ... unconditional ... as to convey to the person threatened, a
gravity of purpose and an immediate prospect of execution . . . .” (§ 422, italics added.)
“The use of the word ‘so’ indicates that unequivocally, unconditionally, immediacy and
specificity are not absolutely mandated, but must be sufficiently present in the threat and
surrounding circumstances to convey gravity of purpose and immediate prospect of
execution to the victim.” “If the fact that a threat is conditioned on something occurring
renders it not a true threat, there would have been no need to include in the statement the
word ‘so.’” This provision “implies that there are different degrees of unconditionally. A
threat which may appear conditional on its face can be unconditional under the
circumstances. . . . [¶] Language creating an apparent condition cannot save the
threatener from conviction when the condition is illusory, given the reality of the
circumstances surrounding the threat. A seemingly conditional threat contingent on an
act highly likely to occur may convey to the victim a gravity of purpose and immediate
prospect of execution.” Accordingly, we reject defendant’s threshold contention that the
letter was inadmissible because it contained only conditional threats.
13
14 Bolin, 18 Cal. 4th at 339-40; see also Lovell v. Poway Unified Sch. Dist., 90 F.3d 367, 372 (9th Cir.
15 1996) (finding that “any person could reasonably consider the statement ‘If you don’t give me this
16 schedule change, I’m going to shoot you,’ made by an angry teenager, to be . . . unequivocal and
17 specific enough to convey a true threat of physical violence”).
18
The California Supreme Court reasonably determined that these threats taken together were
19 “unequivocal, unconditional, immediate, and specific.” That court’s analysis is not contrary to the
20 holding of the Supreme Court in Watts v. United States, 394 U.S. 705, 708 (1969) (holding that
21 statement “If they ever make me carry a rifle, the first man I want to get in my sights is L.B.J.” was
22 hyperbolic speech, not a true threat), post.
23
The California Supreme Court reasonably could have found these threats to be non-illusory.
24 The only unmet condition to the threatened conduct was Petitioner’s awareness that certain events
25 had occurred, i.e., whether Petitioner found out about Halfacre selling his Buick for more than $1,000
26 or touching his daughter, Paula. Bolin, 18 Cal. 4th at 336 n.11. Specifically, regarding the threat
27 relating to the possibility that Halfacre sold Petitioner’s Buick for more than the $1000 amount
28 Halfacre said he got for it, that amount had already been determined and Halfacre was aware of it
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1
since the sale had already taken place. Regarding the threat relating to the possibility Halfacre might
2
touch Petitioner’s daughter Paula and granddaughter Ashley, it is unreasonable to assume that
3
Halfacre would never again have contact with his former girlfriend and their daughter.
4
would know whether the conditional events had occurred and he could reasonably anticipate that
5
Petitioner would find out from Paula that they had occurred. If so, Petitioner stated that he would
6
“make another phone call to his friends,” apparently to make good on his threats. (Id.)
7
3)
Halfacre
Exaggerated
8
Petitioner argues the alleged threat was exaggerated, (ECF No. 113 at 155:4-28), and did not
9
convey a gravity of purpose and an immediate prospect of execution. Stanfield, 32 Cal. App. 4th at
10 1157; Watts, 394 U.S. at 705. He argues that the letter could not be a threat because “[t]he statements
11 were plainly hyperbolic” (ECF No. 178 at 217:24) in that “touch my daughter” really meant “harm
12 my daughter.” (ECF No. 178 at 218:1-3.) He claims Petitioner was merely advising Halfacre not to
13 commit criminal acts of domestic violence, child abuse, or theft. He argues that he was incarcerated
14 and not in a position to make good on the alleged threats.
However, the threatened actions and
15 events triggering them were sufficiently clearly and angry. Petitioner states in the letter that Halfacre
16 would already have had his “fucking legs broke” if he were not the father of Petitioner’s
17 granddaughter and that he “can kiss [his] ass goodby[e]” if he sold the Buick for any amount over
18 $1,000. Bolin, 18 Cal. 4th at 336 n.11. Petitioner’s reference to friends in San Pedro who could carry
19 out his threats suggests they could be carried out. Id.; see also Allen v. Woodford, 395 F.3d 979, 987,
20 1009 (9th Cir. 2005) (incarceration is not a deterrent to directing crime outside the institution).
21
The California Supreme Court could reasonably have found the statements in the letter not
22 simply rhetorical as petitioner contends.
23
24
25
26
27
28
4)
No Foundation or Probative Value
Petitioner argues that Halfacre did not testify, and that the prosecution presented no evidence
showing if, when and how Halfacre received the letter, or that the letter caused Halfacre to fear
Petitioner. Because of this, Petitioner claims the letter was admitted without evidentiary foundation
and lacked probative value.
The Court is unpersuaded. Probation officer O’Connor testified that
she received the letter from Halfacre on October 12, 1990, a few months after it was mailed to
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1
Halfacre. (RT at 2442-46; see also RT at 2453:21 [the prosecutor argued at trial: “I think the evidence
2
has shown that Jerry Halfacre gave the letter to his probation officer. If he didn’t receive the letter, he
3
couldn’t have had it[.]”].) Moreover, Evidence Code § 641 provides: “A letter correctly addressed
4
and properly mailed is presumed to have been received in the ordinary course of mail.” The envelope
5
which contained the letter was introduced into evidence and indicates that the letter was addressed to
6
Halfacre and was postmarked. (People’s Ex. 1; RT at 2443-54.)
7
5)
No True Threat or Prejudice
8
Petitioner argues that Penal Code § 422 is based on wording taken from United States v.
9
Kelner, which “defined true threats as only those which according to their language and context
10 conveyed a gravity of purpose and likelihood of execution so as to constitute speech beyond the pale
11 of protected [speech].” 534 F.2d 1020, 1026-27 (2d Cir. 1976); (see also ECF No. 113 at 154:25-28,
12 citing Stanfield, 32 Cal. App. 4th at 1160). Applying these standards, Petitioner argues that the
13 Halfacre letter contained only conditional language which did not satisfy the elements of a true threat
14 under Penal Code § 422. (ECF No. 113 at 154-58.)
15
As discussed in claim R4, post, the California Supreme Court, in denying this claim on direct
16 appeal, did not definitively rule whether the letter constituted a threat for purposes of § 422, due to
17 instructional error. See Bolin, 18 Cal. 4th at 340 n.13. However, for the reasons stated and for
18 purposes of this claim, that court could reasonably have found that introduction of the letter was not
19 improper under § 422 as set out above and § 190.3(b).
20
Petitioner also argues introduction of the letter was inflammatory and prejudicial under
21 Brecht, and denied him due process and a fair jury determination. Hicks, 447 U.S. at 346; Hamilton,
22 458 F. Supp.2d at 1090 (citing Brecht, 507 U.S. at 637). He argues the letter was significantly
23 prejudicial because it suggested to the jury that Petitioner posed a risk of future dangerousness.
24
But even if the trial court erred in admitting the letter, the California Supreme Court
25 reasonably determined in claim R4, post, that such error did not substantially impact the jury’s verdict
26 or deny him a fair sentencing determination. The aggravating evidence, including the circumstances
27 of the charged crimes and prior violent activity, was substantial. (See claims O, ante; claim S, post.)
28
In this regard, the California Supreme Court concluded that:
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1
2
3
4
5
6
[T]he letter paled compared to other aggravating evidence, which the prosecutor focused
on in closing argument. In particular, the guilt phase testimony revealed [Petitioner] as a
calculating and callous individual, willing to kill defenseless victims, including his
friend and partner Huffstuttler, in cold blood to protect his drug enterprise. In addition,
the assault with great bodily injury against Matthew Spencer and attempted
manslaughter against Kenneth Ross confirmed [Petitioner’s] pattern of resorting to
violence in dealing with problems. Given this history, it is unlikely the jury accorded the
letter much, if any, weight in fixing the penalty at death.
Bolin, 18 Cal. 4th at 341. This Court agrees.
7
The letter also had some mitigating value. (Id.; see also claim R4.) To the extent the letter
8
might have suggested future dangerousness, Halfacre’s apparent lack of concerned for his safety,
9
having waited four months before giving his probation officer the letter, appears to be mitigating. (Id.)
10 Moreover, the letter demonstrated Petitioner’s concern for his family, as noted by the defense. Bolin,
11 18 Cal. 4th at 340; (RT at 2492-93; 2578-91). The California Supreme Court could reasonably have
12 discounted as conjecture, Petitioner’s argument that the Halfacre letter, suggesting a propensity for
13 violence, negatively impacted the jury’s assessment of mitigating testimony by defense witnesses.
14
Additionally, to the extent this claim raises solely issues of state law, it is no basis for federal
15 habeas relief. (See ECF No. 113 at 154-58 [arguing that the letter did not satisfy the elements of §
16 422]; ECF No. 113 at 157 [arguing that admission of letter violates Evid. Code §§ 350, 352].) As
17 noted, “federal habeas corpus relief does not lie for errors of state law.” Lewis, 497 U.S. at 780; see
18 also Pulley, 465 U.S. at 41.
19
Accordingly, this Court does not find that the California Supreme Court’s rejection of the
20 claim was contrary to, or an unreasonable application of, clearly established federal law, as
21 determined by the Supreme Court, or that the state court’s ruling was based on an unreasonable
22 determination of the facts in light of the evidence presented in the state court proceeding. See 28
23 U.S.C. § 2254(d).
24
25
26
Claim R1 is denied.
d.
Analysis of Claim R2
Petitioner’s next claim alleges that applying the § 422 factors to show the letter was a criminal
27 threat and aggravating at the penalty phase, improperly served to criminalize constitutionally
28 protected speech, violating the First and Fourteenth Amendments. (ECF No. 113 at 158-60.)
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Petitioner argues that only “true threats” may be punished without violating the First
2
Amendment, Kelner, 534 F.2d at 1026, and that the Halfacre letter did not contain any true threat.
3
This, he claims, was evident in Halfacre’s delay in providing the letter to authorities, and the slim
4
likelihood that the conditions of the threats would be satisfied, and even then that Petitioner would be
5
able to make good on the threatened action.
6
The California Supreme Court considered this claim on habeas review and denied it as
7
procedurally barred because the claim could have been, but was not, raised on direct appeal. (CSC
8
Order Den. Pet. Habeas Corpus, citing In re Harris, 5 Cal. 4th at 825 n.3; In re Dixon, 41 Cal. 2d at
9
759.)
The California Supreme Court also summarily denied the claim on the merits without
10 explanation. (CSC Order Den. Pet. Habeas Corpus.)
11
“In general, threats are not protected by the First Amendment.” Lovell, 90 F.3d at 371 (citing
12 Watts, 394 U.S. at 705).
Only “true threats” may be punished without offending the First
13 Amendment. The California Supreme Court could reasonably have found that Petitioner’s threats
14 were not “constitutionally protected speech.” See Watts, 394 U.S. at 707-08. “A ‘true’ threat, where
15 a reasonable person would foresee that the listener will believe he will be subjected to physical
16 violence upon his person, is unprotected by the [F]irst [A]mendment.” United States v. Orozco17 Santillan, 903 F.2d 1262, 1265-66 (9th Cir. 1990), overruled in part on other grounds by United
18 States v. Keyser, 704 F.3d 631 (9th Cir. 2012).
19
“Alleged threats should be considered in light of their entire factual context, including the
20 surrounding events and the reaction of the listeners.” Id.; Lovell, 90 F.3d at 372; accord Kelner, 534
21 F.2d at 1027 (“So long as the threat on its face and in the circumstances in which it is made is so
22 unequivocal, unconditional, immediate and specific . . . as to convey a gravity of purpose and
23 imminent prospect of execution, the statute may properly be applied”).
24
“[S]peech is not protected by the First Amendment when it is the very vehicle of the crime
25 itself.” United States v. Varani, 435 F.2d 758, 762 (6th Cir. 1970). “[A]s expansive as the [F]irst
26 [A]mendment’s conception of social and political discourse may be, threats made with specific intent
27 to injure and focused on a particular individual easily fall into that category of speech deserving of no
28 [F]irst [A]mendment protection.” Shackelford v. Shirley, 948 F.2d 935, 938 (5th Cir. 1991) (denying
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1
habeas relief to inmate convicted under telephone harassment statute). “A threat to break a person’s
2
knees . . . is a statement of intention rather than an idea or opinion and is not part of the marketplace
3
of ideas.” United States v. Velasquez, 772 F.2d 1348, 1357 (7th Cir. 1985).
4
The California Supreme Court considered and rejected Petitioner’s contention that the letter
5
was inadmissible because it contained only conditional threats, Bolin, 18 Cal. 4th at 340, finding that
6
“[a] seemingly conditional threat contingent on an act highly likely to occur may convey to the victim
7
a gravity of purpose and immediate prospect of execution.” Id. Petitioner contends the evidentiary
8
record does not demonstrate the contingencies in the letter, which he characterizes as criminal acts by
9
Halfacre, were “highly likely to occur.”
10
It was not unreasonable for the state court to determine the contingencies in question were
11 “highly likely to occur,” because, as mentioned, the contingency regarding the Buick did in fact occur
12 and it was reasonable to conclude Halfacre would have future contact with his child and the mother of
13 his child. It is not dispositive for First Amendment purposes that Halfacre did not act immediately
14 upon receiving the threat. See Lovell, 90 F.3d at 372 (fact that victim “chose not to seek help
15 instantly is not dispositive”). For reasons discussed in claim R1, ante, the California Supreme Court
16 could reasonably have determined that Petitioner’s threats were not protected speech.
17
Accordingly, this Court does not find that the state supreme court’s rejection of these
18 allegations was contrary to, or an unreasonable application of, clearly established federal law, as
19 determined by the Supreme Court, or that the state court’s ruling was based on an unreasonable
20 determination of the facts in light of the evidence presented in the state court proceeding. See 28
21 U.S.C. § 2254(d).
22
23
24
Claim R2 is denied.
e.
Analysis of Claim R3
Petitioner next alleges that the California Supreme Court, on direct appeal, unforeseeably and
25 for the first time interpreted § 422 as applying to “conditional” threats, and then retroactively applied
26 this new interpretation to uphold Petitioner’s sentence. He argues that this unforeseeable judicial
27 enlargement of a criminal statute, applied retroactively, violated due process under the Fifth and
28 Fourteenth Amendments to the U.S. Constitution. (ECF No. 113 at 160); cf. Bouie v. City of
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1
Columbia, 378 U.S. 347, 354-55 (1964) (due process implicated when an unforeseeable state-court
2
construction of a criminal statute is applied retroactively).
3
Petitioner raised this same claim in a petition for writ of habeas corpus to the California
4
Supreme Court, which denied it as procedurally barred because it could have been, but was not raised
5
on direct appeal. (CSC Order Den. Pet. Habeas Corpus [citing In re Harris, 5 Cal. 4th at 825 n.3; In
6
re Dixon, 41 Cal. 2d at 759].)
7
8
9
The California Supreme Court also summarily rejected the habeas claim on the merits without
explanation. (CSC Order Den. Pet. Habeas Corpus.)
Petitioner argues that, under Bouie’s fair warning rationale, the test is whether a petitioner
10 could reasonably determine that his conduct violated the law:
11
12
13
14
This circuit has in the past held that retroactive application of an interpretation of state
law is not prohibited per se; however, “[s]uch a decision may violate due process if the
court’s interpretation of a criminal statute enlarges its scope to cover behavior not
previously considered to be unlawful.” Camitsch v. Risley, 705 F.2d 351, 355 (9th Cir.
1983); see also United States v. Walsh, 770 F.2d 1490, 1492 (9th Cir. 1985) (“radical
and unforeseen departure from prior law”).
15 McSherry v. Block, 880 F.2d 1049, 1053 n.4 (9th Cir. 1989). He argues that, in 1990, when he wrote
16 the letter to Halfacre, prior judicial interpretation all precluded conviction for a conditional threat.
17 (ECF No. 178 at 223:6-8.)
18
Respondent counters that the California Supreme Court’s interpretation of § 422 had been
19 uncertain on this issue and was still evolving in 1990 when Petitioner wrote the Halfacre letter. At
20 that time, according to Respondent, the California Supreme Court had not interpreted the language in
21 Penal Code § 422. Respondent points out that the authority on which Petitioner relies, People v.
22 Brown, 20 Cal. App. 4th 1251 (1993), post-dates his letter, and that in any event it was not
23 unforeseeable that a conditional threat might be found to violate Penal Code § 422. See United States
24 v. Burnom, 27 F.3d 283, 284-85 (7th Cir. 1994) (holding Bouie does not apply “to the resolution of
25 uncertainty that marks any evolving legal system”); cf., Moore v. Wyrick, 766 F.2d 1253, 1257 (8th
26 Cir. 1985) (significant change in state law which, if applied retroactively, would materially expand
27 defendant’s criminal liability cannot be applied retroactively).
28
Petitioner concedes that “intermediate appellate courts of California had been divided on the
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1
question.” (ECF No. 178 at 216, n.142); see e.g., People v. Brooks, 26 Cal. App. 4th 142, 145
2
(1994) (“if you testify, I’ll kill you” found sufficient to support conviction under Penal Code § 422);
3
Brown, 20 Cal. App. 4th at 1251 (“if you call the police, I’ll kill you” found insufficient to support
4
conviction under § 422).
5
The California Supreme Court, in its review of this claim noted that the language of Penal
6
Code § 422 was “adopt[ed] almost verbatim language from United States v. Kelner” which in turn
7
relied upon Watts. That court stated:
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
In Kelner, the defendant, a member of the Jewish Defense League, had been convicted
under a federal statute for threatening to assassinate Palestinian leader Yasser Arafat,
who was to be in New York for a meeting at the United Nations. Kelner argued that
without proof he specifically intended to carry out the threat, his statement was political
hyperbole protected by the First Amendment rather than a punishable true threat.
[Citation]
The reviewing court disagreed and concluded threats are punishable consonant with
constitutional protections “when the following criteria are satisfied. So long as the threat
on its face and in the circumstances in which it is made is so unequivocal, unconditional,
immediate and specific as to the person threatened, as to convey a gravity of purpose
and imminent prospect of execution, the statute may properly be applied.” [Citation] In
formulating this rationale, the Kelner court drew on the analysis in Watts v. United
States (1969) 394 U.S. 705 [ ], in which the United States Supreme Court reversed a
conviction for threatening the President of the United States. Defendant Watts had
stated, in a small discussion group during a political rally, “And now I have already
received my draft classification as 1-A and I have got to report for my physical this
Monday coming. I am not going. If they ever make me carry a rifle the first man I want
to get in my sights is L.B.J.” [Citation] Both Watts and the crowd laughed after the
statement was made. [Citation] The Supreme Court determined that taken in context,
and considering the conditional nature of the threat and the reaction of the listeners, the
only possible conclusion was that the statement was not a punishable true threat, but
political hyperbole privileged under the First Amendment. [Citation]
As the Kelner court understood this analysis, the Supreme Court was not adopting a
bright line test based on the use of conditional language but simply illustrating the
general principle that punishable true threats must express an intention of being carried
out. [Citation] “In effect, the Court was stating that threats punishable consistently with
the First Amendment were only those which according to their language and context
conveyed a gravity of purpose and likelihood of execution so as to constitute speech
beyond the pale of protected [attacks on government and political officials].” [Citation]
Accordingly, “[t]he purpose and effect of the Watts constitutionally-limited definition of
the term ‘threat’ is to insure that only unequivocal, unconditional and specific
expressions of intention immediately to inflict injury may be punished – only such
threats, in short, as are of the same nature as those threats which are . . . ‘properly
punished every day under statutes prohibiting extortion, blackmail and assault. . . .’”
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1
2
[Citation]
Bolin, 18 Cal. 4th at 338-39.
3
The California Supreme Court, consistent with its noted analysis, could reasonably have
4
determined that “the reference to an ‘unconditional’ threat in section 422 is not absolute.” Bolin, 18
5
Cal. 4th at 339. That court also could reasonably have found Petitioner’s letter to be truly threatening
6
notwithstanding any involved contingency. The conditions stated in Petitioner’s letters reasonably
7
could be seen as coated with threatening language. See Id. at 336, n.11. “Bouie applies only to
8
unpredictable shifts in the law, not to the resolution of uncertainty that marks any evolving legal
9
system.” Burnom, 27 F.3d at 284-85. The California Supreme Court’s analysis and conclusions
10 relating to § 422 could reasonably fall within the latter. See e.g., United States v. Herrera, 584 F.2d
11 1137, 1149 (2d Cir. 1978) (due process requires only that “the law give sufficient warnings that men
12 may conduct themselves so as to avoid that which is forbidden, and thus not lull the potential
13 defendant into a false sense of security, giving him no reason even to suspect that his conduct might
14 be within its scope”).
15
Accordingly, this Court does not find that the state supreme court’s rejection of the claim was
16 contrary to, or an unreasonable application of, clearly established federal law, as determined by the
17 Supreme Court, or that the state court’s ruling was based on an unreasonable determination of the
18 facts in light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).
19
20
21
Claim R3 is denied.
f.
Analysis of Claim R4
Petitioner’s final claim alleges that the trial court erred by failing to instruct the jury
22 accurately and completely on the elements of a § 422 criminal threat regarding the Halfacre letter that
23 was introduced as aggravating evidence at the penalty phase. Petitioner alleges this error denied him
24 due process and a fair trial and sentence. (ECF No. 113 at ¶¶ 611-618.)
25
Petitioner raised this claim in a petition for writ of habeas corpus to the California Supreme
26 Court, which denied it as procedurally barred because it could have been, but was not raised on direct
27 appeal. (CSC Order Den. Pet. Habeas Corpus [citing In re Harris, 5 Cal. 4th at 825 n.3; In re Dixon,
28 41 Cal. 2d at 759].) The California Supreme Court also summarily rejected Petitioner’s habeas claim
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1
on the merits without explanation. (CSC Order Den. Pet. Habeas Corpus.)
2
The record reflects that at the penalty phase, the jury was instructed that evidence had been
3
introduced to show Petitioner had committed various criminal acts, including writing a threatening
4
letter to Halfacre. (RT at 2608; CT at 634, 643.) They were instructed that: “[b]efore a juror may
5
consider any of such criminal acts as an aggravating circumstance in this case, the jury must first be
6
satisfied beyond a reasonable doubt that the defendant did, in fact, commit such criminal acts.” (CT at
7
634.) They were also instructed regarding the concurrence of act and specific intent for criminal
8
threats. (RT at 2611-13; CT at 641.)
9
As to the § 422 criminal threat, the jury was instructed that:
10
12
Any person who willfully threatens to commit a crime which will result in death or great
bodily injury to another person with the specific intent that the statement is to be taken
as a threat, which causes that person reasonably to sustain fear for his own safety, is
guilty of a violation of Penal Code Section 422.
13
In order to prove such crime, each of the following elements must be proved:
14
One, a person made a threat to commit a crime which, if carried out, would result in
death or great bodily injury to another person.
11
15
16
Two, such threat is made with the specific intent the statement was to be taken as a
threat.
17
18
19
Three, that such threat caused another person to fear for his own or his family’s personal
safety.
It is not necessary that the defendant have the intent to carry out the threats.
20
21 (RT at 2613; CT at 643.)
22
Petitioner alleges that the trial court also should have instructed the jury that a § 422 “threat”
23
must be “on its face and under the circumstances in which it is made, so unequivocal, unconditional,
24 immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate
25 prospect of execution of the threat.” See CALJIC 9.94.
26
The California Supreme Court agreed with Petitioner when it reviewed this allegation on direct
27 appeal. See Bolin, 18 Cal.4th at 340 n.13. However, that court found such instructional error harmless,
28 see Bolin, 18 Cal. 4th at 340 n.13, stating that:
211
1
2
3
4
5
6
7
8
9
Alternatively, defendant argues that the letter still does not meet the statutory definition
because the threat lacked immediacy and Halfacre did not testify he feared for his safety.
We need not definitively resolve these contentions. Even if the trial court should have
excluded the letter, we find no reasonable possibility the error affected the verdict.
[Citation] Although some of the language in the letter is menacing, it also reflects
defendant’s concern for his daughter’s and granddaughter’s well-being, a point stressed
by the defense in mitigation. Moreover, the nature and circumstances of the threats
would not necessarily provoke serious concern, especially considering defendant was
incarcerated and would at the least have to make outside arrangements to effect them.
Halfacre waited four months before giving the letter to his probation officer, during
which time apparently nothing had happened.
Bolin, 18 Cal. 4th at 340.
The California Supreme Court was not unreasonable in this regard. Though as noted, the jury
10 may have been given incomplete instructions on the elements the aggravating criminal threat (id. at 340
11 n.13), the state supreme court was not unreasonable in finding the error harmless for reasons stated in
12 the discussed of claim R1, ante, summarized as follows. The aggravating evidence, including the
13 circumstances of the charged crimes and prior violent activity, was substantial. (See claims O, ante;
14 claim S, post.) Halfacre’s months long delay in taking any action on the letter could reasonably suggest
15 Petitioner did not pose a future danger. The letter could be mitigating to the extent it suggested
16 violence was not imminent and that Petitioner was motivated by his desire to protect his family. See
17 e.g., Bolin, 18 Cal. 4th at 340; (RT at 2492-93; 2578-91). The state supreme court noted that:
18
19
20
21
22
[T]he letter paled compared to other aggravating evidence, which the prosecutor focused
on in closing argument. In particular, the guilt phase testimony revealed [Petitioner] as a
calculating and callous individual, willing to kill defenseless victims, including his
friend and partner Huffstuttler, in cold blood to protect his drug enterprise. In addition,
the assault with great bodily injury against Matthew Spencer and attempted
manslaughter against Kenneth Ross confirmed [Petitioner’s] pattern of resorting to
violence in dealing with problems. Given this history, it is unlikely the jury accorded the
letter much, if any, weight in fixing the penalty at death.
23
24 Bolin, 18 Cal. 4th at 341.
25
Equally unavailing is Petitioner’s re-argument (see claim R1, ante) that admission of the letter
26 “altered the credibility analysis regarding [Petitioner’s aggravating] assaults on Matthew Spencer and
27 Kenny Ross” and that without the “prejudicial character evidence” of the letter “the jury would likely
28 have given greater consideration to the defense’s mitigating evidence regarding those [other
212
1
aggravating] incidents.” (ECF No. 178 at 229: 7-14.) Such re-argument appears nothing more than
2
speculation. The noted evidence in aggravation was substantial apart from the letter. Additionally,
3
for the same reasons, neither Petitioner’s trial counsel (for failing to object on this ground in the trial
4
court) nor his appellate counsel (for failing to raise this ground on appeal) was ineffective. (ECF No.
5
113 at 161 n.45 [re claim W8, post]; Id. at 235-36 [re claim DD, post].)
6
It is not enough for habeas relief that “[an] instruction was allegedly incorrect under state
7
law.” Estelle, 502 U.S. at 71-72. “In the absence of a federal constitutional violation, no relief can be
8
granted even if the instruction given might not have been correct as a matter of state law.” Mitchell
9
v. Goldsmith, 878 F.2d 319, 324 (9th Cir. 1989). For the reasons stated above and those discussed in
10 claims R1-R3, Petitioner has not demonstrated the state instructional error as to § 422 denied him a
11 fair sentence determination. See e.g., Hamilton, 458 F. Supp. 2d at 1090 (“The limited scope of
12 federal habeas review does not warrant relief unless trial errors had a ‘substantial and injurious effect
13 or influence in determining the jury’s verdict’ and deprived [the petitioner] of a fair trial in violation
14 of his right to due process.”).
15
Accordingly, this Court does not find that the state supreme court’s rejection of the claim was
16 contrary to, or an unreasonable application of, clearly established federal law, as determined by the
17 Supreme Court, or that the state court’s ruling was based on an unreasonable determination of the
18 facts in light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).
19
Claim R4 is denied.
20
2.
21
Petitioner, in his next claim, alleges that the jury erroneously was allowed to consider in
Review of Claim S
22 aggravation evidence of prior unadjudicated criminal activity, denying him equal protection, due
23 process, a fair jury trial, a reliable sentence, and freedom from cruel and unusual punishment,
24 violating his rights under the Fifth, Eighth and Fourteenth Amendments. (ECF No. 113 at 162-164.)
25 Petitioner made this same claim on direct appeal to the California Supreme Court, which was denied
26 on the merits. Bolin, 18 Cal. 4th at 335-36.
27
28
a.
Clearly Established Law
A state law error that renders the trial fundamentally unfair violates the Due Process Clause.
213
1
Chambers, 410 U.S. at 298, 302-03; Hicks, 447 U.S. at 346 (due process protects defendant from
2
arbitrary deprivation of expectations under state law).
3
In a capital case, evidence of unadjudicated criminal conduct may constitute an aggravating
4
circumstance and be admissible at sentencing. See Campbell v. Kincheloe, 829 F.2d 1453, 1461 (9th
5
Cir. 1987) (holding unadjudicated criminal conduct may be introduced to support the aggravating
6
factor of probable future violence).
7
b.
Analysis of Claim S
8
Petitioner complains that the jury was allowed to consider, as aggravating, unconvicted
9
criminal conduct in the form of his 1979 assault on Matthew Spencer (RT at 2371-2385, 2412-43; CT
10 at 634) and his 1990 threatening letter to Halfacre (RT at 2442-54; CT 634). He argues he was never
11 convicted, prosecuted, or charged with these events and that the jury’s consideration of them fell
12 below the heightened reliability requirement for capital sentencing. See Woodson v. North Carolina,
13 428 U.S. 280, 305 (1976); California v. Ramos, 463 U.S. 992, 998-99 (1983).
