Dickey v. Ylst

Filing 150

MEMORANDUM and ORDER: (1) DENYING Penalty Phase Claims, (2) DENYING Petition for Writ of Habeas Corpus, (3) Issuing Certificate of Appealability for Claims I, II(E), II(I), V and XIII and (4) DENYING AS MOOT Petitioner's Motion for Stay, Entry of Partial Judgment and for Certificates of Appealability re 51 [51-1], 145 ; Clerk to Vacate Any and All Scheduled Dates and Substitute Ron Davis as Respondent Warden and Enter Judgment, signed by District Judge Anthony W. Ishii on 9/12/19. CASE CLOSED. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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COLIN RAKER DICKEY,

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Case No. 1:06-cv-00357-AWI-SAB

Petitioner,

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DEATH PENALTY CASE

v.

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MEMORANDUM AND ORDER:

RON DAVIS, Warden of San Quentin State
Prison,

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(1) DENYING PENALTY PHASE CLAIMS,
(2) DENYING PETITION FOR WRIT OF
HABEAS CORPUS, (3) ISSUING A
CERTIFICATE OF APPEALABILITY FOR
CLAIMS I, II(E), II(I), V, and XIII, and (4)
DENYING AS MOOT PETITIONER’S
MOTION FOR STAY, ENTRY OF PARTIAL
JUDGMENT, and for CERTIFICATES OF
APPEALABILITY

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(Doc. Nos. 51, 51-1, 145)

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CLERK TO VACATE ANY AND ALL
SCHEDULED DATES AND SUBSTITUTE
RON DAVIS AS RESPONDENT WARDEN
AND ENTER JUDGMENT

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Respondent.1

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Petitioner Colin Raker Dickey is a state prisoner, sentenced to death, proceeding with a

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26 petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. He is represented in this
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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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1 action by appointed counsel David Senior, Ann Tria and Matthew Weston.
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Respondent Ron Davis is named as Warden of San Quentin State Prison. He is

3 represented in this action by Justain Riley of the Office of the California Attorney General.
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Before the Court for decision are: (i) the petition (Doc. Nos. 51, 51-1); (ii) record based

5 penalty phase claims II(I), II(U), III(A), III(B), III(C), III(D), III(E), III(F), III(G), III(H), V,
6 VI, VII, IX, X, XI, XII(D), XII(E), XII(F), XII(G), XII(H), XX, XXV(A), XXV(B), XXV(C),
7 XXV(D), XXV(E), XXV(F), XXV(G), XXV(H), XXV(I), XXV(J), XXV(K), XXV(L),
8 XXVII, and XXIX (id.); and (iii) Petitioner’s motion filed April 29, 2019 seeking stay of
9 penalty phase claims, entry of partial judgment on the previously denied guilt phase claims,
10 and issuance of Certificate of Appealability on claims I, II, XII-XIX, and XXI (Doc. No. 145).
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Having previously denied guilt phase claims I, II (portions), IV, VIII, XII (portions),

12 XIII, XIV, XV, XVI, XVII, XVIII, XIX, XXI, XXII, XXIII, XXIV, XXVI, and XXVIII (see
13 Doc. No. 135), and upon careful review of the parties’ filings and the relevant case law and for
14 the reasons set out below, the undersigned finds that: (i) the penalty phase claims shall be
15 denied on the merits, (ii) the petition for writ of habeas corpus shall be denied, (iii) Petitioner’s
16 pending motion for stay of penalty phase claims and entry of partial judgment on guilt claims
17 shall be denied as moot, and (iv) Certificate of Appealability shall issue only for claims I, II(E),
18 II(I), V, and XIII.
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I. BACKGROUND

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Petitioner was charged in Fresno County with: counts 1 and 2 for murder (Penal Code §

21 187); counts 3 and 4 for robbery (Penal Code § 211); count 5 for burglary (Penal Code §§
22 459/460); special circumstances of felony-murder robbery, felony-murder burglary, and
23 multiple murder (Penal Code §§ 190.2(a)(3), (17), 211, 459/460); and aider and abettor liability
24 (Penal Code § 190.2(b)).2 (RT 122-26; CT 297-301, 303-307.) Petitioner pleaded not guilty to
25 all the charges. (RT 126; CT 232, 302.)
Petitioner’s jury trial began on January 7, 1991 in Fresno County Case No. 416903-3.

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Reference to state law is to California law unless otherwise noted.

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1 (CT 295-296.) On March 15, 1991, the jury found Petitioner guilty of the murders of Marie
2 Caton and Louis Freiri with special circumstances of felony-murder robbery and felony-murder
3 burglary and multiple murder; and found Petitioner guilty of first-degree robbery of each
4 victim and first-degree burglary of their residence. (Case No. 416903-3; see also CT 380-385,
5 463-468, 610-614.)
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On March 19, 1991, Petitioner admitted a prior felony conviction (CT 472) and waived

7 personal presence at the penalty phase. (CT 472-476.) On March 22, 1991, the jury returned a
8 penalty phase verdict of death. (CT 478-482, 504.)
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On March 26, 1991, the trial court appointed Katherine Hart to represent Petitioner on

10 motions for new trial and to modify the verdict due to Petitioner’s dissatisfaction with lead trial
11 counsel Marvin Schultz (hereinafter “Schultz”) expressed following the guilt phase verdict.3
12 (CT 505; RT 5181-87.)
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Ms. Hart raised issues of insufficiency of evidence, prosecutorial misconduct,

14 instructional error, Petitioner’s erroneous admission of his prior felony conviction, trial court
15 error and ineffective assistance of counsel at the guilt and penalty phases. (CT 525-589.) The
16 motion for new trial was denied on January 17, 1992. (CT 516-518.)

The motion for

17 modification of the verdict was denied on February 21, 1992 and Petitioner was sentenced to
18 death. (CT 609-615; Feb. 21, 1992 Transcript, at 50.)4
On April 14, 2003, Petitioner filed his first state habeas petition, (hereinafter “SHCP”)

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20 In re Dickey, S115079 (Lod. Doc. 7), which the California Supreme Court summarily denied
21 on November 30, 2005. (Lod. Doc. 10.)
The California Supreme Court affirmed Petitioner’s conviction on direct appeal on May

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23 23, 2005. People v. Dickey, 35 Cal. 4th 884 (2005). That court denied Petitioner’s request for
24 rehearing on July 13, 2005. People v. Dickey, California Supreme Court Case No. S025519.
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Schultz was sometimes assisted by Fresno County deputy public defender Ann Burtner. (See Pet. Ex. 23 at
SH002051.)
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Unless otherwise indicated, throughout this order, “CT” refers to the clerk’s transcript on appeal; “SCT” refers to
the supplemental clerk’s transcript on appeal; “RT” refers to the reporter’s transcript on appeal; and “CRT” refers
to the corrected reporter’s transcript on appeal. Other transcripts are referenced by date. References to page
numbering are to internal page numbering in the original documents except that ECF system numbering is used
for electronically filed documents and Bates numbering is used for the CT and SCT.

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On February 21, 2006, the United States Supreme Court denied Petitioner’s writ of

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2 certiorari. Dickey v. California, 546 U.S. 1177 (2006).
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On March 30, 2006, Petitioner began this federal habeas proceeding under 28 U.S.C. §

4 2254 by filing a combined request for appointment of counsel and temporary stay of execution.
5 (Doc. Nos. 1 & 2.)
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On October 4, 2007, Petitioner filed his federal petition for writ of habeas corpus

7 (hereinafter “Petition”). (Doc. No. 51, 51-1.)
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On May 21, 2008, this Court ordered federal proceedings held in abeyance pending

9 state exhaustion of certain claims. (Doc. No. 69.)
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On July 21, 2008, Petitioner filed his second state habeas petition (hereinafter

11 “SSHCP”), In re Dickey, S165302. (Lod. Doc. 30.) On May 23, 2012, the California Supreme
12 Court summarily denied the second state petition on the merits as to all claim and on
13 procedural grounds as to certain claims, Order Denying Cal. Pet., In re Colin Raker Dickey,
14 No. S165302 (May 29, 2012). (Lod. Doc. 31.)
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Respondent filed his answer in this proceeding (Doc. No. 103) and amended answer

16 correcting clerical error (Doc. No. 105), on August 29, 2013. Therein Respondent admitted the
17 jurisdictional allegations and asserted exhaustion and procedural defenses and denied all claims
18 1 through 29.5
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On November 18, 2013, this Court ordered bifurcated briefing with the guilt phase

20 claims briefed separately from and prior to the penalty phase claims. (Doc. No. 111.)
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On April 16, 2014, Petitioner filed his brief in support of guilt phase claims including

22 request for factual development. (Doc. No. 116.)
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On September 10, 2014, Respondent filed a second amended answer as his brief in

24 response to Petitioner’s brief. (Doc. No. 125.)
On November 7, 2014, Petitioner filed his brief in reply to Respondent’s brief including

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26 request that Respondent’s second amended answer be stricken and for further factual
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The amended answer is the operative answer. (See Doc. No. 114 at 1:20-21.)

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1 development. (Doc. No. 128.)
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On January 13, 2017, the Court denied Petitioner’s requests to strike the second

3 amended answer and for factual development of certain guilt phase claims and denied on the
4 merits the noted guilt phase claims. (Doc. No. 135.)
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On February 17, 2017, the Court scheduled briefing of the penalty phase claims. (Doc.

6 No. 139.)
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On April 17, 2017, Petitioner filed his penalty phase merits brief. (Doc. No. 142.)

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On June 19, 2017, Respondent filed his penalty phase merits brief in opposition. (Doc.

9 No. 143.)
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On July 17, 2017, Petitioner filed his brief in reply to the opposition. (Doc. No. 144.)

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On April 29, 2019, Petitioner filed his noted motion for stay of penalty phase claims,

12 entry of partial judgment on guilt phase claims, and partial Certificate of Appealability. (Doc.
13 No. 145.) Respondent filed his response to the motion on June 27, 2019. (Doc. No. 147.)
14 Petitioner replied to the response on June 28, 2019. (Doc. No. 148.)
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On July 8, 2019, the Court vacated the July 15, 2019 hearing on the motion and took

16 the matter under submission. (Doc. No. 149.)
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No date has been set for Petitioner’s execution.
II. STATEMENT OF FACTS
The following factual summary is taken from the California Supreme Court’s opinion

20 in People v. Dickey, 35 Cal. 4th 884 (2005), and is presumed correct. 28 U.S.C. § 2254(d)(2),
21 (e)(1). Petitioner does not present clear and convincing evidence to the contrary; thus, the
22 court adopts the factual recitations set forth by the state court. See Vasquez v. Kirkland, 572
23 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.”).
I. Facts

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A. Guilt Phase

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1. The Prosecution Case

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The murder victims were Fresno residents—Marie Caton, 76, and Louis Freiri,
67, a friend and boarder of Mrs. Caton's. Their bodies were discovered by one
of Mrs. Caton's daughters, Lavelle Garratt. Mrs. Garratt or her sister checked on
their mother every day, “[b]ecause she was lonely, because she was our mother,
because we loved her and we wanted to see her.”
Late in the afternoon of November 8, 1988, when Mrs. Garratt could not reach
her mother by telephone, she drove to her house. She found Mrs. Caton on the
floor of her bedroom, covered with a bloodstained blanket. Mrs. Caton had been
beaten so badly her eyes bulged out of their sockets like golf balls. Mrs. Caton
also had knife wounds on her chest and a jagged cut on her back. She lingered
for 11 days, but never regained consciousness. The cause of death was
respiratory failure associated with “shock lung syndrome,” the shock having
been caused by her injuries.
Mr. Freiri wore a brace on his right leg and required a cane. Mrs. Garratt found
him facedown, stretched across the archway between the dining room and the
living room. A chair, wall, and window blinds near his body were bloodstained.
Pieces of his cane were found in the living room and one of the bedrooms. Mr.
Freiri had been stabbed in the chest, armpit, and forearm; he also had a bonedeep laceration on his forehead. He was stabbed with such force that two of his
ribs were broken. He died of blood loss.
Mrs. Garratt told the police she suspected her son, Richard Cullumber.
Cullumber was, Mrs. Garratt believed, a drug addict, and he asked his
grandmother Mrs. Caton for money—cash she would take out of a buffet
drawer—almost every day. Mrs. Caton “grew up during the Depression and she
was afraid of being hungry again, I guess, and so she hid money all over.”
Among other caches, Mrs. Caton kept at least $6,000 in cash in a metal box
placed inside a suitcase stored under her bed. She also kept a smaller sum in
another suitcase.
Cullumber, also known as “R.C.,” lived in an apartment in Fresno, along with
defendant, Gail Goldman, Richard Buchanan, and two other men. The night of
the murders Cullumber packed his bag and left the apartment. He returned
several days later but fled again when informed the police were looking for him.
On November 12, 1988, after a high-speed police chase, Cullumber, cornered,
killed himself.
The pistol Cullumber used to shoot himself was registered to Mr. Freiri. He had
earlier warned the driver of a car he commandeered, “I need the car; I've already
killed a woman.”
Two knives possibly linked to the murders were discovered in Mrs. Caton's
kitchen—a butcher knife and a steak knife. The steak knife (People's exhibit No.
18) was, in the opinion of defendant's housemates Gail Goldman and Richard
Buchanan, identical to a knife belonging in their apartment.
In addition to his knife wounds, Mr. Freiri had a four-inch-long ligature wound,
caused by a cord that was wrapped around his neck. It was a cotton cord of the
color, weave, and texture used in venetian blinds. The venetian blinds in Mrs.
Caton's house were intact, but a venetian blind kept in the hall closet of the
apartment defendant shared with Cullumber and the others was missing its cord.
On the night of the murders, Gene Buchanan saw defendant remove a venetian
blind from the closet of their apartment, walk into the bedroom with it, and then
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replace it in the closet. Goldman testified it was Cullumber who had done that.
Defendant's thumbprint was found on a slat from the venetian blind found by
the police in the apartment closet. n.2.
----------------------------------------FOOTNOTE-----------------------

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n.2 No usable prints were found at the scene of the crime, not even those of
Mrs. Caton or Mr. Freiri.

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--------------------------------------END FOOTNOTE------------------

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The case against defendant rested on the testimony of Gail Goldman and Gene
Buchanan. n.3.

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----------------------------------------FOOTNOTE----------------------n.3 Defendant impeached Buchanan on the grounds, among others, that his
testimony against defendant was motivated by revenge and a desire to collect
the reward offered by Mrs. Caton’s relatives. Defendant was less successful in
attacking Goldman’s credibility. If not a hostile witness for the prosecution, she
was clearly reluctant to testify against defendant, both because she was fond of
him and because she feared the consequences of informing on anyone. A critical
question, then, is to what extent Goldman’s testimony corroborates Buchanan’s.
To facilitate consideration of that question, we have set out their testimony
separately.
--------------------------------------END FOOTNOTE-----------------a) The Testimony of Gail Goldman. n.4.
----------------------------------------FOOTNOTE----------------------n.4 Because she died before the trial began, Goldman’s preliminary hearing
testimony was read into the record. (See Evid. Code, § 240, subd. (a)(3).)

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--------------------------------------END FOOTNOTE-----------------Goldman shared a one-bedroom apartment in Fresno with defendant,
Cullumber, Buchanan, and two other men. According to Detective Doug Stokes,
Goldman told him “about a venetian blind that had been in the hall closet that
was ... taken by the suspect, Dickey, ... into a bedroom and that the cord was
removed from that venetian blind and then the venetian blind was placed back
inside the hall closet.” However, when she testified, Goldman said it was
Cullumber who took the venetian blind out of the closet and went into the
bedroom with it. Later, she testified, the blind had been replaced in the closet,
but the cord was missing from a blind in the bedroom.
At approximately the same time that Cullumber was engaged with the venetian
blind, defendant walked into the kitchen and opened a drawer containing knives
and other silverware. n.5 According to Detective Stokes, Goldman told him
defendant removed a knife from the drawer and left the kitchen with it. Again
according to Detective Stokes, when he came to the apartment investigating the
murders, he showed Goldman a knife. She told him, “I have a knife exactly like
that knife, or they are twins.”
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----------------------------------------FOOTNOTE---------------------

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n.5 Goldman later testified she did not know which drawer defendant had
opened.