14
He also complains that the penalty jury, having just convicted him of capital murder, was
15 biased against him; that the jury was not instructed that the presumption of innocence applied to
16 unadjudicated criminal activity; that the jury was not instructed that they must unanimously find these
17 allegations true beyond a reasonable doubt and make their findings in writing; and that the limitations
18 period had run on the assault charge.
19
All of these alleged infirmities, he claims, had a substantial and injurious effect or influence
20 on the jury’s verdict under Brecht.
21
Preliminarily, the Court rejects Petitioner’s allegations that the foregoing constitutional errors
22 were not adjudicated by the state court. Rather, the California Supreme Court adjudicated these
23 allegations by considered and rejected them on direct appeal, as follows:
24
25
26
27
28
Defendant makes several claims regarding the jury’s consideration of unadjudicated
criminal activity as a circumstance in aggravation. (§ 190.3, factor (b).) He
acknowledges this court has previously upheld the use of such evidence at the penalty
phase. [Citation] He argues, however, that he was denied his constitutional right to an
impartial fact finder and reliable penalty determination because the same jury that
decided his guilt could not be expected to evaluate this evidence without bias or
prejudice. We have considered and rejected this argument in People v. Balderas, [ ] , and
find no reason to reconsider our conclusions. We have also previously determined that
214
1
2
3
4
5
6
7
8
9
the use of factor (b) evidence does not run afoul of the statute of limitations. [Citation]
Nor was the jury required unanimously to agree defendant committed the alleged
crimes. [Citation]
On this record, we find no error by virtue of the trial court’s failure to repeat the
“presumption of innocence” instruction given prior to guilt phase deliberations. At the
beginning of the penalty phase, the court expressly alerted the jury that “[m]ost of the
rules that I gave you before ... will apply to this case.” Nothing in the court’s subsequent
penalty instructions suggested the jury should disregard the earlier admonition that a
criminal defendant is presumed innocent; and a reasonable juror would assume it
continued to apply. [Citation]
Bolin, 18 Cal. 4th at 335-36.
That court’s determination in these regards was not unreasonable.
Petitioner has not
10 demonstrated clearly established authority from the United States Supreme Court holding that a jury
11 may not consider prior unadjudicated criminal activity during the penalty phase of a capital case. See
12 Sharp v. Texas, 488 U.S. 872 (1988) (Marshall J, dissenting) (“I would grant the petition to resolve
13 the question whether the Eighth and Fourteenth Amendments preclude the introduction of evidence of
14 unadjudicated criminal conduct at the sentencing phase of a capital case.”); Miranda v. California,
15 486 U.S. 1038 (1988) (same); see Spencer v. Texas, 385 U.S. 554, 563-564 (1967) (approving limited
16 use of other crimes evidence for purposes other than propensity). Given the Supreme Court has not
17 decided the issue, the California Supreme Court’s above decision could not be contrary to or an
18 unreasonable application of United States Supreme Court precedent. Carey, 549 U.S. at 76.
19
Furthermore, the United States Supreme Court has upheld the constitutionality of California’s
20 death penalty law, including § 190.3(b), which permits evidence of prior criminal activity involving
21 violence or threats of violence. California v. Brown, 479 U.S. 538, 543 (1987); see also Tuilaepa v.
22 California, 512 U.S. 967, 975-80 (1994). California’s death penalty statute expressly provides that a
23 capital defendant’s prior violent conduct is relevant to the penalty determination.
24
Petitioner’s allegation that because he had been previously convicted of only one felony (the
25 attempted voluntary manslaughter on Ross), the instruction on aggravating unadjudicated criminal
26 activity unduly emphasized this evidence as an aggravating factor, was rejected by the state supreme
27 court. That court reasonably was “unpersuaded the jury was likely to interpret the court's direction in
28 this manner.” Bolin, 18 Cal. 4th at 341. This Court agrees. The allegation appears no more than
215
1
speculation and was reasonably rejected.
2
California law also calls for a single jury to determine both guilt and penalty. People v.
3
Balderas, 41 Cal. 3d 144, 205 (1985). Petitioner cites no United States Supreme Court authority for
4
his contention that presenting evidence of his prior uncharged offenses to the same jury that found
5
him guilty of first degree murder with special circumstances denies him an impartial fact finder.
6
(ECF No. 113 at 163.)
7
Petitioner does not cite any authority for his claim that, in the penalty phase of a capital trial,
8
the prosecution should be barred from presenting evidence of offenses that might be barred from
9
actual prosecution by a statute of limitations. (Id. at 164.) The California Supreme Court could
10 reasonably find that that penalty phase use of evidence of prior violent crime did not make the verdict
11 unfair or unreliable. See Bolin, 18 Cal. 4th at 335 (“[T]he use of [§ 190.3] factor (b) evidence does
12 not run afoul of the statute of limitations.”).
13
Petitioner’s argument, that his rights were violated by the absence of a requirement that the
14 jurors unanimously agree in writing beyond a reasonable doubt that an allegation of criminal activity
15 is true, (ECF No. 113 at 163), also is unavailing. The California Supreme Court reasonably rejected
16 these allegations, stating “[w]e have long held the Constitution does not mandate such a finding.”
17 Bolin, 18 Cal. 4th at 341. Petitioner was not being tried for the aggravating conduct adduced at the
18 penalty phase. The safeguards he seeks were unnecessary. See e.g., Williams v. Vasquez, 817 F.
19 Supp. 1443, 1471 (E.D. Cal. 1993) (holding lack of jury instruction enumerating elements of offenses
20 or standard of proof which must be met before jury can consider those offenses does not render
21 unconstitutionally vague California’s aggravating factor allowing jury to weigh unadjudicated
22 criminal conduct).
23
For the reasons stated, this Court does not find that the state supreme court’s rejection of the
24 claim was contrary to, or an unreasonable application of, clearly established federal law, as determined
25 by the Supreme Court, or that the state court’s ruling was based on an unreasonable determination of
26 the facts in light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).
27
Claim S is denied.
28
3.
Review of Claim T
216
1
In his next claim, Petitioner alleges the lack of a unanimous jury finding beyond a reasonable
2
doubt that the prior criminal activity discussed in claim S, ante, was true, denied him equal
3
protection, presumption of innocence, due process, a reliable and fair penalty determination, a
4
unanimous jury, and subjected him to cruel and unusual punishment, violating his rights under the
5
Fifth, Eighth, and Fourteenth Amendments to the U.S. Constitution. (ECF No. 113 at 164-66.)
6
7
8
9
10
11
The California Supreme Court considered this same claim on direct appeal and rejected it on
the merits. Bolin, 18 Cal. 4th at 335-36, 341.
a.
Clearly Established Law
The applicable legal standards are set out in claim S, ante.
b.
Analysis of Claim T
Petitioner argues that the absence of a unanimity requirement denied him a presumption of
12 innocence, available in the non-capital context, resulting in an unfair trial and unreliable sentence
13 determination. Hicks, 447 U.S. at 346.
14
Petitioner finds fault with the following instruction given the jury:
15
Evidence has been introduced for the purpose of showing that the defendant has
committed the following criminal acts, to wit: assault with a deadly weapon and writing
a threatening letter which involved the express or implied use of force or violence or the
threat of force or violence.
16
17
18
19
20
21
22
23
24
Before a juror may consider any of such criminal acts as an aggravating circumstance in
this case, the jury must first be satisfied beyond a reasonable doubt that the defendant
did, in fact, commit such criminal acts.
A juror may not consider any evidence of any other criminal acts as an aggravating
circumstance.
It is not necessary for all the jurors to agree. If any juror is convinced beyond a
reasonable doubt that such criminal activity occurred, that juror may consider that
activity as a fact in aggravation. If a juror is not so convinced, then that juror must not
consider that evidence for any purpose.
25 (RT at 2608; see also CT at 634.) Petitioner claims that, “in light of the importance of the [evidence
26 of prior unadjudicated criminal activity] to the prosecution’s case in aggravation,” the errors alleged
27 in this claim are prejudicial under Brecht.
28
Petitioner also alleges that the foregoing constitutional arguments were not adjudicated by the
217
1
state court. The Court disagrees, and finds the claim unpersuasive for the reasons stated in claim S,
2
ante, and as follows.
3
Petitioner does not identify any clearly established authority from the United States Supreme
4
Court holding that a jury must unanimously find Petitioner’s prior unadjudicated criminal activity to
5
be true in order to consider it as a factor in aggravation during the penalty phase of a capital case. See
6
Cummings v. Polk, 475 F.3d 230, 238 (2007) (recognizing that the United States Supreme Court has
7
not resolved this issue and thus, under AEDPA, claim must be denied). Additionally, an issue solely
8
of state law is not a basis for habeas relief. Estelle, 502 U.S. at 67-68.
9
As noted, Petitioner was not being tried for the unadjudicated conduct offered at the penalty
10 phase. Thus the unanimity safeguard was unnecessary. Aggravating circumstances are not separate
11 penalties but are standards to guide the making of the choice between death and life imprisonment.
12 People v. Raley, 2 Cal. 4th 870, 910 (1992). A factor set forth in Penal Code § 190.3 does not require
13 a “yes” or “no” answer to a specific question, but points the sentencer to the subject matter which
14 guides the choice between the two punishments. Tuilaepa, 512 U.S. at 975.
15
The United States Supreme Court has made clear that “the constitutional prohibition on
16 arbitrary and capricious capital sentencing determinations is not violated by a capital sentencing
17 ‘scheme that permits the jury to exercise unbridled discretion in determining whether the death
18 penalty should be imposed after it has found that the defendant is a member of the class made eligible
19 for that penalty by statute.’” Ramos, 463 U.S. at 1008 n.22, (quoting Zant v. Stephens, 462 U.S. 862,
20 875 (1983)).
21
Petitioner’s citation to Apprendi v. New Jersey, 530 U.S. 466 (2000), (see ECF No. 178 at
22 239:2-3) does not support this claim. Apprendi, which requires that any fact that increases the
23 penalty for a crime beyond the prescribed statutory maximum, must be submitted to a jury and proved
24 beyond a reasonable doubt, is not contravened by California’s death penalty scheme. This is because
25 once a California jury convicts of first degree murder with a special circumstance “the defendant
26 stands convicted of an offense whose maximum penalty is death.” People v. Ochoa, 26 Cal. 4th 398,
27 454 (2001),abrogated on other grounds as stated in People v. Prieto, 30 Cal. 4th 226, 263 n.14 (2003).
28
Petitioner’s reliance upon cases involving the requirement of a unanimous verdict for a
218
1
criminal conviction (i.e., not for finding a factor in aggravation - see ECF No. 178 at 236-38) is
2
misplaced, for the reasons stated.
3
Accordingly, this Court does not find that the state supreme court’s rejection of the claim was
4
contrary to, or an unreasonable application of, clearly established federal law, as determined by the
5
Supreme Court, or that the state court’s ruling was based on an unreasonable determination of the
6
facts in light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).
7
Claim T is denied.
8
4.
9
Petitioner alleges, in seven subclaims, that the trial court committed multiple instructional
Review of Claim U
10 errors at the penalty phase, “by refusing several entirely appropriate and necessary instructions
11 offered by the defense, and by failing to inform the jury of the scope of their task and adequately
12 guide their discretion, thereby failing to guarantee that the charge as a whole adequately guided the
13 jury’s discretion in determining whether [Petitioner] should live or die.” (ECF No. 113 at 166:1114 13.)
15
The clearly established law applicable to the subclaims is set out below. The subclaims are
16 reviewed separately.
17
18
a.
Clearly Established Law
A challenge to jury instructions does not generally state a federal constitutional claim. Rather,
19 in order to warrant federal habeas relief, a challenged jury instruction “cannot be merely undesirable,
20 erroneous, or even universally condemned, but must violate some due process right guaranteed by the
21 [F]ourteenth amendment.” Prantil v. California, 843 F.2d 314, 317 (1988) (quoting Cupp, 414 U.S. at
22 146). Petitioner must demonstrate the instructional error infected the entire trial as to render it unfair.
23 Dunckhurst v. Deeds, 859 F.2d 110, 114 (1988); see also Estelle, 502 U.S. at 72 (quoting Cupp, 414
24 U.S. at 147). If an error is found, then the court must also determine that the error had “a substantial
25 and injurious effect or influence in determining the jury’s verdict before granting relief in habeas
26 proceedings.” Brecht, 507 U.S. at 637.
27
In evaluating a claim of instructional error, a single instruction is not viewed in isolation, but
28 rather in the context of the overall charge. Spivey v. Rocha, 194 F.3d 971, 976 (9th Cir. 1999).
219
1
“[T]he proper inquiry . . . is whether there is a reasonable likelihood that the jury has applied the
2
challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.”
3
Boyde, 494 U.S. at 380. Additionally, a reviewing court does not engage in a technical parsing of the
4
instruction’s language, but instead approaches the instructions in the same way that the jury would,
5
with a “commonsense understanding of the instructions in the light of all that has taken place at the
6
trial.” Johnson, 509 U.S. at 368. Lastly, federal courts presume that juries follow instructions,
7
including cautionary instructions. Weeks, 528 U.S. at 234; Olano, 507 U.S. at 740.
8
9
b.
Analysis of Claim U1
Petitioner alleges that, beginning in voir dire and continuing through instructions at the
10 penalty phase, the trial court erroneously told the jury that the penalty phase instructions, in their
11 entirety, were simply “guidelines” (see RT at 242, 368, 395, 1009, 1091, 1114, 1117, 1354, 1399,
12 1419, 1906, 2394), and that the penalty decision would be entirely within the juror’s discretion. (ECF
13 No. 113 at 166-71.)
14
Petitioner complains that the trial judge characterized the determination of the death penalty
15 as “just a balancing, not beyond a reasonable doubt” (see, e.g., RT at 1122:25-28), thereby failing to
16 limit the jurors’ discretion by objective standards, Gregg v. Georgia, 428 U.S. 153, 189 (1976),
17 denying Petitioner due process, Estelle, 502 U.S. 62 (1991), and a fair and reliable sentence
18 determination, Tuilaepa, 512 U.S at 973.
19
Specifically, Petitioner complains this violated his Fifth Amendment right not to testify and
20 his Eighth and Fourteenth Amendment rights to have the jury consider all mitigating evidence,
21 Eddings v. Oklahoma, 455 U.S. 104, 115 (1982); Lockett v. Ohio, 438 U.S. 586, 605 (1978), and to
22 have each element of aggravating prior criminal conduct established beyond a reasonable doubt.
23
The California Supreme Court considered this claim on petition for writ of habeas corpus and
24 rejected it as procedurally barred because it could have been, but was not raised on direct appeal.
25 (CSC Order Den. Pet. Habeas Corpus [citing In re Harris, 5 Cal. 4th at 825 n.3 and In re Dixon, 41
26 Cal. 2d at 759].)
That court also summarily denied the habeas claim on the merits without
27 explanation. (CSC Order Den. Pet. Habeas Corpus.)
28
This claim fails. The California Supreme Court could reasonably have determined that the
220
1
instructions given in this case, when considered as a whole, “adequately performed the constitutional
2
function of guiding the jury’s discretion in sentencing.” Bolin, 18 Cal. 4th at 343. The jury was
3
specifically instructed that it “shall” consider the mitigating factors it found applicable (RT at 2605-
4
07), what the mitigating factors were (RT at 2615; CT 631-32), and how they should be weighed (RT
5
at 2615). The jurors were specifically instructed that aggravating and mitigating factors were not
6
simply to be counted. (RT at 2615; CT at 647.)
7
Petitioner argues the errors alleged above may have led the jury to consider less than all the
8
mitigating evidence.
But for the reasons stated below, the California Supreme Court could
9
reasonably have found that the jury was fully instructed on the factors to consider when determining
10 the appropriate penalty for Petitioner. (RT at 2605-07.)
11
The jury was instructed with CALJIC 2.60 relating to Petitioner’s decision not to testify (CT
12 at 646) and CALJIC 8.85 relating to the statutory factors they must consider at the penalty phase (CT
13 at 631-32). The trial court directed the jurors that, “[y]ou must accept and follow the law as I give it
14 to you, whether or not you agree with the law.” (RT at 2604.) That court also instructed the jury that
15 most of the guilt phase rules applied to the penalty phase, (RT at 2394), and that they should be
16 guided by the applicable factors of aggravating and mitigating circumstances as instructed (CT at
17 647-48, CALJIC 8.88).
18
As noted, when evaluating the effect of an instruction on the jury, courts must follow “the
19 well-established proposition that a single instruction to a jury may not be judged in artificial isolation,
20 but must be viewed in the context of the overall charge.” Boyde, 494 U.S. at 378; Middleton v.
21 McNeil, 541 U.S. 433, 435-36 (2004) (finding that an erroneous instruction was cured by the
22 spillover effect of correct instruction on the law elsewhere).
23
The California Supreme Court generally reviewed instructional error claims on direct appeal
24 and reasonably rejected any suggestion that a proper interpretation of California’s death penalty law
25 required the jury to be instructed in the manner requested by Petitioner. Bolin, 18 Cal. 4th at 34126 345. It is unlikely that the jury would have interpreted the trial court’s brief comments earlier in the
27 trial as authorization to wholly ignore the guilt phase instructions when determining the appropriate
28 penalty. (RT at 2603-16.) It follows that Petitioner has not demonstrated instructional errors that had
221
1
a substantial and injurious effect or influence in determining the jury’s verdict under Brecht. See also
2
claim D, ante.
3
Accordingly, this Court does not find that the state supreme court’s rejection of the claim was
4
contrary to, or an unreasonable application of, clearly established federal law, as determined by the
5
Supreme Court, or that the state court’s ruling was based on an unreasonable determination of the
6
facts in light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).
7
8
9
Claim U1 is denied.
c.
Analysis of Claim U2
Petitioner next alleges that the trial court erred by not reading CALJIC No. 8.84.1 (“Duty of
10 Jury – Penalty Proceeding”) regarding the penalty phase duty of the jury. Specifically he claims the
11 jury was not instructed to “[d]isregard all other instructions given to you in other phases of this trial”
12 and that it must “neither be influenced by bias nor prejudice against the defendant, nor swayed by
13 public opinion or public feelings [and that] you will consider all of the evidence, follow the law,
14 exercise your discretion conscientiously, and reach a verdict.” (ECF No. 113 at 171:19-28.)
15
This, he contends, may have left the jury confused as to whether it could consider sympathy,
16 pity, compassion or mercy in the penalty phase. (RT at 2394); People v. Babbitt, 45 Cal. 3d 660, 718
17 n.26 (1988) (as modified on denial of reh'g (Aug. 25, 1988) (trial courts should expressly inform the
18 jury at the penalty phase which instructions previously given continue to apply).
19
Petitioner also alleges that at the penalty phase, the jury did not consider the consequences
20 their verdict and their individual sense of morality, because they were not instructed to disregard the
21 guilt phase instruction requiring them to return a “just” verdict, “regardless of the consequences.”
22 (CT at 432-33; CALJIC 1.00.)
23
Petitioner raised the same claim in his petition for writ of habeas corpus in the California
24 Supreme Court, (CSC Pet. Habeas Corpus at 246-50), which that court found to be procedurally
25 barred because the claim could have been, but was not, raised on direct appeal. (CSC Order Den. Pet.
26 Habeas Corpus [citing In re Harris, 5 Cal. 4th at 825 n.3; In re Dixon, 41 Cal. 2d at 759].)
27
The California Supreme Court also summarily rejected the claim on the merits without
28 explanation. (CSC Order Den. Pet. Habeas Corpus.)
222
1
CALJIC No. 8.84.1 (“Duty of Jury – Penalty Proceeding”) (1989 New), provides in full:
2
You will now be instructed as to all of the law that applies to the penalty phase of this
trial.
3
4
5
6
7
8
9
10
You must determine what the facts are from the evidence received during the entire trial
unless you are instructed otherwise. You must accept and follow the law that I shall state
to you. Disregard all other instructions given to you in other phases of this trial.
You must neither be influenced by bias nor prejudice against the defendant, nor swayed
by public opinion or public feelings. Both the People and the Defendant have a right to
expect that you will consider all of the evidence, follow the law, exercise your discretion
conscientiously, and reach a just verdict.
(ECF No. 178 at 244:20-45-4.)
Respondent concedes that the trial court did not give CALJIC 8.84.1 (ECF No. 194 at 284:17-
11 18), but argues that the California Supreme Court could reasonably have found that the jury was
12 sufficiently instructed, through the other instructions given, with all the requirements contained in
13 CALJIC 8.84.1. This Court agrees.
14
Petitioner cites to Babbitt and argues that CALJIC 8.84.1 was to be used at the penalty phase
15 in lieu of CALJIC 1.00 due to the latter’s lack of clarity as to applicability of guilt phase instructions
16 at the penalty phase. 45 Cal. 3d 660, 717-18 & n.26. The Babbitt court stated that:
17
18
19
[W]e upheld the 1978 death penalty statute against a challenge that it withdraws
constitutionally compelled sentencing discretion from the jury. [Citation] To forestall
any possible confusion we directed trial courts in the future to instruct the jury as to the
scope of its discretion and responsibility in accordance with the principles set forth in
Brown.
20
21 Babbitt, 45 Cal. 3d at 714.
22
Here, the state supreme court could reasonably have concluded that the jury was instructed as
23 to their penalty phase responsibilities and the scope of their sentencing discretion. The jury was
24 given the factors to consider in determining the penalty. (CT at 631-32; RT at 2605-07; CALJIC No.
25 8.85.) They were instructed not to consider “for any reason whatsoever the deterrent or non-deterrent
26 effect on [sic] the death penalty or the monetary cost to the State of California of execution or
27 maintaining a prisoner for life.” (RT at 2614; CT at 644; see also Defendant’s Proposed Instruction
28 No. 15, CT at 644.) They were instructed they “must conscientiously consider and weigh the
223
1
evidence and apply the law” and must return a verdict that is “just and reasonable.” (RT at 2604; CT
2
at 628-29; Defendant’s Proposed Jury Instruction No. 1.00.) They were instructed (at the guilt phase)
3
not to be swayed by public opinion or prejudice. Id. They were instructed “to assume that if you
4
sentence [Petitioner] to death, he will be executed in the gas chamber.” (RT at 2614; CT at 645;
5
Defendant’s Proposed Instruction No. 4, CT at 645.) They were instructed to disregard conflicting
6
guilt phase instructions. (RT at 2607; CT at 632; CALJIC No. 8.85.)
7
The state supreme court could reasonably have determined that the jury was bound to the
8
principles embodied in CALJIC 8.84.1 and that “the jury could not have been misled about its sole
9
responsibility to determine, based on its individualized weighing discretion, whether death was
10 appropriate.” Babbitt, 45 Cal. 3d at 718. Here again, jurors are presumed to follow the instructions
11 as given and in their entirety and to use the appropriate factors when making their penalty
12 determination.
Middleton, 541 U.S. at 435-36 (not reasonably likely jury misunderstood
13 requirements of charged offense when all the instructions are considered in their entity). Petitioner
14 has not demonstrated that the court’s failure to give CALJIC 8.84.1 was instructional error that made
15 his trial unfair.
16
To the extent Petitioner argues ineffective assistance of trial and appellate counsel in
17 connection with this alleged instructional error, as more specifically discussed in his claims W8 and
18 DD, such allegations fail for the reasons stated above and in claims W8 and DD, post.
19
Petitioner’s related argument that he was prejudiced by the alleged extensive misleading and
20 negative pretrial publicity in this case, and by the prosecution’s improper penalty phase closing
21 argument that the jury should consider public sentiment in reaching their verdict, (see RT at 2574),
22 fails for reasons discussed in claim V, post. Petitioner has not demonstrated federal constitutional
23 error, Estelle, 502 U.S. at 67, and cannot show prejudice under Brecht.
24
Accordingly, this Court does not find that the California Supreme Court’s rejection of the
25 claim was contrary to, or an unreasonable application of, clearly established federal law, as
26 determined by the Supreme Court, or that the state court’s ruling was based on an unreasonable
27 determination of the facts in light of the evidence presented in the state court proceeding. See 28
28 U.S.C. § 2254(d).
224
1
2
Claim U2 is denied.
d.
Analysis of Claim U3
3
Petitioner next alleges the trial court erred by failing to distinguish between aggravating and
4
mitigating circumstances in the penalty phase instructions, denying him due process and a reliable
5
penalty determination, violating his rights under the Fifth, Eighth and Fourteenth Amendments.
6
(ECF No. 113 at 174-75.)
7
Specifically, Petitioner alleges that the trial court’s use of CALJIC 8.85 (CT at 631-32), which
8
lists the Penal Code § 190.3 aggravating and mitigating factors without distinguishing which are
9
aggravating and which are mitigating, allowed the jury to give mitigating factors aggravating weight,
10 and to consider the absence of statutory mitigating factors as aggravating factors.
11
Petitioner also alleges that the state court did not adjudicate his constitutional arguments in
12 this claim. The Court disagrees, and denies the claim for the following reasons.
13
The California Supreme Court reviewed these allegations on direct appeal and adjudicated
14 them by denying the allegations on the merits, stating that:
15
16
17
18
19
20
21
22
Defendant asserts the trial court violated various constitutional rights by failing to
delineate which statutory factors were aggravating and which were mitigating. We have
consistently rejected this argument. “[T]he aggravating or mitigating nature of [the
section 190.3] factors should be self-evident to any reasonable person within the context
of each particular case.” [Citation] Here, the court explained that an aggravating factor
was anything connected with the crime “which increases its guilt or enormity or adds to
the injurious consequences ....” By contrast, a mitigating factor was any “extenuating
circumstance” short of justification or excuse. Nothing in these commonly understood
definitions supports defendant’s assertions that the jury could have considered section
190.3, factor (d) (extreme mental or emotional disturbance), factor (g) (acting under the
substantial domination of another), or factor (h) (impairment due to mental defect or
intoxication) as aggravating, particularly since there was no evidence of such
circumstances. Moreover, in closing argument both the prosecutor and defense counsel
identified which factors could be considered aggravating and which mitigating.
23
24
25
26
27
28
We are also unpersuaded that language instructing the jury to determine “whether or
not” section 190.3, factors (d) through (h) and (j) existed caused any confusion in this
regard. [Citation] This reference simply complemented the court’s generic instruction
that the jury’s function was to “decide what the facts are from the evidence received in
the trial ....” Furthermore, in the final analysis “the constitutional prohibition on arbitrary
and capricious capital sentencing determinations is not violated by a capital sentencing
‘scheme that permits the jury to exercise unbridled discretion in determining whether the
death penalty should be imposed after it has found that the defendant is a member of the
class made eligible for that penalty by statute.” [Citation]
225
1
Bolin, 18 Cal. 4th at 341-42.
2
“[T]he Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind
3
of capital case, not be precluded from considering, as a mitigating factor, any aspect of a defendant’s
4
character or record and any of the circumstances of the offense that the defendant proffers as a basis for
5
a sentence less than death.” Lockett, 438 U.S. 586 at 604; Eddings, 455 U.S. at 113-114 (adopting rule
6
in Lockett). “The standard against which we assess whether jury instructions satisfy the rule of Lockett
7
and Eddings was set forth in Boyde, 494 U.S. 370 (1990).” Johnson v. Texas, 509 U.S. 350, 367-68
8
(1993). In Boyde, the Supreme Court held that “there is no . . . constitutional requirement of unfettered
9
sentencing discretion in the jury, and States are free to structure and shape consideration of mitigating
10 evidence ‘in an effort to achieve a more rational and equitable administration of the death penalty.’”
11 494 U.S. at 377 (quoting Franklin v. Lynaugh, 487 U.S. 164, 181 (1988)).
12
In evaluating the instructions, the “reviewing court must determine ‘whether there is a
13 reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the
14 consideration of constitutionally relevant evidence.’” Johnson, 509 U.S. at 367 (quoting Boyde, 494
15 U.S. at 380). “[W]e do not engage in a technical parsing of this language of the instructions, but
16 instead approach the instructions in the same way that the jury would—with a commonsense
17 understanding of the instructions in the light of all that has taken place at the trial.” Id. at 368
18 (quoting Boyde, 494 U.S. at 381). Further, a single instruction “may not be judged in artificial
19 isolation, but must be considered in light of the instructions as a whole and the entire trial record.”
20 Estelle, 502 U.S. at 72.
21
The failure to identify whether factors are aggravating or mitigating is not contrary to or an
22 unreasonable application of Supreme Court authority.
In Pulley, the Supreme Court reviewed
23 California’s sentencing system, including the manner in which the jury considered relevant factors in
24 deciding the penalty. 465 U.S. at 51. The Supreme Court noted that the 1977 death penalty law (like
25 the 1978 law applicable in this case) did not identify or separate the aggravating or mitigating factors.
26 Id. at 53 n.14. The Court found California’s death penalty law to be constitutional. Id. at 51
27 (“Assuming that there could be a capital sentencing system so lacking in other checks on arbitrariness
28 that it would not pass constitutional muster without comparative proportionality review, the 1977
226
1
California statute is not of that sort.”).
Pulley was clearly established authority at the time
2
Petitioner’s conviction became final on March 8, 1999.
3
In Tuilaepa, the Supreme Court revisited California’s death penalty sentencing scheme. The
4
Supreme Court rejected the argument that California’s “single list of factors” was unconstitutional.
5
The Court stated:
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
This argument, too, is foreclosed by our cases. A capital sentencer need not be instructed
how to weigh any particular fact in the capital sentencing decision. In California v.