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------------------------------------END FOOTNOTE-----------------After the activity just described, Goldman testified, defendant and Cullumber
left the apartment. They had no money, Goldman believed, when they left. If
Cullumber had money, he spent it on drugs; before defendant left he asked
Goldman for money to buy cigarettes. However, when they returned, Cullumber
gave Goldman $40 or $50 in cash, saying it was in partial payment of what he
owed her. Cullumber then packed his clothes and left.
Sometime thereafter, while Goldman and defendant were watching the news on
television, they saw a story about this crime. Defendant became upset when he
learned Mr. Freiri was dead and that Mrs. Caton, while near death, was still
alive. He told Goldman to come into the bedroom, that he wanted to talk to her.
Buchanan followed them into the bedroom.
Defendant told them he had accompanied Cullumber to the home of Mrs. Caton.
On the one hand, defendant said that Cullumber had assured him “nothing was
going to happen.” On the other hand, defendant admitted he had gone with
Cullumber “[t]o help [him] get the money.” With Mrs. Caton present, defendant
looked for money in her bedroom, where Cullumber told him it could be found.
When defendant stepped out of the bedroom and saw Mr. Freiri slumped over in
a chair, he “knew something had happened.” Cullumber “went berserk. He
came into the bedroom and started beating up on his grandmother.” Defendant
and Cullumber found $700, which they split.
Defendant was crying, “like he was sad,” when he confessed to Goldman and
Buchanan. Later, when defendant learned Mrs. Caton had died, “he wasn't as
depressed as he was before.”
While he was confessing, defendant said maybe he should turn himself in.
Goldman advised him against it. When Detective Stokes first asked Goldman
whether she knew anything about these crimes, Goldman denied that she did.
Defendant was a good friend of hers, she still liked him, and she did not want to
do anything to get him into trouble. She did not want to tell on anyone,
especially someone she liked as much as she liked defendant. Buchanan told her
he was going to turn defendant in for the reward. By contrast, Goldman testified
at the preliminary hearing only because she had been subpoenaed. During a
break, Goldman told the prosecutor she wanted to make sure defendant knew
she was not the one who turned him in. She was afraid for her life. “I always felt
that if you would inform on somebody they would kill you or have you killed.”
Defendant said he was not concerned that someone would betray him, “because
if they did, they wouldn't do it again.” On the other hand, Goldman thought that
her relationship with defendant was such that “it would take an awful lot to
make him hurt me.”
Goldman had “had 20 surgeries on [her] stomach,” and depending on how much
pain she was in, she used “speed ball cocaine and heroin” or other “street drugs”
to kill the pain.
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b) The Testimony of Gene Buchanan

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One evening in November 1988, defendant took a venetian blind from the hall
closet of the apartment he shared with Buchanan, Cullumber, Goldman, and two
others. Defendant took the blind into the bedroom and shortly thereafter
replaced it in the closet. Buchanan looked into the bedroom. On the bed was a
knife belonging to Gail Goldman, a knife with a bone handle and a serrated
edge. People's exhibit No. 18 was that knife, or else it looked exactly like
Goldman's knife.

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Defendant and Cullumber left the apartment around 9:00 p.m. That night
everyone living in the apartment was broke, or claimed to be. However, when
defendant and Cullumber returned, defendant opened his wallet and said, “I got
$350,” and, “call the connection.”
Buchanan ordered drugs, which were injected by defendant, Cullumber,
Goldman, and Buchanan. Afterwards, Cullumber asked Buchanan to take him
for a drive; defendant went along. Defendant directed Buchanan to a canal, and
as they drove over it, defendant threw in a pair of shoes. After looking for a
good place to do it, defendant also threw his jacket out of the window.
About two days later, Buchanan and defendant were in the living room of the
apartment; defendant was watching the news on television. Defendant jumped
up and ran into the bedroom to Goldman. Buchanan heard Goldman say, “ ‘Oh,
my God, how low can you go,’ or ‘get’; something to that effect.” Buchanan
went into the bedroom to find out what was going on. Defendant said to him,
“I've already told her, so I might as well tell you.”
Defendant told Buchanan that “him and R.C. had been over to R.C.'s
grandmother's house, and that they had entered the house—how he had done it,
how he had walked up to the door, knocked, faked like R.C. was going to be in
jail, needed to use the phone, and then R.C. sneaked in, they were supposed to
tie them up, get this money and everything. And while the defendant is
supposedly in the bedroom looking for the money he hears a commotion, looked
out the bedroom door, sees an elderly man with his head slumped down,
considers him dead, and that if you kill one you might as well kill them both.”
In response to the prosecutor's questions, Buchanan clarified his testimony.
“[Defendant] said that he—only what he thought, he didn't say what he did. He
said that, ‘If you kill one you might as well kill them both.’ ” “[H]e didn't say he
said it to R.C., he just said it as that was his opinion.” Defendant did not tell
Buchanan what happened after he had this thought.
Defendant also told Buchanan that what prompted his confession was a
television story saying that Mrs. Caton “was still alive when she should have
been dead.”
Buchanan did not speak to the police until several months after defendant's
confession to him. At a convenience store he saw a flyer announcing a reward,
and he left his name with the clerk. He was then contacted by a grandson of
Mrs. Caton's, and he agreed to speak to Detective Stokes. However, his
willingness to do so was not motivated by the reward; it was his “Christian
upbringing.” He did not tell Goldman he was going to turn defendant in for the
reward.
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Defendant had torn up Buchanan's one photograph of his youngest daughter,
which made Buchanan angry. He wanted to throw defendant off the balcony of
a motel, but Goldman stopped him.
Buchanan used drugs “[a]s often as I can get them.” He injected “speedballs,” a
heroin/cocaine mixture. He used drugs an hour or two before defendant
confessed to him, and he continued to do so as recently as the day before his
testimony.
2. The Defense Case
Defendant testified he did not make the statements attributed to him by
Goldman and Buchanan, and that he did not have anything to do with these
crimes. He got along well with Goldman, but not with Buchanan, who was “just
a snake; a deceitful person.” His fingerprint was on the venetian blind because it
had fallen off the back door and he had put it into the closet; he did not know
why the cord was missing from it. He did rip up the photograph of Buchanan's
daughter.
John Inderrienden had known Goldman for five or six years, and they had once
lived in the same apartment building. He “wouldn't trust her as far as I could
throw her, and she weighed quite a bit.”
Goldman once lived in a house owned by Harry Arax. She did not pay her rent,
nor did she pay her bill at his market.
Goldman, a former neighbor of Peter Najarian's, told him she was going to be a
witness in a murder case, but that she “didn't know nothing about no murder.”
Magadelena Desumala, who ran a halfway house in which Goldman lived on
and off for about 10 years, was “like a sister” to Goldman. She said Goldman
told her it was the grandson of the murder victim who had confessed to her.
B. Penalty Phase

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The only witness who testified at the penalty phase, Detective Stokes, was
called by the prosecution to provide a foundation for the admission of the
autopsy photographs. No other evidence, aside from a stipulation to defendant's
prior burglary conviction, was introduced.

21 Dickey, 35 Cal. 4th at 894-900.
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III. JURISDICTION
Relief by way of a petition for writ of habeas corpus extends to a person in custody

24 pursuant to the judgment of a state court if the custody is in violation of the Constitution or
25 laws or treaties of the United States. 28 U.S.C. §§ 2241(c)(3), 2254(a); Williams v. Taylor, 529
26 U.S. 362, 375 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed
27 by the U.S. Constitution. The challenged conviction arises out of Fresno County Superior
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1 Court, which is located within the jurisdiction of this Court. 28 U.S.C. §§ 2241(d), 2254(a).
2

This action was initiated after April 24, 1996. Therefore, the amendments to 28 U.S.C.

3 § 2254 enacted as part of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),
4 110 Stat. 1214, apply. Lindh v. Murphy, 521 U.S. 320, 336 (1997); see also Van Tran v.
5 Lindsey, 212 F.3d 1143, 1148 (9th Cir. 2000), overruled on other grounds by Lockyer v.
6 Andrade, 538 U.S. 63, 71 (2003); Mann v. Ryan, 828 F.3d 1143, 1151 (9th Cir. 2016).
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IV. STANDARDS OF REVIEW

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A.

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Under AEDPA, relitigation of any claim adjudicated on the merits in state court is

Habeas Corpus

10 barred unless 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.

15 28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. 86, 98 (2011); Lockyer, 538 U.S. at 7016 71; Williams, 529 U.S. at 413.
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“[A] state has ‘adjudicated’ a petitioner’s constitutional claim ‘on the merits’ for

18 purposes of § 2254(d) when it has decided the petitioner’s right to post-conviction relief on the
19 basis of substance of the constitutional claim advanced, rather than denying the claim on the
20 basis of a procedural or other rule precluding state court review of the merits.” Brown v.
21 Walker, Case No. C 09-04663 JSW, 2014 WL 4757804, at *5 (N.D. Cal. Sept. 24, 2014)
22 (citing Lambert v. Blodgett, 393 F.3d 943, 969 (9th Cir. 2004)).
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As a threshold matter, this Court must “first decide what constitutes ‘clearly established

24 Federal law, as determined by the Supreme Court of the United States.’” Lockyer, 538 U.S. at
25 71 (quoting 28 U.S.C. § 2254(d)(1)). In ascertaining what is “clearly established Federal law,”
26 this Court must look to the “holdings, as opposed to the dicta, of [the Supreme Court’s]
27 decisions as of the time of the relevant state-court decision.” Williams, 529 U.S. at 412. “In
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1 other words, ‘clearly established Federal law’ under § 2254(d)(1) is the governing legal
2 principle or principles set forth by the Supreme Court at the time the state court renders its
3 decision.” Id. In addition, the Supreme Court decision must “‘squarely address [] the issue in
4 th[e] case’; otherwise, there is no clearly established Federal law for purposes of review under
5 AEDPA.” Moses v. Payne, 555 F.3d 742, 754 (9th Cir. 2009) (quoting Wright v. Van Patten,
6 552 U.S. 120, 125 (2008)); see also Panetti v. Quarterman, 551 U.S. 930, 949 (2007); Carey v.
7 Musladin, 549 U.S. 70, 77 (2006).
8

If no clearly established Federal law exists, the inquiry is at an end and the Court must

9 defer to the state court’s decision. Musladin, 549 U.S. at 77; Wright, 552 U.S. at 126; Moses,
10 555 F.3d, at 760. In addition, the Supreme Court has clarified that habeas relief is unavailable
11 in instances where a state court arguably refuses to extend a governing legal principle to a
12 context in which the principle should have controlled. White v. Woodall, 572 U.S. 415, 426
13 (2014). The Supreme Court stated: “[I]f a habeas court must extend a rationale before it can
14 apply to the facts at hand, then by definition the rationale was not clearly established at the
15 time of the state-court decision.” Id. (quoting Yarborough v. Alvarado, 541 U.S. 652, 666
16 (2004)).
17

If the Court determines there is governing, clearly established Federal law, the Court

18 must then consider whether the state court’s decision was “contrary to, or involved an
19 unreasonable application of, [the] clearly established Federal law.” Lockyer, 538 U.S. at 72
20 (quoting 28 U.S.C. § 2254(d)(1)). “Under the ‘contrary to’ clause, a federal habeas court may
21 grant the writ if the state court arrives at a conclusion opposite to that reached by [the
22 Supreme] Court on a question of law or if the state court decides a case differently than [the]
23 Court has on a set of materially indistinguishable facts.” Williams, 529 U.S. at 412-13; see
24 also Lockyer, 538 U.S. at 72.

“The word ‘contrary’ is commonly understood to mean

25 ‘diametrically different,’ ‘opposite in character or nature,’ or ‘mutually opposed.’” Williams,
26 529 U.S. at 405 (quoting Webster’s Third New International Dictionary (1976)). “A state27 court decision will certainly be contrary to [Supreme Court] clearly established precedent if the
28
12

1 state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases.”
2 Id.
3

“Under the ‘reasonable application clause,’ a federal habeas court may grant the writ if

4 the state court identifies the correct governing legal principle from [the] Court’s decisions but
5 unreasonably applies that principle to the facts of the prisoner’s case.” Williams, 529 U.S. at
6 413. “[A] federal court may not issue the writ simply because the court concludes in its
7 independent judgment that the relevant state court decision applied clearly established federal
8 law erroneously or incorrectly. Rather, that application must also be unreasonable.” Id. at 411;
9 see also Lockyer, 538 U.S. at 75-76. “A state court’s determination that a claim lacks merit
10 precludes federal habeas relief so long as fair-minded jurists could disagree on the correctness
11 of the state court’s decision.” Richter, 562 U.S. at 101 (citing Yarborough, 541 U.S. at 664).
12 The Supreme Court stated:
13
14
15
16

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.

17 Id. at 103. In other words, so long as fair-minded jurists could disagree on the correctness of
18 the state courts decision, the decision cannot be considered unreasonable. Id. at 101. In
19 applying this standard, “a habeas court must determine what arguments or theories supported [.
20 . .] or could have supported the state court’s decision; and then it must ask whether it is
21 possible fair-minded jurists could disagree that those arguments or theories are inconsistent
22 with the holding in a prior decision of [the Supreme Court].” Id. at 102. This objective
23 standard of reasonableness applies to review under both subsections of 28 U.S.C. § 2254(d).
24 See Hibbler v. Benedetti, 693 F.3d 1140, 1146-47 (9th Cir. 2012). If the Court determines that
25 the state court decision is objectively unreasonable, and the error is not structural, habeas relief
26 is nonetheless unavailable unless the error had a “substantial and injurious effect or influence”
27 in determining the jury’s verdict. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993); see also
28
13

1 Fry v. Pliler, 551 U.S. 112, 114 (2007).
2

Petitioner has the burden of establishing that the decision of the state court is contrary

3 to or involved an unreasonable application of United States Supreme Court precedent. Baylor
4 v. Estelle, 94 F.3d 1321, 1325 (9th Cir. 1996). Although only Supreme Court law is binding on
5 the states, Ninth Circuit precedent remains relevant persuasive authority in determining
6 whether a state court decision is objectively unreasonable. See LaJoie v. Thompson, 217 F.3d
7 663, 669 n.6 (9th Cir. 2000); Duhaime v. Ducharme, 200 F.3d 597, 600-01 (9th Cir. 1999).
8

AEDPA requires considerable deference to the state courts.

“[R]eview under §

9 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on
10 the merits,” Cullen v. Pinholster, 563 U.S. 170, 181 (2011), and “evidence introduced in
11 federal court has no bearing on 2254(d)(1) review.” Id. at 185. “Factual determinations by
12 state courts are presumed correct absent clear and convincing evidence to the contrary.”
13 Miller-El v. Cockrell, 537 U.S. 322, 340 (2003) (citing 28 U.S.C. § 2254(e)(1)). However, a
14 state court factual finding is not entitled to deference if the relevant state court record is
15 unavailable for the federal court to review. Townsend v. Sain, 372 U.S. 293, 319 (1963),
16 overruled on other grounds by Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992), superseded by
17 statute as stated in Williams, 529 U.S. at 433-34.
18

If a petitioner satisfies either subsection (1) or (2) for a claim, then the federal court

19 considers that claim de novo. See Panetti, 551 U.S. at 953 (when § 2254(d) is satisfied, “a
20 federal court must then resolve the claim without the deference AEDPA otherwise requires.”);
21 see also Frantz v. Hazey, 533 F.3d 724, 737 (9th Cir. 2008) (same).
22

In this case, some of Petitioner’s claims and allegations were raised and rejected by the

23 California Supreme Court on direct appeal while others were raised in his state habeas petitions
24 to that court and summarily denied on the merits.
25

In the latter case of summary denial, where the state court decision is unaccompanied

26 by an explanation, “the habeas petitioner’s burden still must be met by showing there was no
27 reasonable basis for the state court to deny relief.” Richter, 562 U.S. at 98. The Supreme
28
14

1 Court stated that “a habeas court must determine what arguments or theories supported or . . .
2 could have supported, the state court’s decision; and then it must ask whether it is possible fair3 minded jurists could disagree that those arguments or theories are inconsistent with the holding
4 in a prior decision of this Court.” Id. at 101-03. Petitioner bears “the burden to demonstrate
5 that ‘there was no reasonable basis for the state court to deny relief.’” Walker v. Martel, 709
6 F.3d 925, 939 (9th Cir. 2013) (quoting Richter, 562 U.S. at 98). “Crucially, this is not a de
7 novo review of the constitutional question,” id., as “even a strong case for relief does not mean
8 the state court’s contrary conclusion was unreasonable.” Id. (quoting Richter, 562 U.S. at
9 102); see also Murray v. Schriro, 745 F.3d 984, 996-97 (9th Cir. 2014).
10

When reviewing the California Supreme Court’s summary denial of a petition, this

11 Court must consider that the California Supreme Court’s summary denial of a habeas petition
12 on the merits reflects that court’s determination that:
13
14
15
16

[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.

17 Pinholster, 563 U.S. 181 n.12 (quoting In re Clark, 5 Cal. 4th 750, 770 (1993), superseded by
18 statute as stated in Briggs v. Brown, 3 Cal. 5th 808, 841, 845, 848 (2017)); see also Johnson v.
19 Williams, 568 U.S. 289, 300 (2013) (holding that even where the state court does not separately
20 discuss a federal claim there is a presumption that that state court adjudicated the federal claim
21 on the merits).
22
23
24
25
26
27

[A] federal court may not second-guess a state court’s fact-finding process
unless, after review of the state-court record, it determines that the state court
was not merely wrong, but actually unreasonable.” Taylor v. Maddox, 366 F.3d
992, 999 (9th Cir. 2004), abrogated on other grounds by Murray v. Schriro, 745
F.3d 984, 999-1000 (9th Cir. 2014). Federal habeas courts have “no license to
redetermine credibility of witnesses whose demeanor has been observed by the
state trial court, but not by them.” Marshall v. Lonberger, 459 U.S. 422, 434,
103 S.Ct. 843, 74 L.Ed.2d 646 (1983); accord Mann v. Ryan, 828 F.3d 1143,
1153 (9th Cir. 2016) [Citation].

28
15

1 Navarro v. Holland, 698 F. App’x 541, 542 (9th Cir. 2017).
2

If this Court finds Petitioner has clearly made out a prima facie case for relief on a

3 claim, the state court’s summary rejection of that claim would be unreasonable. Nunes v.
4 Mueller, 350 F.3d 1045, 1054 (9th Cir. 2003).
5

For any habeas claim that has not been adjudicated on the merits by the state court, the

6 federal court reviews the claim de novo without the deference usually accorded state courts
7 under 28 U.S.C. § 2254(d)(1). Chaker v. Crogan, 428 F.3d 1215, 1221 (9th Cir. 2005); Pirtle
8 v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002). In such instances, however, the provisions of
9 28 U.S.C. § 2254(e) still apply. Pinholster, 563 U.S. 185 (“Section 2254(e)(2) continues to
10 have force where § 2254(d)(1) does not bar federal habeas relief.”); Pirtle, 313 F.3d, at 116711 68 (stating that state court findings of fact are presumed correct under § 2254(e)(1) even if
12 legal review is de novo).
13
14

V. PROCEDURAL BARS
Certain of Petitioner’s claims were alternatively denied by the California Supreme

15 Court as procedurally barred. As to those claims, Respondent has invoked the independent
16 state ground doctrine, pursuant to which a federal court will not review a question of federal
17 law decided by a state court “if the decision of that court rests on a state law ground that is
18 independent of the federal question and adequate to support the judgment.” Vang v. Nevada,
19 329 F.3d 1069, 1072 (9th Cir. 2003) (quoting Coleman v. Thompson, 501 U.S. 722, 729
20 (1991)).
21

Since “cause and prejudice” can excuse a procedurally defaulted claim, Smith v.

22 Baldwin, 510 F.3d 1127, 1139 (9th Cir. 2007) (quoting Coleman, 501 U.S. at 750), and
23 “prejudice” essentially requires a merits analysis, the Court will proceed to the merits of claims
24 found to be procedurally defaulted without determining whether the state procedural default is
25 adequate and independent to bar relief in federal court. Id. (quoting Coleman, 501 U.S. 73226 35).
27

A district court may exercise discretion to proceed to the merits in advance of litigation

28
16

1 of procedural default. Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002) (courts
2 empowered to reach the merits if on their face the allegations are clearly not meritorious
3 despite asserted procedural bar); see also Bell v. Cone, 543 U.S. 447, 451 n.3 (2005) (an
4 application for habeas corpus may be denied on the merits even if unexhausted in state court);
5 Loggins v. Thomas, 654 F.3d 1204, 1215 (11th Cir. 2011) (relief may be denied on the merits
6 where petition is clearly not meritorious despite asserted procedural bar).6
7

VI. PRELIMINARY MATTERS

8

The Court takes judicial notice of the certified record on appeal to the California

9 Supreme Court, all documents on file in the California Supreme Court in the case of People v.
10 Colin Raker Dickey, California Supreme Court Case No. S025519 and all declarations, witness
11 statements, and records filed on Petitioner’s behalf in his state habeas corpus proceedings
12 before the California Supreme Court, In re Colin Dickey, California Supreme Court Case No.
13 S115079, and In re Colin Dickey, California Supreme Court Case No. S165302.
14

VII. REVIEW OF PENALTY PHASE CLAIMS

15

A.

Claims Relating to Ineffective Assistance of Counsel

16

1.

Legal Standards

17

The Sixth Amendment right to effective assistance of counsel, applicable to the states

18 through the Due Process Clause of the Fourteenth Amendment, applies through the sentencing
19 phase of a trial. See Murray, 745 F.3d, at 1010-11: U.S. Const. amend. VI; U.S. Const. amend.
20 XIV, § 1; Gideon v. Wainwright, 372 U.S. 335, 34345 (1963); Silva v. Woodford, 279 F.3d
21 825, 836 (9th Cir. 2002).
22

The Supreme Court explained the legal standard for assessing a claim of ineffective

23 assistance of counsel in Strickland v. Washington, 466 U.S. 668, 685-87 (1984). Strickland
24 propounded a two-prong test for analysis of claims of ineffective assistance of counsel. The
25 first prong focuses upon whether counsel performed deficiently. The second prong focuses
26
27
28

Respondent contends certain claims are not cognizable because they create and retroactively apply a “new rule”
of constitutional law under Teague v. Lane, 489 U.S. 288 (1989). (See Doc. No. 105 at 27-28; Doc. No. 143 at
42-43.) Unless otherwise noted, the Court declines to address Respondent’s Teague arguments where the claim
lacks merit.
6

17

1 upon whether the petitioner suffered prejudice from counsel’s deficient performance.
2

Conclusory allegations are insufficient to raise a cognizable claim of ineffective

3 assistance. Jones v. Gomez, 66 F.3d 199, 205 (9th Cir. 1995) (conclusory suggestions that
4 counsel provided ineffective assistance “fall far short of stating a valid claim of constitutional
5 violation”).
6

If the petitioner makes an insufficient showing as to either one of the two Strickland

7 components, the reviewing court need not address the other component. Strickland, 466 U.S.
8 at 697.
9
10

a.

Deficient Performance

The petitioner must show that counsel’s performance was deficient, requiring a

11 showing that counsel made errors so serious that he or she was not functioning as the “counsel”
12 guaranteed by the Sixth Amendment. Strickland, 466 U.S. at 687. The petitioner must show
13 that “counsel’s representation fell below an objective standard of reasonableness,” and must
14 identify counsel’s alleged acts or omissions that were not the result of reasonable professional
15 judgment considering the circumstances. Richter, 562 U.S. at 104 (citing Strickland, 466 U.S.
16 at 688); United States v. Quintero-Barraza, 78 F.3d 1344, 1348 (9th Cir. 1995).
17

Petitioner must show that counsel’s errors were so egregious as to deprive him of a fair

18 trial, one whose result is reliable. Strickland, 466 U.S. at 688. Judicial scrutiny of counsel’s
19 performance is highly deferential, and the habeas court must guard against the temptation “to
20 second-guess counsel’s assistance after conviction or adverse sentence.” Id. at 689. Instead,
21 the habeas court must make every effort “to eliminate the distorting effects of hindsight, to
22 reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct
23 from counsel’s perspective at the time.”
24

Id.; see also Richter, 562 U.S. at 107.

The Supreme Court has “declined to articulate specific guidelines for appropriate

25 attorney conduct and instead ha[s] emphasized that ‘[t]he proper measure of attorney
26 performance remains simply reasonableness under prevailing professional norms.’” Wiggins v.
27 Smith, 539 U.S. 510, 521 (2003) (quoting Strickland, 466 U.S. at 688).
28
18

1

However, “general principles have emerged regarding the duties of criminal defense

2 attorneys that inform [a court’s] view as to the ‘objective standard of reasonableness’ by which
3 [a court must] assess attorney performance, particularly with respect to the duty to investigate.”
4 Summerlin v. Schriro, 427 F.3d 623, 629 (9th Cir. 2005). “[S]trategic choices made after
5 thorough investigation of law and facts relevant to plausible options are virtually
6 unchallengeable.”

Strickland, 466 U.S. at 690.

Strickland permits counsel to “make a

7 reasonable decision that makes particular investigations unnecessary.” Richter, 562 U.S. at
8 106 (citing Strickland, 466 U.S. at 691).
9

However, strategic choices made after less than complete investigation are reasonable

10 precisely to the extent that reasonable professional judgments support the limitations on
11 investigation. In other words, counsel has a duty to make reasonable investigations or to make
12 a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness
13 case, a particular decision not to investigate must be directly assessed for reasonableness in all
14 the circumstances, applying a heavy measure of deference to counsel’s judgment. Wiggins,
15 539 U.S. at 521 (quoting Strickland, 466 U.S. at 690–91); see also Thomas v. Chappell, 678
16 F.3d 1086, 1104 (9th Cir. 2012) (counsel’s decision not to call a witness can only be
17 considered tactical if he had “sufficient information with which to make an informed
18 decision”); Jennings v. Woodford, 290 F.3d 1006, 1016 (9th Cir. 2002) (counsel’s choice of
19 alibi defense and rejection of mental health defense not reasonable strategy where counsel
20 failed to investigate possible mental defenses).
21

Counsel may formulate a strategy, reasonable at the time, and balance limited resources

22 consistent with effective trial tactics and strategies. See Richter, 562 U.S. at 107. Counsel is
23 not required to pursue an investigation that would be fruitless, or harmful to the defense. Id. at
24 108. A reviewing court “need not determine the actual explanation for counsel’s [strategic
25 choices], so long as his [choices fall] within the range of reasonable representation.” Morris v.
26 State of California, 966 F.2d 448, 456 (9th Cir. 1991).
27

A court indulges a “‘strong presumption’ that counsel’s representation was within the

28
19

1 ‘wide range’ of reasonable professional assistance.”

Richter, 562 U.S. at 104 (quoting

2 Strickland, 466 U.S. at 687); Sanders v. Ratelle, 21 F.3d 1446, 1456 (9th Cir. 1994). This
3 presumption of reasonableness means that not only do we “give the attorneys the benefit of the
4 doubt,” we must also “affirmatively entertain the range of possible reasons counsel may have
5 had for proceeding as they did.” Pinholster, 563 U.S. at 196.
6

The basic requirements of Strickland apply with equal force in the penalty phase.

7 Petitioner must show that counsel’s actions fell below an objective standard of reasonableness,
8 and that the alleged errors resulted in prejudice. Strickland, 466 U.S. at 687-88.
9
10

b.

Prejudice

The petitioner also must demonstrate prejudice, that is, he must show that “there is a

11 reasonable probability that, but for counsel’s unprofessional errors, the result . . . would have
12 been different.” Strickland, 466 U.S. at 694. “It is not enough ‘to show that the errors had
13 some conceivable effect on the outcome of the proceeding.’” Richter, 562 U.S. at 104 (quoting
14 Strickland, 466 U.S. at 693). “Counsel’s errors must be ‘so serious as to deprive the defendant
15 of a fair trial, a trial whose result is reliable.’” Id. (quoting Strickland, 466 U.S. at 687). Under
16 this standard, we ask “whether it is ‘reasonably likely’ the result would have been different.”
17 Richter, 562 U.S. at 111 (quoting Strickland, 466 U.S. at 696).
18

That is, only when “the likelihood of a different result [is] substantial, not just

19 conceivable,” has the petitioner met Strickland’s demand that defense errors were “so serious
20 as to deprive [him] of a fair trial.” Id. at 104 (quoting Strickland, 466 U.S. at 687). A court
21 need not determine whether counsel’s performance was deficient before examining the
22 prejudice suffered by the petitioner because of the alleged deficiencies. Strickland, 466 U.S. at
23 697. Since the petitioner must affirmatively prove prejudice, any deficiency that does not
24 result in prejudice must necessarily fail.
25

Petitioner must show “a reasonable probability that, but for counsel’s unprofessional

26 errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 693-94.
27 To assess that probability, the reviewing court must consider the totality of the available
28
20

1 mitigation evidence and reweigh it against the evidence in aggravation. Porter v. McCollum,
2 558 U.S. 30, 41 (2009) (citing Williams, 529 U.S. at 397-398). The court must consider
3 whether the likelihood of a different result is “sufficient to undermine confidence in the
4 outcome” actually reached at sentencing.

Rompilla v. Beard, 545 U.S. 374, 393 (2005)

5 (quoting Strickland, 466 U.S. at 694).
6

Assessing prejudice at the penalty phase implicates a three-step inquiry: First, the court

7 evaluates and weighs the totality of the available mitigating evidence; second, it evaluates and
8 weighs the aggravating evidence and any rebuttal evidence that could have been adduced by
9 the government had the mitigating evidence been introduced; and third, it reweighs the
10 evidence in aggravation against the totality of available mitigating evidence to determine
11 whether there is a reasonable probability that, absent the errors, the sentencer would have
12 concluded that the balance of aggravating and mitigating circumstances did not warrant death.
13 Apelt v. Ryan, 878 F.3d 800, 832 (9th Cir. 2017); see also Andrews v. Davis, 866 F.3d 994,
14 1020 (9th Cir. 2017), reh’g en banc granted by 888 F.3d 1020 (9th Cir. 2018); Strickland, 466
15 U.S. at 695.
16

“The defendant bears the highly demanding and heavy burden of establishing actual

17 prejudice.” Livaditis v. Davis, No. 14-99011, 2019 WL 3756064, at 11 (9th Cir. Aug. 9, 2019)
18 (quoting Bible v. Ryan, 571 F.3d 860, 870 (9th Cir. 2009)).
19

Counsel has an “obligation to conduct a thorough investigation of the defendant’s

20 background,” Williams, 529 U.S. at 396, and a duty to investigate, develop, and present
21 mitigation evidence during penalty phase proceedings. Wiggins, 539 U.S. at 521-23. “At the
22 very least, counsel should obtain readily available documentary evidence such as school,
23 employment, and medical records, and obtain information about the defendant’s character and
24 background.” Robinson v. Schriro, 595 F.3d 1086, 1108-09 (9th Cir. 2010) (citing Boyde v.
25 California, 494 U.S. 370, 382 (1990)).
26

c.

27

Under AEDPA, the court does not apply Strickland de novo. Rather, the court must

Application of Strickland under AEDPA

28
21

1 determine whether the state court’s application of Strickland was unreasonable. Richter, 562
2 U.S. at 99-100. Establishing that a state court’s application of Strickland was unreasonable
3 under 28 U.S.C. § 2254(d) is very difficult. Richter, 562 U.S. at 100. Since the standards
4 created by Strickland and § 2254(d) are both “highly deferential,” when the two are applied in
5 tandem, review is “doubly” so. Richter, 562 U.S. at 105 (quoting Knowles v. Mirzayance, 556
6 U.S. 111, 123 (2009)); see also Cheney v. Washington, 614 F.3d 987, 995 (9th Cir. 2010)
7 (quoting Yarborough v. Gentry, 540 U.S. 1, 5-6 (2003)). Further, because the Strickland rule is
8 a “general” one, courts have “more leeway . . . in reaching outcomes in case-by-case
9 determinations” and the “range of reasonable applications is substantial.” Richter, 562 U.S. at
10 101; see also Premo v. Moore, 562 U.S. 115, 127 (2011) (noting the leeway afforded state
11 courts under AEDPA in applying general standards).
12

Here again, Strickland dictates a “‘strong presumption’ that counsel’s representation

13 was within the ‘wide range’ of reasonable professional assistance.” Richter, 562 U.S. at 104
14 (quoting Strickland, 466 U.S. at 687). AEDPA, acting in tandem with Strickland asks whether
15 the state court’s application of Strickland was unreasonable. Richter, 562 U.S. at 99-100.
16

2.

17

Petitioner alleges counsel Schultz was ineffective by failing to investigate, develop, and

Claims III(C-E)

18 present mitigating psychosocial evidence (i.e. claim III(C)) including opinion by social history
19 and mental health experts (i.e. claim III(D)), and lay witness testimony (i.e. claim III(E)),
20 violating his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments. (Doc. No. 5121 1, ¶¶ 433-568.)
22

a.

23

The Eighth Amendment requires that the sentencer not be precluded from considering,

Supplemental Legal Standards

24 as a mitigating factor, any aspect of a defendant’s character or record and any of the
25 circumstances of the offense that the defendant proffers as a basis for a sentence less than
26 death.

Eddings v. Oklahoma, 455 U.S. 104, 110 (1982) (trial court deficient by refusing to

27 consider mitigating evidence of defendant’s violent family history and mental/emotional
28
22

1 disturbance); Lockett v. Ohio, 438 U.S. 586, 604 (1978) (sentencer in a capital case shall not be
2 precluded from considering, as a mitigating factor, any aspect of a defendant's character or
3 record and any of the circumstances of the offense).
4

To determine whether the investigation was reasonable, the court “must conduct an

5 objective review of [counsel’s] performance, measured for reasonableness under prevailing
6 professional norms, which includes a context-dependent consideration of the challenged
7 conduct as seen from counsel’s perspective at the time.” Wiggins, 539 U.S. at 523; See also
8 Rompilla, 545 U.S. at 381; Strickland, 466 U.S. at 699 (counsel could “reasonably surmise . . .
9 that character and psychological evidence would be of little help”); Burger v. Kemp, 483 U.S.
10 776, 794 (1987) (limited investigation reasonable because all witnesses brought to counsel’s
11 attention provided predominantly harmful information).
12

b.

13

Petitioner presented in the SSHCP claim III including all subclaims (Lod. Doc. No. 30,

State Court Direct and Collateral Review

14 SSHCP, at 200-302) which was summarily denied on the merits with certain subclaims
15 including subclaims C, D and E denied on procedural grounds (Lod. Doc. No. 31, Order
16 Denying Cal. Pet., In re Colin Raker Dickey, No. S165302 (May 29, 2012)).
17

Petitioner also claimed on direct appeal that trial counsel was ineffective by failing to

18 present any mitigating evidence. (Lod. Doc. No. 1, Appellant’s Opening Brief, hereinafter
19 “AOB”, at claim XXI.) The California Supreme Court denied the claim on the merits. Dickey,
20 35 Cal. 4th at 926-27.
21

c.

Analysis

22

i.