Ramos, for example, we upheld an instruction informing the jury that the Governor had
the power to commute life sentences and stated that “the fact that the jury is given no
specific guidance on how the commutation factor is to figure into its determination
presents no constitutional problem.” [Citation] Likewise, in Proffitt v. Florida, we
upheld the Florida capital sentencing scheme even though “the various factors to be
considered by the sentencing authorities [did] not have numerical weights assigned to
them.” [Citation] In Gregg, moreover, we “approved Georgia’s capital sentencing statute
even though it clearly did not channel the jury’s discretion by enunciating specific
standards to guide the jury’s consideration of aggravating and mitigating
circumstances.” [Citation] We also rejected an objection “to the wide scope of evidence
and argument” allowed at sentencing hearings. [Citation] In sum, “discretion to evaluate
and weigh the circumstances relevant to the particular defendant and the crime he
committed” is not impermissible in the capital sentencing process. [Citation] “Once the
jury finds that the defendant falls within the legislatively defined category of persons
eligible for the death penalty ... the jury then is free to consider a myriad of factors to
determine whether death is the appropriate punishment.” [Citation] Indeed, the sentencer
may be given “unbridled discretion in determining whether the death penalty should be
imposed after it has found that the defendant is a member of the class made eligible for
that penalty.” [Citations] In contravention of those cases, petitioners’ argument would
force the States to adopt a kind of mandatory sentencing scheme requiring a jury to
sentence a defendant to death if it found, for example, a certain kind or number of facts,
or found more statutory aggravating factors than statutory mitigating factors. The States
are not required to conduct the capital sentencing process in that fashion. [Citation]
21 Tuilaepa, 512 U.S. at 979-80.
22
Here, at the penalty phase, the jury was instructed with CALJIC No. 8.85, which sets forth the
23 factors the jury should consider in determining penalty:
24
25
In determining which penalty is to be imposed on this defendant, you shall consider all
of the evidence which has been received during any part of the trial in this case. You
shall consider, take into account and be guided by the following factors, if applicable....
26 (CT at 631; RT at 2605.) The court then read the several factors under headings A through J,
27 (informing the jury of the statutory factors from Penal Code § 190.3(a) through (i) and (k)), but did
28 not expressly inform them which factors were relevant solely as mitigating factors. (CT at 631-32;
227
1
RT at 2605-07.) However, the trial court did instruct the jury that it could consider any other
2
circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the
3
crime and any sympathetic or other aspect of the defendant’s character or record that the defendant
4
offers as a basis for a sentence less than death, whether or not related to the offense for which he is on
5
trial; and that it must disregard any instruction given in the guilt or innocence phase which conflicted
6
with the foregoing instruction. (RT at 2607; CT at 632.)
7
There is no clearly established authority from the United States Supreme Court holding that a
8
jury must be instructed in a particular manner. The Eighth Amendment does not require that a jury be
9
instructed on particular statutory mitigating factors. Buchanan v. Angelone, 522 U.S. 269, 275-77
10 (1998). Accordingly, since the Supreme Court has not decided the issue, the state supreme court’s
11 decision could not be contrary to or an unreasonable application of United States Supreme Court
12 precedent. Carey, 549 U.S. 76.
13
Petitioner has made no evidentiary showing that the instructions given in this case in any way
14 foreclosed the jury from considering any relevant mitigating evidence. The Supreme Court has
15 examined the language in California’s jury instruction on mitigation multiple times, and upheld it
16 against constitutional challenges every time. See Ayers v. Belmontes, 549 U.S. 7, 24 (2006); Brown
17 v. Payton, 544 U.S. 133, 142 (2005); Boyde, 494 U.S. 370, 386.
18
Even if there were instructional error by failing to distinguish between aggravating and
19 mitigating circumstances, the California Supreme Court could reasonably have found no “substantial
20 and injurious effect or influence in determining the jury’s verdict.” Brecht, 507 U.S. at 638. The jury
21 was instructed that:
22
23
24
25
An aggravating factor is any fact, condition or event in the commission of a crime which
increases its guilt or enormity or adds to the injurious consequences which is above and
beyond the elements of the crime itself.
The mitigating circumstance is any fact, condition or event which if such does not
constitute a justification or excuse for the crime in question but may be considered as an
extenuating circumstance in determining the appropriateness of the death penalty.
26 RT at 2615.
The state supreme court reasonably found that these definitions used commonly
27 understood terms. Bolin, 18 Cal. 4th at 341-42. Moreover, Petitioner has not demonstrated on the
28 evidentiary record that the jury gave mitigating factors aggravating weight or considered the absence of
228
1
statutory mitigating factors to be aggravating. Bolin, 18 Cal. 4th at 341-42. Though Petitioner argues
2
that “[i]t is reasonably likely that the jury applied CALJIC No. 8.85 in a manner inconsistent with the
3
Constitution” (ECF No. 178 at 251:5-6), he fails to demonstrate on the evidentiary record that any juror
4
was precluded from considering any aspect of a defendant’s character or record and any of the
5
circumstances of the offense to be mitigating.
6
In any event, it seems unlikely the jury would have held such an erroneous belief. The jury
7
was instructed that it could consider any non-statutory extenuating, sympathetic, or other basis for a
8
sentence less than death, whether or not related to the conviction, and that the jury must disregard any
9
instruction given in the guilt or innocence phase which conflicted with the foregoing instruction. (RT
10 at 2607; CT at 632.)
11
There also appear additional reasons that the state supreme court could have found no
12 prejudicial error. Both sides, in their respective closing arguments, identified those factors which
13 could be aggravating and those which could be considered mitigating. See RT at 2573-2601; see also
14 Bolin, 18 Cal.4th at 341. The noted circumstances of the instant capital murders and evidence of
15 adjudicated and unadjudicated past criminal acts also suggest substantial aggravating evidence. (See
16 claims 0, R and S, ante; RT at 2605-14; CALJIC Nos. 8.85, 8.86, 8.87, CT at 631-33.)
17
For the reason stated by the California Supreme Court as well as those discussed above, the
18 Court finds it unlikely that the jurors improperly and prejudicially applied CALJIC 8.85 as a result of
19 the alleged failure to distinguish between aggravating and mitigating factors. Moreover, an error
20 solely of state law is not a basis for federal habeas relief.
21
Accordingly, this Court does not find that the state supreme court’s rejection of the claim was
22 contrary to, or an unreasonable application of, clearly established federal law, as determined by the
23 Supreme Court, or that the state court’s ruling was based on an unreasonable determination of the
24 facts in light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).
25
26
27
Claim U3 is denied.
e.
Analysis of Claim U4
Petitioner next alleges that, at the penalty phase, the trial court failed to instruct on the
28 definition of “reasonable doubt” applicable to aggravating criminal acts, denying him due process
229
1
under the Fifth and Fourteenth Amendments. (ECF No. 113 at 175-76.)
2
Petitioner made this same claim on direct appeal, which the California Supreme Court
3
considered and rejected on the merits. Bolin, 18 Cal. 4th at 342. He alleges the state court did not
4
fully adjudicate the claim.
5
However, the California Supreme Court considered and rejected the claim, stating that:
6
During penalty phase instruction, the trial court did not repeat the definition of
reasonable doubt given at the guilt phase. Defendant contends this omission violated
various constitutional rights because the term is not commonly understood outside the
law. We find no error. At the beginning of the penalty phase, the court expressly alerted
the jury that “[m]ost of the rules that I gave you before ... will apply to this case.”
Nothing in the court’s subsequent instructions suggested the jury should disregard the
earlier definition; a reasonable juror would assume it continued to apply.
7
8
9
10
11 Bolin, 18 Cal. 4th at 342.
12
As noted, during the penalty phase, the prosecution presented aggravating evidence of
13 Petitioner’s prior felony conviction for attempted voluntary manslaughter and his two prior
14 unadjudicated criminal acts of assault and writing a threatening letter. The jury was instructed at the
15 penalty phase that it “must first be satisfied beyond a reasonable doubt” that Petitioner was convicted
16 of or committed these criminal acts before they could be considered aggravating circumstances. (CT
17 at 633-34; RT at 2607-08; CALJIC Nos. 8.86, 8.87.)
18
Petitioner concedes that the jury was instructed on the definition of “reasonable doubt” at the
19 guilt phase, (CT at 457), but complains that jury was not re-instructed on this definition at the penalty
20 phase. (RT at 2607; CT at 633.) He alleges that penalty phase instructions implied that the guilt
21 definition did not apply at penalty phase. (RT at 2603-04; CT at 628.) He claims this error left the jury
22 “unguided in their determination as to whether or not to accept the evidence presented by the
23 prosecution in aggravation,” (RT at 2603-08; CT at 628-34), which substantially and injuriously
24 affected the jury’s verdict under Brecht.
25
The Court is unpersuaded. The trial court’s admonition at the beginning of the penalty phase
26 instructions, that it would now “tell [the jury] about the law which applies to this phase of the trial”,
27 (see RT at 2603; CT at 628) was not followed by any penalty phase instruction that the jury disregard
28 the definition of reasonable doubt (CALJIC No. 2.90) that had been given to them during the guilt
230
1
phase. (CT at 457; RT at 2195.) Instead, as noted by the state supreme court on direct appeal, the
2
jury was instructed that “most of the rules that I gave you before . . . will apply to [the penalty
3
phase].” RT at 2394; see also Bolin, 18 Cal. 4th at 342. The instructions are considered in their
4
totality. Estelle, 502 U.S. at 72. The jurors were presumed to follow the instructions given by the
5
trial court. Weeks, 528 U.S. at 234.
6
Petitioner has not demonstrated the jury was instructed to disregard the CALJIC No. 2.90
7
instruction. Nor has he demonstrated clearly established law required the trial court to re-read the
8
reasonable doubt definition. See Sanders, 11 Cal. 4th at 561 (the court at the penalty phase is not
9
required to re-read guilt phase instructions when the latter were not limited to use at the guilt phase
10 and when no penalty phase instructions contradict the guilt phase instructions).
11
The Court finds that the California Supreme Court could reasonably determine it unlikely that
12 a failure to re-instruct with CALJIC No. 2.90 at the penalty phase confused the jury such that they
13 were left unguided in determining whether to accept aggravating evidence. The inference otherwise
14 argued by Petitioner does not find sufficient support in the record.
15
Accordingly, this Court does not find that the state supreme court’s rejection of the claim was
16 contrary to, or an unreasonable application of, clearly established federal law, as determined by the
17 Supreme Court, or that the state court’s ruling was based on an unreasonable determination of the
18 facts in light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).
19
20
21
Claim U4 is denied.
f.
Analysis of Claim U5
Petitioner next alleges that the then-effective California death penalty statute suffered from
22 constitutional infirmities, which are reviewed separately below. (ECF No. 113 at 176-78.)
23
24
25
26
27
28
1)
Failure to Minimize Risk of Arbitrary Penalty
Petitioner cites to Furman v. Georgia, 408 U.S. 238, 313 (1972), and complains that his death
sentence was imposed arbitrarily and capriciously because jury instructions at the penalty phase did not
provide “a meaningful basis for distinguishing the few cases in which the death penalty is imposed
from the many cases in which it is not,” exposing Petitioner to cruel and unusual punishment and
denying him due process in violation of the Fifth and Eighth Amendments. (ECF No. 113 at 176:20-
231
1
21.)
The California Supreme Court considered and rejected these allegations on direct appeal, stating
2
3
4
5
6
7
8
9
10
that:
In sum, our capital sentencing scheme does not contain so many special circumstances
that it fails to perform the constitutionally mandated narrowing function. [Citation] Nor
does the felony-murder rule falter in this regard. [Citation] The statutory categories
have not been construed in an unduly expansive manner. [Citation] The breadth of the
prosecutor’s discretion in choosing to seek the death penalty does not render it
unconstitutional. [Citation] The jury need not make express findings with respect to
circumstances in aggravation [Citation], or find beyond a reasonable doubt that death is
the appropriate penalty [citation].
Bolin, 18 Cal. 4th at 345-46.
Supreme Court cases have established that a state capital sentencing system must: “(1)
11 rationally narrow the class of death-eligible defendants; and (2) permit a jury to render a reasoned,
12 individualized sentencing determination based on a death-eligible defendant’s record, personal
13 characteristics, and the circumstances of his crime.” Kansas v. Marsh, 548 U.S. 163, 173-74 (2006). If
14 the “state system satisfies these requirements,” then the “state enjoys a range of discretion in imposing
15 the death penalty, including the manner in which aggravating and mitigating circumstances are to be
16 weighed.” Id. (citing Franklin, 487 U.S. at 179 and Zant, 462 U.S. at 87576, n.13.)
17
A state may narrow the class of murderers eligible for the death penalty by defining degrees of
18 murder. Sawyer v. Whitley, 505 U.S. 333, 342 (1992). A state may further narrow the class of
19 murderers by finding “beyond a reasonable doubt at least one of a list of statutory aggravating factors.”
20 Id.; see also Gregg, 428 U.S. at 196-97.
21
In California, a defendant may be sentenced to death for first degree murder if the trier of fact
22 finds the defendant guilty and also finds true one or more of the special circumstances listed in Penal
23 Code § 190.2. As relevant here, one of the circumstances is: “[t]he defendant, in this proceeding, has
24 been convicted of more than one offense of murder in the first or second degree.” Penal Code §
25 190.2(a)(3). There is no question that this sentencing scheme satisfies clearly established constitutional
26 requirements. First, the subclass of defendants eligible for the death penalty is rationally narrowed to
27 those who have committed multiple murders. Tuilaepa, 512 U.S. at 969-73. The multiple murder
28 special circumstance sufficiently guides the sentencer and is not unconstitutionally vague. See Godfrey
232
1
v. Georgia, 446 U.S. 420, 428 (1980) (the sentencer’s discretion must be guided by “clear and objective
2
standards.”).
3
In California v. Ramos, the United States Supreme Court stated that “[o]nce the jury finds that
4
the defendant falls within the legislatively defined category of persons eligible for the death penalty”
5
the jury’s consideration of a myriad of factors and exercise of “unbridled discretion” in determining
6
whether death is the appropriate punishment is not arbitrary and capricious. 463 U.S. at 1008-09. At
7
the selection stage, an individualized determination includes consideration of the character and record
8
of the defendant, the circumstances of the crime, and an assessment of the defendant’s culpability.
9
Tuilaepa, 512 U.S. at 972-73. However, the jury “need not be instructed how to weigh any particular
10 fact in the capital sentencing decision.” Id. at 979.
11
Here, the Court finds that the California Supreme Court could reasonably have determined
12 that California’s death penalty scheme then in effect did not fail to genuinely narrow the class of
13 murderers eligible for the death penalty. California’s scheme, which narrows the class of death14 eligible offenders to less than the definition of first degree murder and permits consideration of all
15 mitigating evidence, has been approved by the United States Supreme Court, Tuilaepa, 512 U.S. at
16 972-79; Harris, 465 U.S. at 38, and this Court, Ben-Sholom v. Woodford, E.D. Cal. Case No. CV-F17 93-5531, ECF. No. 421 at 122, 124-25.
18
19
2)
Vagueness Regarding Sentence Determination
Petitioner complains of vagueness in the trial court’s instruction, CALJIC 8.88, that in order
20 to “return a judgment of death, each of you must be persuaded that the aggravating evidence and/or
21 circumstances is so substantial in comparison with the mitigating circumstances that it warrants death
22 instead of life without parole.” (ECF No. 113 at 177:2-11; RT at 2616; CT at 648); see also
23 Woodson, 428 U.S. at 305. He contends the trial court failed to inform the jury that it must find death
24 to be the “appropriate” penalty and not just “warranted.” (ECF No. 113 at 177:12-17.)
25
The California Supreme Court considered and rejected these allegations on the merits on
26 direct appeal, stating that:
27
28
In explaining the nature of the penalty phase deliberative process, the trial court
instructed: “To return a judgment of death, each of you must be persuaded that the
aggravating factors are so substantial in comparison with the mitigating factors, that it
233
1
2
3
4
5
6
7
8
warrants death instead of life without parole.” Defendant now argues the “so
substantial” and “warrants” phrasing is impermissibly vague and does not adequately
guide the decision to impose death. As in the past, we find no constitutional infirmity.
[Citation] Prior to this instruction, the [trial] court explained, “In the weighing of
aggravating and mitigating circumstances, it does not mean a mere mechanical counting
of the factors on each side of an imaginary scale or the arbitrary assignment of weights
to any of them. You are free to assign whatever moral or sympathetic value you deem
appropriate to each and all of the various factors you are permitted to consider. In
weighing the various circumstances, you determine under the relevant evidence which
penalty is justified and appropriate by considering the totality of the aggravating
circumstances with the totality of the mitigating circumstances.” Assessed in this
context, the “so substantial” instruction “clearly admonishes the jury to determine
whether the balance of aggravation and mitigation makes death the appropriate penalty.
[Citations]”
9
10 Bolin, 18 Cal. 4th at 342-43.
11
That court went on to find that, “considered as a whole,” the instructions were “sufficient to
12 guide the jury’s deliberative process and inform the jurors they must find death is the ‘appropriate’
13 penalty if that [is] their verdict.” Id. at 343.
14
Prior to the instant instruction, the trial court instructed the jury that “[i]n weighing the
15 various circumstances, you determine under the relevant evidence which penalty is justified and
16 appropriate by considering the totality of the aggravating circumstances with the totality of the
17 mitigating circumstances.” (RT at 2616; CT at 647-48.) That court also instructed the jury on the
18 meaning of a mitigating circumstance, noting that such a circumstance may be used “in determining
19 the appropriateness of the death penalty.” (RT at 2615; CT at 647.) Defense counsel informed the
20 jury that it would be deciding what is the “appropriate penalty.” (RT at 2467, 2584, 2596.)
21
Upon consideration of the entire charge to the jury and related argument, it is unlikely the
22 alleged vagueness prevented consideration of constitutionally relevant evidence in sentence
23 determination. Boyde, 494 U.S. at 380. As noted, a reviewing court approaches the instructions in
24 the same way that the jury would, with a “commonsense understanding of the instructions in the light
25 of all that has taken place at the trial.” Johnson, 509 U.S. at 368. It can be presumed that the jury
26 followed the instructions, including the cautionary instructions. Weeks, 528 U.S. at 234.
27
Even if there was constitutional error, Petitioner has not demonstrated error under Brecht, i.e.,
28 that there is a reasonably likelihood the jury improperly applied the allegedly ambiguous terms in
234
1
determining their verdict, for the reasons stated and given the noted substantial evidence against
2
Petitioner. (See claims O, R and S, ante; cf., Calderon v. Coleman, 525 U.S. 141, 145 (1998)
3
(inaccurate sentence commutation instruction was Brecht error).
3)
4
Aggravation, Sympathy and Mercy
5
Petitioner complains that the trial court, upon rejecting defendant’s proffered Instruction No.
6
9, failed to instruct the jurors that they could return a life without parole sentence even where the
7
aggravating circumstances substantially outweigh the mitigating circumstances (ECF No. 113 at 177)
8
(citing Gregg, 428 U.S. at 199), and that they could consider other mitigating factors, such as
9
sympathy and mercy.
10
The California Supreme Court considered and rejected these allegations on the merits on
11 direct appeal, stating that:
12
13
14
15
16
17
18
19
Defendant contends the trial court erroneously refused instructions informing the jurors
in various terms that sympathy, pity, compassion, and mercy were factors in deciding
the appropriate sentence. We find no error. “We have repeatedly held that a jury told it
may sympathetically consider all mitigating evidence need not also be expressly
instructed it may exercise ‘mercy.’” [Citations] Here, the trial court gave the standard
instruction to take into account “any other circumstance which extenuates the gravity of
the crime even though it is not a legal excuse for the crime and any sympathetic or other
aspect of the defendant’s character or record that the defendant offers as a basis for a
sentence less than death, whether or not related to the offense for which he is on trial.”
The court also told the jury “to assign whatever moral or sympathetic value you deem
appropriate to each and all of the various factors you are permitted to consider.” No
additional instruction was required.
20 Bolin, 18 Cal. 4th at 343-44.
21
As noted, in reviewing penalty phase instructions, the test is “whether there is a reasonable
22 likelihood that the jury has applied the challenged instruction in a way that prevents the consideration
23 of constitutionally relevant evidence.” Boyde, 494 U.S. at 380. Further, a single instruction “may not
24 be judged in artificial isolation,” but must be considered in light of the instructions as a whole and the
25 entire trial record. Estelle, 502 U.S. at 72.
26
Here, the state court could reasonably have found that the jury was not precluded from
27 considering constitutionally relevant mitigating and sympathetic evidence during their sentence
28 deliberations. The Supreme Court has never required a sentencing court to instruct a jury on how to
235
1
weigh and balance factors in aggravation and mitigation. In Tuilaepa, the Supreme Court stated, “[a]
2
capital sentencer need not be instructed how to weigh any particular fact in the capital sentencing
3
decision.” 512 U.S. at 979. “Once the jury finds that the defendant falls within the legislatively
4
defined category of persons eligible for the death penalty, . . . the jury then is free to consider a myriad
5
of factors to determine whether death is the appropriate punishment.” Id. (quoting Ramos, 463 U.S. at
6
1008.)
7
In Marsh, the Supreme Court stated:
8
In aggregate, our precedents confer upon defendants the right to present sentencers with
information relevant to the sentencing decision and oblige sentencers to consider that
information in determining the appropriate sentence. The thrust of our mitigation
jurisprudence ends here. “[W]e have never held that a specific method for balancing
mitigating and aggravating factors in a capital sentencing proceeding is constitutionally
required.”
9
10
11
12 548 U.S. at 175 (quoting Franklin, 487 U.S. at 179). Here, in explaining the factors the jury was to
13 consider in reaching its decision, the trial court specifically instructed the jury that it could consider:
14
15
16
[A]ny other circumstance which extenuates the gravity of the crime even though it is not
a legal excuse for the crime and any sympathetic or other aspect of the defendant’s
character or record that the defendant offers as a basis for a sentence less than death,
whether or not related to the offense for which he is on trial.
17 (RT at 2607; CT at 632.) The trial court also told jurors that they were “free to assign whatever moral
18 or sympathetic value you deem appropriate to each and all of the various factors you are permitted to
19 consider.” (RT at 2615; CT at 647.) The prosecutor also noted that the jury could and should
20 consider sympathy for the defendant in determining the appropriate penalty. (RT at 2396, 2579,
21 2581.)
22
There is no clearly established authority from the United States Supreme Court holding that a
23 jury must be instructed in a particular manner. Accordingly, since the Supreme Court has not decided
24 the issue, the state supreme court’s decision could not be contrary to or an unreasonable application
25 of United States Supreme Court precedent. Carey, 549 U.S. at 76.
26
To the extent Petitioner alleges the jury may have applied the instruction in a manner contrary
27 to state law (see ECF No. 113 at 177: 23-24 [“state law provides that jurors may sentence a defendant
28 to life without parole even where the aggravating circumstances substantially outweigh the mitigating
236
1
circumstances”]), this allegation is not alone a basis for federal habeas relief. Pulley, 465 U.S. at 41.
2
Accordingly, the state supreme court’s rejection of this claim was not contrary to, or an
3
unreasonable application of, clearly established federal law, as determined by the Supreme Court.
4
Nor was the state court’s ruling was based on an unreasonable determination of the facts in light of
5
the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).
6
7
Claim U5 is denied.
g.
Analysis of Claim U6
8
Petitioner next claims that the trial court erroneously refused certain of his proposed penalty
9
phase instructions which were designed to guide jury discretion in sentence selection, denying him
10 due process and a fair penalty phase determination. (ECF No. 113 at 178-86.)
11
The California Supreme Court considered and rejected the allegation relating to Petitioner’s
12 proposed Instruction No. 9 on direct appeal. He also raised all these same allegations in his petition
13 for writ of habeas corpus in the California Supreme Court. That court found Petitioner’s habeas
14 claims were procedurally barred because these claims could have been, but were not, raised on direct
15 appeal, or were repetitive of such claims. (CSC Order Den. Pet. Habeas Corpus [citing In re Harris, 5
16 Cal. 4th at 825 n.3; In re Dixon, 41 Cal. 2d at 759].) The California Supreme Court also rejected the
17 habeas claims on the merits. (CSC Order Den. Pet. Habeas Corpus); Bolin, 18 Cal. 4th at 343.
18
Petitioner alleges that the trial court erroneously determined that CALJIC 8.88 was “good
19 enough,” rejecting his proposed penalty phase instructions number 2, 9-14, and 19-21, all of which
20 were allegedly designed to inform the jury that they should consider only instructions given at the
21 penalty phase; that they could consider non-statutory mitigating factors; that “unlike in the guilt phase
22 of the case, sympathy, mercy and compassion, or any other mitigating factors, are appropriate
23 considerations for a penalty determination”; that they could return for life without parole even if
24 aggravating circumstances outweigh mitigating circumstances; and that doubt is to be resolved in
25 favor of life without parole. (ECF No. 113 at 178-81; RT at 2549-50; CT at 651, 652, 655, 656, 657,
26 658, 659, 660, 663, 665.) He also alleges that the trial court did not inform the jury that weighing of
27 aggravating and mitigating factors was not to be done mechanically and that death was to be imposed
28 only if it was the appropriate penalty.
237
1
However, the Court finds that the California Supreme Court could have reasonably rejected
2
this claim for the reasons stated in claims U1-U5, ante. The trial court separately instructed the jury
3
on the requirement that it follow the penalty instructions and stated rules of law, such that Petitioner’s
4
proposed Instruction No. 2 (CT at 663) could reasonably be seen as unnecessary. (RT at 2607; CT at
5
632; CALJIC No. 8.85.)
6
Petitioner acknowledges that the jury was instructed that it could consider “any sympathetic or
7
other aspect of the defendant’s character or record” to support a life sentence (CALJIC 8.85) and that
8
it was free to assign whatever “moral or sympathetic value” was “appropriate” to the various factors it
9
was “permitted to consider.” (CALJIC 8.88; ECF No. 113 at 183:22-25.)
10
Petitioner’s proposed instructions could have reasonably been seen as unnecessary given the
11 overall charge to the jury regarding its exercise of sentencing discretion as discussed in claims U112 U5, ante. Spivey, 194 F.3d at 976. The trial court could properly reject a petitioner’s proposed jury
13 instruction if other instructions adequately cover the issues about which the defense is concerned.
14 United States v. Del Muro, 87 F.3d 1078, 1081 (9th Cir. 1996); United States v. Tsinnijinnie, 601
15 F.2d 1035, 1040 (9th Cir. 1979) (“there is no right to have the instruction phrased in the precise terms
16 requested by defendant”).
17
Additionally, Petitioner’s proposed instruction that jurors could not return a verdict of death
18 unless they were persuaded beyond a reasonable doubt that it was the appropriate penalty, (ECF No.
19 113 at 184-85), was reasonably rejected. See, e.g., Williams v. Calderon, 52 F.3d 1465, 1485 (1995)
20 (failure to require a specific finding that death is the appropriate penalty beyond a reasonable doubt
21 does not render California’s death penalty statute unconstitutional); accord People v. Webb, 6 Cal.
22 4th 494, 536 (1993).
23
Under California law “neither death nor life is presumptively appropriate or inappropriate
24 under any set of circumstances, but in all cases the determination of the appropriate penalty remains a
25 question for each individual juror.” People v. Samayoa, 15 Cal. 4th 795, 853 (1997); see also Walton
26 v. Arizona, 497 U.S. 639, 651 (1990), overruled on other grounds by Ring v. Arizona, 536 U.S. 584,
27 589 (2002) (a defendant may constitutionally be required to establish by a preponderance of the
28 evidence the existence of mitigating circumstances, a conclusion manifestly inconsistent with
238
1
Petitioner’s assertion that the Constitution requires the jury to determine beyond a reasonable doubt
2
that death is the appropriate penalty). Petitioner’s cited People v. Cancino is not authority otherwise
3
because here, for the reasons stated, the jury was adequately instructed as to its sentencing discretion.
4
10 Cal. 2d 223, 230 (1937).
5
6
7
8
9
10
11
12
13
The California Supreme Court considered and rejected on direct appeal, alleged instructional
error relating to Petitioner’s proposed Instruction No. 9, noting that:
[T]he instructions adequately performed the constitutional function of guiding the jury’s
discretion in sentencing. [Citation] In this case, the court gave similar instructions that
told the jury “it could return a death verdict only if aggravating circumstances
predominated and death is the appropriate verdict.
Here, the trial court gave the standard instruction to take into account “any other
circumstance which extenuates the gravity of the crime even though it is not a legal
excuse for the crime and any sympathetic or other aspect of the defendant’s character or
record that the defendant offers as a basis for a sentence less than death, whether or not
related to the offense for which he is on trial.” The court also told the jury “to assign
whatever moral or sympathetic value you deem appropriate to each and all of the various
factors you are permitted to consider.” No additional instruction was required.
14
15 Bolin, 18 Cal. 4th at 343-44.
16
That court could reasonably have found that the standard penalty phase instructions given in
17 this case, CALJIC Nos. 8.85, 8.86, 8.87, and 8.88, adequately guided the jury’s sentencing discretion
18 and determination. (RT at 2605-08, 2614-16; CT at 631-34, 647-48.) As the California Supreme
19 Court stated on direct appeal:
20
21
22
[I]n the final analysis “the constitutional prohibition on arbitrary and capricious capital
sentencing determinations is not violated by a capital sentencing ‘scheme that permits
the jury to exercise unbridled discretion in determining whether the death penalty should
be imposed after it has found that the defendant is a member of the class made eligible
for that penalty by statute.’ [Citation]”
23
24 Bolin, 18 Cal. 4th at 342 (quoting Ramos, 463 U.S. at 1009 n.22).
“The requirement of individualized sentencing in capital cases is satisfied by allowing the jury
25
26 to consider all relevant mitigating evidence.” Blystone v. Pennsylvania, 494 U.S. 299, 307 (1990);
27 Boyde, 494 U.S. at 377. Here, the jury was specifically instructed to consider, in reaching their
28 decision regarding the appropriate penalty, “any sympathetic or other aspect of the defendant’s
239
1
character or record that the defendant offers as a basis for a sentence less than death, whether or not
2
related to the offense for which he is on trial.” (RT at 2607.) The instructions given by the trial court
3
could reasonably be seen as satisfying the Blystone and Boyde standards.
4
instructional error, if there were one, is not a basis for federal habeas relief. Dunckhurst, 859 F.2d at
5
114 (“a state trial court’s refusal to give an instruction does not alone raise a ground cognizable in a
6
federal habeas corpus proceeding.”).
A mere state law
7
Additionally, the court’s instruction to the jury about not “mechanical[ly] counting” the
8
aggravating and mitigating factors (RT at 2615; CT at 647) adequately informed the jury that it could
9
base a life sentence on the existence of only one factor in mitigation.
10
Accordingly, the state supreme court’s rejection of this claim was not contrary to, or an
11 unreasonable application of, clearly established federal law, as determined by the Supreme Court.
12 Nor was the state court’s ruling based on an unreasonable determination of the facts in light of the
13 evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).
14
15
16
Claim U6 is denied.
h.
Review of Claim U7
Petitioner claims cumulative penalty phase instructional error as alleged in claims U1-U6
17 rendered the court’s charge to the jury insufficient as a whole to provide guidance necessary for a fair
18 and reliable sentencing determination. (ECF No. 113 at 186-87.)
19
Petitioner raised this same claim in his petition for writ of habeas corpus in the California
20 Supreme Court, which that court summarily rejected on the merits without explanation. (CSC Order
21 Den. Pet. Habeas Corpus.)
22
Petitioner re-argues claims U1-U6 and claims cumulative effect of these errors caused
23 substantial prejudice in the jury’s determination of the verdict under Brecht.
24
“The Supreme Court has clearly established that the combined effect of multiple trial errors
25 may give rise to a due process violation if it renders a trial fundamentally unfair, even where each
26 error considered individually would not require reversal.” Parle, 505 F.3d at 928 (citing Donnelly,
27 416 U.S. at 643). However, the fact that errors have been committed during a trial does not mean that
28 reversal is required. “[W]hile a defendant is entitled to a fair trial, [he] is not entitled to a perfect
240
1
trial, for there are no perfect trials.” Payne, 944 F.2d at 1477; U.S. v. De Cruz, 82 F.3d 856, 868 (9th
2
Cir. 1996).
3
Here, for the reasons stated above in claims U1 through U6, the California Supreme Court
4
could reasonably have found that there was no penalty phase instructional error, individually or
5
cumulatively.
6
Accordingly, the California Supreme Court could reasonably have found that Petitioner failed
7
to establish that rejection of claim U and all its subclaims was contrary to, or an unreasonable
8
application of, clearly established federal law, or an or an unreasonable determination of the facts in
9
light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).
10
Claim U7 is denied.
11
5.
12
Petitioner next claims prosecutorial misconduct during penalty phase closing argument,
Review of Claim V
13 denying him a fair trial, due process and fair and reliable penalty determination in violation of the
14 Fifth, Sixth and Fourteenth Amendments. (ECF No. 113 at 187-90.)
15
Petitioner raised this same claim in his petition for writ of habeas corpus in the California
16 Supreme Court. The California Supreme Court ruled that Petitioner’s claim was procedurally barred
17 because this claim could have been, but was not raised on direct appeal. (CSC Order Den. Pet.
18 Habeas Corpus [citing In re Harris, 5 Cal. 4th at 825 n.3; In re Dixon, 41 Cal. 2d at 759].)
19
The California Supreme Court also summarily rejected Petitioner’s habeas claim on the merits
20 without explanation. (CSC Order Den. Pet. Habeas Corpus.)
21
22
23
24
25
26
27
28
a.
Clearly Established Law
The standard of review for claims of prosecutorial misconduct is a “narrow one of due
process”; the federal habeas court must determine whether the alleged instances of misconduct “so
infected the trial with unfairness as to make the resulting conviction a denial of due process.”
Darden, 477 U.S. at 181 (quoting Donnelly, 416 U.S. at 643); see also Greer, 483 U.S. at 765; Tan v.
Runnels, 413 F.3d 1101, 1112 (9th Cir. 2005).
To constitute a denial of due process, the prosecutorial misconduct must be of sufficient
significance to result in the denial of the defendant’s right to a fair trial. Greer, 483 U.S. at 765
241
1
(quoting Bagley, 473 U.S. at 676); see also United States v. Agurs, 427 U.S. 97, 98 (1976); Smith,
2
455 U.S. at 221 (ordinary trial errors by a prosecutor do not suffice; the misconduct must be
3
egregious enough to deny the defendant a fair trial).
4
constitute a denial of due process, must be of such a quality that they prevent a fair sentencing
5
hearing. Nichols v. Scott, 69 F.3d 1255, 1278 (5th Cir. 1997). A petitioner is entitled to relief in this
6
context only where the constitutional violations exerted a “substantial and injurious” effect on the
7
judgment. Brecht, 507 U.S. at 620; Fields v. Woodford, 309 F.3d 1095, 1109 (9th Cir. 2002) (stating
8
the Ninth Circuit applies Brecht if misconduct of constitutional dimension is established), amended
9
315 F.3d 1062 (9th Cir. 2002).
10
b.
11
The remarks complained of, in order to
Analysis of Claim V
Petitioner alleges the penalty phase was unfair because the prosecutor’s closing improperly
12 argued matters outside the evidence, improperly stated her own personal opinion of the credibility of
13 witnesses, misstated the law regarding the role of sympathy, and urged jurors to impose the moral
14 judgments of the community rather than their individual moral judgments. The specific instances of
15 alleged misconduct are discussed separately.
16
17
1)
Public Sentiment
Petitioner alleges the prosecutor improperly encouraged the jury to consider public sentiment
18 about petitioner and the death penalty during her closing argument, as follows:
19
20
21
22
You must determine whether or not Paul Clarence Bolin, twice a killer, should be
given the death penalty or should live out his natural life in prison. As jurors in this
phase, you will be required to bring into play all of your individual and all of your
collective consciousness, all of your sense of duty, all of your values, your morals, your
ethics, your individual and your collective experiences in life, your personal values and
also your value of what the community expects of you because you, as a member of this
jury, are representatives of the community.
23
24 (RT at 2574; see also ECF No. 113 at 188:10-16.)
25
26
27
28
Paul Bolin has crossed the line which society draws. He has to now accept the proper
punishment for what he has done. When you came into this courtroom, you did not
know that this is what your responsibility would be, it is a heavy responsibility. I am
glad it is not mine, but I appreciate the fact that each of you has listened and each of you
has paid attention, and I would like for you, as representatives of society, to draw the
line that society draws and say to this man, "Paul Clarence Bolin, you have stepped over
242
1
2
that line and now you must suffer the same fate as those people that you saw to cut their
life off" and give this man the ultimate punishment, that punishment which I believe the
evidence shows that he deserves, that is death.
3
4
(RT at 2582; see also ECF No. 113 at 188:10-16.)
5
However, these comments do not reasonably suggest the jury consider matters not in the record,
6
or that they deviate from the instructions to be given by the trial court. The California Supreme Court
7
could reasonably have determined the prosecutor’s noted comments simply argued the crimes and
8
aggravating factors already in the record and were not unfair. For example, the prosecutor specifically
9
told the jury: “I would like you to consider your verdict rationally, with rational thoughts from all the
10 evidence and not from emotion.” (RT at 2582.) The prosecutor also asked the jurors to consider future
11 dangerousness and the protection of society in general in determining whether Petitioner should spend
12 his life in prison or be put to death for his crimes. (RT at 2577.) Significantly, these comments were
13 consistent with the prosecution theme that Petitioner resolves conflict with violence. (RT at 2578-79);
14 see Runnels, 413 F.3d at 1115 (the presence of a relevant theory in argument will place the argument
15 outside those prohibited as based solely on appeals to passion and prejudice).
16
17
2)
Matters Not In Evidence
Petitioner alleges that the prosecutor argued matters not in evidence when she asked jurors to
18 consider Petitioner’s character and influence upon others:
19
20
21
22
Consider the fact that there are two people no longer alive because this man wanted
to protect 300 lousy marijuana plants. And when you are thinking about his protection
of his 300 marijuana plants, think about the people from Chicago and the help that this
man, they thought, was giving to their youngsters, their teen-age children and think
about what happens to those marijuana plants of Mr. Bolin when they are grown and
sold on the streets in Los Angeles; think about who they are sold to and think about what
kind of role model this man would be making for those teen-agers in Chicago.
23
24 (RT at 2581.) Petitioner claims there was no evidence of any intended or actual sale of marijuana.
25 However, the state supreme court could reasonably have found that this argument was relevant to
26 evidence presented regarding the marijuana farm - that at the time of the shootings the plants were not
27 yet ready to harvest and sell (RT at 1879-80) - that Petitioner had not yet found a buyer (RT at 1669);
28 and to rebut evidence presented by the defense relating to Petitioner helping his young relatives in
243
1
Chicago during his flight from authorities. Moreover, any such prejudice was likely ameliorated by the
2
defense theory that the shootings were not motivated to save Petitioner’s marijuana business. (RT at
3
2587); see Roberts v. Bowersox, 137 F.3d 1062, 1066 (8th Cir. 1998) (a defense attorney’s argument
4
may minimize any potential prejudice from inappropriate prosecution argument).
3)
5
Personal Opinion
6
Petitioner alleges that the prosecutor, during closing argument, improperly expressed her
7
opinion that Mary Bolin did not testify truthfully and credibly about her father’s involvement in the
8
aggravating Spencer assault event. As discussed in more detail in clam W6, post, Mary, testified that
9
the event occurred when she was 12 years old. (See RT at 2469, 2483.) She testified that Spencer was
10 partying at her house, smoking pot and sniffing paint, when he put his hands down her pants and tried
11 to pull her top down. (See RT at 2470-71.) She testified that Petitioner, upset after Mary told him what
12 had happened, arrived and ran towards Spencer and ordered Spencer to leave, and that Spencer then
13 exited through the backyard where Petitioner’s friend, Richard Balsamico, began beating him with a
14 stick. (See RT at 2412-72.) Mary testified that she did not see Petitioner hit Spencer. (See RT at
15 2473.)
16
On cross-examination, Mary told the prosecutor she did not remember the police coming to her
17 house or talking to the police. (See RT at 2480-81.) She was then impeached with Deputy Gutierrez’s
18 police report of the Spencer incident in which Mary failed to provide the information to which she
19 testified, noted above. (See RT at 2479-83.)
20
During closing, the prosecutor argued as follows with regard to that testimony:
21
22
23
24
Now, one of Paul Bolin's daughters took the witness stand and told you a story which
did not go along with the police report and, of course, when she was questioned about it,
she couldn't remember whether or not she told that to the police. When shown the police
report, she couldn't remember anything, but I am sure that she loves her father, and I am
sure that she thought she could help him by misrepresenting or perhaps just forgetting
what actually happened.
25 (RT at 2578.)
26
27
28
Again, a daughter came in and told a story which simply was not true but, then, again,
this girl loves her father. A poor father is better than no father at all, so she would come
in and tell a story that was entirely different than that which was told to the police
or that [other witnesses] told, but just remember this man was convicted of this crime.
...
244
1
(RT at 2579.)
2
However, as Respondent notes, the prosecutor was free to argue relative credibility and lack of
3
truthfulness based upon reasonable inference raised by admitted evidence. See Duckett v. Godinez, 67
4
F.3d 734, 742 (9th Cir. 1995); United States v. Sarno, 73 F.3d 1470, 1496-1497 (9th Cir. 1995). Here
5
Petitioner acknowledges that Mary’s testimony was contradicted by another witness. (ECF No. 113 at
6
189:13-16.) It was not unreasonable for the state court to find that the prosecutor’s argument was
7
properly related to Mary’s credibility. The prosecutor also told jurors that they should be guided by
8
their own feeling regarding the evidence, not counsel’s argument. (RT at 2574-75.) The court's
9
instructions emphasized this principle. (CT at 628-29; RT at 2604; Def.'s Proposed Instr. No. 1, CT at
10 628.)
11
At closing, a prosecutor is allowed wide latitude to argue reasonable inferences from the
12 evidence, including casting a witness’s testimony as lies or fabrication. See Turner v. Marshall, 63
13 F.3d 807, 818 (9th Cir. 1995), overruled on other grounds by Tolbert, 182 F.3d at 685. It follows that
14 Petitioner’s further citation to Turner v. Louisiana for the proposition that the prosecutor’s conduct was
15 unfair because it was not based on the admitted evidence, see 379 U.S. 466, 472-73 (1965), is
16 unavailing. Ms. Ryals’s comments could reasonably be seen as inference from noted evidence in the
17 record.
18
Petitioner’s allegation that federal law precludes the prosecutor’s offering her personal opinion
19 of issues of guilt and credibility, citing to United States v. Potter, 616 F.2d 384, 392 (9th Cir. 1979) and
20 United States v. Davis, 564 F.2d 840, 866 (9th Cir. 1977), also is unavailing. The Potter court
21 acknowledged the impropriety of the prosecutor interposing his own opinion and commentary on
22 factual matters not in evidence, and found any prejudice neutralized by the court’s instruction that
23 argument is not evidence. Potter, 616 F.2d at 392. The Davis court likewise acknowledged the limits
24 of personal opinion where not based on evidence in the record. Davis, 564 F.2d at 846. Here, the
25 prosecutor’s comments could be seen as proper given the conflicting testimony, and any error could be
26 seen as harmless given the jury instruction the argument was not to be taken as evidence.
27
28
4)
Ethical Norms
Similarly, Petitioner’s allegation that the prosecutor’s noted comments violated ethical norms
245
1
is unpersuasive. Even if the prosecutor’s argument could be seen as unethical, Petitioner has not
2
demonstrated it was contrary to clearly established Federal law.
3
5)
Sympathy
4
Petitioner alleges that the prosecutor, in closing argument, improperly stated that sympathy
5
should be limited to Petitioner’s culpability for the crimes, and contradicted the language of
6
California Penal Code § 190.3(j), by telling the jurors that:
7
8
9
Mr. Cater and Mr. Bolin put on evidence of that factor which you can also consider
called sympathy. That is anything which lessens the culpability of this man for these
crimes. You can consider anything that makes this less serious, that mitigates his act and
he put on the family and he put on friends, and he put on people who had known Mr.
Bolin.
10
11 (ECF No. 113 at 189:23-26, citing RT at 2579:23-26.) The jury was instructed with CALJIC 190.3(j)
12 which allows the jury to consider:
13
14
15
Any other circumstance which extenuates the gravity of the crime even though it is not a
legal excuse for the crime and any sympathetic or other aspect of the defendant's
character or record that the defendant offers as a basis for a sentence less than death,
whether or not related to the offense for which he is on trial.
16 (CT at 632; RT at 2607.)
17
Petitioner contends the prosecutor’s comment misled the jury as to what they could properly
18 consider in determining their penalty verdict. However, the state supreme court could reasonably
19 have found otherwise. The prosecutor neither argued against sympathy for Petitioner and his family,
20 (RT at 2581), nor in favor of sympathy for the victims. (RT at 2575.) Instead the prosecutor urged
21 the jury to consider the circumstances of crimes admitted into evidence. (RT at 2575.)
Petitioner’s
22 reliance upon Penry v. Lynaugh is misplaced because in that case, unlike this case, the jury was not
23 instructed that it could consider and give effect to mitigating evidence. 492 U.S. 302, 320 (1989)
24 (abrograted by Atkins v. Virgina, 536 U.S. 304, 321 (2002)).
25
Nor do the other allegations in claim U demonstrate that the jury was improperly instructed
26 regarding mitigating considerations of sympathy, for reasons stated in the discussion of that claim.
27 Furthermore, the trial court instructed the jury that sympathy could be considered in determining the
28 sentence. (RT at 2607, 2615; CALJIC Nos. 8.85, 8.88.)
246
6)
1
Prejudice
2
Even if the prosecutor’s comments were improper, there was no more than harmless error
3
under Brecht. The prosecutor told the jurors that it was their feelings about the evidence and factors
4
in aggravation that mattered, not her own. (RT at 2574-75.) The trial court properly instructed the
5
jury on this point. (CT at 628-29; RT at 2604.) The prosecutor stated that the jury’s deliberations
6
should be based upon the evidence. (RT at 2574.) The trial court instructed the jury that the
7
argument of counsel was not evidence. (RT at 2573.) The trial court also instructed the jury to
8
follow its instructions if anything said by the lawyers contradicted the instructions. (RT at 2604.)
9
Jurors are presumed to follow instructions. Boyde, 494 U.S. at 381-85. See Potter, 616 F.2d 384,
10 392 (9th Cir. 1979) (prosecutor’s closing contained some improprieties albeit not purposeful or
11 flagrant or requiring reversal); Furman v. Wood, 190 F.3d 1002, 1006-07 (9th Cir. 1999) (rejecting
12 habeas claim where, although some of prosecutor’s arguments were improper, jury was told
13 comments were not evidence, and evidence against defendant was substantial).
14
For all the reasons stated, the state supreme court could reasonably have found this claim
15 unavailing. A jury generally accords less weight to the arguments of counsel than to the instructions
16 it is given. Ortiz-Sandoval v. Gomez, 81 F.3d 891, 898 (9th Cir. 1996) (citing Boyde, 494 U.S. at
17 384) (jurors generally accord less weight to arguments of counsel than the court's instructions and
18 such arguments must be viewed in the context of all argument and the instructions); see also Darden,
19 477 U.S. at 182 (claim of prosecutorial misconduct rejected where the prosecutor’s comments “did
20 not manipulate or misstate the evidence, nor . . . implicate other specific rights of the accused, such as
21 the right to counsel or to remain silent”).
22
A fair-minded jurist could therefore reasonably conclude that Petitioner failed to establish
23 rejection of the claim was contrary to, or an unreasonable application of, clearly established federal
24 law, or an unreasonable determination of the facts in light of the evidence presented in the state court
25 proceeding. See 28 U.S.C. § 2254(d).
26
Claim V is denied.
27
6.
28
Petitioner next alleges multiple subclaims asserting ineffective assistance of counsel during
Review of Claim W
247
1
the penalty phase, resulting in a complete breakdown of the adversarial process, denying Petitioner
2
due process, a fair trial, and a reliable verdict, violating his rights under the Fifth, Sixth, Eighth and
3
Fourteenth Amendments. (ECF No. 113 at 190-219.) Petitioner also asserts ineffective assistance by
4
state appellate counsel, Richard Gilman. These subclaims are reviewed separately.
5
a.
Clearly Established Law
6
The applicable legal standard for ineffectiveness of counsel is set forth out in claim C2, ante.
7
The basic requirements of Strickland apply with equal force in the penalty phase. Thus, Petitioner
8
must show that counsel’s actions fell below an objective standard of reasonableness, and that the
9
alleged errors resulted in prejudice. Strickland, 466 U.S. at 687-98. In the context of the penalty
10 phase, just as in the guilt phase, the Supreme Court has “declined to articulate specific guidelines for
11 appropriate attorney conduct and instead [has] emphasized that ‘[t]he proper measure of attorney
12 performance remains simply reasonableness under prevailing professional norms.’” Wiggins, 539
13 U.S. at 521 (quoting Strickland, 466 U.S. at 688).
14
In the penalty phase, defense counsel has an “obligation to conduct a thorough investigation
15 of the defendant’s background,” Williams, 529 U.S. at 396, and defense counsel has a duty to
16 investigate, develop, and present mitigation evidence during penalty phase proceedings. Wiggins,
17 539 U.S. at 521-23. Counsel has a duty to make a “diligent investigation into his client’s troubling
18 background and unique personal circumstances.” Williams, 529 U.S. at 415.
19
Nonetheless, the Supreme Court has recognized that the duty to investigate does not require
20 defense counsel “to scour the globe on the off chance something will turn up; reasonably diligent
21 counsel may draw a line when they have good reason to think further investigation would be a
22 waste.” Rompilla v. Beard, 545 U.S. 374, 382-83 (2005) (citing Wiggins, 539 U.S. at 525) (further
23 investigation is excusable where counsel has evidence suggesting it would be fruitless); Strickland,
24 466 U.S. at 699 (counsel could “reasonably surmise . . . that character and psychological evidence
25 would be of little help”). As the Strickland court stated:
26
27
28
[S]trategic choices made after thorough investigation of law and facts relevant to plausible
options are virtually unchallengeable; and strategic choices made after less than complete
investigation are reasonable precisely to the extent that reasonable professional judgments
support the limitations on investigation. In other words, counsel has a duty to make reasonable
investigations or to make a reasonable decision that makes particular investigations
248
unnecessary. In any ineffectiveness case, a particular decision not to investigate must be
directly assessed for reasonableness in all the circumstances, applying a heavy measure of
deference to counsel’s judgments.
1
2
3
466 U.S. at 690-91.
4
“In assessing counsel’s investigation, the court must conduct an objective review of their
5
performance, measured for reasonableness under prevailing professional norms,” Strickland, 466 U.S.
6
at 688, which includes a context-dependent consideration of the challenged conduct as seen “from
7
counsel’s perspective at the time.” Id. at 689.
8
Further, the reasonableness of counsel’s actions may be determined or substantially
9
influenced by the defendant’s own statements or actions. Counsel’s actions are usually based, quite
10 properly, on informed strategic choices made by the defendant and on information supplied by the
11 defendant. In particular, what investigative decisions are reasonable depends critically on such
12 information. Strickland, 466 U.S. at 691.
13
In order to demonstrate prejudice, Petitioner must show “a reasonable probability that, but for
14 counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 69315 94.
To assess that probability, the reviewing court must consider the totality of the available
16 mitigation evidence and reweigh it against the evidence in aggravation. Porter v. McCollum, 558
17 U.S. 30, 41 (2009) (citing Williams, 529 U.S. at 397-398). The court must consider whether the
18 likelihood of a different result if the evidence had gone in is “sufficient to undermine confidence in
19 the outcome” actually reached at sentencing. Rompilla, 545 U.S. at 393 (quoting Strickland, 466
20 U.S. at 694).
b.
21
22
Analysis of Claim W1
Petitioner claims generally that counsel Soria and his investigator Binns were lax and
23 inefficient in their trial investigation and preparation and did not provide reports to, or communicate
24 with co-counsel Cater following Cater’s appointment as lead counsel. (ECF No. 113 at 193-94; RT at
25 2273-74.)
26
Petitioner raised this same claim in his petition for writ of habeas corpus in the California
27 Supreme Court, which summarily rejected it on the merits without explanation. (CSC Order Den.
28 Pet. Habeas Corpus.)
249
1)
1
Withheld and Inaccurate Information
2
Petitioner alleges that investigator Binns did not conduct an effective investigation and
3
provided misinformation regarding his investigation of Petitioner’s relatives. (See SHCP Ex. 47.)
4
Petitioner suggests that Binns did not share the small amount of information he gleaned during his
5
investigation, placing Soria in breach of his ethical obligations as predecessor counsel. (See 1/7/91
6
RT at 2304-11.)
7
Petitioner alleges that Soria and Binns did not provide Cater with complete and accurate
8
information, (id.; ECF No. 113 at 193), and that the “failure of Soria and Binns to turn over all
9
information regarding the status and results of the penalty investigation forced Cater to start the
10 investigation from scratch [and] to waste a significant portion of the short time that he had in
11 reduplicating work already accomplished by Binns.” (ECF No. 113 at 193:27-194:3.)
12
Petitioner also alleges that Soria failed to advise Cater of the evidence the prosecutor intended
13 to use in aggravation, matters the prosecutor had spoken to Soria about “at great length.” (RT at
14 2391.)
15
The California Supreme Court reviewed certain of these allegations in the context of denial of
16 Cater’s new trial motion, and determined that:
17
18
19
With respect to Cater’s concern about the adequacy of penalty phase investigation, the
record contains no colorable claim that it was in fact deficient. At best, he offered only
speculation based on hearsay reports, and defendant added nothing to substantiate the
allegation.
20 Bolin, 18 Cal. 4th at 347.
This Court finds that, on the record before it, the California Supreme Court could reasonably
21
22 have found Soria and Binns were not deficient in their investigation and did not withhold information
23 from Cater. Binns did engage in penalty phase investigation, locating and interviewing witnesses
24 including Petitioner’s friends and family members in Covina and Chicago. (See SHCP Ex. 47, 1/7/91
25 Marsden RT at 2304-11.) Binns did turn over his written files to Cater (id.; see also SHCP at 91) and
26 did respond to Cater’s questions about the files (Id.). The California Supreme Court could reasonably
27 have found no deficient investigation or inaccurate information was provided, even though Binns may
28 have worked independently and largely provided oral reports of his investigative activities. (Id.)
250
1
Cater stated that his manner of investigating the penalty phase “differ[ed] greatly” from that
2
used by Soria and Binns. (CT at 548.) However, this could reflect a matter of trial tactics. Nor was
3
it unreasonable for the California Supreme Court to conclude that Cater’s generalized complaint, that
4
Binns’s reports were incomplete and certain of the information provided by Soria and Binns was
5
inaccurate, (see SHCP Ex. 47, 1/7/91 Marsden RT at 2304-11), was speculative. Similarly, Petitioner
6
points to scant support in the record for Cater’s allegation that Binns and Soria withheld information.
7
8
9
10
11
12
Petitioner himself stated in his petition for writ of habeas corpus filed in the California
Supreme Court that:
Trial counsel’s files were not properly maintained, making it difficult to establish
precisely what steps were taken, and when, by counsel. Nonetheless, Soria claims to
have turned over all trial materials to Cater, when Cater took over the penalty phase.
Soria’s investigator, Bruce Binns claims to have turned over all records maintained by
him to either Soria or Cater. Thus, the files obtained by appellate counsel from Cater
appear to be the complete record of trial preparation in this case.
13 (SHCP at 91.)
14
15
2)
Failure to Communicate
Petitioner also asserts that Soria and Cater failed to communicate effectively about the
16 prosecution’s intended case in aggravation. See e.g., Bean v. Calderon, 163 F.3d 1073, 1078 (9th Cir.
17 1998) (deficient development of mitigating evidence related to confusion between co-counsel as to
18 respective duties constituted ineffective assistance). Petitioner points to a portion of the record in
19 which the prosecutor suggested she had spoken with Soria about the prosecutor’s intent to call
20 Huffstuttler’s girlfriend, Ms. Ward, as a witness during the penalty phase, and suggested Soria never
21 passed this information along to Cater. (ECF No. 113 at 194; RT at 2363-64, 2391.)
22
However, it appears the prosecutor had also served Cater with notice regarding her intent to
23 call Ward as a witness in support of an aggravating factor. (RT at 2363-64.) In fact, the prosecution
24 provided adequate notice of that information, and Cater acknowledged that he had received discovery
25 regarding it. (See claim K, ante.)
26
Petitioner also complains that Soria did not tell Cater of the prosecution’s intent to introduce
27 the letter to Halfacre, and that Cater was unaware of this fact until “three days before the penalty
28 phase.” (ECF No. 113 at 194.) But the record demonstrates that the prosecutor gave the required
251
1
notice of such to both Cater and Soria. (See RT at 2391.) The trial court overruled Cater’s objection
2
to admitting the letter on such notice grounds, finding “[the prosecutor] did give notice and did ask
3
for an exemplar.” (Id.)
4
determined that proper notice had been provided. Bolin, 18 Cal. 4th at 336-37.
Additionally, the California Supreme Court reviewed the claim and
5
Petitioner fails to show that any of the alleged errors gave rise to deficient performance
6
resulting in prejudice under the Strickland standard. Cater apparently was able to talk to all of the
7
necessary witnesses and contends that he was able to and did conduct a more thorough investigation
8
than had Soria and Binns. (See SHCP Ex. 47 at 2305-10.) Petitioner fails to demonstrate that he was
9
prejudiced by any alleged failure to communicate accurately, through role confusion, see Bean, 163
10 F.3d at 1078, or otherwise.
3)
11
12
Appellate Counsel
Petitioner alleges that his appellate counsel was ineffective by failing to review a copy of the
13 Reporter’s Transcript from the January 7, 1991 Marsden hearing (see SHCP Ex. 47; ECF No. 113 at
14 191 n.52), and failed to include the transcript in the state certified record. But these claims are
15 unsupported in the record. It appears that the transcript was before the state habeas court. (See
16 SHCP Ex. 47.) Accordingly, no prejudice is apparent.
4)
17
18
19
20
21
22
23
24
25
26
27
28
Conclusions
For the reasons stated, a fair-minded jurist could have found that Petitioner failed to establish
that he was denied a fair trial, or to the extent alleged, that defense counsel’s performance fell below
an objective standard of reasonableness and that, but for counsel’s unprofessional errors, the outcome
of this proceeding would have been different. Strickland, 466 U.S., at 687-98.
A fair-minded jurist could therefore reasonably conclude that Petitioner failed to establish
rejection of the claim was contrary to, or an unreasonable application of, clearly established federal
law, or an unreasonable determination of the facts in light of the evidence presented in the state court
proceeding. See 28 U.S.C. § 2254(d).
Claim W1 is denied.
c.
Analysis of Claim W2
Petitioner alleges that Cater, upon his appointment as penalty phase counsel, was ineffective
252
1
by requesting only a two-week continuance to allow completion of the penalty phase investigation,
2
when he knew or should have known that a life history investigation had not been done and that more
3
time was required. (ECF No. 113 at 194-95.)