Deficient Performance

23

Petitioner argues that Schultz’s decision to forego presentation of then available

24 mitigating psychosocial evidence was not supported by a reasonable investigation and trial
25 tactics. (Doc. No. 51-1, ¶¶ 433-568; see also RT 5108-13; Lambright v. Schriro, 490 F.3d
26 1103, 1120 (9th Cir. 2007) (counsel has a duty to investigate all potentially mitigating
27 evidence); see also Penal Code § 190.3(k)); Lockett, 438 U.S. at 604 (“[I]n capital cases the
28
23

1 fundamental respect for humanity underlying the Eighth Amendment . . . requires
2 consideration of the character and record of the individual offender and the circumstances of
3 the particular offense as a constitutionally indispensable part of the process of inflicting the
4 penalty of death).
5

Particularly, he argues Schultz could not have made an informed tactical decision

6 without consideration of his habeas proffered evidence of: (i) pervasive physical and sexual
7 abuse, mental illness, neglect and poverty, (ii) organic brain and mental impairments, (iii)
8 substance abuse including drugs and alcohol, and (iv) and his positive attributes. (Doc. No.
9 142 at 63-140 (citing Daniels v. Woodford, 428 F.3d 1181, 1206 (9th Cir. 2005)) (counsel
10 ineffective for failure to investigate and present mitigating evidence of mental disorder); see
11 also Penal Code section 190.3(d, h, k); Doc. No. 144 at 19 n.3, 22-23.)
12

The record reflects Schultz did not present any mitigating evidence at the penalty trial,

13 opting instead to briefly argue his penalty defense theory to the jury. (CT 478-480.) Schultz’s
14 primary penalty defense relied upon lingering doubt raised by guilt phase evidence of
15 circumstances surrounding Petitioner’s participation in the crimes as a mere aider and abettor
16 of felony murder. (Pet. Ex. 12 ¶ 5.) Schultz argued this primary defense to the jury at penalty
17 closing. (RT 5139-40.)
18

The California Supreme Court denied claimed ineffectiveness arising from counsel’s

19 failure to present any mitigating evidence at the penalty trial, stating that:
20
21
22
23
24
25
26
27
28

Defendant contends he received ineffective assistance of counsel because
counsel presented no mitigating evidence in the penalty phase.
“On a silent record ... we will not assume that the defense counsel's failure to
present mitigating evidence rendered his assistance ineffective. Any assertion
that counsel was inadequate in this regard must be raised on habeas corpus.”
(People v. Diaz (1992) 3 Cal. 4th 495, 566, 11 Cal.Rptr.2d 353, 834 P.2d 1171
(Diaz ); see People v. Anderson (2001) 25 Cal. 4th 543, 598, 106 Cal.Rptr.2d
575, 22 P.3d 347.)
The record is not silent here. However, insofar as it speaks, it undercuts
defendant's ineffectiveness claim.
Defendant contends his mother should have been called to testify as to the
“awful conditions of [his] upbringing.” A declaration by defendant's mother was
24

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

attached to the motion for a new trial filed by defendant's new counsel
appointed for the purpose of preparing the motion. In the declaration,
defendant's mother states she had been available to testify that when defendant
was growing up he “suffered abusive beatings” by his father, and that at times
she had taken out her “rage” on defendant, beating him with a belt.
Prior to the penalty phase, defense counsel discussed with the court his concern
that such “abuse” could be viewed as harsh punishment, raising the question, on
rebuttal, whether defendant had done something to provoke such punishment.
This was a concern because defendant had, indeed, done something deserving of
severe punishment—he had sexually molested his little sister. The abuse
occurred over a period of two years, starting when defendant was 12 and his
sister was only 5.16 Noting such rebuttal would be “devastating,” defense
counsel said he would have to decide whether the risk was too great. In the end,
defense counsel called neither defendant's mother nor any other witness.
----------------------------------------FOOTNOTE--------------------n.16 In her declaration filed in support of defendant's new trial motion,
defendant's mother acknowledged defendant was “accused” of molesting his
sister, but stated she “had no personal knowledge” of it. However, the probation
report reveals defendant was adjudged guilty of the conduct by a juvenile court.
------------------------------------END FOOTNOTE------------------

14
15
16
17
18
19
20

When defense counsel's reasons are not readily apparent from the record, we
will not assume he was ineffective unless his challenged conduct could have
had “ ‘ “no conceivable tactical purpose.” ’ ” (Earp, supra, 20 Cal. 4th at p. 896,
85 Cal.Rptr.2d 857, 978 P.2d 15; People v. Hines (1997) 15 Cal. 4th 997, 1065,
64 Cal.Rptr.2d 594, 938 P.2d 388; Diaz, supra, 3 Cal. 4th at p. 558, 11
Cal.Rptr.2d 353, 834 P.2d 1171.)
Here, defense counsel's tactical purpose is readily apparent from the record.
Indeed, in arguing the motion for a new trial, defendant's substitute counsel
expressly acknowledged defense counsel made a “strategic and tactical
decision” in not calling defendant's mother. Accordingly, we reject this
assignment of ineffectiveness of counsel.

21
22 Dickey, 35 Cal. 4th at 926–27.
23

The California Supreme Court reasonably rejected these claims, for the reasons stated

24 by that court and those that follow.
25

(1)

26

Aggravating Value of Petitioner’s Criminal History

27

Prior to the start of the penalty trial, the prosecutor stated the aggravating evidence

Reasonable Defense Investigation Supported Trial Tactics

28
25

1 would consist of autopsy photos of the victims (as circumstances of the crime); and Petitioner’s
2 prior conviction in Nevada for second degree burglary without going into details of that
3 conviction. (RT 5081-83, 5085.)
4

Schultz had a longstanding concern that presentation of mitigating evidence might open

5 the door to prosecution rebuttal with aggravating evidence of Petitioner’s prior criminal
6 conduct, i.e. molestation of his sister and the Nevada burglary which involved sexual assault of
7 the corpse of a seven-year-old girl. (Pet. Ex. 12 ¶ 13.) As early as August 1989, Schultz and
8 Petitioner discussed the possibility the Nevada burglary might be used against Petitioner at
9 sentencing. (Pet. Ex. 23 at SH002090.)
10

Prior to the penalty trial, Schultz, the prosecutor and the trial judge discussed in limine

11 whether and the extent to which presentation of mitigating character evidence might open the
12 door details of Petitioner’s criminal history. (RT 5080-82, 5108-13.) Schultz discussed his
13 concern that details of Petitioner’s prior criminal acts might come before the jury, particularly
14 if Petitioner’s mother were to testify at the penalty trial. (RT 5108-09.)
15

The trial court and prosecutor suggested that evidence of the prior criminal conduct

16 could not come in as long as Schultz avoided eliciting from Petitioner’s mother, Ms. Walters,
17 character or opinion testimony about Petitioner. (See RT 5108-12.; Doc. No. 51-1, ¶ 556-57;
18 see also People v. Ramirez, 50 Cal. 3d 1158, 1191-1193 (1990) (absent defense presentation of
19 good character evidence the prosecution may not introduce evidence of prior misconduct). In
20 the course thereof, the prosecutor conceded the risk that a trial witness might stray during
21 testimony even if instructed not to do so, and that “I’m not gonna say that I’m not going to try
22 to get that sexual escapade in front of the jury, if I feel it’s proper, and if I feel I’m entitled to
23 do it under the laws of evidence.” (RT 5112.)
24

Schultz took the matter under consideration, stating that “I have to review the available

25 information and decide whether – discuss the problem with my witness and decide whether or
26 not the risk is too great.” (Id.)
27

The trial court informed Schultz that:

28
26

1
2
3

[I]f you want, and if you determine asking certain questions, I’m happy to listen
to what you have to say further and then give you an option as to whether or not
I’m inclined to let – Mr. Hahus ask questions concerning this particular incident
or not.

4 (Doc. No. 51-1, n.39, citing RT at 5113.)
5

Schultz replied:

6
7
8

I understand what the Court’s position is, I just have to make a – make a
determination based after – just on a conversation with the witness and with the
– the information available and see if I can – if I can structure it narrow enough
to avoid the pitfalls.

9
10 (RT 5113.)
11

Petitioner argues Schultz unreasonably failed to accept the trial court’s offer to more

12 specifically “investigat[e] the matter with the court[.]” (Doc. No. 51-1 ¶ 558, citing RT 511213 13; see also Doc. No. 142 at 132-34, citing RT 5108-13.) He argues Schultz was not tactically
14 motivated in this regard, but rather operated under a:
15
16
17
18
19

[T]otally stigmatized misunderstanding and profoundly debilitating lack of
knowledge and denial of the myriad ways in which Colin’s chronic, torturous,
sadistic and perverse childhood victimization not only contributed to the
multiple undiagnosed mental illnesses and serious organic brain damage that
deformed his character, but defined his abnormal and perverse sexual behavior.
With no understanding of the sexual torment within which Colin was embedded
as a child and adolescent, his trial counsel “rested” rather than allow any
“character” evidence at all to be presented.

20
21 (Pet. Ex. 2, at 6.)]]
22

However, the record reasonably suggests Schultz attempted to structure the mitigation

23 defense to “avoid the pitfalls,” upon consideration of the guidance provided by the trial court
24 and the prosecutor during the in limine hearing. (RT 5113; see Siripongs v. Calderon, 133
25 F.3d 732, 736 (9th Cir. 1998) (the relevant inquiry is not what counsel could have pursued, but
26 whether the choices counsel made were reasonable).
27

For example, Schultz was aware the prosecutor had indicated he would not impeach

28
27

1 Petitioner’s mother with negative evidence of Petitioner’s character if her testimony avoided
2 evidence of his good character. (See Doc. No. 51-1, ¶ 461; RT 5111-13; see also Pet. Ex. 15 ¶
3 5.) Still nothing therein allayed Schultz’s concern the mother might be “baited” into character
4 testimony on cross-examination, as discussed below. (Pet. Ex. 12 ¶ 13.) Schultz recounted his
5 thought process and rationale in his habeas declaration, as follows:
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

Prior to the penalty phase, at an in limine hearing with the judge and prosecutor,
we discussed the admissibility of character evidence regarding the defendant,
including evidence of sexual molestations by the defendant of his sister in his
early adolescence and an act of necrophilia at age 17 that resulted in his felony
prior in adult court for second degree burglary in Nevada. The court confirmed
that this character evidence could not be broached in the penalty phase as long
as the defense did not place the defendant’s character in issue in its case in
chief. As a result of this ruling, I decided not to use a mental health defense in
the mitigation case. I knew that the prosecution case for aggravation would
consist only of the defendant’s felony prior, and photographs of the victims. I
did not feel that this evidence would weigh heavily in aggravation. I planned to
argue that the defendant was not a participant in the actual killings, and
therefore that the photographs did not depict circumstances attributable to his
role in the underlying felonies. I felt that evidence of the defendant’s difficult
childhood and abusive treatment by his parents could be effectively presented
through the repentant testimony of his mother, and that she could be coached to
avoid raising the issue of her son’s character.
As a result, approximately two weeks before the penalty phase, I contacted the
defendant’s mother, Linda Walters, at her home in Washington and arranged to
have her attend the penalty phase and to testify. We had approximately four
telephone conversations, lasting a total of two hours, before she arrived in
Fresno the afternoon before her scheduled testimony. I met with Ms. Walters
twice for approximately two hours total to prepare her for her testimony. In my
conversations with her, Ms. Walters appears to have a good grasp of the
relevant family history. She appeared ready, willing and able to testify to her
culpable role in her son’s abusive upbringing. But, she indicated to me that
whether she was asked or not asked whether or not her son was a good boy, she
would have to respond that he was or volunteer the information given the
opportunity. This scared me because, while I felt that I could pose the questions
to her in a narrow enough fashion to avoid her reference to character evidence, I
felt that the prosecutor could easily bait her into making a positive character
statement about her son, and that he then could introduce evidence of the
defendant’s past misdeeds. I determined that the risk of Ms. Walters testifying
was too great in comparison to the potential benefit. I told her this at our second
meeting at breakfast on the morning scheduled for her testimony. She did not
attend the penalty phase proceedings and left Fresno later that day without
seeing or speaking to [Petitioner]. No evidence was presented by the defense at
the penalty phase.

27 (Pet. Ex. 12 ¶ 13.)
28
28

1

Defense Social History Investigation

2

Petitioner argues the defense social history investigation was inadequate because it was

3 started late; denied Petitioner the opportunity to assist in the defense; did not involve experts;
4 and was incomplete. (Doc. No. 51-1, ¶¶ 441, 459, 471-472, 534.)
5

“The failure to timely prepare a penalty-phase mitigation case is . . . error.” Kayer v.

6 Ryan, 923 F.3d 692, 714 (9 th Cir. 2019) (citing Allen v. Woodford, 395 F.3d 979, 1001 (9th
7 Cir. 2005)). The Kayer court held that the failure of trial counsel to begin the penalty phase
8 investigation promptly upon appointment, instead delaying until after the guilty verdict, fell
9 below an objective standard of reasonableness. 923 F.3d at 715 (citing Strickland, 466 U.S. at
10 688).
11

“[T]he scope of a counsel’s pretrial investigation necessarily follows from the decision

12 as to what the theory of defense will be.” Soffar v. Dretke, 368 F.3d 441, 473 (5th Cir. 2004).
13 In determining whether counsel made reasonable tactical decisions about certain evidence, a
14 court focuses on whether the investigation supporting counsel’s decision to introduce or omit
15 certain evidence was itself reasonable. Wiggins, 539 U.S. at 523. Limited investigation may
16 be reasonable when it demonstrates that presenting certain evidence “would have been
17 counterproductive, or that further investigation would have been fruitless.” Id. at 525.
18

The record reflects that the defense investigation of guilt and penalty issues began well

19 before Petitioner’s April 1990 arraignment. (CT 232.) As early as April 1989, the defense
20 team including Schultz began a series of interviews with Petitioner. (See Pet. Ex. 23 at
21 SH002038-2137.) Petitioner appears to concede as much. (See Doc. No. 51-1 ¶ 441.) Schultz
22 and defense team garnered information including the identities and whereabouts of Petitioner’s
23 family members. (Pet. Ex. 23 at SH002038-2137; see also Pet. Ex. 2 at 106-09.) Petitioner
24 told the team of beatings and abuse he received at home and of his juvenile molestation
25 adjudication involving his sister, albeit he denied molesting her. (Id.) He told the defense
26 team about his father’s criminal activity; his drug use; living with various relatives and
27 sometimes running away; traveling to Reno, Nevada, and enrolling in and then dropping out of
28
29

1 Reno High School.
2

Petitioner also provided information relating to his own criminal history including that:

3 he participated as a teenager in various burglaries (Pet. Ex. 23 at SH002076-77) and was
4 arrested in Nevada and convicted as an adult of second-degree felony burglary relating to an
5 act of necrophilia. (Id., at SH002090). Notably, during an August 1989 interview, Schultz
6 specifically discussed in some detail the potential use of the Nevada conviction against
7 Petitioner at the penalty phase; that Schultz had seen newspaper articles regarding that crime
8 and that Schultz did not want to delay assembling information on Petitioner’s criminal record.
9 (Pet. Ex. 23 at SH002091-94.)
10

At that early stage, Petitioner himself expressed concern the Nevada conviction might

11 come in and bias the jury. Petitioner suggested a possible motion to change venue. (Id.)
12 Schultz confirmed his trial strategy of keeping the Nevada conviction from the jury. (Id.)
13 Noting Petitioner’s hesitance to talk about the burglary and related necrophilia, Schultz
14 specifically explained to him why the defense team need detailed information on such matters.
15 (See Pet. Ex. 2 at 109.) Petitioner went on to provide certain details of his sentence and his
16 time in a Nevada prison. (Id.)
17

Significantly, defense investigator King interviewed Petitioner’s mother, Linda Dickey,

18 and four months prior to trial prepared Schultz with an August 1990 written social history that
19 included the following information:
20
21
22
23
24

Petitioner was healthy growing up, with no unusual diseases or medical
problems; he was sometimes hyperactive and developed a nervous twitch
around age 9 or 10 years;
Petitioner’s family life included physical abuse, particularly, the father beat
Petitioner severely, but also included family vacations to places such as
Disneyland and the San Diego Zoo;

26

Petitioner’s parents drank and used drugs, passed bad checks, were sometimes
without housing arrangements, living with relatives or others, the father had
difficulty holding a job due to his drinking, at times the father was in jail or
otherwise absent from the home, and the family lived on welfare;

27

Petitioner and his siblings witnessed and were victims of violence in the home;

25

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30

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

The mother started working in fast food, became heavily addicted to drugs,
engaged in sexual liaisons and severe beatings of the children including
Petitioner;
The father, Donald Dickey, engaged in sexual misconduct with relatives
including the repeated rape of mother’s 13-year-old sister while the children
including Petitioner watched;
Petitioner sometimes acted strangely, abusing his younger bother;
Petitioner sexually molested his younger sister for a period of years;
In 1979, Petitioner’s mother divorced his father noting repeated criminal
conduct, beatings and the father’s abuse of the children and sexual molestation
of her daughter, whereupon they lost their home to foreclosure, Petitioner
remained with his father;
The mother had little contact with Petitioner after he turned 14 years old noting
that she feared him and her husband but did visit Petitioner while he was in
prison in Nevada on the burglary charge stemming from the necrophilia event
(id.);
The father became a fugitive following the molestation conviction in 1979 and
his whereabout since then are unknown.