4
Petitioner raised this same claim in his petition for writ of habeas corpus in the California
5
Supreme Court, which that court summarily rejected on the merits without explanation. (CSC Order
6
Den. Pet. Habeas Corpus.)
7
Petitioner complains counsel Cater was ineffective by failing to investigate, prepare and
8
present an adequate penalty phase defense. Cater had advised the trial court of his dissatisfaction
9
with the previous investigation and opined that his investigator had obtained more satisfactory results.
10 (See SHCP Ex. 47 at 2305-07). As noted, Cater indicated to the court that his investigation into the
11 penalty phase “differ[ed]” from Soria’s. (CT at 548.) Yet Cater requested only the additional two12 week continuance to prepare for the penalty phase.
13
The record reflects that the trial court initially granted defense counsel three weeks to prepare
14 for the penalty phase. (See RT at 2297-98.) At the Marsden hearing on January 7, 1991, Cater
15 requested and was granted an additional two-week continuance. (See SHCP Ex. 47; RT at 2312-13.)
16 During the Marsden hearing, Cater explained to the trial court what had been done and what remained
17 to be done within the requested additional time. (See SHCP Ex. 47 at 2304-11). At that point, Cater
18 stated to the court his belief that the requested further continuance would be sufficient “because we
19 have got an excellent head start, Mr. Roger Ruby has practically closed down his office working full
20 time for me right now to gather this together.” (Id. at 2310.)
21
Petitioner concedes that Cater and his investigator, Roger Ruby, spent the five weeks
22 following Cater’s December 14, 1990 appointment, investigating and preparing the penalty phase
23 defense. (See ECF No. 113 at 194-95.) Yet Petitioner argues that, because of the extent of the
24 aggravating incidents, this was still not enough time to follow-up on mitigating life history facts
25 including childhood abuse and neglect that caused Petitioner to live on the streets as a minor; work
26 history including apparent occupational exposure to toxic solvents; prison records; and possible
27 mental state defenses. (See RT 2504; SHCP Ex. 24; RT at 2307-08.) Petitioner contends that this
28 failure to conduct additional investigation was unreasonable. He notes Cater presented a penalty
253
1
phase defense that lasted only a little over two hours, (see CT at 588-589), and presented no evidence
2
regarding Petitioner’s mental status, childhood abuse and trauma, exposure to neurotoxic chemicals,
3
physical injuries, substance abuse, or military service.
4
However, it was not unreasonable for the California Supreme Court to determine that Cater’s
5
performance at the penalty phase was not deficient for reasons discussed in claims W1 ante and W3,
6
through W10 post. Petitioner’s reliance on Bean is unpersuasive because Bean appears factually
7
distinguishable. 163 F.3d at 1078. Counsel in Bean, due to role confusion, did no penalty phase
8
work until after the guilt phase was completed. Id. Here, defense counsel did conduct penalty phase
9
investigation in the months before trial without any semblance of role confusion. (See claim C2,
10 ante.) Cater’s expressed dissatisfaction with the efforts of Soria and Binns did not appear to arise
11 from role confusion or a failure by Soria and Binns to initiate the pretrial investigation.
12
As noted, Cater apparently was able to talk to all of the witnesses he felt necessary, and that
13 he was able to do a more thorough investigation in his estimation than the investigation previously
14 undertaken. (See SHCP Ex. 47 at 2305-10.) It does not appear that Cater requested or required any
15 continuance beyond the five weeks previously granted.
16
Petitioner’s cited Daniels v. Woodford in support of his argument that external constraints
17 necessitated further continuance is unavailing because Petitioner has not demonstrated on the
18 evidentiary record the existence of any external constraints. 428 F.3d at 1206 (counsel’s deficient
19 investigation resulted in part from court’s refusal to grant a continuance and problems getting state
20 funding).
In fact, the record suggests the opposite.
Cater requested, and trial court granted,
21 additional funding to support further investigation during the two continuances to prepare for the
22 penalty phase. (See SHCP Ex. 47.) Cater represented that he thought two weeks would be sufficient.
23 (Id. at 2310.)
Counsel’s actions could be seen as strategic rather than the result of external
24 constraints.
25
Petitioner also relies upon Jackson v. Calderon, 211 F.3d 1148 (9th Cir. 2000), in support of
26 his argument that Cater did not spend sufficient time preparing for the penalty phase. But Jackson
27 too is distinguishable because there defense counsel, based on the belief trial would not reach the
28 penalty phase, spent about 2 hours preparing for it by interviewing two witnesses and reviewing
254
1
defendant’s juvenile and military records. Id. at 1162. Here, Cater acted as co-counsel during the
2
guilt phase, and when the trial court appointed him to be lead counsel for the penalty phase, that court
3
provided additional funding for another investigator and five weeks of additional time to further
4
investigate and prepare. As discussed in claims W1 and W3-W10, counsel Cater and his investigator
5
Ruby marshaled mitigating evidence including through interviews with numerous of petitioner’s
6
family and friends in California and Chicago, and otherwise by investigating family, social, military
7
and medical and mental health background information and the aggravating evidence of the
8
prosecution.
9
Based on the record, the state supreme court could reasonably have determined that Cater’s
10 decision to proceed to the penalty phase without requesting an additional continuance and funding
11 was based on informed professional judgment following a reasonably adequate investigation.
12
A fair-minded jurist could have reasonably have determined that, based on the evidence, a
13 longer continuance would not have resulted in a more favorable disposition for Petitioner, for the
14 reasons stated and given the substantial evidence presented against Petitioner at the penalty phase.
15 (See claims O, R and S, ante.)
16
For the reasons stated, a fair-minded jurist could have found that Petitioner failed to establish
17 that he was denied a fair trial, or to the extent alleged, that defense counsel’s performance fell below
18 an objective standard of reasonableness and that, but for counsel’s unprofessional errors, the outcome
19 of this proceeding would have been different. Strickland, 466 U.S. at 687-98.
20
It does not appear that the state supreme court’s rejection of the claim was contrary to, or an
21 unreasonable application of, clearly established federal law, as determined by the Supreme Court, or
22 that the state court’s ruling was based on an unreasonable determination of the facts in light of the
23 evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).
24
25
26
Claim W2 is denied.
d.
Analysis of Claim W3
Petitioner next alleges that defense counsel Cater did not adequately interview and prepare
27 penalty phase witnesses Mary Bolin and Paula Bolin. (ECF No. 113 at 195-96.)
28
Petitioner raised this same claim in his petition for writ of habeas corpus in the California
255
1
Supreme Court, which the California Supreme Court summarily rejected on the merits without
2
explanation. (CSC Order Den. Pet. Habeas Corpus.)
1)
3
Pretrial Interview and Preparation
4
Mary Bolin was the sole defense witness regarding the Spencer and Ross incidents in
5
aggravation. (See RT at 2468-2477.) Mary also testified that Petitioner had been a good father to
6
her. (RT at 2477-80.)
7
Mary’s sister, Paula, testified that Petitioner had suffered a personal tragedy (the death of a
8
beloved girlfriend) shortly before the capital crimes, and that he had lived at the remote cabin, the site
9
of the murders, for close to a year after his girlfriend’s death. (See RT at 2494-95.)
10
Petitioner faults Cater for allowing his investigator, Ruby, to conduct the pre-testimony
11 interviews and preparation with Mary and Paula for direct and cross-examination, rather than doing
12 so personally. Petitioner contends this made their testimony less compelling than it could have been
13 given the mitigating information referenced in their respective habeas declarations given ten years
14 later. (See RT at 2477-2480, 2490-95; SHCP Ex.’s 5, 9.)
15
Petitioner also claims that the first time Mary ever spoke to Cater was on the witness stand.
16 (See EH Ex. 5, p. 9.) Likewise, Paula did not discuss her testimony with defense counsel before she
17 took the stand. (See EH Ex. 9, p. 15.) Petitioner claims this lack of preparation allowed these
18 witnesses to be unnecessarily impeached (see RT at 2479-83), constituting ineffective assistance. See
19 Douglas v. Woodford, 316 F.3d 1079, 1088 (9th Cir. 2003) (it is imperative in penalty phase that all
20 relevant mitigation information be unearthed).
21
The California Supreme Court could reasonably have denied this claim. Neither Mary nor
22 Paula recalled speaking directly to Cater before their testimony. (See SHCP Ex. 5 at 9; SHCP Ex. 9
23 at 15.) Nonetheless, Ruby interviewed these witnesses prior to trial, prepared a written report, and
24 may have spoken with Cater about these interviews. Cater presumptively knew what mitigating
25 information these witnesses had to offer. (See SHCP Ex.’s. 5, 9, 24.) Cater could reasonably have
26 believed that other tasks were more important than interviewing these witnesses personally given
27 information already learned from Mr. Ruby.
28
The record demonstrates that both Mary and Paula likely knew the general nature of their
256
1
expected testimony at Petitioner’s trial given the facts covered in Ruby’s interview with them. (See
2
e.g., RT at 2478-79, 2495; SHCP Ex.’s 5 at 8, 9 at 14, 24 at 8-10.) Each knew their father was facing
3
the death penalty and neither wanted him to be sentenced to death. (See RT at 2478-79, 2495.)
4
Petitioner’s attempt to support his argument with citation to Douglas, Bloom v. Calderon, 132
5
F.3d 1267 (9th Cir. 1997), and Hovey v. Ayers, 458 F.3d 892 (9th Cir. 2006), is unavailing because
6
each case is distinguishable. (See ECF No. 178 at 277-78.) Douglas is a pre-AEDPA case, thus on
7
review AEDPA deference was not given to the state court’s finding of no error. 316 F.3d at 1085.
8
Moreover, in Douglas, “Douglas’s wife assert[ed] that she did not even know she would be testifying
9
until the night before the penalty phase began.” Id. at 1087. Here, Petitioner’s daughters were
10 interviewed multiple times and given information regarding the nature of their testimony in the weeks
11 before trial.
12
The Bloom and Hovey courts considered the failure of counsel to prepare expert witnesses
13 who were not given important documents and background materials regarding the defendants,
14 seriously impairing the credibility and testimony of critical mitigation witnesses. See Bloom, 132
15 F.3d at 1277; Hovey, 458 F.3d at 930. Here, Petitioner’s daughters had lived with him and were
16 generally aware of his background. (See SHCP Ex’s. 5 and 9.) Furthermore, both were presented as
17 lay witnesses.
18
Petitioner also alleges that Cater failed to elicit from Mary and Paula certain details in
19 mitigation relating to Petitioner’s mental state, his family background, the effects of his experiences
20 in Vietnam, his chronic physical pain, his many good deeds and the death of his girlfriend shortly
21 before the capital crimes. (ECF No. 178 at 297-98.) However, it appears that neither Mary nor Paula
22 could testify to Petitioner’s mental state near the time of the shootings, not only because they were
23 without sufficient knowledge or expertise, but because each stated that they had seen him only
24 occasionally in the months leading up to the murders. (See SHCP Ex.’s 5 at 6, 9 at 14.)
25
Testimony regarding Petitioner’s alleged good deeds was presented through other witnesses.
26 (RT at 2508-09, 2515-19, 2523-24.) There was other testimony that Petitioner housed neighborhood
27 teenagers and took in and provided for those in need of a home. (RT at 2402, 2469-70, 2473, 248628 89, 2567.)
257
1
It seems unlikely Mary and Paula could have provided any significant mitigating testimony
2
relating to Petitioner’s childhood and family life because Petitioner refused to discuss such matters
3
with them. (See SHCP Ex. 9 at 8.) The record otherwise reflected Petitioner’s troubled home and
4
life as a youth, (see RT 2503-04); his enlistment in the Navy, (see RT at 2505); and his positive
5
influence on his children and others. (See RT 2502-29.) As noted, Paula did testify about the death
6
of Petitioner’s girlfriend. (See RT at 2494-95.)
7
Petitioner claims that Cater’s failure to prepare Mary to testify resulted in her impeachment
8
regarding the Spencer assault. As discussed more fully in claim W6, post, Petitioner’s unadjudicated
9
1979 assault upon Spencer, witnessed by Mary, was offered in aggravation at the penalty phase. (See
10 ECF No. 113 at 200-03.) Mary testified that Spencer was partying at her house and put his hands
11 down her pants and tried to pull her top down. (See Id. at 2470-71.) She testified that Petitioner,
12 upset after Mary told him what had happened, arrived and ran towards Spencer and ordered him to
13 leave and that Spencer exited through the backyard where Richard Balsamico began beating him with
14 a stick. (See RT at 2412-72.) Mary testified that she did not see Petitioner hit Spencer. (See RT at
15 2473.) However on cross-examination, Mary told the prosecutor she did not remember the police
16 coming to her house or talking to the police. (See RT at 2480-81.) She was then impeached with the
17 police report of Deputy Gutierrez regarding the Spencer incident in which Mary failed to state the
18 events to which she testified. (See RT at 2479-83.)
19
However, Cater was presumably aware of Mary’s involvement in the Spencer assault from the
20 police report and from her interview with investigator Ruby. (See SHCP Ex. 24 at 9.) Cater may
21 have chosen, as a matter of trial tactics, not to have Mary re-read the police report from the Spencer
22 assault prior to her testimony because: (1) she had told police at the time that she had not seen
23 anything (see RT at 2480-83, 2578; SHCP Ex. 27 at 6-7) and (2) Cater could reasonably have
24 believed that the jury would find her more credible if she simply indicated that she did not remember
25 certain events rather than if she had prepared her testimony by reviewing the police report and the
26 statements of others.
27
Along the same lines, Cater may have decided for tactical reasons to avoid in depth
28 questioning of Paula and Mary at trial about the Ross and Spencer incidents. Mary, at the time of the
258
1
Spencer assault, apparently had declined to provide police with the information to which she testified.
2
(RT at 2480-83, 2578.)
3
Nothing in the record suggests that Paula was present for the Ross shooting (Ross Police
4
Reports), or that Paula had been untruthful to police (RT at 2496-97), or that Paula may have been
5
using drugs at the time of trial. (SHCP Ex. 9 at 1).
6
Defense counsel reasonably could have concluded that further questioning Mary and Paula
7
about these issues might have served only to emphasize the aggravating circumstances, rather than
8
elicit information helpful to the defense.
9
The California Supreme Court could reasonably have concluded that Cater was not ineffective
10 by failing to interview and prepare these witnesses personally.
2)
11
12
Prejudice
Even if counsel was deficient as alleged, the state supreme court could reasonably have
13 concluded there was no prejudice.
14
Petititioner makes no evidentiary showing that had counsel Cater personally interviewed Mary
15 and Paula, he would have discovered more favorable evidence for use at the penalty phase trial. Mary
16 and Paula were each interviewed by investigator Ruby.
Yet neither apparently provided the
17 information about the aggravating events that is contained in their respective habeas declarations of a
18 decade later. (See SHCP Ex.’s. 5, 9, 24.) Moreover, as discussed in claim W7, post, defense counsel
19 did present some of the information included in their declarations, and that which was not presented
20 could reasonably be seen as essentially cumulative.
21
As to Mary’s impeachment regarding the Spencer incident, i.e., that Mary, at the time of the
22 Spencer assault, apparently had declined to provide police with the information to which she testified
23 at trial (RT at 2480-83, 2578), mitigation is apparent in the record. Mary testified that she was only
24 thirteen at the time of the incident. (RT at 2483.) She also may not have talked to police because she
25 was scared (RT at 2482), given her youth and having just been the victim of an alleged sexual assault
26 (RT at 2471).
27
For the reasons stated, a fair-minded jurist could have found that Petitioner failed to establish
28 that he was denied a fair trial, or to the extent alleged, that defense counsel’s performance fell below
259
1
an objective standard of reasonableness and that, but for counsel’s unprofessional errors, there is a
2
reasonable probability the outcome of the proceeding would have been different. Strickland, 466
3
U.S. at 687-98.
4
For the reasons stated, it does not appear that the state supreme court’s rejection of the claim
5
claim was contrary to, or an unreasonable application of, clearly established federal law, as
6
determined by the Supreme Court, or that the state court’s ruling was based on an unreasonable
7
determination of the facts in light of the evidence presented in the state court proceeding. See 28
8
U.S.C. § 2254(d).
9
10
11
Claim W3 is denied.
e.
Analysis of Claim W4
Petitioner next alleges ineffective assistance by defense counsel’s failure to investigate and
12 present evidence concerning the letter to Jerry Halfacre. (ECF No. 113 at 195-98.)
13
Petitioner raised this same claim in his petition for writ of habeas corpus in the California
14 Supreme Court (see SHCP at 280-82), which that court summarily rejected on the merits without
15 explanation. (See CSC Order Den. Pet. Habeas Corpus).
16
The prosecution introduced the letter written by Petitioner to Halfacre at the penalty phase
17 trial. (See RT at 2443.) Though Halfacre did not testify at the penalty phase, his probation officer
18 did, stating that Halfacre gave her the letter on October 12, 1990. (Id.) The letter and its contents are
19 discussed in detail in claim R, ante.
20
Petitioner alleges that there were additional pages of that letter, subsequently obtained by
21 Petitioner’s daughter Paula as described in her unsworn statement, which allegedly implicate Halfacre
22 in the capital murders and Petitioner’s marijuana farm. (See ECF No. 113 at 197; SHCP Ex.’s 9, 16,
23 25.)
24
Petitioner also faults defense counsel for not interviewing Halfacre or his Probation Officer,
25 Ms. O’Connor, regarding the surrounding circumstances including any inducement or benefit
26 Halfacre might have received. (See ECF No. 113 at 196; see also claims R1-R4.) Petitioner alleges
27 that in exchange for providing the letter to authorities, Halfacre was released from probation and
28 allowed to leave the state.
260
1
Strategic decisions based upon investigation conducted by counsel are accorded deference:
2
[S]trategic choices made after thorough investigation of law and facts relevant to
plausible options are virtually unchallengeable; and strategic choices made after less
than complete investigation are reasonable precisely to the extent that reasonable
professional judgments support the limitations on investigation. In other words, counsel
has a duty to make reasonable investigations or to make a reasonable decision that
makes particular investigations unnecessary. In any ineffectiveness case, a particular
decision not to investigate must be directly assessed for reasonableness in all the
circumstances, applying a heavy measure of deference to counsel’s judgments.
3
4
5
6
7
Strickland, 466 U.S. at 690-91. “The scope of a defense counsel’s pretrial investigation necessarily
8
follows from the decision as to what the theory of defense will be.” Soffar v. Dretke, 368 F.3d 441,
9
473 (2004).
In determining whether counsel made reasonable tactical decisions about certain
10 evidence, a court focuses on whether the investigation supporting counsel’s decision to introduce or
11 omit certain evidence was itself reasonable. Wiggins, 539 U.S. at 523.
12
Here, for reasons discussed in claims I6 and K, ante, Petitioner has failed to demonstrate both
13 that counsel failed to investigate these circumstances and, even if he did, that his failure to do so was
14 prejudicial. Even assuming that the missing pages of the letter, allegedly obtained by Paula, could
15 establish that Halfacre turned over the letter out of fear he would be arrested, nothing in the record
16 suggests counsel, or Halfacre for that matter, were aware of the alleged missing pages.
17
Petitioner suggests that Cater obtained the missing pages of the letter sometime after the guilt
18 phase, (see ECF No. 113 at 197), but has not offered Cater’s declaration in this regard. If Petitioner is
19 correct that Cater had the letter, he does not show that Cater failed to consider it. Significantly,
20 nothing in the noted testimony about the shootings suggests that Halfacre was involved. A defense
21 attorney is not obligated to track down each and every possible witness or to personally investigate
22 every conceivable lead. An ineffective assistance of counsel claim cannot rest upon counsel’s alleged
23 failure to engage in a scavenger hunt for potentially exculpatory information with no detailed
24 instruction on what this information may be or where it might be found. Farr, 297 F.3d at 658.
25
As more fully discussed in claim K, ante, Petitioner has not demonstrated that Halfacre
26 provided the letter in exchange for his release from probation and travel restrictions. The state
27 supreme court could reasonably have determined that Halfacre received no undisclosed benefits in
28 exchange for his providing the letter to his probation officer.
261
1
Additionally, for reasons discussed in claims R and I6, ante, any alleged failure to investigate
2
or present this evidence was not prejudicial. The state supreme court could reasonably have found
3
that the missing page(s) of the letter could not have been used to “defeat[ ] any argument that
4
[Halfacre] was in fear of [Petitioner’s] threats” and thus prevent admission of the Halfacre letter
5
under Penal Code § 422. (See ECF No. 113 at 197.)
6
For the reasons stated, a fair-minded jurist could have found that Petitioner failed to establish
7
that he was denied a fair trial, or to the extent alleged, that defense counsel’s performance fell below
8
an objective standard of reasonableness and that, but for counsel’s unprofessional errors, there is a
9
reasonable probability the outcome of the proceeding would have been different. Strickland, 466
10 U.S. at 687-98.
11
It does not appear that the state supreme court’s rejection of the claim was contrary to, or an
12 unreasonable application of, clearly established federal law, as determined by the Supreme Court, or
13 that the state court’s ruling was based on an unreasonable determination of the facts in light of the
14 evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).
15
16
17
Claim W4 is denied.
f.
Analysis of Claim W5
Petitioner next claims that defense counsel did not adequately investigate and present
18 evidence concerning Petitioner’s prior serious felony conviction for attempted voluntary
19 manslaughter of Kenneth Ross. (See ECF No. 113 at 198-200.)
20
Petitioner raised this same claim in his petition for writ of habeas corpus in the California
21 Supreme Court, which the California Supreme Court summarily rejected on the merits without
22 explanation. (See CSC Order Den. Pet. Habeas Corpus.)
23
Petitioner, then the legal guardian of Nyla Olsen, alleges that the shooting of Ross, then
24 Nyla’s boyfriend, occurred following an argument between Ross and Olsen at Petitioner’s residence.
25 (See RT at 2400-10.) Ross eventually walked back to Petitioner’s house to ask him what Olson had
26 told him. (See RT at 2400, 2408.) Petitioner allegedly came out the front door and shot Ross once in
27 the chest with an M-1 .30 caliber carbine rifle (see RT at 2400-02, 2563) and began to beat Ross all
28 over his upper body with his rifle. (RT at 2401.) Ross was taken to the hospital by paramedics and
262
1
stayed there off-and-on for about a month while being treated for a torn liver, punctured diaphragm
2
and lung, and broken rib. (RT at 2403.)
3
Mary, then 15 years old, was a witness to the shooting and testified that Ross was crazed,
4
drunk, slapping Nyla around and that Ross appeared to have had something in his hand and gestured
5
toward Petitioner prior to being shot. (See RT at 2473-76.) Olsen, who had married Ross by the time
6
of trial, gave testimony that partially contradicted Mary’s testimony. (See RT at 2555-72.)
7
Petitioner faults Cater for not cross-examining Olsen about contradictory testimony she gave
8
at the preliminary hearing in the Ross matter (Testimony of Nyla Olsen, Preliminary Hearing
9
Transcript, People v. Bolin, Los Angeles County Municipal Court No. A527608, SHCP Ex. 26), in
10 order to show that Petitioner acted out of fear of Ross. This omission, Petitioner argues, allowed the
11 prosecutor to use Olsen’s testimony to support the prosecutor’s statement to the jury that “[a]gain, a
12 daughter [Mary] came in [and] told a story which simply was not true but, then, again, this girl loves
13 her father.” (See RT at 2579.)
14
Petitioner faults defense counsel for allowing Mary to testify regarding the Ross incident. He
15 claims this created an inconsistent role for Mary, in that her testimony regarding the Ross incident
16 undermined Petitioner’s mitigation case because her credibility as a fact witness was compromised by
17 her desire to assist her father, whom she loved. Petitioner claims further investigation would have
18 turned up a witness to the event, Richard Brogden, who knew Ross and would have testified that,
19 immediately before the shooting, he had told Petitioner that Ross carried a gun. (See ECF No. 113, at
20 199:21-200:8; SHCP Ex. 11.)
21
Petitioner faults defense counsel for not retaining a mental health expert to evaluate penalty
22 phase issues and arrive at explanations for the shooting of Ross which might have become apparent to
23 counter the prosecution’s argument that Petitioner “is a violent man who uses violence to solve
24 problems.” (See RT at 2579.)
25
However, the California Supreme Court could reasonably have determined that defense
26 counsel was not ineffective in any of these regards. Olsen testified at the preliminary hearing that she
27 had been crying and screaming while she and Ross were outside arguing. (See SHCP Ex. 26 at 5028 51.) At the penalty phase trial, she stated that she had argued with Ross outside, but she was never
263
1
asked if she was crying during that time. (See RT at 2563-73.) Also, at both the preliminary hearing
2
and the penalty phase trial, Olsen confirmed Mary’s testimony that Ross may have grabbed Mary and
3
pushed her aside. (See SHCP Ex. 26 at 49-50; RT at 2572.) There was no apparent material
4
inconsistency in these regards.
5
As to Olsen’s testimony that there might have been a fight between Petitioner and Ross, Olsen
6
never testified that the fight was anything more than verbal, or that Ross had a weapon. (See SHCP
7
Ex. 26.) Instead, Olsen testified at the preliminary hearing that Ross had told Petitioner only “that he
8
wanted to talk to him,” not that he threatened him. (See SHCP Ex. 26 at 48.)
9
Defense counsel reasonably could have made a tactical decision not to focus on this testimony
10 because it was minor and likely aggravating, and that attacking Olsen’s credibility based on her
11 marriage to Ross was a more promising strategy. As noted in claim I2, ante, impeachment tactics are
12 a matter of trial strategy. Ferreira-Alameda, 815 F.2d at 1254; Jaiceris, 290 F. Supp. 2d at 1080-82.
13 Similarly, the extent and nature of cross-examination is also a matter of trial tactics entrusted to the
14 judgment of counsel. Dow, 211 F.3d at 487.
15
Petitioner’s claim that allowing Mary to testify regarding the Ross incident created an
16 inconsistent role for Mary is likewise not compelling. Mary was a witness to the Ross shooting and
17 provided some mitigating evidence regarding the shooting. Even assuming that this allegation has
18 been exhausted (Respondent argues otherwise, see ECF No. 194 at 334:21-24), any potentially
19 “inconsistent role[]” created for Mary by allowing her to testify regarding both aspects of the case,
20 likely was not prejudicial since Mary’s testimony in both areas provided some mitigating evidence
21 for Petitioner. Significantly, Petitioner does not explain how and why impeaching Mary’s credibility
22 regarding the Ross shooting necessarily resulted in “her ability to generate mercy [being] greatly
23 reduced.” (See ECF No. 178 at 283.)
24
Regarding defense counsel’s failure to investigate potential witness Richard Brogden’s
25 information about the Ross shooting, counsel reasonably could have determined that Brogden’s
26 testimony would have been of questionable value.
Brogden did not testify at the trial or the
27 preliminary hearing in the Ross case. (See CSC Informal Response Ex. H.) Nor was he questioned
28 by the police in that case. (See SHCP Ex. 11 at 6-7; see also SHCP Ex. 18b.)
264
1
Even had Brogden testified, it is not reasonably probable that the result of Petitioner’s
2
proceeding would have been more favorable. Brogden apparently did not see Petitioner shoot Ross or
3
witness any altercation, other than verbal, between them. (See SHCP Ex. 11 at 6-7.) Though Brogden
4
states in his declaration that he told Petitioner that Ross owned a gun, he also states that he had no idea
5
whether Ross had it with him the day that Petitioner shot Ross. (See SHCP Ex. 11 at 6-7.)
6
Defense counsel also reasonably could have found that aspects of Brogden’s testimony would
7
have been unfavorable. Brogden states in his declaration that Petitioner “snaps” when he gets angry,
8
that “once he snaps, all bets are off,” and that he (Brogden) tells his friends to “get the hell out of
9
Dodge . . . [w]hen [Petitioner] gets to the ‘snapping’ point.” (See SHCP Ex. 11 at 1, 5-6.) Testimony
10 along these lines would have supported the prosecution theme that Petitioner used violence to resolve
11 problems.
12
Petitioner also faults defense counsel’s failure to present mental health evidence to mitigate
13 Petitioner’s actions in the Ross shooting. Yet Petitioner apparently did not offer any mental health
14 evidence or defense at his earlier trial in the Ross matter. Nor does it appear that Petitioner’s own
15 mental health experts opine that he was acting under a mental disorder at the time of the assault
16 against Ross. (See SHCP Ex.’s 10, 22.)
17
For the reasons stated, the California Supreme Court could reasonably have found that
18 Petitioner was not prejudiced by counsel’s alleged failure to investigate or present evidence regarding
19 the Ross shooting and that counsel rendered constitutionally effective assistance at trial in this regard.
20
For the reasons stated, a fair-minded jurist could have found that Petitioner failed to establish
21 that he was denied a fair trial, or to the extent alleged, that defense counsel’s performance fell below
22 an objective standard of reasonableness and that, but for counsel’s unprofessional errors, there is a
23 reasonable probability outcome of the proceeding would have been different. Strickland, 466 U.S., at
24 687-98.
25
It does not appear that the state supreme court’s rejection of the claim was contrary to, or an
26 unreasonable application of, clearly established federal law, as determined by the Supreme Court, or
27 that the state court’s ruling was based on an unreasonable determination of the facts in light of the
28 evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).
265
1
2
Claim W5 is denied.
g.
Analysis of Claim W6
3
Petitioner next alleges that defense counsel did not adequately investigate and present
4
evidence concerning his unadjudicated 1979 assault upon Spencer offered in aggravation at the
5
penalty phase. (See ECF No. 113 at 200-03.) Petitioner raised same allegations regarding the
6
Spencer assault in his petition for writ of habeas corpus in the California Supreme Court (see SHCP
7
at 287-90), which that court summarily rejected on the merits without explanation. (See CSC Order
8
Den. Pet. Habeas Corpus.)
9
The prosecutor presented the testimony of Spencer during the penalty phase. (See RT at
10 2411-29) Spencer testified that in 1979, he was Petitioner’s 23-year-old neighbor. He had gone to
11 Petitioner’s house at the invitation of “Becky,” who was renting a room there. Petitioner’s daughters
12 were present, as was an individual named Brian Martinez. (See RT at 2413-30.)
13
Spencer testified that the door flew open and Petitioner came in and swung a tree limb at him;
14 Spencer ran out the back while “Rick” began beating him with a stick; Petitioner then hit Spencer in
15 the head with a pipe. (See RT 2374-77.) Spencer was treated for abrasions and required eight
16 stitches. (See RT at 2425-26.)
17
Mary, then about 12 years old (see RT at 2469, 2483), testified that Spencer and Brian
18 Martinez were partying at her house, smoking pot and sniffing paint, when Spencer put his hands
19 down her pants and tried to pull her top down. (See RT at 2470-71.) She testified that Petitioner,
20 upset after Mary told him what had happened, arrived and ran towards Spencer and ordered Spencer
21 and Martinez to leave, and that Spencer then exited through the backyard where Richard (Rick)
22 Balsamico, who disliked Spencer, began beating him with a stick. (See RT at 2412-72.) Mary
23 testified that she did not see Petitioner hit Spencer. (See RT at 2473.)
24
On cross-examination, Mary told the prosecutor she did not remember the police coming to
25 her house or talking to the police. (See RT at 2480-81.) She was then impeached with the police
26 report of Deputy Gutierrez regarding the Spencer incident in which Mary failed to provide the
27 information to which she testified. (See RT at 2479-83.)
28
Petitioner faults counsel for not preparing Mary for the cross-examination (see SHCP Ex. 5)
266
1
and for not rehabilitating Mary thereafter. (See SHCP Ex. 27.) He complains defense counsel did
2
not attempt to rebut the prosecutor’s suggestion that Mary was lying to protect her father. (See RT at
3
2578.) He also complains that counsel did not present testimony from Balsamico, who would have
4
stated that Spencer was drunk, armed with a knife and that it was Balsamico, not Petitioner, who beat
5
Spencer. (See SHCP Ex. 12.)
6
The Court is not persuaded. The California Supreme Court could reasonably have found
7
defense counsel’s questioning of Mary about the Spencer assault was tactically motivated to avoid
8
further harm to her testimony. Spencer testified that he had not been using drugs or alcohol that day
9
and did not believe any of the teenagers at Petitioner’s house were either. (See RT at 2417-25; see
10 also SHCP Ex. 27.) He testified that he was not carrying any weapons, did not make any threats or
11 moves toward Petitioner, and never spoke to Petitioner during the assault. (See RT at 2416, 2423,
12 2425.)
13
On cross-examination, Mary admitted that she did not tell the police any of this information to
14 which she testified. (See RT at 2480.) She did not remember the police ever coming to talk to her or
15 refusing to talk to them (see RT at 2480-81), or that the others were using drugs or alcohol that
16 evening. (See RT at 2480-82.) However, she admitted that she may have told the police that she did
17 not see anything because she was scared. (See RT at 2482.) She also admitted that she did not
18 remember the incident very well. (See RT at 2480.) On redirect examination, counsel confirmed that
19 Mary was only thirteen at the time of the incident. (See RT at 2483.)
20
Petitioner does not suggest how Mary’s testimony could have been rehabilitated given the
21 foregoing. It appears that, notwithstanding her denial, Mary gave statements to the police at the time
22 of the incident. (See SHCP Ex.’s 5, 27.) The California Supreme Court could have found it
23 reasonable for defense counsel not to pursue any significant rehabilitation attempt, but to move on to
24 other defense matters.
25
As for Petitioner’s assertion that his counsel failed to prepare Mary for her testimony resulting
26 in her effective impeachment (see ECF No. 113 at 202; ECF No. 178 at 316), the state supreme court
27 could reasonably have found the assertion refuted for reasons discussed in claim W3, ante. Similarly,
28 Petitioner’s complaint that Mary was placed in an inconsistent role by being asked to testify about the
267
1
Spencer and Ross incidents and to plead for mercy (ECF No. 178 at 316), fails for the same reasons
2
discussed in claim W5, ante.
3
Petitioner also faults defense counsel for not presenting the testimony of his friend,
4
Balsamico, (see ECF No. 113 at 202-03), who appears to claim responsibility for the assault on
5
Spencer and who states that he would have testified on Petitioner’s behalf had he been asked. (See
6
SHCP Ex. 12 at 3, 5-6.) However, counsel could reasonably have found such testimony suspect.
7
Balsamico’s statement to the police at the time of the Spencer incident was that Petitioner was
8
involved in a physical fight with Spencer, in which Balsamico joined in aid of Petitioner. (See SHCP
9
Ex. 27 at 6.) Petitioner himself admitted that he was involved in the fight and struck either Spencer
10 or Martinez. (See Id. at 5.)
11
Balsamico’s habeas declaration, provided ten years after the shootings, also appears
12 inconsistent with Mary’s testimony and interview about the assault. (See RT at 2469-73; SHCP Ex.
13 12 at 3-4.) Counsel, for tactical reasons, may have chosen not to present such testimony that could
14 have been readily impeached.
See, e.g., Denham, 954 F.2d at 1505-06 (defense counsel not
15 ineffective where decision not to call witness based on inconsistencies in witness’s testimony).
16
Petitioner also complains that defense counsel should have presented the testimony of a
17 mental health expert to attempt to explain Petitioner’s behavior in the Spencer assault. This claim,
18 which appears to be unexhausted, in any event lacks merit. Not even Petitioner’s mental health
19 experts opine the existence of a mental defense to his assault against Spencer. (See SHCP Ex.’s. 10,
20 22.) Moreover, counsel could have chosen not to present a mental defense, if one existed, because
21 the Spencer assault was remote in time (ten years prior to the instant capital murders) and suggested
22 some mitigating evidence (action by Petitioner protecting his daughter from a perceived sexual
23 assault).
24
Additionally, Petitioner has not demonstrated prejudice. Mary was rehabilitated somewhat
25 following her impeachment, by her testimony that she was only thirteen at the time of the Spencer
26 incident, (see RT at 2483), and may not have talked to police because she was scared, (see RT at
27 2482), and having been the victim of an attempted sexual assault. (See RT at 2471). Thus tactical
28 explanations may have existed for not pursuing Balsamico’s testimony.
268
1
For the reasons stated, a fair-minded jurist could have found that Petitioner failed to establish
2
that he was denied a fair trial, or to the extent alleged, that defense counsel’s performance fell below
3
an objective standard of reasonableness and that, but for counsel’s unprofessional errors, there is a
4
reasonable probability the outcome of the proceeding would have been different. Strickland, 466
5
U.S. at 687-98.
6
It does not appear that the state supreme court’s rejection of the claim was contrary to, or an
7
unreasonable application of, clearly established federal law, as determined by the Supreme Court, or
8
that the state court’s ruling was based on an unreasonable determination of the facts in light of the
9
evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).
10
11
12
Claim W6 is denied.
h.
Analysis of Claim W7
Petitioner next presents multiple allegations that defense counsel was ineffective in the
13 investigation, preparation, and presentation of the case in mitigation, denying the jury a fair and
14 accurate profile of him, in violation of his Fifth, Sixth, Eighth and Fourteenth Amendment rights.
15 (See ECF No. 113 at 203-18.)
16
Petitioner raised these allegations to the California Supreme Court on direct appeal, which
17 that court rejected, noting that:
18
19
20
21
22
Although several family members and friends presented mitigating testimony as to his
background and character, defendant contends his counsel rendered ineffective
assistance at the penalty phase in failing to submit additional evidence regarding his
childhood, including alleged abuse, his mental health, his military service and injuries,
and his employment history. We find none of this evidence of record. Accordingly,
“without engaging in speculation, we cannot infer anything about its existence,
availability, or probative force, or the probable consequences of its use at trial.”
Defendant has thus failed to establish either incompetence or prejudice.
23 Bolin, 18 Cal. 4th at 345.
24
Petitioner also raised these allegations in his petition for writ of habeas corpus in the
25 California Supreme Court, which summarily rejected the claim on the merits without explanation.
26 (See CSC Order Den. Pet. Habeas Corpus).
27
28
1)
Petitioner’s Background and Life History
Petitioner claims that counsel was ineffective for failing to adequately investigate his
269
1
background and family history, and by not conducting a social history or life history evaluation, as
2
required by the ABA Guidelines. (See ECF No. 113 at 203-218; SHCP Ex. 47 1/7/91 Marsden
3
Hearing RT at 2309); see also ABA Guidelines, §§ 11.4.1, 11.8.3.F(1).) Petitioner argues that further
4
investigation would have revealed: a history of child abuse, head injuries, and neglect; a history of
5
exposure to neurotoxins, back injury and substance abuse; his mental health issues related to his six
6
months of service in the Vietnam War; his long history of polysubstance abuse; his alleged ingestion
7
of multiple narcotics on the day of the shootings; and his character for hard work and generosity.
8
(See ECF No. 113 at 203:13-18.)
9
The California Supreme Court was not unreasonable in rejecting these allegations.
Mr.
10 Cater’s investigator, Mr. Ruby, discovered much information about Petitioner’s background, despite
11 the fact that Petitioner apparently was unwilling to discuss his childhood and was not particularly
12 forthcoming with details about his background in general. (See SHCP Ex. 9 at 8 [Paula Bolin’s
13 declaration indicating that Petitioner refused to discuss his childhood, his family, or her mother];
14 SHCP Ex. 20 at 2 [interview with Dr. Markman during which Petitioner refused to discuss his family
15 background]; see also February 25, 1991, Probation Officer’s Report and Recommendation at 3, 16
16 [indicating that Petitioner refused to discuss his background or family history].)
17
Petitioner claims the “full story” of his abuse and neglect was never told. (See ECF No. 113
18 at 205:20-21.) However, the record reflects details of Petitioner’s broken home and life on the street
19 as a youth, (see RT at 2503-04); his enlistment in the Navy as a teen, (see RT at 2505); his positive
20 influence on his kids and others (see RT 2502-29); and that he was a model inmate during his earlier
21 incarceration relating to the Ross incident (see RT at 2498-2500; SHCP Ex. 24).
22
Capital defense counsel has “a duty to make reasonable investigations or to make reasonable
23 decisions that makes particular investigations unnecessary,” and “a particular decision not to
24 investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy
25 measure of deference to counsel’s judgments.” Strickland, 466 U.S. at 691; see also Babbitt v.
26 Calderon, 151 F.3d 1170, 1173 (1998) (a lawyer may make a reasonable decision that a particular
27 investigation is unnecessary). The relevant inquiry is not what counsel could have pursued but
28 whether the choices counsel made were reasonable. Siripongs v. Calderon, 133 F.3d 732, 736 (9th
270
1
Cir. 1998).
2
Mr. Cater relied upon interviews with and statements from friends and family; materials
3
related to Petitioner’s prior convictions; materials related to the current offense; portions of
4
Petitioner’s trial testimony; and information related to his medical care, military service, employment,
5
and education. (See, e.g., SHCP Ex 20, 24.) These are all sources similar to those relied upon ten
6
years later by Petitioner’s habeas expert, Dr. Matthews. (See SHCP Ex.’s. 22, 24, 29, 31, 32.)
7
Mr. Cater also spoke with Petitioner and questioned him about his background, including his
8
employment history and military service, as well as his relationships with family and friends. (See
9
SHCP Ex. 47, 1/7/91 Marsden RT at 2308-09.)
Cater’s investigator, Mr. Ruby, interviewed
10 Petitioner’s daughters Mary and Paula, his stepdaughter Pamela Castillo, Petitioner’s sisters Francis
11 and Rosemary, and other relatives, including Gary Monto, Marilyn Perez, Trina Perez, Florence
12 Monto, Betty Monto, Jermiah Monto and Sylvester Monto. (See SHCP Ex. 24 at 1-5.) Ruby
13 interviewed David Alexander, Petitioner’s probation officer in Oklahoma (see SHCP Ex. 24 at 1), and
14 a family friend named Mrs. Myrick, who agreed to testify on his behalf. (See Id. at 11-12.)
15
It appears that Ruby interviewed these witnesses prior to the penalty phase trial, prepared a
16 written report and spoke with Cater about his interviews. (See SHCP Ex. 24.) It also appears that
17 Cater spoke to Ruby about Paula and Mary Bolin and that Cater likely knew what mitigating
18 information these witnesses had to offer. (See SHCP Ex.’s. 5, 9, 24.)
19
Based on this investigation, Cater could reasonably have determined which witnesses would
20 provide the most effective presentation given the mitigation theory that Petitioner had positive
21 attributes and could adjust well to prison. Even if defense counsel did not review and present
22 evidence from Petitioner’s prison file showing he would function well in a life without parole setting,
23 (see ECF No. 113 at 212-13), such likely would have been cumulative of the above noted life history,
24 and unlikely to affect the result of proceedings given the noted substantial aggravating evidence. (See
25 claims O, R and S, ante.)
26
Significantly, Petitioner did not provide a declaration from either Ruby or Cater regarding the
27 extent to which they discussed noted interviews and witnesses and trial tactics. Petitioner does not
28 specifically identify any school, employment, medical or psychiatric records that Ruby or Cater could
271
1
have sought or introduced in 1990 that would have provided additional information in support of a
2
mitigating factor.
3
Petitioner also argues that Soria and Cater did not communicate sufficiently with each other
4
and relied on incomplete military, prison, and life history records. However, these allegations fail for
5
reasons discussed in claim W1, ante.
6
The California Supreme Court could reasonably have found defense counsel’s penalty phase
7
investigation was not deficient in the above regards, for the reasons stated. See e.g., Hamilton, 458 F.
8
Supp. 2d at 1134 (defense interviewed the available witnesses, and no better available witness about
9
petitioner’s background and social history other than his mother was uncovered).
2)
10
11
Medical and Mental Health History
Petitioner claims counsel failed to investigate, develop and present mitigating medical and
12 mental health evidence. (See ECF No. 113 at 203:4-8.) He faults counsel for failing to provide
13 competency examiner, Dr. Markman, with sufficient information about Petitioner’s family and life
14 history; for failing to request that Dr. Markman evaluate potential issues in mitigation; and for failing
15 to consult with other qualified experts regarding potential issues in mitigation. (See ECF No, 113 at
16 203-18.)
17
Petitioner claims that these shortcomings left his history of exposure to neurotoxins and
18 organic brain damage undeveloped and unpresented. (See ECF No. 113 at 203:18-23; SHCP Ex.’s.
19 10, 20, 22.)
20
Petitioner claims counsel’s deficiencies impaired his defense theory that the cumulative effect
21 of medical and mental health factors, coupled with alcohol and cocaine ingestion prior to the crime,
22 caused him to perceive a great threat from the actions of Huffstuttler and triggered a strong self23 defense reaction at the time of the crimes. (See ECF No. 113 at 215:21-28; SHCP Ex. 22.)
24
The record reflects that Dr. Markman, during his trial competency (psychiatric) evaluation,
25 asked Petitioner about his family history. Dr. Markman related his findings to counsel in a letter.
26 (See SHCP Ex. 20 at 2.) Petitioner told Dr. Markman that his parents divorced when he was nine
27 years old; that he was shuttled among different living situations; that he completed the tenth grade,
28 performing poorly in school; and that he had been married and divorced three times. (Id.) Dr.
272
1
Markman noted that Petitioner refused to provide any further information regarding his family
2
background. (Id.) Petitioner claimed polysubstance abuse “years ago” and an extended history of
3
using alcohol daily. (Id.)
4
Petitioner told Dr. Markman that the shootings related to an exchange of marijuana for
5
cocaine and that he had ingested a substantial amount of alcohol and smoked cocaine prior to the
6
shootings. (Id.) However, Petitioner “repeatedly maintained that he knowingly acted in self-defense
7
and that another individual, as yet unidentified, may have been responsible for some of the deaths.”
8
(Id.) Dr. Markman noted that Petitioner had a successful nine-year history of military service in the
9
Navy and also that he had been discharged because of a back injury. (Id.)
10
Here, the state supreme court was not unreasonable in concluding counsel was not deficient
11 regarding development and presentation of medical and mental health mitigating information. Dr.
12 Markman’s report, though generated with a view toward trial competency, did not reasonably suggest
13 the need to investigate potentially mitigating medical and mental health defenses. Dr. Markman
14 apparently did not identify matters warranting further investigation, concluding that Petitioner
15 “demonstrates no current evidence of a major mental disorder.” (SHCP Ex. 20 at 1-3.) Nor are the
16 facts of this case suggestive of the need for such further investigation. Petitioner’s noted seemingly
17 purposeful and goal oriented statements and actions just prior to, during and after the capital murders
18 do not suggest uninvestigated potentially mitigating medical or mental state defenses. Counsel is not
19 put to further investigation where reasonable initial investigation suggests such would not bear fruit.
20 See Hensley v. Crist, 67 F.3d 181, 186 (9th Cir. 1995).
21
Even though Petitioner may not have been forthcoming with useful information regarding his
22 medical and mental health background, by speaking with friends and family Ruby and Cater
23 discovered and presumably considered aspects of Petitioner’s violent family background; that he had
24 lived on the streets from a young age; that he served in the Navy for nine years; that he served in the
25 Vietnam War in 1972; that he was discharged from the Navy a year later because of a back injury;
26 that he had behaved well while on parole and while incarcerated in Chino; and that he claimed to
27 have had a long history of substance abuse, including ingestion of alcohol and cocaine on the night of
28 the shootings (although this latter claim appears rebutted by other facts in the record). (See SHCP
273
1
Ex.’s. 9, 20.)
2
Regarding alleged exposure to toxic substances, the California Supreme Court reasonably
3
could have found that defense counsel might not have been on notice of such and that Petitioner’s
4
work as a machinist and a pipefitter in the Navy may have exposed him to toxic solvents.
5
Petitioner asserts that,
6
[L]ay witnesses also had a wealth of information about Mr. Bolin’s exposure to toxic
chemicals, and their apparent effects. See, e.g., Exhibits 4 (Declaration of Mark Daser),
9 (Declaration of Paula Bolin), 11 (Declaration of Richard Brogden). Counsel made no
efforts to locate such witnesses, nor to identify work and military records which would
document the exposure.
7
8
9
10 (See ECF No. 178 at 293:12-18.) But Petitioner does not suggest that any of the noted witnesses saw
11 in Petitioner signs of harmful toxics exposure, or were qualified to offer an opinion regarding toxic
12 chemicals. Here again, the record seemingly contradicts any suggestion that Petitioner was impaired
13 when he committed the capital crimes or while he was in custody. Ramirez described how Petitioner
14 had wiped his prints off the gun, put the gun into Huffstuttler’s hand, put marijuana near the body,
15 staged the scene to look like a “drug deal gone bad,” and pulled the wires from Wilson’s car to
16 prevent its use should Wilson return, thus ensuring that Wilson would bleed to death before getting
17 help. (See SHCP Ex. 13 at 4-7, 15-17; RT 1738, 1863-64, 1928-29, 1957, 1959, 1961, 1975.)
18
Additionally, for the reasons noted above and in claim I10, ante, the California Supreme
19 Court could have reasonably discounted evidence relating to exposure to toxins. As stated, after
20 examining Petitioner and inquiring into his employment and service with the Navy, Dr. Markman
21 concluded that Petitioner “demonstrates no current evidence of a major mental disorder.” (See SHCP
22 Ex. 20 at 1-3.) Petitioner’s taking flight from the crime scene to the Los Angeles area and then
23 Chicago, and his apparent self-serving statements to Dr. Markman, all suggested that he was mentally
24 capable, as did his pursuit of heat of passion and imperfect self-defense theories. (See Id. at 1-2.)
25
In Hensley, the Ninth Circuit recognized that a petitioner must show that counsel was
26 somehow put on notice to investigate a particular matter. 67 F.3d at 186; see also Langford v. Day,
27 110 F.3d 1380, 1387 (9th Cir. 1997) (citing Strickland, 466 U.S. at 691) (the “reasonableness of
28 counsel's actions may be determined or substantially influenced by the defendant's own statements or
274
1
actions.”); Dyer v. Calderon, 113 F.3d 927, 941 (9th Cir. 1997), vacated on other grounds, 151 F.3d
2
970 (9th Cir. 1998) (petitioner never told attorney that he smoked PCP, and doctors were also
3
unaware, so no need to investigate despite current declarations). Here, it does not appear that either
4
Petitioner or any other witness discussed prior exposure to toxic substances, or that Petitioner
5
behaved as if he suffered from brain damage or had any noticeable cognitive deficits.
6
3)
History of Substance Abuse
7
Petitioner claims that he was prejudiced by defense counsel’s failure to investigate his long
8
history of substance and alcohol abuse even though counsel was aware and could have introduced
9
evidence through Dr. Markman and/or Petitioner. (ECF No. 178 at 294-95; SHCP Ex. 20 at 1-3.)
10
However, defense counsel could reasonably have decided to omit this evidence for fear it
11 might not be viewed as mitigating by the jury. See Clisby v. Alabama, 26 F.3d 1054, 1056 (11th Cir.
12 1994) (“precedents show that many lawyers justifiably fear introducing evidence of alcohol and drug
13 use”); see also White v. Singletary, 972 F.2d 1218, 1225-26 (11th Cir. 1992) (“counsel’s strategy not
14 to dwell on the intoxication issue” was tactical and reasonable).
15
Defense counsel may have felt that introducing a long history of substance abuse would have
16 contradicted the other evidence presented in mitigation, namely that Petitioner was devoted to his
17 family, had worked hard throughout his life to support his family, and that he had adjusted well to
18 prison life. Furthermore, counsel also may have felt that evidence of substance abuse would have
19 supported the defense theory that Petitioner shot the victims because his drug operation had been
20 exposed. In such regards, the record could reasonably support a determination that defense counsel
21 was aware of Petitioner’s substance abuse and did not present this evidence for tactical reasons. If so,
22 it appears unlikely that any further investigation would have changed counsel’s decision not to
23 present this type of evidence during the penalty phase.
24
Petitioner argues that the investigation in his case was similar to investigations which the
25 Ninth Circuit had previously found to be deficient. He cites to the cases of Correll v. Ryan, 465 F.3d
26 1006 (9th Cir. 2006), amended by Correll v. Ryan, 539 F.3d 938, (9th Cir. 2008); Boyde, 404 F.3d
27 1159 amended by 421 F.3d 1154; Frierson v. Woodford, 463 F.3d 982 (9th Cir. 2006); and Karis v.
28 Calderon, 283 F.3d 1117, 1133 (9th Cir. 2002). However, each of these cases is distinguishable.
275
1
In Correll, a pre-AEDPA case subject to de novo review, defense counsel met only briefly
2
with defendant between the trial and penalty phase, almost completely failed to investigate available
3
mitigation evidence, and put on no affirmative penalty defense. 539 F.3d at 943-44. In Boyde,
4
defense counsel failed to investigate mitigating childhood abuse, and failed to introduce the evidence
5
his limited investigated did uncover. 404 F.3d at 1176. In Frierson, defense counsel was on notice
6
of, but failed to investigate and present mitigating evidence of extensive drug history, childhood
7
abuse and head trauma, mental impairment and brain damage. 463 F.3d at 992-96. In Karis, defense
8
counsel failed to investigate and present significant mitigation evidence; the defense mitigation
9
presentation took only 48 minutes and omitted evidence of childhood poverty and abuse. 283 F.3d at
10 1133-41.
11
By contrast, in this case, investigator Ruby contacted numerous mitigation witnesses,
12 including family and friends suggested by Petitioner, for additional information regarding his
13 background, with noted positive results. (See SHCP Ex.’s. 5, 9, 24.) Moreover, the only evidence
14 that Petitioner may have suffered drug and alcohol intoxication at the time of the capital murders was
15 his possibly self-serving statement to Dr. Markman. (See SHCP Ex. 20 at 1-3.) Ramirez testified
16 that he and Petitioner left the bar together and were at the cabin less than an hour before the victims
17 arrived. (See RT at 1947.) In all the statements made to the police and during trial, Ramirez did not
18 mention anything about Petitioner smoking cocaine prior to the shootings, or for that matter drinking
19 alcohol at the cabin the day of the shootings. Additionally, Petitioner’s noted conduct during and
20 after the shootings reasonably suggests the absence of alcohol and drug intoxication.
21
22
4)
Lay Witnesses
Petitioner complains defense counsel did not elicit from lay witnesses and present all possible
23 information regarding circumstances in mitigation. (ECF No. 113 at 201-11.)
24
Petitioner argues that the mitigation defense was “meager” (see ECF No. 178 at 298:4); that
25 defense counsel was ineffective by “fail[ing] to elicit testimony from the witnesses which would have
26 provided the jury with insight into [Petitioner’s] troubled childhood, his history of substance abuse,
27 and his mental and emotional problems.” (Id. at 298:9-12.) He claims this missed the opportunity to
28 develop a “comprehensive mitigation picture.” Ainsworth v. Woodford, 268 F.3d 868, 874 (9th Cir.
276
1
2001) (defense counsel ineffective for failing to adequately investigate, develop and present readily
2
available substantial mitigating evidence).
3
However, the defense presented numerous mitigation witnesses during the penalty phase,
4
including several family members, who testified that: (1) Petitioner supported and took custody of his
5
two daughters who had been abandoned by his first wife; (2) Petitioner served in Vietnam in the
6
Navy; (3) Petitioner financially supported and provided a home for his step-daughter after her
7
biological mother (Petitioner’s ex-wife) abandoned her; (4) Petitioner opened his home to other
8
young people who needed his help and provided them with food and shelter; (5) Petitioner protected
9
his daughters and other people who lived with him; (6) Petitioner was a “model inmate” when
10 imprisoned in Chino for the attempted voluntary manslaughter of Ross; (7) Petitioner moved up to the
11 secluded cabin after his fiancée Rhonda died in a car crash; (8) Petitioner had a difficult childhood
12 and suffered the hatred of his biological father and his stepfather; (9) Petitioner was forced to live on
13 the streets starting at about nine years of age for the greater part of his childhood; and (10) Petitioner
14 fixed up the house where he was staying in Chicago, was generous and helpful, and established close
15 ties with his family in Chicago after the capital murders. (See RT at 2402-2528.)
16
Petitioner also faults defense counsel for emphasizing his positive conduct with family
17 members while he was a fugitive, rather than on developing mitigation from Petitioner’s life history
18 and experience.
Petitioner claims this strategy was not based on any sufficient investigation.
19 However, the California Supreme Court reasonably could have found defense tactics developed
20 through the mitigation investigation influenced counsel’s actions relative to lay witnesses. Counsel
21 sought to portray the Petitioner as a person with positive qualities who had the potential to
22 rehabilitate and to adjust to life in prison. Counsel here, unlike counsel in Ainsworth, did investigate
23 and consider Petitioner’s background and mental state, including witness interviews and examination
24 of personal history records, and presented the noted evidence relating to his troubled childhood,
25 substance abuse history, military and employment history, and prior incarceration.
A more
26 comprehensive background presentation reasonably might have opened the door to evidence of
27 aggravating criminal activities, Petitioner’s violent temper and use of violence, and his attempts to
28 avoid responsibility for his violence.
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1
To the extent Petitioner relies on pre-AEDPA cases noted ante (Summerlin, Bean, Jackson,
2
Ainsworth, and Douglas), his reliance is misplaced. Bean and Jackson are unavailing for reasons
3
discussed in claims W1 and W2, ante. Summerlin, Ainsworth and Douglas found counsel therein
4
ineffective where there was no or only insubstantial investigation and presentation of available
5
mitigation evidence, in contrast to the noted efforts of defense counsel in this case.
6
5)
Mental State Defenses
7
Petitioner complains defense counsel did not consult or retain an expert to develop mental
8
deficits and defenses. (ECF No. 113 at 203:11-12, 211-18.) He claims, and Respondent concedes
9
(ECF No. 194 at 353:27), that the competency evaluation of Dr. Markman was not necessarily meant
10 to evaluate mental illness for the purpose of presenting mitigation evidence. (ECF No. 178 at 300.)
11
Petitioner relies upon declarations of his habeas experts, Drs. Khazanov and Matthews,
12 provided ten years after the capital crimes, suggesting the existence of brain impairment predating the
13 crimes and that the crimes were triggered by a traumatic stress reaction and alcohol and cocaine
14 ingestion. (See SHCP Ex.’s 10, 22.)
15
The Ninth Circuit has held that a defense attorney in the sentencing phase of a capital trial has
16 “a professional responsibility to investigate and bring to the attention of mental health experts who
17 are examining his client facts that the experts do not request.” Wallace v. Stewart, 184 F.3d 1112,
18 1116 (9th Cir. 1999); see also Caro v. Woodford, 280 F.3d 1254, 1254 (9th Cir. 2002) (counsel has
19 an affirmative duty to provide mental health experts with information needed to develop an accurate
20 profile of the defendant’s mental health). But defense counsel only has a duty to investigate a
21 defendant’s mental state “if there is evidence to suggest that the defendant is impaired,” Douglas, 316
22 F.3d at 1085, and counsel has notice of the mental impairment. Caro, 280 F.3d at 1254. Petitioner
23 was evaluated by a qualified forensic psychiatrist, Dr. Markman, prior to trial.