13
14 (Pet. Ex. 23 at SH002040-49; see also Pet. Ex. 2 at 110-20; Pet. Ex. 15 ¶¶ 2, 5.)
15

Schultz, contemplating possible presentation of social history evidence in mitigation,

16 personally contacted Ms. Walters about two week before the penalty phase and engaged in
17 multiple phone conversations over the course of approximately four hours relating to her
18 appearance and testimony. (Pet. Ex. 12 at ¶¶ 13; Pet. Ex. 15 ¶¶ 2-5; see also Doc. No. 142 at
19 65-66.) He also provided in-person witness preparation of about the same length. (Id.)
20

Defense Mental State Investigation

21

Petitioner argues the mental state investigation was inadequate because it was started

22 late; denied Petitioner the opportunity to assist in the defense; did not involve experts; and was
23 incomplete. (Doc. No. 51-1, ¶¶ 441, 459, 471-472, 534.) However, the record reflects the
24 defense team counsel consulted with two mental health experts in preparation for the guilt
25 phase. Neither expert opined in favor of a mental state defense.
26

Defense psychiatrist Dr. John Hackett, who interviewed Petitioner in jail during August

27 1989, found him oriented and of average intelligence. (Pet. Ex. 23 at SH04457.) Dr. Hackett
28
31

1 found Petitioner unlikely to be honest, with an “angry…self-defeating personality style [that]
2 will get in the way” of the defense. (Pet. Ex. 2 at 112; see also Pet. Ex. 23 at SH04452-56.)
3 Dr. Hackett stated his belief that although Petitioner was possibly suicidal, he was not
4 incompetent. (Pet. Ex. 23 at SH04453, 4457; see also Pet. Ex. 2 at 21.)
5

Dr. Hackett also extensively reviewed records supplied by the defense team including

6 of Petitioner’s necrophilia which presumptively included probation reports of his dysfunctional
7 family background, aberrant upbringing and sexual molestation of his sister. (Id.) Dr. Hackett
8 described Petitioner’s perverse sexual excitement over the young girl’s corpse, necrophilia, and
9 ultimate depositing of the corpse in a dumpster. (Id.) Dr. Hackett suggested Petitioner had an
10 aberrant and traumatic upbringing that could be developed in mitigation. (Id., at 113.) Dr.
11 Hackett diagnosed Petitioner with severe antisocial personality disorder and atypical
12 psychosexual disorder. (Id.)
13

Psychologist Dr. Larry “Buzz” Thompson examined Petitioner in jail and provided a

14 July 1990 report finding that Petitioner was anxious, mildly depressed and cynical (Pet. Ex. 2
15 at 114-15; Pet. Ex. 23 at SH002287-90), with no obvious symptoms of psychosis (id.). Dr.
16 Thompson noted Petitioner’s drug use and criminal past. (Id.) Dr. Thompson opined that “in
17 the absence of any evidence of psychotic thought process coupled with [Petitioner’s] firmly
18 stated intention not to plea bargain, I believe a psychiatric defense would be of no value.” (Id.)
19

Dr. Thompson found Petitioner to be “fairly sophisticated at anticipating the questions

20 that would be asked of him in an interview setting and his answers [to be] reasonable and well
21 structured, if very pat.” (Id. at 3.)
22

Dr. Thompson averred that “[w]hile [Petitioner] may qualify for a diagnosis in the area

23 of character (personality) disorder . . . I can see no point in pursuing one for the purpose of his
24 legal defense.” (Id., at 4; see also Pet. Ex. 2 at 115.) Dr. Thompson suggest that Petitioner
25 “should be used as a witness in his own behalf.” (Pet. Ex. 19 attachment “A” at 3.)
26

This Court observed the findings of these defense experts in its prior order denying

27 guilt phase claims, as follows:
28
32

1
2
3
4
5
6
7
8

Schultz engaged in the noted pre-trial preparations including consultation with
two mental health experts – psychiatrist Dr. John Hackett who concluded
petitioner was possibly suicidal, and psychologist Larry Thompson who
concluded petitioner mildly depressed. (Doc. No. 51-1 ¶ 523; see also SSHCP,
Ex. 19 ¶ 9.) Schultz could reasonably have relied upon these experts in making
strategic decisions not to assert mental defenses at the guilty phase or conduct
further related investigation. (See e.g., claims II(B), II(C).)
Additionally, Schultz and his team discussed petitioner’s background with
petitioner’s mother. The state supreme court could reasonably have found that
Schultz had concerns relating to potentially unfavorable behavioral, character
and bad acts evidence and that such were an objectively reasonable basis not to
further pursue such matters during the guilt phase. (SHCP, Ex. B ¶ 13.)

9 (Doc. No. 135 at 32.)
10
11
12
13

Petitioner concedes that Schultz’s pre-trial preparations included noted
consultation with two mental health experts – psychiatrist Dr. John Hackett who
found petitioner possibly suicidal (Doc. No. 51-1 ¶ 523), and psychologist Larry
Thompson (id.; SSHCP, Ex. 19) who found petitioner mildly depressed. The
state supreme court could reasonably have found Schultz’s decision not to
pursue guilty phase mental state defenses was objectively reasonable.

14
15 (Doc. No. 135 at 39-40.)
16
17
18
19
20

Petitioner was interviewed in jail by Dr. Hackett, ((Doc. No. 51-1 ¶ 523;
SSHCP, Ex. 2 at 119-120), who diagnosed him with antisocial personality
disorder but nonetheless found him competent to assist in his defense (id.).
Petitioner also was evaluated by Dr. Thompson (id. at 114), who found
Petitioner mildly depressed (SSHCP, Ex. 2 at 121-23; id. at Ex. 19) but showing
no obvious symptoms of psychosis either manifest or latent. (SSHCP, Ex. 2 at
122). Dr. Thompson opined that a psychiatric defense would be of no value
(id.).

21 (Doc. No. 135 at 45.)
22

Additionally, Petitioner’s argument he was denied the ability to assist in his defense

23 fails for the reasons stated in the discussion of claims II(I), III(B), V, VI, and VII, post.
24

Decision to Forego Further Social History Investigation was Reasonable

25

The state supreme court reasonably could find Petitioner’s habeas proffered social

26 history evidence was not a basis for further penalty defense investigation. (Doc. No. 51-1, ¶
27 563; see Doc. No. 142 at 139.)
28
33

1

Petitioner points to habeas proffered evidence from family members and acquaintances

2 of familial: mental illness (Pet. Ex. 1 ¶ 11; Pet. Ex. 3 ¶¶ 19, 20, 21); physical and sexual abuse
3 (Pet. Ex. 1 ¶¶ 4-10, 12-13, 18, 21; Pet., Ex. 3 ¶ 12; Pet. Ex. 4 ¶¶ 5, 8, 9, 17, 19, 29; Pet. Ex. 5
4 ¶¶ 5, 6, 10; Pet. Ex. 6 ¶¶ 4, 5; Pet. Ex. 7 ¶¶ 5, 7, 9; Pet. Ex. 8 ¶¶ 4, 6, 7, 8, 10, 11, 13, 15; Pet.
5 Ex. 15 ¶ 7; Pet. Ex. 17 ¶ 4; Pet. Ex. 18 ¶ 4; Pet. Ex. 20 ¶¶ 5-6; Pet. Ex. 21 ¶ 9); violent and
6 immoral activity (Pet. Ex. 1 ¶¶ 16, 19; Pet. Ex. 3 ¶ 5; Pet. Ex. 7 ¶¶ 14, 18, 19; Pet. Ex. 8 ¶ 16;
7 Pet. Ex. 15 ¶ 7; Pet. Ex. 21 ¶¶ 2, 3, 7); deprivation, neglect and poverty (Pet. Ex. 4 ¶¶ 12, 14,
8 15, 16; Pet. Ex. 5 ¶¶ 4, 14, 15; Pet. Ex. 6 ¶ 7; Pet. Ex. 8 ¶ 5; Pet. Ex. 16 ¶ 2; Pet. Ex. 17 ¶ 9);
9 and alcohol and substance abuse (Pet. Ex. 1 ¶¶ 15, 17, 20; Pet. Ex. 3 ¶¶ 2-3, 5, 13, 14, 18; Pet.
10 Ex. 4 ¶¶ 18, 28, 30; Pet. Ex. 5 ¶¶ 11, 16; Pet. Ex. 6 ¶ 8; Pet. Ex. 7 ¶¶ 6, 8; Pet. Ex. 8 ¶¶ 5, 9, 17;
11 Pet. Ex. 17 ¶ 4; Pet. Ex. 21 ¶ 8).
12

Petitioner argues further investigation and development of Petitioner’s social history as

13 such is reflected in his habeas proffer would have been mitigating and fostered residual doubt,
14 humanizing him and explaining his adverse life history, particularly his habitual drug use and
15 addiction. He argues this evidence would have overcome the aggravating value of his prior
16 criminal conduct by explaining how and why he came to commit such acts.
17

However, for the reasons discussed in the prejudice analysis below (see section VII, A,

18 2, c, ii, post), summarized here, Petitioner’s psychosocial history proffer is significantly
19 cumulative of the above noted defense investigation and information known to Schultz and
20 considered by him. The state supreme court reasonably could find such evidence essentially
21 cumulative of noted information discovered during the defense investigation including as
22 summarized by investigator King’s memorandum to Schultz and presumably considered by
23 Schultz. (See Pet. Ex. 23 at SH002040-49; see also Pet. Ex. 12 ¶ 13; Pet. Ex. 15 ¶¶ 2-5.)
24

The state supreme court reasonably could find Schultz was aware of Petitioner’s

25 difficult and dysfunctional upbringing and that Schultz was not unreasonable in determining
26 the mitigating value thereof did not outweigh the aggravating value of Petitioner’s prior
27 criminal acts. Particularly, the lay testimony proffer on habeas of family members who
28
34

1 thought well of Petitioner reasonably could present the same risk of rebuttal with evidence of
2 Petitioner’s prior criminal acts as the proposed testimony of his mother. (RT 5545.)
3

Schultz reasonably could have determined further investigation unwarranted as

4 presentation of such mitigating evidence risked opening the door to rebuttal evidence of his
5 prior criminal acts, for the reasons discussed above. See Frye v. Warden, San Quentin State
6 Prison, No. 2:99-CV-0628 KJM CKD, 2015 WL 300755, at *18 (E.D. Cal. Jan. 22, 2015) (“A
7 lawyer may make reasonable decisions that render particular investigations unnecessary.”).
8 For example, Schultz reasonably could have discounted the mitigating weight of mental state
9 evidence given the paucity of evidence in the record that Petitioner was suffering from mental
10 impairment or substance abuse at the time of the capital crimes.
11

Petitioner’s further argument regarding uninvestigated evidence relating to Petitioner’s

12 efforts at education, self-reform and religious conversion while in jail awaiting trial (Doc. No.
13 51-1, ¶ 530; Doc. No. 142 at 93) is not persuasive otherwise. The state supreme court
14 reasonably could find such uninvestigated social history evidence was largely cumulative of
15 information known to the defense (see Pet. Ex. 23 at SH002038-2137) and presented the same
16 risk of rebuttal with criminal history evidence.
17

Decision to Forego Further Mental History Investigation was Reasonable

18

The state supreme court reasonably could find Petitioner’s habeas proffered mental

19 state evidence was not a basis for further penalty defense investigation. (Doc. No. 51-1, ¶¶
20 435-442, 472-473, 532-568.)
21

Petitioner faults Schultz for failure to retain and utilize mental health experts in the

22 penalty defense including to “deconstruct” his prior criminal conduct. (Doc. No. 51-1 ¶¶ 473,
23 532-552.) Particularly, he argues his conduct with the corpse of a young girl was a single
24 impulsive act, not qualifying as necrophilia, and that an expert at the penalty phase could have
25 made that clear. (Pet. Ex. 2 at 224-26.) He argues such mental state evidence would have been
26 mitigating and fostered residual doubt: humanized him, explaining his adverse life history,
27 particularly his habitual drug use and addiction. He argues this evidence would have overcome
28
35

1 the aggravating value of Petitioner’s noted prior criminal conduct by explaining how and why
2 he came to commit such crimes.
3

Petitioner points to habeas proffered expert opinion explaining the “childhood traumas

4 Petitioner’s parents inflicted upon him; the horrifying conditions Petitioner was subjected to
5 growing up; his parents’ moral bankruptcy and the associated mental, emotional, and moral
6 damage it inflicted upon Petitioner; and the concomitant psychological injuries he sustained.”
7 (Doc. No. 142 at 15; see also RT 5454-85.)
8

As above, Petitioner suggests that Schultz’s allegedly deficient conduct was not

9 tactically motivated, but rather that he operated under a:
10
11
12
13
14

[T]otally stigmatized misunderstanding and profoundly debilitating lack of
knowledge and denial of the myriad ways in which [Petitioner’s] chronic,
torturous, sadistic and perverse childhood victimization not only contributed to
the multiple undiagnosed mental illnesses and serious organic brain damage that
deformed his character, but defined his abnormal and perverse sexual behavior.
With no understanding of the sexual torment within which Colin was embedded
as a child and adolescent, his trial counsel “rested” rather than allow any
“character” evidence at all to be presented.

15
16 (Id., citing Ex. 2, at 13; see also Doc. No. 142 at 123-24.)
17

However, as discussed in more detail in the section on prejudice below, (see section

18 VII, A, 2, c, ii, post), the state supreme court reasonably could find further mental state
19 investigation unwarranted. See Frye, 2015 WL 300755, at *18 (“A lawyer may make
20 reasonable decisions that render particular investigations unnecessary.”). That court would not
21 have been unreasonable in finding the noted conclusions of Drs. Hackett and Thompson
22 reasonably informed Schulz as to Petitioner’s then mental state such that further development
23 and pursuit of a mental health mitigation defense was unwarranted. (Doc. No. 135 at 32, 40,
24 45-48 ; see also Pet. Ex. 12 ¶ 13.)
25

Petitioner discounts the penalty phase value of Drs. Hackett and Thompson. He argues

26 these mental health experts were not retained to assist with mitigation or provide opinions in
27 mitigation. (Doc. No. 51-1 ¶ 541; see also Ex. 19 ¶¶ 3-5.) He argues they were not provided
28
36

1 with and did not consider Petitioner’s psychosocial history. (Id.)
2

Petitioner points to the habeas declaration Dr. Thompson that Schultz failed to provide

3 evaluation parameters and that investigators King and Temple failed to respond to his requests
4 for additional social and mental health history. (Doc. No. 51-1 ¶ 537; Pet. Ex. 19 ¶¶ 3-5; see
5 also Doc. No. 142 at 122); Caro v. Woodford, 280 F.3d 1247, 1254-55 (9th Cir. 2002) (duty to
6 provide penalty phase experts with pertinent information); Hendricks v. Calderon, 70 F.3d
7 1032, 1043 (9th Cir. 1995) (1981 trial) (“where counsel is on notice that his client may be
8 mentally impaired, counsel’s failure to investigate his client’s mental condition as a mitigating
9 factor in a penalty phase hearing, without a supporting strategic reason, constitutes deficient
10 performance.”). In this regard, Dr. Thompson avers this led him to give no thought to
11 specifically assessing mitigation or any mitigation factors. (Pet. Ex. 19 ¶ 5.)
12

Even so, Dr. Thompson does not state his review of the habeas proffer evidence caused

13 him to change the findings and opinions he reached at trial. (See Pet. Ex. 19 and attachment
14 “A” thereto.) Dr. Thompson stated that while he was not provided with any psychological or
15 physiological data pertaining to Petitioner, he did review “copious police reports” provided to
16 him by defense investigator King and considered limited life history information provided by
17 Petitioner including as to childhood and developmental issues. (Pet. Ex. 19 attachment “A” at
18 1.)
19

Notably, Petitioner’s habeas proffer does not show he was examined by a mental health

20 professional in relation to the molestation of his sister which occurred when Petitioner was 14
21 years old. (Pet. Ex. 23 at SH0000177.) To the extent Petitioner was examined in 1981 by Dr.
22 William Terry, a psychiatrist appointed by the state court during proceedings in Nevada on the
23 burglary charge involving necrophilia (Pet. Ex. 2 at 87-89), Dr. Terry found that Petitioner’s
24 previous history was “compatible with a diagnosis of attention deficit disorder with
25 hyperactivity and a continual depressive state which is often found in adolescents who
26 previously have met the criteria for being hyperactive[.]” (Pet. Ex. 2 at 89; Pet. Ex. 23
27 SH002284.) Dr. Hackett presumably reviewed Dr. Terry’s conclusions as part of his noted
28
37

1 examination of Petitioner. (See e.g., Pet. Ex. 23 at SH04453, 4457; see also Pet. Ex. 2 at 21.)
2

Furthermore, Petitioner apparently did not have mental health problems or receive

3 medication for such while imprisoned in Nevada. (Pet Ex. 23 at SH002105.) Upon his release
4 from prison, Petition held down two jobs at once, reasonably suggesting a level of functionality
5 consistent with the findings of the defense trial experts. (Id.)
6

Given the findings of the defense trial experts and the other information known to him

7 from the defense investigation, Schultz reasonably could have decided pursuit of mitigating
8 mental state defenses using these or other trial experts lacked tactical value. Especially so
9 given the risk that presentation of such mitigating evidence could open the door to rebuttal
10 evidence of his prior criminal acts.
11

Petitioner heavily relies upon his habeas experts Drs. Khazanov and Counter. But their

12 evaluations and opinions of organic and mental deficiencies rendered more than a decade after
13 trial can be discounted on that basis. See Boyde v. Brown, 404 F.3d 1159, 1168-69 (9th Cir.
14 2005), amended by 421 F.3d 1154 (9th Cir. 2005) (holding that if new mental health evidence,
15 obtained after the trial, were sufficient to establish a petitioner’s innocence, the petitioner could
16 “always provide a showing of factual innocence by hiring psychiatric experts who would reach
17 a favorable conclusion.”). Especially so, as Petitioner’s mother stated on habeas that she was
18 prepared to testify at the penalty phase that he “had no physical problems at birth . . . was a
19 healthy child while growing up and did not suffer any unusual diseases or medical problems.”
20 (Pet. Ex. 15 ¶ 7.)
21

Petitioner’s habeas proffer is only minimally probative of mitigating factors that he

22 may have acted under extreme mental or emotional disturbance, or was impaired by mental
23 disease or defect, for the reasons stated. The jury was instructed in these regards and
24 considered the prosecutor’s argument at closing which noted the absence of such evidence.
25 (Doc. No. 51-1, n.37, n.38, citing RT 5135-36.)
26

Additionally, this Court in its prior order denying guilt claims observed that Petitioner

27 was evaluated by a mental health professional in conjunction with his motion for new trial.
28
38

1 Counsel on that motion, Ms. Hart, retained psychiatrist Dr. Callahan to examine Petitioner with
2 a view toward evidence that might have been presented in mitigation at the penalty phase in
3 support of catchall sentencing factor “k” (regarding any extenuating and sympathetic
4 circumstances of defendant’s character or record). (RT 5463.)
5

Dr. Callahan found mitigating evidence in the form of Petitioner’s chaotic upbringing

6 by unstable, abusive parents who engaged in degenerate and criminal behavior. While Dr.
7 Callahan suggested Petitioner’s act of necrophilia demonstrated his “significant
8 psychopathology” (RT 5481), Dr. Callahan found no evidence Petitioner suffered from a
9 thought disorder or mental disease of defect. Dr. Callahan also found Petitioner not to show
10 remorse for the capital crime.
11

Mere Criticism of Trial Tactics

12

Petitioner argues in the alternative that psychosocial evidence could have been

13 presented without implicating Petitioner’s character and without opening the door to his prior
14 criminal acts. (Doc. No. 51-1 ¶¶ 467, 556-557, citing Ramirez, 50 Cal. 3d at 1191-93); see
15 also RT 5112-13.) However, as noted, his primary penalty defense was lingering doubt based
16 on guilt phase evidence that he did not aid and abet the capital crime; a defense Schultz could
17 have viewed as inconsistent with a mitigation defense based upon psychosocial evidence
18 explaining his participation in the crime.
19

Moreover, Schultz reasonably could have believed penalty phase experts and lay

20 witnesses suggested and identified in Petitioner’s habeas proffer would have presented the
21 same risk of rebuttal evidence of prior criminal act to the extent his psychosocial history was
22 relevant to Petitioner’s criminal history. (See e.g., Pet. Ex. 5 ¶¶ 5-6; Pet. Ex. 2 at Ex. H at 1023 12; Pet. Ex. 4 ¶ 29.)
24

Petitioner also faults Schultz for his decision not to enlist Petitioner’s assistance in

25 preparing his mother to testify. (Doc. No. 142 at 135.) He notes Ms. Walters surprise and
26 disappointment at Schultz’s decision not to present her testimony at the penalty phase, and her
27 statement that:
28
39

1
2
3

I would have been able to recount the circumstances of [Petitioner’s] upbringing
accurately and sympathetically without discussing his character. I made this
clear to Mr. Schultz.

4 (Pet. Ex. 15 ¶ 6,) Ms. Walter’s habeas declaration goes on to detail a homelife of poverty,
5 deprivation, physical, emotional and sexual abuse, violence, drug use, and neglect with
6 frequent displacement of Petitioner and his siblings. (See Id. ¶¶ 7; Petition, Ex. 1 ¶¶ 13, 157 24.)
8

Still, Petitioner does not support this argument with facts suggesting how he might have

9 fostered and facilitated such testimony while avoiding the risk of rebuttal. The record reflects
10 Petitioner’s indifference to and hatred of his mother expressed during pre-trial defense
11 interviews. (Pet. Ex. 23 at SH002055, SH002136; SH004453.) Petitioner’s mother, while he
12 was incarcerated in Nevada, expressed her fear of him and desire that he not contact her or
13 know her whereabouts upon release. (Pet. Ex. 23 at SH003963.) Also, Petitioner was in the
14 courtroom during the in limine hearing when this issue of his criminal history was discussed
15 and presumably he could have assisted Schultz were he willing and able to do so. (See RT
16 5113.)
17

Generally, the mere criticism of trial tactics is insufficient to establish ineffectiveness or

18 prejudice. United States v. Ferreira-Alameda, 815 F.2d 1251, 1254 (9th Cir. 1986); see also
19 Dows v. Wood, 211 F.3d 480, 487 (9th Cir. 2000) (counsel’s tactical decisions are given great
20 deference and need only be objectively reasonable). The state supreme court reasonably could
21 find that to be the case here. As this Court previously observed in its guilt phase order:
22
23
24
25
26
27
28

[T]he state supreme court reasonably could have found that Schultz did
reasonably develop a social history and investigate mental defenses. The noted
record suggests Schultz reasonably relied upon his investigation and expert
consultations in deciding not to further develop and present mental state
defenses at the guilt phase. (See SHCP, Ex. B ¶ 5); see also Harris v. Vasquez,
949 F.2d 1497, 1525 (9th Cir. 1990) (“It is certainly within the ‘wide range of
professionally competent assistance’ for an attorney to rely on properly selected
experts.”); Williams v. Woodford, 384 F.3d 567, 611 (9th Cir. 2004) (holding
counsel’s decision not to investigate mental defense further was reasonable in
light of conclusions of mental health experts).
40

1 (Doc. No. 135 at 45.)
2

For the reasons stated, the state supreme court reasonably could find unpersuasive

3 Petitioner’s suggestion the defense did not investigate the root facts underlying Petitioner’s
4 personal history. (See Doc. No. 51-1 ¶ 445.) The decision to forego presentation of mitigation
5 evidence was both in furtherance of the noted primary penalty defense, and not inconsistent
6 with Petitioner’s stated desire to forego a mitigation defense. Ms. Hart, counsel for Petitioner
7 on the motion for new trial, conceded Schultz made a tactical decision not to present mitigating
8 evidence at the penalty phase. (RT 5454.) Ms. Hart conceded that a failure to present any
9 mitigating evidence is not ineffective assistance where the decision is “fully responsible and
10 informed[.]” (RT 5532.) The trial court agreed in denying the motion for new trial by finding
11 that Schultz acted tactically and that “there was [mitigating evidence] available to [Schultz]
12 and [Schultz] was well aware of that.” (RT January 17, 1992 at 25-26.) That court found that
13 Schultz it was not ineffective by failing to present mitigating evidence. (Id.)
14

Accordingly, the state supreme court reasonably could find the defense investigation to

15 be timely and sufficient to inform Schultz’s choice of penalty defense and tactical decision not
16 to present mitigating evidence during the penalty phase. See Correll v. Ryan, 539 F.3d 938,
17 947, citing Smith v. Stewart, 189 F.3d 1004, 1008-09 (9th Cir. 1999) (“The failure to present
18 mitigating evidence during the penalty phase of a capital case, where there are no tactical
19 considerations involved, constitutes deficient performance, since competent counsel would
20 have made an effective case for mitigation.”); Gerlaugh v. Stewart, 129 F.3d 1027, 1033 (9th
21 Cir. 1997) (“A reasonable tactical choice based on an adequate inquiry is immune from attack
22 under Strickland.”); Lang v. Cullen, 725 F.Supp.2d 925, 962 (C.D. Cal. 2010) (trial counsel’s
23 strategic choices must be respected if they are based on professional judgment following a
24 reasonable investigation); cf. Sanders, 21 F.3d at 1457 (an attorney “can hardly be said to have
25 made a strategic choice when s/he [sic] has not yet obtained the facts on which such a decision
26 could be made”). Petitioner has not rebutted Strickland’s presumption of reasonableness.
27 Richter, 562 U.S. at 104 (quoting Strickland, 466 U.S. at 687). His stated desire not to present
28
41

1 any mitigation evidence (RT 5101-02) credits the presumption.
2

ii.

3

Petitioner argues a reasonable probability of a different sentencing outcome had the

Prejudice

4 jury been presented with the proffered humanizing psychosocial mitigating evidence. (Doc.
5 No. 51-1, ¶¶ 433-568.)
6

Particularly, he argues his criminal history evidence could have been mitigating if tied

7 to his noted personal history evidence. (Doc. No. 51-1 ¶¶ 445-446, 455, 466, 513; see also
8 Pet. Ex. 2 at 27-28, 208.) For example, he argues his sexual activity with the corpse of seven9 year-old Katherine Higgins had mitigating value to the extent it resulted from “his own history
10 of sexual victimization, exacerbated by drug and alcohol abuse[.]” (Id.) He argues that absent
11 Schultz’s noted deficiencies:
12
13
14
15
16

The jury would have discerned the symptoms of significant brain impairments
and other impairments, including PTSD, ADHD, severe physical and sexual
trauma, and alcohol and substance abuse. Had Schultz investigated and retained
experts, and thereafter provided them with adequate information, they would
have concluded that Petitioner’s history contained sufficient indicia of organic
brain damage to warrant complete and thorough neuropsychological testing for
various neurological and/or psychiatric disorders.

17 (Doc. No. 142 at 125.)
18

However, the California Supreme Court reasonably could find otherwise, as follows.

19

(1)

20

The prosecution presented aggravating evidence consisting Petitioner’s stipulation to

Aggravating and Rebuttal Evidence

21 his 1983 second-degree felony burglary conviction, and five autopsy photographs of the capital
22 crime victims. (CT 291; RT 5127-31; Doc. No. 51-1, ¶¶ 460, 554); see also Dickey, 35 Cal.
23 4th at 894-900. The only penalty phase witness was police detective Stokes, who was called
24 by the prosecutor to provide foundation for the autopsy photographs. Dickey, 35 Cal. 4th at
25 894-900.
26

The jury had before it the circumstances of petitioner’s conviction for the capital crime

27 and special circumstances found true. (See Doc. No. 135 denying guilt phase claims.)
28
42

1

Furthermore, the noted facts underlying Petitioner’s prior criminal acts were available

2 in rebuttal of any character defense at the penalty trial.
3

(2)

4

The defense did not present evidence in mitigation at the penalty phase. Petitioner

Totality of Evidence in Mitigation

5 points to his habeas proffer, discussed below, as suggesting:
6
7
8
9
10

[T]he extraordinary, horrific stressors to which [he] was exposed; the migratory
factors, poverty, violence, sexual perfidy and victimization that characterized
his life; the failure of doctors to properly diagnose him, of police to protect him,
of social workers to provide him safe haven, of family law and juvenile courts
to make decisions based on a realistic totality of factors, of probation officers to
understand and monitor his living conditions, or of prison authorities to provide
psychotherapy, rehabilitation or other transition services.

11 (Doc. No. 51-1 at ¶ 477; see also Pet. Ex. 2 at 25.)
12

Predisposition to Mental Illness

13

Petitioner points to evidence of a family history of mental illness, criminal and violent

14 conduct and substance and sexual abuse. (Doc. No. 51-1 ¶¶ 447-448; Pet. Ex. 1 ¶ 11; Pet. Ex.
15 2 at 7, 39-41; Pet. Ex. 3 ¶¶ 19-21; Pet. Ex. 23 at SH001685, SH003450-53.) He observes
16 “schizophrenia, bipolar and suicidal depressive disorders, delusions” and “nervous
17 breakdowns” on his mother’s side. (Pet. Ex. 3 ¶ 21.)
18

Petitioner points to evidence that his great aunt was delusional, schizophrenic and

19 bipolar, and spent time in a mental institution. (Doc. No. 51-1, ¶ 485, citing Pet. Ex. 3 ¶¶ 1,
20 19-20.) Another aunt suffered paranoid schizophrenia. (Doc. No. 51-1 ¶ 488.) His
21 grandmother was institutionalized following a “nervous breakdown”, and another extended
22 relative once contemplated suicide. (Doc. No. 51-1 ¶ 486, citing Pet. Ex. 3 ¶¶ 1, 19-20.)
23 Petitioner alleges his father suffered unspecified mental disorders and obsessions and was
24 sadistic. (Id.; Pet. Ex. 6 ¶¶ 4-10.)
25

Physical and Sexual Abuse

26

Petitioner points to evidence of multigenerational physical and sexual abuse. (Doc. No.

27 51-1 ¶¶ 501-508; Pet. Ex. 23 at SH001636-84, SH001713-16.) He observes cruel and sexual
28
43

1 abuse by his father, Donald Dickey. (Id., citing Boyde, 404 F.3d at 1176) (trial counsel’s
2 failure in death case to present evidence of physical abuse and family history of sexual abuse
3 requires evidentiary hearing).) He observes evidence of multigenerational forcible rape and
4 incest including by his father whom he describes as a sexual predator. (See Pet. Ex. 1 ¶¶ 4-7;
5 Pet. Ex. 2 at 10-13, 21-23, 37, 40, 49, 58; Pet. Ex. 3 ¶ 12; Pet. Ex. 5 ¶¶ 5-6; Pet. Ex. 6 ¶¶ 4-5;
6 Pet. Ex. 7 ¶¶ 7, 14; Pet. Ex. 8 ¶¶ 6-7.) He points to evidence his father sexually molested and
7 assaulted relatives and his own daughter. (Pet. Ex. 2 at 49; Pet. Ex. 4 ¶ 5; Pet. Ex. 5 ¶¶ 5-6;
8 Pet. Ex. 15 at 91; Pet. Ex. 23 at SH000747-49, SH04459-61.) He notes his father’s 1979
9 conviction of molesting his daughter Melissa. (Pet. Ex. 23 at SH002709.) He points to
10 evidence his father enlisted him and his brothers in the molestation of his sister Melissa. (See
11 Pet. Ex. 5 ¶ 5.)
12

He points to evidence he and his cousins and possibly others became sexually active

13 with each other during their youth. (Pet. Ex. 2 at 22-24, 49, 56-60.)
14

He points to evidence his father and mother physically abused each other as well as

15 Petitioner and his siblings. (See Pet. Ex. 1 ¶ 4; Pet. Ex. 2 at 10-11, 22-26, 46-49, 59, 91, 98;
16 Pet. Ex. 4 ¶¶ 8, 10, 19; Pet. Ex. 5 ¶¶ 5-6; Pet. Ex. 7 ¶¶ 8-9, 19; Pet. Ex. 8 ¶ 4; Pet. Ex. 15 ¶ 7;
17 Pet. Ex. 17 ¶¶ 5-7.)
18

He points to evidence his mother had sex with another man in front of her children

19 including Petitioner. (Pet. Ex. 15 ¶ 7.)
20

He points to his own act of necrophilia at age seventeen which included sexual contact

21 with the corpse of a seven-year-old girl he took from a Reno, Nevada mortuary, for which he
22 received an adult conviction of second-degree burglary. (Pet. Ex. 2, at 26-27.)
23

Poverty and Neglect

24

Petitioner, born in 1964 in Tulare County, California, is one of four children of Linda

25 and Donald Dickey. (Pet. Ex. 23 at SH002709.) His parents divorced in 1979. (Id.)
26

Petitioner points his Dust Bowl heritage and history of multigenerational poverty.

27 (Pet. Ex. 2 at 23; id. at SH003282.)
28
44

1

Petitioner points to evidence that as a child he and his siblings experienced extreme

2 poverty and neglect. (Pet. Ex. 2 at 6-7, 17-18, 29-38; Pet. Ex. 4 ¶¶ 14-16; Pet. Ex. 5 ¶¶ 14-16;
3 Pet. Ex. 15 ¶ 7; Pet. Ex. 16 ¶ 2; Pet. Ex. 17 ¶ 10; Pet. Ex. 18 ¶ 3.) He and his siblings went to
4 grade school in tattered clothes, dirty and covered in bruises; the school provided food and
5 clothes to him and his family. (Doc. No. 51-1, ¶ 478, citing Pet. Ex. 16 ¶ 2.)
6

Petitioner and his siblings were teased about such things and viewed as the trash of the

7 town (id., ¶ 479, citing Pet. Ex. 17 ¶ 10), and as outsiders (id., ¶ 480, citing Pet. Ex. 18 ¶ 3).
8 His family was socially isolated, disliked, and deprived. (Id., ¶ 481-82, citing Pet. Ex. 4 ¶¶ 149 16; Pet. Ex. 5 ¶¶ 14-16; Pet. Ex. 2 at 141.)
10

In 1971, Petitioner and his siblings were subject of a petition for juvenile dependency

11 due to parental neglect. (Pet. Ex. 23 at SH000002-10.) This even though it was noted therein
12 the children did not appear malnourished, neglected or abused. (Id.) Petitioner suggests
13 conditions for him did not improve during times he was in institutional care as a youth and
14 adolescent. (Doc. No. 51-1, ¶ 477.)
15

Petitioner points to his parents’ 1979 divorce as evidence of parental dysfunction and

16 disinterest, as a result of which he was placed in the custody of his paternal grandparents. (Pet.
17 Ex. 23 at SH001283.)
18

Criminal Activity and Domestic Violence

19

Petitioner points to his family’s criminal history including his father’s repeated arrests

20 and absences from the home while in jail. (Pet. Ex. 2 at 8, 25, 34; Pet. Ex. 15 ¶ 7; Pet. Ex. 23
21 at SH003423-26.)
22

Petitioner points to evidence of multigenerational domestic violence. (Doc. No. 51-1 ¶

23 498; see also Pet. Ex. 3 ¶ 2.) He points to the noted violence within his family and that his
24 father beat his mother in front of Petitioner and his siblings and demanded she have sex with
25 other men while he watched (Pet. Ex. 23 at SH001260); and that his mother beat him and his
26 siblings. (Doc. No. 51-1 ¶ 500; see also Pet. Ex. 1 ¶¶ 18-22.)
27

Substance Abuse

28
45

1

Petitioner points to evidence of multigenerational alcohol abuse. (Pet. Ex. 2 at 30, 33.)