Dr. Markman
24 determined that Petitioner was competent to stand trial. Dr. Markman also determined that Petitioner
25 did not suffer from mental disorders, (SHCP Ex. 20 at 1-3), based on an examination that:
26
27
28
[R]evealed [Petitioner] to be fully oriented in all spheres, alert, cooperative, and above
normal intelligence with an excellent fund of knowledge. Dr. Markman found that
Petitioner’s responses to be relevant and coherent and his memory and concentration
were unimpaired and his affect was appropriate, though detached. There was no
evidence of a major mental disorder, thought disorder or psychosis, judgment was not
278
1
impaired and insight into his status was adequate. He was able to provide a coherent
narration of his version of the events of September 2, 1990 and their sequeiae.
2
3
4
5
6
7
8
(SHCP Ex. 22, at 58.)
Petitioner argues that his habeas expert, Dr. Matthews, determined that the shooting of Mr.
Huffstuttler was likely the result of an exaggerated response to perceived dangers, that is:
[T]o a reasonable degree of medical certainty that the shooting of Vance Huffstuttler
was the result of trigger responses to perceived dangers to [Petitioner] himself.
Petitioner’s exaggerated perceptions and reactions were the result of [Petitioner’s] many
deficits, his organic brain damage, the stress he was under at the time of the crime and
his ingestion of alcohol and cocaine.
9
10 (Id.) Even if this was the case, the California Supreme Court could reasonably have found that
11 Petitioner’s noted subsequent acts of walking down to the creek bed and shooting Mincy multiple
12 times while the latter was curled on the ground begging for his life, wounding Wilson and searching
13 for him following his escape, changing the scene of the murders to make it look like drug deal gone
14 bad, disabling Wilson’s truck and leaving him on the mountain to bleed to death, and then fleeing to
15 the Los Angeles area and ultimately Chicago, all suggested mental state defenses were unavailable.
16 As noted, the only evidence that Petitioner was under the influence of intoxicants was his statement to
17 Dr. Markman. (See SHCP Ex. 20 at 1-3.) Ramirez did not mention it. Petitioner’s close friend,
18 Daser, stated that Petitioner drank only on the weekend and that Petitioner was not a binge drinker.
19 (See SHCP Ex. 4 at 1, 4.) Petitioner’s daughter, Mary, agreed with this assessment. (See SHCP Ex.
20 5 at 10.)
21
Nor does Dr. Matthews’s mental evaluation, conducted over a decade after the capital
22 murders, change the fact that shortly before trial, Dr. Markman, a qualified psychiatrist, evaluated
23 Petitioner and concluded that he showed no signs of suffering from any “major mental disorder,
24 thought disorder or psychosis” and furthermore that his judgment did not appear to be impaired.
25 (SHCP Ex. 20.) Dr. Markman took into consideration Petitioner’s claimed daily use of alcohol and
26 claimed long history of substance abuse. (Id. at 2-3.) Dr. Markman diagnosed Petitioner with
27 polysubstance abuse and a personality disorder with paranoid, explosive, and antisocial features. (Id.
28 at 3.) The fact that Dr. Matthews, ten years hence, may have disagreed with Dr. Markman does alone
279
1
render Dr. Markman’s opinions incorrect. See e.g., Boyde, 404 F.3d at 1168-69 (holding that if new
2
mental health evidence, obtained after the trial, were sufficient to establish the petitioner’s innocence,
3
the petitioner could “always provide a showing of factual innocence by hiring psychiatric experts
4
who would reach a favorable conclusion”).
5
The California Supreme Court could reasonably have determined that Dr. Matthews’s belief
6
that Petitioner “may” have experienced neuropsychological damage in utero because his father may
7
have beaten his mother, or because his mother may have worked at a metal plating shop (see SHCP
8
Ex. 22 at 42-43), amounts to surmise and nothing more. The same can be said about the suggestion
9
of Petitioner’s expert, Dr. Khazanov, that Petitioner suffered post-partum closed head injuries. (See
10 SHCP Ex. 10 at 11.) Dr. Khazanov apparently based this conclusion only upon her assumption that
11 Petitioner suffered a closed head injury when his father threw him against a wall, (see SHCP Ex. 10
12 at ¶ 31-34), given head scars of undetermined origin. (Id.)
13
Dr. Khazanov’s statement that Petitioner may have suffered organic brain deficits secondary
14 to the effects of long-term military and workplace exposure to toxic substances (see SHCP Ex. 10 at
15 ¶¶ 35-40) likewise could reasonably be seen as speculative, notwithstanding declarations from
16 Petitioner’s former coworkers purportedly vouching for their own exposure to toxic substances. (See
17 SHCP Ex.’s 4, 11.) Petitioner was found to be healthy when he received a physical examination in
18 1981. (See SHCP Ex. 41.) Petitioner certified at that time that he did not suffer from eye trouble
19 (pain, burning, itching, etc.), headaches or throbbing temples, depression, excess worry, or trouble
20 sleeping, illness or injury from chemical exposure, or dizziness or fainting spells. (Id.) Again, the
21 noted level of functioning suggested by the record, both in the military (see e.g., SHCP Ex. 33) and
22 during and after the capital murders (see SHCP Ex. 13), belies a claim of brain damage.
23
Petitioner’s claim that Dr. Markman failed to identify his “organic brain damage” and that
24 counsel should have consulted and retained other experts in this regard (ECF No. 178 at 303) could
25 reasonably be viewed as unsupported in the record that was before the state court. Defense counsel
26 provided Dr. Markman with access to Petitioner to conduct an evaluation, along with Petitioner’s
27 prior police reports, the reports related to the capital crimes, and his prior probation reports (which
28 presumably detailed much of his employment and life history). (See SHCP Ex. 20 at 1.) It is
280
1
reasonable to conclude that defense counsel could not have known that Dr. Markman would require
2
any other information absent his request or further relevant information from Petitioner. Hendricks,
3
70 F.3d at 1038 (expert must provide guidance regarding information that may be helpful).
4
Nor does the record necessarily suggest that defense counsel was reasonably on notice of a
5
toxic substances defense. Counsel has no duty to pursue neurological experts when a qualified
6
forensic psychiatrist does not indicate that such testing is implicated, Walls v. Bowersox, 151 F.3d
7
827, 835 (8th Cir. 1998), or when there is no indication of brain damage, Wright v. Angelone, 151
8
F.3d 151, 163 (4th Cir. 1998). Defense counsel is entitled to and can rely on the report of an expert
9
who is consulted. Babbitt, 151 F.3d at 1174 (counsel has no duty to contact other experts when he
10 reasonably thought those consulted were well-qualified and no duty to ensure the trustworthiness of
11 an expert’s conclusions).
12
For the reasons stated, the California Supreme Court could have found it unlikely that
13 Petitioner was prejudiced by counsel’s decision not to call Dr. Markman or another mental health
14 expert as a witness. Doing so also might have opened the door to aggravating testimony relating to
15 his violent outbursts, alleged substance abuse and his denials of responsibility for his actions
16 including the self-inflicted wounds. (See e.g., SHCP Ex. 20 at 1-3); Harris, 949 F.2d at 1525
17 (counsel not ineffective by choosing not to call psychiatrists to testify when they can be subjected to
18 cross-examination based on equally persuasive psychiatric opinions that reach a different conclusion).
19 Moreover, the noted evidence in aggravation at the penalty phase was substantial. (See claims O, R
20 and S, ante.)
21
Accordingly, the California Supreme Court could reasonably have found that alleged mental
22 state defenses would not have been sufficient to undermine confidence in the trial outcome. See U.S.
23 v. Lewis, 786 F.2d 1278, 1283 (5th Cir. 1986).
24
For the reasons stated, a fair-minded jurist could have found that Petitioner failed to establish
25 that he was denied a fair trial, or to the extent alleged, that defense counsel’s performance fell below
26 an objective standard of reasonableness and that, but for counsel’s unprofessional errors, the outcome
27 of the proceeding would have been different. Strickland, 466 U.S. at 687-98.
28
It does not appear that the state supreme court’s rejection of the claim was contrary to, or an
281
1
unreasonable application of, clearly established federal law, as determined by the Supreme Court, or
2
that the state court’s ruling was based on an unreasonable determination of the facts in light of the
3
evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).
4
5
Claim W7 is denied.
i.
Analysis of Claim W8
6
Petitioner’s next claim alleges defense counsel was ineffective by not objecting to the penalty
7
phase instructional errors alleged in claims R4 and U1-U5, ante, denying him a fair trial and reliable
8
sentence determination, violating the Sixth and Eighth Amendments. (ECF No. 113 at 218.)
9
Petitioner raised this same claim in his petition for writ of habeas corpus in the California
10 Supreme Court, which was summarily denied on the merits without explanation. (CSC Order Den.
11 Pet. Habeas Corpus.)
12
The California Supreme Court also considered and denied certain of these allegations on the
13 merits on direct appeal. See Bolin, 18 Cal. 4th at 341-45.
14
Petitioner argues that, had defense counsel objected to these instructional errors, they would
15 have been corrected, (ECF No. 113 at 218:15), and that it is reasonably probable the result of his
16 proceeding would have been more favorable. (Id. at 218:18-19.)
17
The Court disagrees. This claim fails for the reasons set forth in Claim R4 and Claims U1
18 through U5, ante. There is no cumulative error because there is no individual error. Parle, 505 F.3d
19 at 928 (citing Donnelly, 416 U.S. at 643).
20
For the reasons stated, a fair-minded jurist could have found that Petitioner failed to establish
21 that he was denied a fair trial, or to the extent alleged, that defense counsel’s performance fell below
22 an objective standard of reasonableness and that, but for counsel’s unprofessional errors, there is a
23 reasonable probability the outcome of the proceeding would have been different. Strickland, 466
24 U.S. at 687-98.
25
It does not appear that the state supreme court’s rejection of the claim was contrary to, or an
26 unreasonable application of, clearly established federal law, as determined by the Supreme Court, or
27 that the state court’s ruling was based on an unreasonable determination of the facts in light of the
28 evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).
282
1
Claim W8 is denied.
j.
2
Analysis of Claim W9
3
Petitioner’s final claim alleges that counsel was ineffective by not objecting to the improper
4
comments made by the prosecutor during her penalty phase closing argument, discussed in claim V,
5
ante and summarized below, denying him a fair trial and reliable penalty determination, violating his
6
rights under the Sixth and Fourteenth Amendments. (ECF No. 113 at 218-19.)
7
Petitioner raised this same claim in his petition for writ of habeas corpus in the California
8
Supreme Court, which was summarily rejected on the merits without explanation. (CSC Order Den.
9
Pet. Habeas Corpus.) Petitioner argues that defense counsel’s failure to object to the prosecutor’s
10 improper closing comments that the jury should consider public sentiment; matters outside the record;
11 sympathy only to the extent of Petitioner’s culpability; and the prosecutor’s personal opinion
12 regarding the truthfulness and credibility of defense witness Mary Bolin - all misled the jury as to
13 those factors they could properly consider at the penalty phase, impermissibly increasing the
14 likelihood of a death sentence. (ECF No. 113 at 218:24-26.)
15
But this claim fails for the reasons stated in claim V, ante. Furthermore, “[b]ecause many
16 lawyers refrain from objecting during opening statement and closing argument, absent egregious
17 misstatements, the failure to object during opening statement and closing argument is within the
18 ‘wide range’ of permissible professional legal conduct.”
Necoechea, 986 F.2d at 1281 (citing
19 Strickland, 466 U.S. at 689) (finding no ineffectiveness for failure to object to the prosecutor’s
20 argument).
21
There is no cumulative error because there is no individual error. Parle, 505 F.3d at 928
22 (citing Donnelly, 416 U.S. at 643).
23
For the reasons stated, a fair-minded jurist could have found that Petitioner failed to establish
24 that he was denied a fair trial, or to the extent alleged, that defense counsel’s performance fell below
25 an objective standard of reasonableness and that, but for counsel’s unprofessional errors, there is a
26 reasonable probability the outcome of the proceeding would have been different. Strickland, 466
27 U.S. at 687-98.
28
It does not appear that the state supreme court’s rejection of the claim was contrary to, or an
283
1
unreasonable application of, clearly established federal law, as determined by the Supreme Court, or
2
that the state court’s ruling was based on an unreasonable determination of the facts in light of the
3
evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).
4
Claim W9 is denied.
5
7.
6
In these next two claims, Petitioner alleges that following the penalty phase, the trial court
7
erred in denying his request for appointment of separate counsel for the purpose of filing a new trial
8
motion based on ineffective assistance of counsel. (ECF No. 113 at 219-26; SHCP Ex. 47.) He also
9
alleges that Cater was ineffective for not filing a new trial motion and not renewing his request for
Review of Claims X and Y
10 separate counsel. (Id.) Petitioner claims these errors denied him the right to counsel, due process,
11 and a reliable sentence determination, violating his rights under the Fifth, Sixth and Fourteenth
12 Amendments. (Id.)
13
Petitioner raised these same claims on direct appeal, which the California Supreme Court
14 denied on the merits. Bolin, 18 Cal. 4th at 346-47. Petitioner also raised these claims in his petition
15 for writ of habeas corpus in the California Supreme Court. The California Supreme Court ruled that
16 Petitioner’s habeas claims were procedurally barred because they were repetitive of claims that had
17 been raised and rejected on direct appeal. (See CSC Order Den. Pet. Habeas Corpus [citing In re
18 Harris, 5 Cal. 4th at 824-29; In re Waltreus, 62 Cal. 2d at 225].) The California Supreme Court also
19 summarily denied the habeas claims on the merits without explanation. (See CSC Order Den. Pet.
20 Habeas Corpus.)
21
22
23
24
25
26
27
28
a.
Legal Standards
A state law error that renders the trial fundamentally unfair in violation of the federal
Constitution violates due process. See Chambers, 410 U.S. at 298, 302-03 (due process protects
defendant from arbitrary deprivation of expectations under state law).
The standard for ineffective assistance is set out in claim C2, ante.
b.
Analysis of Claims X and Y
As grounds for new trial, Petitioner re-argues presumed prejudice arising from counsel Soria’s
alleged actual conflict of interest including the noted deficiencies relating to investigator Binns,
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1
Soria’s failure to ensure guilt phase witnesses were personally interviewed, and the complete
2
breakdown of the relationship between Soria and Petitioner. (See claims A, J, ante.)
3
4
5
1)
Independent Counsel
Petitioner claims that the trial court erred in denying his motion for appointment of separate
counsel. (See ECF No. 113 at 219.)
6
However, the California Supreme Court could have found the trial court’s denial of
7
independent counsel to be reasonable in the absence of predicate ineffective assistance. Soria was not
8
ineffective or conflicted for reasons discussed in claims A and J, ante. The trial court noted that it
9
denied the request for independent counsel because it “did not see anything wrong with Mr. Soria’s
10 representation, and . . . [no] more favorable determination would have occurred.” (2/25/91 RT at 1611 17.) The trial court found no colorable claim for independent counsel, and suggested habeas corpus
12 was appropriate to pursue ineffective assistance claims. (2/25/91 RT at 17.)
13
The California Supreme Court also considered and rejected these allegations, stating that:
14
Following the penalty verdict, Defense Attorney William Cater requested the court
appoint new counsel for the purpose of making a new trial motion that might involve
issues of ineffective assistance at trial. In camera, Cater indicated he thought the
investigation for both the guilt and penalty phases had been deficient due to
inadequacies on the part of the investigative agency retained by prior trial counsel,
Charles Soria. Because Cater had represented defendant at both the guilt and penalty
phases, he felt it was inappropriate for him to argue ineffective assistance in the context
of a new trial motion. Defendant did not express dissatisfaction with Cater during any of
the proceedings. Relying on the standard set forth in People v. Stewart [Citation], the
court denied the request because the defense did not present a “colorable claim” the
assistance of another attorney was necessary for the new trial motion. [Citation] In the
court’s view, Soria’s representation was adequate, “and I certainly don’t think by any
stretch of the imagination that any more favorable determination would have occurred.”
15
16
17
18
19
20
21
22
23
Bolin, 18 Cal. 4th at 346.
This Court finds that the California Supreme Court also could reasonably have determined
24 Cater was not prevented, by conflict of interest or otherwise from arguing Soria’s ineffectiveness.
25 Cater and Soria were each appointed independently. The record does not suggest any conflict of
26 interest that might have prevented Cater from arguing ineffective assistance of counsel against Soria,
27 at least to the extent based on matters unknown to Cater during the trial. See Strickland, 466 U.S. at
28 690 (counsel’s performance is to be viewed as of the time of counsel’s conduct). In fact, the record
285
1
reflects Cater’s claimed ignorance of certain of the guilt phase issues allegedly mishandled by Soria.
2
(See e.g., SHCP Ex. 47, 1/7/91 Marsden RT at 2304-11). Successive representation alone does not
3
demonstrate a conflict of interest. See, e.g., Whiting v. Burt, 395 F.3d 602, 619 (6th Cir. 2005) (“the
4
rather common occurrence of trial counsel [filing a direct appeal based on ineffective assistance of
5
counsel] does not create any obvious prejudice.”).
6
It seems that the trial court had sufficient opportunity to consider the reasons for a claim of
7
ineffectiveness, having conducted two hearings on that issue.
(See 12/13/90 Marsden hearing;
8
2/25/91 In Camera hearing.) The trial court found no basis for further evidentiary development of
9
these issues. (See 12/13/90 Marsden Hearing RT at 2291-99; 2/25/91 RT at 7, 16-17.) The trial court
10 found defense counsel’s performance during the guilt and penalty phases not ineffective. (Id.)
11
In rejecting these allegations on direct appeal, the California Supreme Court stated:
12
At the Marsden hearing, defendant had asserted that the shootings were the
responsibility of several other individuals possibly in confederacy with Mincy and
Wilson to steal his marijuana and that he himself had been wounded in the incident.
Although he had given Soria names and addresses of some of the alleged assailants as
well as names and addresses of persons to whom he had shown his wounds after he left
Kern County, Soria failed to call any of them to testify at trial. Defendant also
complained discussions he had with Soria had become known to the prosecutor possibly
through some breach of confidentiality on the part of the defense investigator. Soria
responded that he had investigated or attempted to investigate the witnesses provided by
defendant, with inconclusive results. In particular, medical information indicated
defendant’s wounds were inconsistent with his description of the events. Soria also did
not think the investigator had been the source of any leaks. He acknowledged, however,
that he and defendant were in conflict. The court found no substance to defendant’s
complaints, but nevertheless determined a breakdown in the attorney-client relationship
jeopardized defendant’s right to a fair trial and therefore relieved Soria.
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
On this record, we find no abuse of discretion in the trial court’s refusal to appoint new
counsel to prepare and present a new trial motion. The court originally concluded, and
later reiterated, that Soria’s representation was not inadequate. Because it was able to
observe his trial performance, we defer to that assessment absent contrary evidence.
With respect to Cater’s concern about the adequacy of penalty phase investigation, the
record contains no colorable claim that it was in fact deficient. At best, he offered only
speculation based on hearsay reports, and [Petitioner] added nothing to substantiate the
allegation. Accordingly, the trial court properly declined to replace Cater for a new trial
motion. The court also properly refused to appoint additional counsel for that purpose.
As we have noted before, no authority supports the appointment of “simultaneous and
independent, but potentially rival, attorneys to represent defendant.”
28 Bolin, 18 Cal. 4th at 347.
286
1
In light of this Court’s denial of all the record claims, ante, the noted conclusions of the
2
California Supreme Court regarding denial of independent counsel were not unreasonable. See also
3
Jackson v. Ylst, 921 F.2d 882, 887-88 (9th Cir. 1990) (requiring a trial court to appoint substitute
4
counsel whenever a defendant seeks a new trial on the basis of counsel’s incompetence is
5
unsupported by case law and would be a “new rule” under Teague).
6
The record does not demonstrate that the trial court’s denial of independent counsel
7
substantially and adversely affected his right to counsel, fair trial and a reliable sentence, or that had
8
the trial court granted Petitioner a new trial, it is reasonable to believe that he would have obtained a
9
more favorable outcome.
The noted evidence supporting Petitioner’s guilt and death sentence
10 determination was substantial. (See e.g., claims O, R and S, ante.)
11
12
2)
New Trial Motion
Petitioner faults Cater for not filing a motion for a new trial following the penalty phase and
13 prior to imposition of sentence and claims his failure to do so was itself ineffective assistance. (ECF
14 No. 113 at 224.) He speculates that Cater could have supported a motion for new trial by proffering
15 then available facts, outside the trial record, included in the state habeas proffer. (See ECF No. 113 at
16 224-26.) These facts, according to Petitioner, would have shown the failure of Soria and Binns to
17 investigate guilt and penalty phase issues; along with the evidence that appropriate investigation
18 would have yielded including the missing pages of the Halfacre letter (see SHCP Ex.’s 9, 16, 25),
19 statements from Balsamico that it was he, not Petitioner, who assaulted Spencer (see SHCP Ex.’s 12,
20 46), and statements from individuals including Sandra Hooten regarding the confrontation between
21 Huffstuttler and Petitioner shortly before the murders. (See SHCP Ex. 28.)
22
However, the state supreme court could have concluded it was not reasonably probable that
23 such extra-record facts, (see ECF No. 113 at 224-26), even if then available and admissible evidence,
24 would have altered the outcome of Petitioner’s trial. For the reasons stated in the record claims, ante,
25 the California Supreme Court reasonably found lacking the claims relating to investigator Binns’s
26 incompetence; unspecified mitigating information from family members in Chicago; statements of
27 Paula regarding the alleged missing pages from the Halfacre letter; statements of Balsamico regarding
28 the Spencer assault; and unspecified mitigating information from Petitioner’s friends in Los Angeles.
287
1
At bottom, Petitioner has not demonstrated a reasonable probability that an evidentiary proffer
2
insufficient to warrant habeas relief would have resulted in granting a new trial. Even if a new trial
3
motion had been granted, Petitioner has not demonstrated a likelihood of a more favorable result for
4
the reasons stated in claims I1 through I17 and W1 through W9. Furthermore, the noted evidence
5
against Petitioner was substantial. (See claims O, R and S, ante.)
3)
6
Conclusions
7
For the reasons stated, a fair-minded jurist could have found that Petitioner failed to establish
8
that he was denied a fair trial; that defense counsel’s performance fell below an objective standard of
9
reasonableness; and that absent counsel’s unprofessional errors there was a reasonable probability the
10 outcome of the proceeding would have been different. Strickland, 466 U.S. at 687-98.
11
It does not appear that the state supreme court’s rejection of claim X and Y was contrary to, or
12 an unreasonable application of, clearly established federal law, as determined by the Supreme Court,
13 or that the state court’s ruling was based on an unreasonable determination of the facts in light of the
14 evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).
15
Claims X and Y are denied.
16
8.
17
Petitioner next claims that the determination of his death sentence was unreliable due to the
Review of Claim Z
18 individual and cumulative ineffectiveness of counsel during the penalty phase as alleged in claims R,
19 S, T, U, V, and W, ante, violating his rights under the Eighth Amendment to the U.S. constitution.
20 (See ECF No. 113 at 226-27.)
21
Petitioner raised this same claim in his petition for writ of habeas corpus in the California
22 Supreme Court, which that court summarily denied on the merits without explanation. (See CSC
23 Order Den. Pet. Habeas Corpus.)
24
Petitioner argues that the above noted penalty phase errors prevented the jury from
25 considering exculpatory and mitigating evidence during their sentence selection deliberations,
26 rendering their verdict unreliable. (ECF No. 113 at 226:17-227:11.) He claims this denied him the
27 jury’s reasoned moral response to all mitigating evidence relevant to his background, character and
28 the circumstances of the crime. (Id.)
288
1
The Court finds that this claim fails for the reasons discussed in claims R, S, T, U, V and W,
2
ante. As discussed in those claims, Petitioner has not demonstrated that the jury was precluded from
3
considering mitigating evidence, so as to come within Eddings. 455 U.S. 104 (1982). Moreover,
4
there is no cumulative error because there is no individual error. Parle, 505 F.3d at 928 (citing
5
Donnelly, 416 U.S. at 643).
6
For the reasons stated, a fair-minded jurist could have found that Petitioner failed to establish
7
that he was denied a fair trial, or to the extent alleged, that defense counsel’s performance fell below an
8
objective standard of reasonableness and that, but for counsel’s unprofessional errors, there is a
9
reasonable probability the outcome of the proceeding would have been different. Strickland, 466 U.S.
10 at 687-98.
11
It does not appear that the state supreme court’s rejection of the claim was contrary to, or an
12 unreasonable application of, clearly established federal law, as determined by the Supreme Court, or
13 that the state court’s ruling was based on an unreasonable determination of the facts in light of the
14 evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).
15
Claim Z is denied.
16
9.
17
Petitioner next claims that the cumulative effect of the above noted guilt, special
Review of Claim AA
18 circumstance, and penalty phase errors denied him a fair trial and rendered his conviction and
19 sentence unreliable, violating his rights under the First, Fifth, Sixth, Eighth and Fourteenth
20 Amendments. (ECF No. 113 at 227:14-27.)
21
Petitioner raised this same claim in his petition for writ of habeas corpus in the California
22 Supreme Court, which was summarily denied on the merits without explanation. (CSC Order Den.
23 Pet. Habeas Corpus.)
24
The Court finds that this claim fails because all the foregoing record claims ante, fail for the
25 reasons stated. There can be no cumulative error because there is no individual error. Parle, 505 F.3d
26 at 928, citing Donnelly, 416 U.S. at 643. As noted, Petitioner was “entitled to a fair trial but not a
27 perfect one, for there are no perfect trials.” McDonough Power Equipment, 464 U.S. at 553 (quoting
28 Brown, 411 U.S. at 231-32).
289
1
It does not appear that the state supreme court’s rejection of the claim was contrary to, or an
2
unreasonable application of, clearly established federal law, as determined by the Supreme Court, or
3
that the state court’s ruling was based on an unreasonable determination of the facts in light of the
4
evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).
5
Claim AA is denied.
6
10.
7
Petitioner next alleges multiple subclaims asserting that California’s then-effective death
8
penalty scheme was unconstitutional, violating his rights under the Fifth, Sixth, Eighth and
9
Fourteenth Amendments. (ECF No. 113 at 228-30.) These subclaims are considered separately
Review of Claim BB
10 below.
11
12
a.
Clearly Established Law
As noted, Supreme Court cases have established that a state capital sentencing system must:
13 “(1) rationally narrow the class of death-eligible defendants; and (2) permit a jury to render a
14 reasoned, individualized sentencing determination based on a death-eligible defendant’s record,
15 personal characteristics, and the circumstances of his crime.” Marsh, 548 U.S. at 173-74. If the
16 “state system satisfies these requirements,” then the “State enjoys a range of discretion in imposing
17 the death penalty, including the manner in which aggravating and mitigating circumstances are to be
18 weighed.” Id. (citing Franklin, 487 U.S. at 179, and Zant, 462 U.S. at 875–876 n.13).
19
A state may narrow the class of murderers eligible for the death penalty by defining degrees
20 of murder. Sawyer, 505 U.S. at 342. A state may further narrow the class of murderers by finding
21 “beyond a reasonable doubt at least one of a list of statutory aggravating factors.” Id.; see also Gregg,
22 428 U.S. at 196-97.
23
24
b.
Review of Claim BB1
Petitioner alleges that California’s death penalty scheme “fails to account for differing degrees
25 of culpability attendant to different types of murder, enhancing the possibility that a death sentence
26 will be imposed arbitrarily, without regard for the blameworthiness of the particular defendant or the
27 acts at issue.” (ECF No. 113 at 228:5-8.)
28
Petitioner raised these same allegations in his petition for writ of habeas corpus in the
290
1
California Supreme Court, which that court summarily denied on the merits without explanation.
2
(See CSC Order Den. Pet. Habeas Corpus.) That court also generally denied these allegations on
3
direct appeal. See Bolin, 18 Cal. 4th at 345-46.
4
Petitioner alleges that California’s death penalty scheme then in effect was unconstitutional
5
because it was unpredictable, failing to genuinely narrow the class of murders eligible for the death
6
penalty. He cites to a separate California capital case, People v. Sanchez, No. S007780, in which
7
“counsel analyzed published opinions in murder appeals over a period of five years, and
8
demonstrated that 93% of defendants convicted of first degree murder in California committed their
9
offenses under circumstances creating death-eligibility.” (ECF No. 113 at 228:9-19.) This, he
10 claims, demonstrates that “the California sentencing scheme does not provide a meaningful basis for
11 distinguishing the few cases in which the death penalty is imposed from the many cases in which it is
12 not.” Id.; Furman, 408 U.S. 238. He argues that, to be constitutional, the death penalty “must be
13 reserved for those killings which society views as the most grievous . . . affronts to humanity.” Id.;
14 Zant, 462 U.S. at 877 n.15.
15
Here, the California Supreme Court considered and denied Petitioner’s claim regarding the
16 narrowing effect of its death penalty statute. Bolin, 18 Cal. 4th at 345. That court’s rejection of this
17 claim was not contrary to, or an unreasonable application of, clearly established federal law, as
18 determined by the Supreme Court. Nor was the state court’s ruling was based on an unreasonable
19 determination of the facts in light of the evidence presented in the state court proceeding. See 28
20 U.S.C. § 2254(d).
21
The Court finds that this claim fails for the reasons stated in claim U5. California’s death
22 penalty scheme, which narrows the class of death eligible offenders to less than the definition of first
23 degree murder and permits consideration of all mitigating evidence, has been approved by the United
24 States Supreme Court, Tuilaepa, 512 U.S. at 972-79; Harris, 465 U.S. at 38, and this Court, see Ben25 Sholom, E.D. Cal. Case No. CV-F-93-5531, ECF. No. 421 at 122, 124-25.
26
Claim BB1 is denied.