2 He points to evidence of alcoholism and drug abuse within his immediate family. (Doc. No.
3 51-1, ¶ 490; Pet. Ex. 2 at 8, 13; see also Pet. Ex. 3 ¶¶ 3, 5, 13, 18.) He points to his
4 predisposition for these conditions. (Doc. No. 51-1, ¶ 550, citing Pet. Ex. 2 at 152-53).
5

Particularly, he observes his father and mother used drugs and drank alcohol (Doc. No.

6 51-1, ¶¶ 491, 496, citing Pet. Ex. 3 ¶¶ 13-14); Pet. Ex. 4 ¶ 18; Pet. Ex. 8 ¶ 9) and that his
7 mother and aunt were drug dealers (Doc. No. 51-1, ¶¶ 492-93; Pet. Ex. 1 ¶¶ 13, 15, 17; Pet.
8 Ex. 2 at 24, 55; Pet. Ex. 4 ¶ 18.).
9

Petitioner suggests his predisposition to substance addiction manifested during his

10 youth and that he continued substance abuse to the time of the capital crime. (Doc. No. 51-1
11 ¶¶ 549-551; see also Pet. Ex. 2 at 152-53.) He points to evidence he and his siblings used
12 drugs and alcohol while growing up. (Doc. No. 51-1, ¶¶ 496-97, citing Pet. Ex. 5 ¶¶ 11, 16;
13 see also Pet. Ex. 2 at 78-79; Pet. Ex. 8 ¶¶ 9, 17.) Particularly, he points to his use of alcohol
14 and marijuana at age 14, progressing to use of LSD by age 16 and cocaine by age 22. (Doc.
15 No. 51-1, ¶¶ 524-526; see also Pet. Ex. 2 at 33, 47-48; People v. Lanphear II, 36 Cal. 3d 163,
16 168-169 (1984) (alcohol and drug use constitute mitigating evidence). He suggests such
17 substance abuse exacerbated his alleged brain and mental impairments. (Doc. No. 51-1 ¶¶
18 524-529; Pet. Ex. 2 at 29.)
19

Organic Brain and Mental Impairments

20

Petitioner argues his habeas mental health experts found evidence of frontal and left

21 lobe damage to his brain as well as mental impairments affecting his overall cognitive and
22 neurological functioning. (Doc. No. 51-1 ¶ 450.) Noting his adverse childhood experiences
23 and psychosocial stressors (see Pet. Ex. 2 at 181-87), he claims attention deficit and
24 hyperactivity disorder (“ADHD”) and a complicated and severe form of Post-Traumatic Stress
25 Disorder (“PTSD”). (Id.)
26

Petitioner supports the argument by pointing to evidence of depression, severe physical

27 and sexual trauma, alcohol and substance abuse, and nervous tic disorders developed during
28
46

1 childhood. (Doc. No. 51-1 ¶¶ 542-547; Pet. Ex. 2 at 27-30, 45, 50-51, 152-53; see id., Ex. H at
2 3-25; Pet. Ex. 19 ¶¶ 450, 509-516; Doc. No. 142 at 33, citing Pet. Ex. 4 ¶ 11.) He contends his
3 mother described him as a “disruptive and rebellious youngster that was causing control
4 problems both in the home and school setting.” (Pet. Ex. 23 at SH002333.) He points to
5 evidence that he struggled academically in high school, but graduated in 1983 placing 182 out
6 of 291 students, with an ending high school GPA of 2.37. (Pet. Ex. 23 at SH002270,
7 SH002344.)
8

Petitioner observes the findings of his noted habeas experts, neuropsychologist Dr.

9 Natasha Khazanov who evaluated him in 2005, and psychologist Dr. Barbara Counter who
10 evaluated him in 2007.
11

Dr. Khazanov measured Petitioner’s full-scale IQ at 109, but with some impairment in

12 memory, concentration and reading. (Pet. Ex. 2 at Ex. H at 4-6.)
13

Dr. Khazanov found that Petitioner demonstrated multiple indicia of brain damage and

14 impairment particularly in the frontal lobe suggesting impulse control and aggression issues.
15 (Doc. No. 142 at 106; see also Pet. Ex. 2 at 19-20, 31, 220-21; Pet. Ex. 2 at Ex. H at 7, 23-25.)
16 Dr. Khazanov opined that Petitioner suffered serious organic brain damage and underlying
17 mental impairments that left him unable to respond rationally to situations facing him,
18 especially so when combined with substance abuse. (Pet. Ex. 2 at Ex. H at 23.)
19

Particularly, Dr. Khazanov reported:

20
21
22
23

[P]ossible cognitive, psychiatric and behavioral deficits which could
significantly affect [Petitioner’s] capacity to accurately perceive, store, retain,
and relate critical information. The deficits suggested in these records
(primarily affecting the frontal lobes), especially in combination with other
conditions or impairments, would most likely render [Petitioner] severely
impaired in many areas of functioning.

24
25 (Pet. Ex. 2 at Ex. H at 2.)
26

Dr. Khazanov opined that at the time of the capital crime, Petitioner suffered “from the

27 cumulative effects of longstanding brain damage, childhood trauma, depression, chronic
28
47

1 substance abuse and dependence and post traumatic stress disorder. (Id. at 24.) She opined
2 that a competent neuropsychologist could have and should have presented such evidence as
3 part of the mitigating factors identified in [Penal Code section] 190.3.” (Id. at 25.)
4

Dr. Khazanov averred that decompensation from organic brain damage and mental

5 illnesses “contributed directly to [Petitioner’s] incompetency to proceed at the penalty phase of
6 the trial [and that Petitioner] was unable to assist his counsel in a rational manner in the
7 presentation and defense of the penalty phase of the trial” (id.), including as to the breakdown
8 in communication with Schultz and the waiver the presence in the courtroom (id.).
9

Finally, Dr. Khazanov faulted defense trial experts Drs. Hackett and Thompson for

10 failing to address the possibility of neuropsychological deficits despite the presence of risk
11 factors and motor tic symptoms noted in the habeas psychosocial history proffer. (Pet. Ex. 2 at
12 Ex. H at 9-12.) She discounted their opinions as uninformed by accurate data of Petitioner’s
13 emotional, cognitive and behavioral limitations, which she suggests implicates the possibility
14 of organic brain damage. (Id. at 10.)
15

Dr. Counter prepared a psychosocial history based upon her 2007 examination of

16 Petitioner. (Pet. Ex. 2.) Therein, Dr. Counter detailed Petitioner’s near life-long symptoms of
17 organic brain damage and dysfunction noted by Dr. Khazanov. (Doc. No. 51-1 ¶ 514; Pet. Ex.
18 2 at 26.) These symptoms included Petitioner’s obvious motor tic disorder which presented as
19 nervous facial twitches, rapid blinking, sniffing, repeated lip licking, snorting and “Ah”
20 sounds, as well as other odd, self-stimulatory behaviors, and possibly related adolescent
21 ADHD (Pet. Ex. 2 at 5, 9, 27-32) and PTSD (id., at 208). Relatedly, Dr. Counter noted
22 evidence that during his teens, Petitioner was described as anxious and jittery, moving
23 continuously. (Id., at 31; see also Pet. Ex. 2 at 211-14.) The record includes habeas
24 declarations from family members and acquaintances who observed Petitioner’s nervous tic.
25 (See Pet. Ex. 4 ¶ 11; Pet. Ex. 8 ¶ 12; Pet. Ex. 16 ¶ 5.)
26

Dr. Counter included in her social history the above opinions of Dr. Khazanov. (Pet.

27 Ex. 2 and Ex. H thereto.)
28
48

1

Dr. Counter also included reference to Petitioner’s 1981 examination by court

2 appointed psychiatrist, Dr. William Terry, during proceedings in Nevada on the burglary
3 charge. (Pet. Ex. 2 at 87-89.) Dr. Terry felt Petitioner was in need of some kind of psychiatric
4 attention. (Pet. Ex. 23 at SH000191.) Dr. Terry concluded that Petitioner’s previous history
5 was “compatible with a diagnosis of attention deficit disorder with hyperactivity and a
6 continual depressive state which is often found in adolescents who previously have met the
7 criteria for being hyperactive[.]” (Pet. Ex. 2 at 89; Pet. Ex. 23 SH002284.)
8

Criminal and Institutional History

9

Petitioner suggests mitigation value from noted evidence of: (i) his juvenile

10 adjudication relating to the multi-year molestation of his younger sister, (Pet. Ex. 23 at
11 SH000013-85), and (ii) his adult conviction for theft and sexual abuse of the corpse of a seven12 year-old girl (Pet. Ex. 23 SH000086-00543). (See Doc. No. 51-1 ¶¶ 443-444.)
13

Incarceration and Attempts to Reform

14

Petitioner argues mitigating aspects of his incarceration in Nevada and California

15 pending the capital trial. As to the former, he points to evidence of the harsh effects of
16 imprisonment. (Pet. Ex. 2 at 172-79.) As to the latter, he points to evidence of his
17 detoxification from cocaine and religious conversion while in jail awaiting trial, including
18 work with a pastor at the jail. (Doc. No. 51-1 ¶ 530; see also Pet. Ex. 2 at 5, 23, 34.)
19

(3)

20

Petitioner argues prejudice from Schultz’s alleged deficiencies because the jury would

Petitioner Has Not Shown Prejudice

21 have seen from his unpresented proffered evidence the mitigating effects of his extreme mental
22 or emotional disturbance and impairment by mental disease, defect and intoxication. (See Doc.
23 No. 142 at 125-26, citing Penal Code section 190.2(d), (h), (k); see also RT 5135-36; Pet. Ex. 2
24 at 19.) He argues that jury would have seen that he was depressed and had thoughts of hurting
25 himself on the day of his act of necrophilia. (See Pet. Ex. 2 at 28.)
26

Petitioner supports these arguments by pointing out that even without presentation of

27 mitigating evidence, the jury found the sentencing determination to be a close call. The jury
28
49

1 deliberated five hours over two days during the course of which they submitted questions to the
2 trial court and had testimony re-read. (CT 477-480.) He suggests this shows and that “at least
3 one juror would have struck a different balance between life and death” had the mitigating
4 proffer evidence been presented. (Doc. No. 142 at 131, citing Wiggins, 539 U.S. at 537.)
5

However, the state supreme court reasonably could find the totality of the mitigation

6 evidence to be insubstantial and outweighed by the aggravating and rebuttal evidence in the
7 record, such that there does not remain a reasonable probability of a different outcome. (Doc.
8 No. 142 at 131, citing Porter, 558 U.S. at 44 (quoting Strickland, 466 U.S. at 693–94); see also
9 Apelt, 878 F.3d at 815-16 (denying habeas relief even though trial counsel failed to uncover
10 mitigating evidence that the defendant grew up very poor, had an alcoholic and violent father
11 who beat his children with an iron rod, was raped twice as a child, and suffered from mental
12 illness); Cain v. Chappell, 870 F.3d 1003, 1021 (9th Cir. 2017) (denying habeas relief despite
13 new mitigating evidence that the defendant was severely beaten and punished by his
14 stepmother, had an untreated childhood head injury, and had learning disabilities).
15

Only when “the likelihood of a different result [is] substantial, not just conceivable,”

16 has the petitioner met Strickland’s demand that defense errors were “so serious as to deprive
17 [him] of a fair trial.” Id. at 104 (quoting Strickland, 466 U.S. at 687). The state supreme court
18 reasonably could find Petitioner did not carry this burden, as follows.
19

Aggravating and Rebuttal Evidence was Substantial

20

The circumstances surrounding Petitioner’s participation the capital crimes, that he

21 aided and abetted the killings with an intent to kill, suggest substantial aggravating weight.
22 (See Doc. No. 135.) As this Court previously observed:
23
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27
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Buchanan testified that on the night of the murders he overheard RC and
petitioner whispering about going to get money from some place, a task for
which they armed themselves even though the victims were old and infirmed.
(RT 4138-42, 4239-42, 4662-63, 4733.) At that time neither RC nor petitioner
had any money. (RT 4348-52.) Goldman and Buchanan observed RC and
petitioner preparing for the crimes. Goldman (RT 4534) and Buchanan (RT
4663-65) saw petitioner take the venetian blind from the closet to the bedroom
where RC was waiting (RT 4534, 4663-65); petitioner returned the blind to the
closet after the cord was removed. (RT 4534-37, 4666.) Petitioner’s fingerprint
50

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was found on the blind from which cord used in the crimes was removed. (RT
4573.)
Buchanan saw a knife on the bed in the bedroom just before RC and petitioner
left the apartment. (RT 4706-07.) Buchanan saw RC and petitioner leave the
apartment together that night. (RT 4674-75.) Goldman identified a knife at the
murder scene as identical to one in the apartment kitchen; (RT 4396-97); she
had seen petitioner looking through the kitchen drawer where the knife was
kept. (RT 4343-44.) Both Buchanan and Goldman testified that petitioner and
RC returned to the apartment together about two hours later (RT 4337-49, 466276), with $700 they did not have earlier that evening (RT 4361, 4675-76), and
spent some of this money on drugs. (RT 4348, 4352, 4675-77.) Buchanan
testified that while driving RC to the Easy 8 Motel hours after the crimes,
petitioner disposed of clothing, apparently evidence from the murders. (RT
4684-85.)
Furthermore, Buchanan (RT 4980) and Goldman (RT 4357-62) testified to
petitioner’s admission that he participated in the crimes with RC.
[…]

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A reasonable juror could have concluded weapons were unnecessary in the
absence of intent to kill. Victim Caton was in her seventies; victim Freiri was
partially paralyzed, wore a leg brace and used a cane to get around. (RT 413842, 4239-42.) Both victims presumably knew the perpetrators and could have
identified them to the authorities. During the crimes, RC assaulted Mr. Freiri
leaving him apparently dead (RT 4691) and then “went berserk” and assaulted
Ms. Caton. (RT 4360-61.)
The evidentiary record otherwise could reasonably support a plan to kill the
victims. The murders appear callous and brutal and were committed with the
cord and knife brought to the crime scene by petitioner and RC. (See e.g.,
SSHCP, Ex.’s 9-11.) The lack of proximity between the victims could
reasonably suggest some significant amount of time and cooperation between
perpetrators was involved. There is no suggestion in the record that petitioner
tried to intervene in the assaults or aid the victims; for example Goldman
testified that petitioner did nothing as RC assaulted his grandmother. (RT 435961.)
Additionally, the record suggests that RC may have been in contact with
petitioner after RC left the Harvard Avenue apartment following the crimes;
possibly suggesting the two were involved in the murders. (RT 4841-43.) After
the crimes, petitioner was initially emotional and depressed about his confessed
involvement, but petitioner’s mood improved when he learned all of the victims
and RC were dead. (RT 4378.) Even so, petitioner apparently threatened
Goldman should she reveal his admitted role in the crimes. (RT 4375-77, 4616.)