27
c.
28
Review of Claim BB2
Petitioner next complains that under the California death penalty scheme then in effect “an
291
1
individual prosecutor had complete discretion to determine: 1) whether to charge a special
2
circumstance; and 2) whether to seek the death penalty in a case in which one or more special
3
circumstances are charged.” (ECF No. 113 at 228-29.)
4
Petitioner raised this same claim in his petition for writ of habeas corpus in the California
5
Supreme Court, which that court summarily denied on the merits without explanation. (See CSC
6
Order Den. Pet. Habeas Corpus.) These allegations relating to prosecutor’s discretion to seek the
7
death penalty were also denied on direct appeal. See Bolin, 18 Cal. 4th at 345.
8
Petitioner complains of “unbounded discretion” in the prosecution that creates a “substantial
9
risk of arbitrariness” because offenders with similar characteristics may or may not be chosen as
10 candidates for the death penalty depending on the individual prosecutor, or because the prosecutor
11 may rely on impermissible characteristics such race and economic status. (ECF No. 113 at 229:3-9.)
12 He claims this unconstitutionally expanded death penalty eligibility under Penal Code § 190.2.
13 Petitioner relies in large part on Bush v. Gore, 531 U.S. 98 (2000), a voting rights case, to support his
14 claim that California’s death penalty law should be struck down because of a lack of statewide
15 uniform standards as to when a prosecutor should seek the death penalty, analogizing the fundamental
16 right to vote to the fundamental right to life. (See ECF No. 178 at 356.)
17
However, in McCleskey v. Kemp, the Supreme Court held that the mere existence of
18 prosecutorial discretion over charging decisions does not render a capital punishment scheme
19 unconstitutional. 481 U.S. 279 (1987). Prosecutorial discretion “is essential to the criminal justice
20 process,” and does not violate the federal Constitution. Id. at 297. Instead, the Constitution forbids
21 only “purposeful discrimination” in the exercise of prosecutorial discretion, id. at 292-93, and in
22 order to prevail in that regard, the Supreme Court emphasized that “we would demand exceptionally
23 clear proof before we would infer that the discretion has been abused.” Id. at 297. That California’s
24 statutory scheme gives the prosecutor discretion does not alone violate the Constitution. See Gregg,
25 428 U.S. at 225.
26
Petitioner has not demonstrated that Bush v. Gore is authority otherwise, and courts have held
27 that it is not. See Coleman v. Quarterman, 456 F.3d 537, 542 (5th Cir. 2006) (finding Bush v. Gore
28 inapplicable in context of criminal procedure); Black v. Bell, 181 F. Supp. 2d 832, 879 (M.D. Tenn.
292
1
2001) (Bush v. Gore is not authority that unbridled prosecutorial discretion is unconstitutional). The
2
claim that California’s death penalty scheme is unconstitutional by virtue of prosecutorial discretion
3
is foreclosed by precedent. See United States v. Mitchell, 502 F.3d 931, 982, (9th Cir. 2007).
4
The California Supreme Court reviewed these allegations and arrived at the same conclusion,
5
“[t]hat the breadth of the prosecutor’s discretion in choosing to seek the death penalty does not render
6
it unconstitutional.” Bolin, 18 Cal. 4th at 345. That court’s rejection of this claim was not contrary
7
to, or an unreasonable application of, clearly established federal law, as determined by the Supreme
8
Court. Nor was the state court’s ruling based on an unreasonable determination of the facts in light of
9
the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).
10
Claim BB2 is denied.
d.
11
12
Review of Claim BB3
Petitioner next claims that the then effective California death penalty statute “fails to meet the
13 minimum standards necessary to assure rational and consistent application of the death penalty”,
14 denying him due process, equal protection and a reliable and fair penalty determination, violating the
15 Fifth, Eighth and Fourteenth Amendments. (ECF No. 113 at 229:20-25.)
16
Petitioner raised this same claim on direct appeal, which the California Supreme Court denied
17 on the merits. Bolin, 18 Cal. 4th at 345-46.
18
Petitioner alleges that the death penalty statute is infirm because it does not require the jury to
19 make written findings or require the jury’s selection of a death sentence be based on the reasonable
20 doubt standard. (ECF No. 113 at 229-30.) He points out that the Georgia death penalty scheme
21 upheld in Gregg required written findings beyond a reasonable doubt of the aggravating
22 circumstances. 428 U.S. at 165, 196-97.
23
This claim is unpersuasive. The Constitution does not require written findings by the jury
24 regarding imposition of the death penalty. See Walton, 497 U.S. at 647-48; Williams, 52 F.3d at
25 1484-85.
26
Additionally, “[t]he United States Supreme Court has never stated that a beyond-a-reasonable-
27 doubt standard is required when determining whether a death penalty should be imposed.” Harris,
28 692 F.2d at 1195. All that is constitutionally required is an “adequate basis for appellate review.” Id.
293
1
The California death penalty scheme provides for the trial court’s express reasons for its findings
2
when ruling on the automatic motion for modification and this provides the “adequate basis” for
3
appellate review. Id.; see People v. Diaz, 3 Cal. 4th 495, 571-573 (1992). Petitioner does not
4
demonstrate that clearly established Supreme Court precedent requires more. See Williams, 52 F.3d
5
at 1484 (California’s statute “ensures meaningful appellate review”) (citing Brown, 479 U.S. at 543).
6
Petitioner’s citation to Ring, 536 U.S. 584, and Apprendi, 530 U.S. 466 (see ECF No. 178 at
7
359-60), does not suggest otherwise. Apprendi, which requires that any fact that increases the
8
penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved
9
beyond a reasonable doubt, id. at 490, is not implicated by California’s death penalty scheme. As
10 discussed previously, this is because once a California jury convicts of first degree murder with a
11 special circumstance “the defendant stands convicted of an offense whose maximum penalty is
12 death.” Ochoa, 26 Cal. 4th at 454; see also Prieto, 30 Cal. 4th at 263 & n.14.
13
Ring is inapposite for the same reasons Apprendi is inapplicable. Ring invalidated Arizona’s
14 capital sentencing scheme because death could be imposed only after the judge, sitting as sentencer
15 without a jury, found at least one specifically enumerated aggravating factor to be true. 530 U.S. at
16 588-89. Because death was not the maximum penalty that could be imposed based solely on the
17 jury’s conviction of first degree murder, the aggravating factors in Arizona “operate as the ‘functional
18 equivalent of an element of a greater offense.’” Id. at 609.
19
Petitioner’s citation to Cunningham v. California, 549 U.S. 270 (2007), for the proposition
20 that the capital sentence determination must be by the jury and beyond a reasonable doubt, also fails
21 to persuade the Court. (See ECF No. 178 at 361.) The Apprendi error in that case arose from trial
22 court findings of fact in a determinate sentencing law case that served to increase the criminal penalty
23 beyond the statutory maximum; such findings must be made by the jury beyond a reasonable doubt.
24 Cunningham, 549 U.S. at 288-89. As discussed above, this is not the case here.
25
Petitioner also claims the constitutional arguments in this claim were not adjudicated by the
26 state supreme court. (ECF No. 113 at 15-16.) However, the California Supreme Court adjudicated
27 these allegations by rejecting them on direct appeal on the merits, stating that:
28
The jury need not make express findings with respect to circumstances in aggravation
294
1
[Citation], or find beyond a reasonable doubt that death is the appropriate penalty
[Citation].
2
3
Bolin, 18 Cal. 4th at 345-46.
4
For the reasons stated, that court’s rejection of this claim was not contrary to, or an
5
unreasonable application of, clearly established federal law, as determined by the Supreme Court.
6
Nor was the state court’s ruling based on an unreasonable determination of the facts in light of the
7
evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).
8
Claim BB3 is denied.
9
11.
10
Petitioner next claims ineffective assistance of appellate counsel by failing to raise, on direct
Review of Claim DD
11 appeal, all of the claims asserted in his federal proceeding, causing the California Supreme Court to
12 reject claims B1, J, L1-L4, P1-P3, P5-P10, Q, R1-R4, U1, U2, U6, U7, V, X. Y, Z, AA, BB1-BB2
13 and FF as improperly presented on habeas corpus, violating his rights to due process and meaningful
14 appellate review under the Fifth, Sixth, Eighth and Fourteenth Amendments. (ECF No. 113 at 23515 36; cf., ECF No. 178 at 365 [citing same claims plus claim A but minus claims L1 and L2].)
16
Petitioner raised this same claim in his petition for writ of habeas corpus in the California
17 Supreme Court), which the California Supreme Court summarily denied on the merits without
18 explanation. (CSC Order Den. Pet. Habeas Corpus.)
19
20
a.
Clearly Established Law
The Strickland standard (see claim C2 ante) applies to appellate counsel. Smith v. Robbins,
21 528 U.S. 259, 285 (2002). However, appellate counsel has no constitutional obligation to raise every
22 non-frivolous issue, even if requested by the appellant. Jones v. Barnes, 463 U.S. 745, 751 (1983)
23 (holding that an attorney need not advance every colorable argument on appeal).
24
The Supreme Court has recognized that “since time beyond memory” experienced advocates
25 “have emphasized the importance of winnowing out weaker arguments on appeal and focusing on
26 one central issue if possible, or at most on a few key issues.” Id. at 751-52; cf. Banks v. Reynolds, 54
27 F.3d 1508, 1515 (10th Cir. 1995) (failure to raise a “dead-bang winner” - an issue obvious from the
28 record which would have resulted in reversal - is ineffective).
295
1
The appropriate inquiry is not whether raising a particular issue on appeal would have been
2
frivolous, but whether raising it would have led to a reasonable probability of reversal. Miller v.
3
Keeney, 882 F.2d 1428, 1435 (9th Cir. 1989). Where a petitioner had only a remote chance of
4
obtaining reversal based upon an issue, neither of the Strickland prongs is satisfied. Id.
5
b.
Analysis of Claim DD
6
Petitioner alleges that his appointed appellate counsel, Mr. Gilman, was ineffective by failing
7
to appropriately raise the noted claims on direct appeal, causing the California Supreme Court to deny
8
the claims on habeas review pursuant to In re Dixon, 41 Cal. 2d 756 (1953). (ECF No. 113 at
9
235:21-236:11.) He claims prejudice to the extent this Court sustains Respondent’s Dixon defense to
10 these claims. (Id.)
11
Petitioner alleges the constitutional arguments in this claim were not adjudicated by the state
12 court. (See ECF No. 113 at 236:6-7.) However, the state supreme court denied this habeas claim for
13 ineffective assistance of appellate counsel claim on the merits. (CSC Order Den. Pet. Habeas Corpus.)
14 This claim denial is sufficient as an adjudication of the claim. See Williams, 133 S. Ct. at 1094-96.
15
The record reflects that appellate counsel filed a 181-page opening brief raising 21 issues of law
16 with numerous sub-issues. (See Appellant’s Opening Brief lodged June 11, 1999.) Appellate counsel
17 also filed a reply brief (see Appellant’s Reply Brief lodged June 11, 1999) and a petition for rehearing
18 (see Appellant’s Petition for Rehearing lodged June 11, 1999). The appeal was disposed of by the
19 noted lengthy merits opinion by the California Supreme Court. Bolin, 18 Cal. 4th 297.
20
Petitioner asserts for the first time in his brief in support of the amended petition that his
21 appellate counsel failed to raise claim A (relating to whether the trial court improperly denied Soria’s
22 pretrial motion to withdraw) on direct appeal. (See ECF No. 178 at 365 n.249.) This allegation is not
23 included in the amended petition and appears to be unexhausted. Even if this allegation were properly
24 before this Court, it fails for the reasons discussed in claim A, ante.
25
Petitioner concedes that claims L1 and L2, not raised in the state opening brief on appeal, were
26 raised in a supplemental appeal brief and that Petitioner was not prejudiced by this method of
27 presentation. (See ECF No. 178 at 365 n.249.) Claim Q (cumulative error in the guilt phase), was
28 raised by appellate counsel on appeal and no deficiency is apparent as to this claim. (See Appellant’s
296
1
Opening Brief lodged June 11, 1999.)
2
Furthermore, the Court finds this claim fails because all the noted claims, having been
3
adjudicated in state court, are denied on the merits under the § 2254(d) standard for reasons stated,
4
ante. Even if appellate counsel was deficient as alleged, Petitioner has not demonstrated prejudice.
5
Petitioner also claims that appellate counsel “failed to prepare transcript notes, failed to
6
perfect the record on appeal, failed to timely communicate with federal counsel, abandoned his client
7
when the State threatened to set an execution date, and failed to fulfill his obligations as appointed
8
counsel in a capital case.” (ECF No. 113 at 235-36.) However, Petitioner has not made a showing on
9
the evidentiary record that appellate counsel did not do so.
Nor has Petitioner demonstrated
10 prejudiced in these regards, for the reasons stated.
11
Accordingly, a fair-minded jurist could have found that Petitioner failed to establish that he
12 was denied a fair trial, or to the extent alleged that appellate counsel’s performance fell below an
13 objective standard of reasonableness and that but for counsel’s unprofessional errors there is a
14 reasonable probability the outcome of the proceeding would have been different. Strickland, 466
15 U.S. at 687-98.
16
It does not appear that the state supreme court’s rejection of this claim was contrary to, or an
17 unreasonable application of, clearly established federal law, as determined by the Supreme Court, or
18 that the state court’s ruling was based on an unreasonable determination of the facts in light of the
19 evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).
20
Claim DD is denied.
21
12.
22
Petitioner’ next alleges that to execute him following his lengthy confinement pursuant to his
Review of Claim EE
23 February 25, 1991 conviction and sentence of death, which became final on March 8, 1999, would be
24 cruel and unusual punishment, violating the Fifth, Sixth, Eighth, and Fourteenth Amendments and
25 international law. (ECF No. 113 at 236-37.)
26
Petitioner raised this same claim in his petition for writ of habeas corpus in the California
27 Supreme Court, which that court summarily denied on the merits without explanation. (See CSC
28 Order Den. Pet. Habeas Corpus.)
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1
Petitioner argues that to execute him after such a lengthy incarceration is cruel and unusual
2
punishment and subjects him to double jeopardy of multiple ex post facto punishments not accurately
3
described at the penalty determination.
4
determining whether a death sentence is valid may, if prolonged, have the effect of increasing the
5
penalty imposed for the commission of capital crimes. 26 Cal. 4th at 463.
He cites to People v. Ochoa and argues that delay in
6
Petitioner claims that he has been confined in a “concentration camp” of the condemned (ECF
7
No. 178 at 389:14) causing him psychological injuries and damages. He analogizes incarceration
8
pending state review of the validity of his death sentence to “pretrial detention,” apparently arguing
9
for the more favorable conditions of confinement to which the latter are entitled. (ECF No. 178 at
10 416:21-22.)
11
However, Petitioner does not cite any clearly established authority from the United States
12 Supreme Court addressing a prolonged detention claim. See Allen v. Ornoski, 435 F.3d 946, 958-59
13 (9th Cir. 2006) (“[t]he Supreme Court has never held that execution after a long tenure on death row
14 is cruel and unusual punishment. . . . Allen cannot credibly claim that there is any clearly established
15 law, as determined by the Supreme Court, which would support this . . . claim”); accord Lackey v.
16 Texas, 514 U.S. 1045 (1995); Knight v. Florida, 528 U.S. 990 (1999). In McKenzie v. Day, the
17 Ninth Circuit rejected such a Lackey claim involving a twenty-year delay, stating that “[a] defendant
18 must not be penalized for pursuing his constitutional rights, but he also should not be able to benefit
19 from the ultimately unsuccessful pursuit of those rights.” 57 F.3d 1461, 1466 (9th Cir. 1995).
20
The court in Ochoa concluded that “execution notwithstanding the delay associated with
21 defendant’s appeals was not unconstitutional and furthered both the deterrent and retributive
22 functions; and that shielding defendant from execution solely on this basis would frustrate these two
23 penological purposes.” 26 Cal. 4th at 464.
24
For the reasons stated, the California Supreme Court’s rejection of this claim was not contrary
25 to or an unreasonable application of clearly established Supreme Court precedent. Since the U.S.
26 Supreme Court has not decided the issue, the state supreme court’s decision could not be contrary to
27 or an unreasonable application of United States Supreme Court precedent. Carey, 549 U.S. 76; see
28 also White v. Johnson, 79 F.3d 432, 439 (5th Cir. 1996) (“White has benefitted from [the] careful and
298
1
meticulous [review] process and cannot now complain that the expensive and laborious process of
2
habeas corpus appeals which exists to protect him has violated other of his rights.”).
3
It reasonably appears that the duration of Petitioner’s appeal, as well as his collateral review
4
proceedings, “is a function of the desire of our courts, state and federal, to get it right, to explore
5
exhaustively, or at least sufficiently, any argument that might save someone’s life.” Johns v.
6
Bowersox, 203 F.3d 538, 547 (8th Cir. 2000) (quoting Chambers v. Bowersox, 157 F.3d at 570).
7
Petitioner’s further allegation that execution after prolonged incarceration violates
8
international human rights law and jus cogens theories (citing Pratt v. Attorney General for Jamaica,
9
4 All. E.R. 769 (Privy Council) 1993; Soering v. United Kingdom, 11 E.H.R.R. 439, ¶ 111 [Euro. Ct.
10 of Human Rights]; International Covenant on Civil and Political Rights (“ICCPR”), article 7; Torture
11 Convention, articles 1 and 16; and the American Convention on Human Rights, article 5), fails for the
12 reasons discussed in claim FF, post.
13
Additionally, Petitioner concedes that the ICCPR and the Torture Convention are not self-
14 executing, and that the ICCPR does not create a private cause of action, (see ECF No. 178 at 401-02
15 n.266), suggesting he may lack standing to raise claims thereunder.
16
Claim EE is denied.
17
13.
18
Petitioner’s final claim is that the individual and cumulative errors alleged in all the above
Review of Claim FF
19 claims denied him a fair trial and reliable sentence under various international laws, covenants, and
20 declarations. (ECF No. 113 at 237-38.) He cites to the Universal Declaration of Human Rights, the
21 ICCPR article 6, the American Declaration of the Rights and Duties of Man (American Declaration)
22 articles 1, 26, and customary international law. (ECF No. 178 at 429:25-431:15.)
23
Petitioner raised this same claim in his petition for writ of habeas corpus in the California
24 Supreme Court, which was summarily denied on the merits without explanation. (CSC Order Den.
25 Pet. Habeas Corpus.)
26
Petitioner’s essential argument appears to be that imposition and execution of a death sentence
27 for what he characterizes as “a single-victim felony murder, against a defendant who did not inflict
28 the injuries resulting in death” violates customary international law and article 6, section 2, of the
299
1
ICCPR, which limits the death penalty to only “the most serious crimes.” (ECF No. 113 at 238: 8-
2
11.)
3
He argues that “the United States is bound by customary international law, as informed by
4
such instruments as the ICCPR and the American Declaration,” and that these international laws are
5
instructive in Eighth Amendment cruel and unusual punishment analysis. (ECF No. 178 at 431:5-6)
6
(citing Roper v. Simmons, 543 U.S. 551, 575 (2005)).
7
He points out that the Ninth Circuit has looked to the Universal Declaration as an exposition
8
of customary international law, Martinez v. City of Los Angeles, 141 F.3d 1373, 1383-84 (9th Cir.
9
1998), and that the American Declaration is comparable to the Universal Declaration. Alejandre v.
10 Republic of Cuba, 996 F. Supp. 1239, 1252 n.11 (S.D. Fla. 1997).
11
The Court is unconvinced by this claim. On March 8, 1999, when Petitioner’s conviction
12 became final, no clearly established Supreme Court law held that capital punishment was illegal in
13 the United States based on international law. It appears that challenges to imposition of the death
14 penalty based on international law have regularly been rejected. See e.g., Buell v. Mitchell, 274 F.3d
15 337, 370-76 (6th Cir. 2001) (rejecting challenge to death sentence based international laws such as
16 the American Declaration, the ICCPR, and customary international law norms); Brewer v. Hall, 378
17 F.3d 952, 955 (9th Cir. 2004) (“If no Supreme Court precedent creates clearly established federal law
18 relating to the legal issue the habeas petitioner raised in state court, the state court’s decision cannot
19 be contrary to or an unreasonable application of clearly established federal law.”)
20
This Court finds that the California Supreme Court could reasonably have determined that
21 Petitioner may not rely on the Universal Declaration of Human Rights and the American Declaration
22 as freestanding authority. Though 28 U.S.C. § 2254(a) limits the scope of these proceedings to
23 alleged violations of the Constitution, laws, and treaties of the United States, the Universal
24 Declaration of Human Rights is not a law or treaty within the meaning of 28 U.S.C. § 2254(a) - it
25 “does not of its own force impose obligations as a matter of international law.” Sosa v. Alvarez26 Machain, 542 U.S. 692, 734 (2004); see Siderman de Blake v. Argentina, 965 F.2d 699, 715 (9th Cir.
27 1992) (international law rests on consent of states). Similarly, the American Declaration is not a
28 treaty. See Jamison v. Collins, 100 F. Supp. 2d 647, 767 (S.D. Ohio 2000) (international law does
300
1
not preclude the state of Ohio from establishing and carrying out a capital punishment scheme).
2
Petitioner concedes that the Universal Declaration and the American Declaration are not treaties.
3
(See ECF No. 178 at 430:25-431:2.)
4
Furthermore, Petitioner has not demonstrated standing on this claim and thus cannot invoke
5
the jurisdiction of international law in this proceeding. The principles of international law apply to
6
disputes between sovereign governments and not between individuals. Hanoch Tel-Oren v. Libyan
7
Arab Republic, 517 F. Supp. 542, 545-47 (D.D.C. 1981). Petitioner suggests no basis for the Court to
8
find that the international law he cites is self-executing and provides an individual right of action.
9
See Dreyfus v. Von Finck, 534 F.2d 24, 30 (2d Cir. 1976) (disavowed in part by Filartiga v. Pena-
10 Irala, 630 F.2d 876, 884) (2d Cir. 1980) (it is only when a treaty is self-executing, when it prescribes
11 rules by which private rights may be determined, that it may be relied upon for the enforcement of
12 such rights). The ICCPR is not self-executing. Sosa, 542 U.S. at 734-35; Jamison, 100 F. Supp. 2d at
13 766.
14
To the extent Petitioner argues that the noted international law is at least instructive as to
15 interpretation of the Eighth Amendment, Roper, 543 U.S. at 575, nothing in his argument suggests an
16 available basis for federal habeas relief for him, a convicted multiple first degree murderer. Even if
17 Petitioner had standing to argue international law, the United States ratified the ICCPR subject to
18 reservation of the right to impose capital punishment subject only constitutional constraints. See 138
19 Cong. Rec. S-4781-01, S4783 (1992).
20
Petitioner does not demonstrate that the other international law and custom to which he cites
21 precludes capital punishment in his case. Accordingly, the California Supreme Court’s rejection of this
22 claim was not contrary to or an unreasonable application of Supreme Court precedent. Petitioner is not
23 entitled to relief.
24
25
26
Claim FF is denied.
VIII. FURTHER EVIDENTIARY HEARING AND RECORD EXPANSION
The Court reserved ruling on Petitioner’s December 22, 2008 motion for record expansion and
27 evidentiary hearing relating to claims A, B2, D, F, G, I, J, K, W, Y, BB, DD, and EE of the amended
28 petition. (ECF Nos. 214, 271.)
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Petitioner, in post-hearing briefing, argues that “Mr. Soria’s testimony on claim C2, insofar as it
2
manifests the comprehensive and wide-ranging inadequacy of his representation of [Petitioner], bolsters
3
[Petitioner’s] argument that he is entitled to an evidentiary hearing on his other claims of ineffective
4
assistance [i.e., claims B2, D, F, G2, I, W and Y] should relief not be granted on claim C2.” (ECF No.
5
343 at 16 n.10.)
6
However, the Court shall deny further record expansion and evidentiary hearing. The record
7
claims that were adjudicated in state court do not survive 28 U.S.C. § 2254(d) analysis for reasons
8
discussed above. “[R]eview under § 2254(d) is limited to the record that was before the state court that
9
adjudicated the claim on the merits.” Pinholster, 563 U.S. at 181; accord Stokely v. Ryan, 659 F.3d
10 802, 809 (9th Cir. 2011). Any attempted “relitigation” is “bar[red],” Richter, 562 U.S. at 98, no matter
11 what semantics Petitioner employs to avoid being “limited to the record that was before the state court
12 that adjudicated the claim on the merits,” Pinholster, 563 U.S. at 181. To this extent, new evidence in
13 federal court simply cannot assist Petitioner. Id. at 185.
14
The record claims that were not adjudicated in state court, reviewed by the Court de novo, do
15 not survive 28 U.S. C. § 2254(e)(2) analysis for the reasons discussed above. These claims are not
16 entitled to record expansion and evidentiary hearing. 28 U.S.C. § 2254(e)(2)(A)(B).
17
Accordingly, Petitioner’s December 22, 2008 request for further record expansion and
18 evidentiary hearing as to claims A, B2, D, F, G, I, J, K, W, Y, BB, DD, and EE of the amended
19 petition (ECF No. 214), shall be denied.
20
21
IX. CERTIFICATE OF APPEALABILITY
Because this is a final order adverse to the Petitioner, Rule 11 of the Rules Governing Section
22 2254 Cases requires this Court to issue or deny a Certificate of Appealability (“COA”). Accordingly,
23 the Court has sua sponte evaluated the claims within the petition for suitability for the issuance of a
24 COA. See 28 U.S.C. § 2253(c).
25
A state prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a
26 district court’s denial of his petition, and an appeal is only allowed in certain circumstances. Miller–
27 El, 537 U.S. at 335-36 (2003). The controlling statute in determining whether to issue a COA is 28
28 U.S.C. § 2253, which provides as follows:
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(a) In a habeas corpus proceeding or a proceeding under section 2255 before a district
judge, the final order shall be subject to review, on appeal, by the court of appeals for
the circuit in which the proceeding is held.
(b) There shall be no right of appeal from a final order in a proceeding to test the validity
of a warrant to remove to another district or place for commitment or trial a person
charged with a criminal offense against the United States, or to test the validity of such
person’s detention pending removal proceedings.
(c) (1) Unless a circuit justice or judge issues a certificate of appealability, an appeal
may not be taken to the court of appeals from—
9
(A) the final order in a habeas corpus proceeding in which the detention complained of
arises out of process issued by a State court; or
10
(B) the final order in a proceeding under section 2255.
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15
(2) A certificate of appealability may issue under paragraph (1) only if the applicant has
made a substantial showing of the denial of a constitutional right.
(3) The certificate of appealability under paragraph (1) shall indicate which specific
issue or issues satisfy the showing required by paragraph (2).
The Court may issue a COA only “if jurists of reason could disagree with the district court’s
16 resolution of his constitutional claims or that jurists could conclude the issues presented are adequate
17 to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327; accord Slack v. McDaniel,
18 529 U.S. 473, 484 (2000). While the petitioner is not required to prove the merits of his case, he must
19 demonstrate “something more than the absence of frivolity or the existence of mere good faith on his
20 . . . part.” Miller-El, 537 U.S. at 338.
21
In the present case, the Court finds that, with respect to the following claims, reasonable
22 jurists could disagree with the Court’s resolution or conclude that the issues presented are adequate to
23 deserve encouragement to proceed further:
24
1.
25
26
Claim C2: whether trial counsel was ineffective for failing to renew the change of
venue motion following voir dire of the jury.
2.
Claim I13: whether trial counsel was ineffective because of irregularities and
27
improprieties that occurred during the jury’s view of the crime scene and related
28
locations.
303
1
3.
and federal rights.
2
3
4.
Claim W2: whether trial counsel was ineffective by failing to move for a further
continuance at the penalty phase.
4
5
Claim L (L1-L4): whether the jury view of the crime scene violated Petitioner’s state
Therefore, a certificate of appealability is granted as these claims.
6
As to the remaining claims and further requests for record expansion and evidentiary hearing,
7
the Court concludes that reasonable jurists would not find the Court’s determination that Petitioner is
8
not entitled to relief debatable, wrong, or deserving of encouragement to proceed further. Petitioner has
9
not made the required substantial showing of the denial of a constitutional right. Accordingly, the
10 Court hereby declines to issue a COA as to the remaining claims and further requests for record
11 expansion and evidentiary hearing.
X. ORDER
12
13
Accordingly, for the reasons stated, it is HEREBY ORDERED that:
14
1.
The allegation of ineffective assistance of appellate counsel for failure to raise on
appeal claim A is DISMISSED without prejudice as unexhausted,
15
16
2.
Claim C2 is DENIED following limited evidentiary hearing,
17
3.
Further record expansion and evidentiary hearing for claims A, B2, D, F, G, I, J, K, W,
Y, BB, DD, and EE are DENIED,
18
19
4.
Record based claims A, B, and D through FF, are DENIED,
20
5.
The Amended Petition for Writ of Habeas Corpus (ECF No. 113) is DENIED,
21
6.
A COA is ISSUED as to the Court’s resolution of claims C2, I13, L (L1-L4), and W2,
22
and DECLINED as to the remaining claims and further requests for record expansion
23
and evidentiary hearing,
24
7.
Any and all scheduled dates are VACATED, and
25
///
26
///
27
///
28
///
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8.
The Clerk of the Court is directed to substitute RON DAVIS, Warden of San Quentin
2
State Prison, as the Respondent warden in this action, and to enter judgment
3
accordingly.
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IT IS SO ORDERED.
Dated:
June 9, 2016
/s/ Lawrence J. O’Neill _____
UNITED STATES CHIEF DISTRICT JUDGE
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