25 (Doc. No. 135 at 197-99 [regarding guilt claim XXVI].)
26

The noted character rebuttal evidence that Petitioner molested his younger sister over a

27 period of years and engaged in sexual activity with the corpse of a young girl reasonably
28
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1 suggests substantial aggravating weight, as Petitioner and Schultz both recognized. (See Pet.
2 Ex. 12 ¶ 13; Pet. Ex. 23 at SH002091-94.) Moreover, the habeas proffer includes evidence
3 Petitioner threatened his little sister Melissa, whom he molested for a number of years, with
4 violence if she refused intercourse with him. (Pet. Ex. 2 at 65.)
5

Total Mitigating Evidence was Insubstantial

6

Schultz argued lingering doubt to the penalty phase jury based on guilt phase defenses

7 raised and rejected. (See Doc. No. 135.) The state supreme court reasonably could find
8 minimal mitigating value in the lingering doubt defense.
9

The social history proffer provides context to Petitioner’s difficult circumstances at the

10 time of the crime, but these circumstances were largely known to the jury. The jury heard
11 evidence that Petitioner was unemployed and lacked funds and regularly used drugs around the
12 time of the capital crime. Petitioner testified at the guilt phase to his use of cocaine during the
13 summer of 1988. (RT 4901-07; see also Pet. Ex. 2 at 29.) The jury was also aware of
14 testimony that no one in the Harvard Avenue apartment had money to buy drugs at the time of
15 the crime; that the crime was committed to get money to buy drugs. (See RT 4675-76; CT 1916 24; see also RT February 21, 1992 at 19-20; see Doc. No. 135 at 90; RT 4875.)
17

The social history proffer also is equivocal. Noted evidence of Petitioner’s abused and

18 dysfunctional upbringing appears countered by his mother’s proposed testimony that he “had
19 no physical problems at birth . . . was a healthy child while growing up and did not suffer any
20 unusual diseases or medical problems.” (Pet. Ex. 15 ¶ 7.) Petitioner’s claimed efforts are
21 reform appear diminished by evidence he showed no remorse for the capital crimes. (See e.g.,
22 RT 5488.)
23

The mental state proffer appears subject to discount and lacks mitigating weight. This

24 Court, in its order denying guilt phase claims, observed that:
25
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28

In 2005, defense habeas expert, clinical psychologist Dr. Natasha Khazanov
examined petitioner over two days looking for brain damage and cognitive
impairment. (SSHCP, Ex. 2 at 265.) Dr. Khazanov determined that petitioner
had an IQ in the average range and exhibited multiple indicia of serious organic
brain damage and impairment exacerbated by substance abuse disorder,
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affecting his ability to plan and rationally respond to his environment and
function in everyday life (id. at 287-89). Dr. Khazanov suggests the damage to
petitioner’s brain was present at the time of his trial as was the need for a
neurological assessment. (Id.) She suggests the neurological evidence would
have been mitigating at petitioner’s penalty phase. (Id.)
Dr. Khazanov faults trial experts, Drs. Hackett and Thompson for not
addressing the possibility of neuropsychological defenses including frontal lobe
deficits. (Id. at 273-74.) Especially so given then existing multiple risk factors
of brain damage including childhood trauma and post-traumatic stress disorder
(“PTSD”), hyperactivity and probable attention deficient and hyperactivity
disorder (“ADHD”), chronic motor tic disorder, a predisposition to
polysubstance abuse, depression, and related clinical symptoms in petitioner’s
social history. (Id. at 265-89.) She stated that these mental conditions impaired
petitioner’s ability to perceive, plan and make decisions and control impulses.
(Id.)

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In 2007, defense habeas expert, Dr. Barbara Counter, a clinical and forensic
psychologist, reviewed petitioner’s social history documents and interviewed
him in prison for about 8 hours. She provided habeas counsel with a
psychosocial history that found indicia of childhood ADHD, chronic motor tic
disorder, depression, and post-traumatic stress disorder. (See SSHCP, Ex. 2 at
27-28.) Dr. Counter’s report chronicles petitioner’s family history of mental
illness, abuse (drug, alcohol, physical and sexual), domestic violence and crime.
(Id. at 14-20.) She notes petitioner’s prior felony conviction in Nevada
involving apparent necrophilia during the course of which petitioner received a
psychiatric evaluation by Dr. William Terry, who found petitioner’s history to
be compatible with a diagnosis of ADHD and depression (id. at 23-24, 94-98)
and recommended psychiatric treatment of petitioner’s difficulties relating to
other people.
However, the state supreme court reasonably could have found the habeas
proffer insufficient to suggest Schultz was prejudicially deficient in
investigating and presenting social and mental state history and defense
information. The record could reasonably suggest that petitioner then functioned
at a level inconsistent with a significant mental state deficit or impairment.
Petitioner graduated from high school in June of 1983 (id. at 102),
approximately 5 years prior to the instant crimes. Later, while incarcerated in
Nevada for the noted prior felony, he received certificates for education courses
taken while in prison. (Id. at 108.) Several months before the instant crimes, he
graduated from truck driving school at the top of his class. (Id. at 110.)
Petitioner worked as a roofer and at an auto parts store just prior to his arrest for
the instant crimes. (Id. at 112.)
Notably, the habeas experts examined petitioner 17 or more years after the
instant crimes. The state supreme court reasonably could have found the habeas
experts’ conclusions as to petitioner’s mental state at the time of the crime to be
speculative. Especially so given the contrary conclusions reached by experts
examining petitioner more proximal to his trial. In this regard, the state supreme
court presumptively considered a 1992 examination of petitioner by prison
psychologist M. Lyons, who found “no signs or symptoms of psychosis,
organicity or serious psychological impairment in social functioning.” (Id. at
135.) Around that time petitioner also was examined by prison psychiatrist Dr.
John Geiger, who also found “no mental disorder ... or condition of functioning
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which would indicate additional psychiatric concern.” (Id. at 136.)
Petitioner does not demonstrate that any of the defense mental health
professionals who evaluated petitioner prior to trial requested or required then
existing information that was not provided to them by the defense team.
Furthermore, the state supreme court reasonably could have rejected petitioner’s
argument that Schultz was or should have been on notice of the need to further
investigate petitioner’s mental state defenses. Petitioner bases this argument on
his habeas experts’ suggestion that the need for such further investigation would
have been evident to mental health professionals at the time of trial. But
disagreement among experts is not alone a basis to find Schultz deficient. See
e.g., Toler v. Troutt, 2015 WL 1408490, at *9 (W.D. Okla., Feb. 20, 2015)
(medical difference of opinion not actionable under the Eighth Amendment).
Additionally, the state supreme court could reasonably have found that the
primary defense theory, that petitioner was not present during or involved in the
crimes, would not have been advanced by further investigation and
consideration of matters relating to petitioner’s social and mental history. (See
claim XXVI, XXVIII.) Petitioner has not otherwise shown facts and
circumstances surrounding the crimes reasonably placed Schultz on notice of
any need for further social history and mental state defense investigation.
Accordingly, a fair-minded jurist could have found that petitioner failed to
overcome the strong presumption that Schultz made decisions relating to
investigation and presentation of petitioner’s social history and mental state in
the exercise of professional judgment. Strickland, 466 U.S. at 690; see also
United States v. Farr, 297 F.3d 651, 658 (7th Cir. 2002) (counsel “is not
obligated to ... personally investigate every conceivable lead”); Morris v. State
of California, 966 F.2d 448, 456 (9th Cir. 1991) (a defendant seeking to prove
ineffective assistance of counsel “must overcome the presumption that, under
the circumstances, the challenged action might be considered sound trial
strategy). “The mere criticism of trial tactics is insufficient to establish
ineffectiveness or prejudice.” Ferreira-Alameda, 815 F.2d at 1254. Here,
counsel’s noted primary defense theory could be seen as reasonably furthered
by the guilt phase investigation and presentation.
(Doc. No. 135 at 47-48.)

19 (Doc. No. 135 at 46-48; see also Pet. Ex 2 at 19-27, 77-79, 201-02.)
20

Petitioner, in arguing the penalty phase claims has not demonstrated otherwise. See

21 Boyde, 404 F.3d at 1168-69 (holding that if new mental health evidence, obtained after the
22 trial, were sufficient to establish a petitioner’s innocence, the petitioner could “always provide
23 a showing of factual innocence by hiring psychiatric experts who would reach a favorable
24 conclusion.”).
25

Defense expert evaluation of Petitioner at the time of the new trial motion is in material

26 part consistent with the opinions of the defense trial experts (see e.g., Doc. No. 135 at 45) and
27 Petitioner’s demeanor at trial. Counsel on the motion for new trial, Ms. Hart, retained
28
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1 psychiatrist Dr. Callahan to examine Petitioner with a view toward evidence that might have
2 been presented in mitigation at the penalty phase in support of sentencing factor “k”. (RT
3 5463.)
4

Dr. Callahan examined Petitioner during the summer of 1991, several months after the

5 jury’s death verdict. (RT 5461.) Dr. Callahan found mitigating evidence in the form of
6 Petitioner’s chaotic upbringing by unstable, abusive parents who engaged in degenerate and
7 criminal behavior (RT 5471); a home life where Petitioner was surrounded by and engaged in
8 sexual psychopathy (RT 5475-78); and Petitioner’s history of alcohol and substance abuse (RT
9 5478). Dr. Callahan found Petitioner’s act of necrophilia demonstrative of “significant
10 psychopathology.” (RT 5481.)
11

Even so, Dr. Callahan found no evidence Petitioner suffered from a thought disorder.

12 (RT 5486.) He found no mental disease of defect other than Petitioner’s sexual
13 preoccupations. (Id.) He found Petitioner with only a passive inadequate personality. (RT
14 5483.) He found Petitioner not to show remorse for the capital crime, but rather to deny
15 involvement in the crime. (RT 5488.)
16

The state supreme court reasonably could discount the habeas proffered evidence that

17 Petitioner was mentally impaired or altered by substance abuse at the time of the crimes.
18 Petitioner has not pointed to evidence of such in the trial record. See Martinez v. Ryan, 926 F.
19 3d 1215, 1234 (9th Cir. 2019) (“a sentencing court may not treat mitigating evidence of a
20 defendant's background or character as irrelevant or non-mitigating as a matter of law just
21 because it lacks a causal connection to the crime [citations]. The sentencer may, however,
22 consider causal nexus ... as a factor in determining the weight or significance of mitigating
23 evidence.”); see also Hedlund v. Ryan, 854 F.3d 557, 587 n.23 (9th Cir. 2017) (stating that,
24 under Eddings, “a court is free to assign less weight to mitigating factors that did not influence
25 a defendant’s conduct at the time of the crime”).
26

It follows that the state supreme court reasonably could find Petitioner’s proffer to be

27 only minimally probative of mitigating circumstances that he may have acted under extreme
28
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1 mental or emotional disturbance, or was impaired by mental disease or defect, or presents a
2 sympathetic character. The jury was instructed in these regards and considered the
3 prosecutor’s argument at closing which noted the absence of such evidence. (Doc. No. 51-1,
4 n.37, n.38, citing RT 5135-36.)
5

The California Supreme Court has acknowledged Supreme Court authority that the

6 “high requirement of reliability” required in capital sentencing “is attained when the
7 prosecution has discharged its burden of proof at the guilt and penalty phases pursuant to the
8 rules of evidence and within the guidelines of a constitutional death penalty statute, the death
9 verdict has been returned under proper instructions and procedures, and the trier of the penalty
10 has duly considered the relevant mitigating evidence, if any, which the defendant has chosen to
11 present. A judgment of death entered in conformity with these rigorous standards does not
12 violate the Eighth Amendment reliability requirements.” People v. Bloom, 48 Cal. 3d 1194,
13 1228 (1989).
14

Accordingly, the state supreme court reasonably could find the aggravating

15 circumstances of the capital crime and special circumstances found true and the noted rebuttal
16 evidence substantially outweigh the totality of the mitigating evidence. Especially so given the
17 primary defense theory that Petitioner played a passive aider and abettor role in a crime meant
18 to gain money for drugs, the lingering doubt value of which might be discounted by a
19 mitigation defense that included details of his prior criminal acts and a post hac mental state
20 defense.
21

iii.

22

A fair-minded jurist could find that Petitioner failed to establish counsel’s performance

Conclusions

23 fell below an objective standard of reasonableness and that absent counsel’s alleged
24 deficiencies, there remains a reasonable probability of a different outcome. Strickland, 466
25 U.S. at 694.
26

The California Supreme Court’s rejection of these claims on the merits was neither

27 contrary to, nor an unreasonable application of Strickland, nor based upon an unreasonable
28
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1 determination of the facts in light of the evidence presented in the state court proceeding. 28
2 U.S.C. § 2254(d).
3

Claims III(C-E) shall be denied.

4

3.

5

Petitioner alleges counsel Schultz was ineffective by failing to disclose the complete

Claim II(I)

6 breakdown of the attorney-client relationship, declare an irreconcilable conflict, request a
7 hearing pursuant to People v. Marsden, 2 Cal. 3d. 118 (1970), and move to withdraw, violating
8 his rights under the Fifth, Sixth, Eighth and Fourteenth Amendments. (Doc. No. 51-1 ¶¶ 2089 214, 342-64.)
10

a.

11

It is clearly established that the right to the assistance of counsel, as guaranteed by the

Supplemental Legal Standards

12 Sixth Amendment of the United States Constitution entitles a defendant to representation that
13 is free from conflicts. Wood v. Georgia, 450 U.S. 261, 271 (1981).
14

A breakdown in the attorney-client relationship can result in a denial of the right to

15 effective assistance of counsel. Frazer v. United States, 18 F.3d 778, 782-83, 785 (9th Cir.
16 1994); see also Brown v. Craven, 424 F.2d. 1166, 1169-70 (9th Cir. 1970) (trial court’s failure
17 to conduct inquiry into irreconcilable conflict arising from the client’s refusal to communicate
18 or cooperate with counsel resulted in denial of effective assistance of counsel); Schell v. Witek,
19 218 F.3d 1017, 1025, (9th Cir. 2000) (citing Smith v. Lockhart, 923 F.2d 1314, 1320 (8th Cir.
20 1991)) (the overarching constitutional question is whether the attorney-client conflict has
21 become so great that “[i]t resulted in a total lack of communication or other significant
22 impediment that resulted in turn in an attorney-client relationship that fell short of that required
23 by the Sixth Amendment.”).
24

In order to establish a violation of the Sixth Amendment, a defendant who raised no

25 objection at trial must demonstrate that an actual conflict of interest adversely affected his
26 lawyer’s performance. Cuyler v. Sullivan, 446 U.S. 335, 348 (1980). The Supreme Court has
27 defined an “actual conflict” by the effect a potential conflict had on counsel’s performance.
28
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1 Houston v. Schomig, 533 F.3d 1076, 1081 (9th Cir. 2008) (citing Mickens v. Taylor, 535 U.S.
2 162, 171 (2002)).
3

Prejudice may be presumed in cases where a “serious conflict” between defendant and

4 counsel gives rise to constructive denial of counsel. Perry v. Leeke, 488 U.S. 272, 278-79
5 (1989); see also Schell, 218 F.3d 1027 (“In the event that the trial court determines that a
6 serious conflict did exist that resulted in the constructive denial of assistance of counsel, no
7 further showing of prejudice is required; and Schell's trial shall be presumed to have been
8 unfair.”); see also Strickland, 466 U.S. at 692 (“Actual or constructive denial of the assistance
9 of counsel altogether is legally presumed to result in prejudice.”).
10

A lawyer’s violation of ethical norms does not make the lawyer per se ineffective. Burt

11 v. Titlow, 571 U.S. 12, 18 (2013).
12

b.

13

Petitioner presented claim II and all its subclaims in the second state exhaustion petition

State Court Direct and Collateral Review

14 (see Lod. Doc. No. 30 at 105-99) and it was summarily denied on the merits (Lod. Doc. No.
15 31, Order Denying Cal. Pet., In re Colin Raker Dickey, No. S165302 (May 29, 2012)).
16

Relatedly, Petitioner’s claim the trial court erred by not holding a Marsden hearing was

17 considered and denied on the merits on direct appeal. Dickey, 35 Cal. 4th at 917-22.
18

c.

Analysis

19

i.

Deficient Performance

20

Petitioner argues Schultz was deficient by failing to disclose to the trial court that a

21 post-guilt phase breakdown in his relationship with Petitioner was so serious that it prevented
22 effective assistance of counsel, and by failing to withdraw as counsel. Petitioner supports the
23 argument by observing that he was dissatisfied with Schultz’s incompetent performance at the
24 guilt phase and that following the guilt phase verdict there was a complete breakdown of the
25 attorney-client relationship resulting in no communication between the two. (Doc. No. 51-1 ¶¶
26 343-345.)
27

Petitioner argues these impediments, combined with Schultz’s lack of preparation for

28
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1 the penalty phase resulted in constructive denial of assistance of counsel at the penalty phase.7
2 See Daniels, 428 F.3d at 1201 (irreconcilable conflict found where distrust resulted in complete
3 breakdown in communication between counsel and client).
Petitioner argues the irreconcilable conflict was apparent in: (i) Schultz’s actions at an

4

5 in limine hearing just prior to the penalty trial, where Schultz incorrectly characterized
6 Petitioner’s Marsden request as a matter to be raised in a subsequent new trial motion; (ii)
7 Schultz’s failure to advise Petitioner on the latter’s request not to be personally present at the
8 penalty trial; and (iii) Schultz’s failure to present any mitigating evidence at the penalty trial.
9 (Doc. No. 51-1 ¶ 346; see also RT 5045-49; Pet. Ex. 12 ¶ 12.)
10

The California Supreme Court on direct appeal denied claimed Marsden error by the

11 trial court, stating that:
12
In [People v.] Marsden [(1970) 2 Cal. 3d 118], we said: [A] judge who denies a
motion for substitution of attorneys solely on the basis of his courtroom
observations, despite a defendant's offer to relate specific instances of
misconduct, abuses the exercise of his discretion to determine the competency
of the attorney. A judicial decision made without giving a party an opportunity
to present argument or evidence in support of his contention is lacking in all the
attributes of a judicial determination. (Spector v. Superior Court (1961) 55 Cal.
2d 839, 843 [13 Cal.Rptr. 189, 361 P.2d 909].) (Marsden, supra, 2 Cal. 3d at p.
124 [84 Cal.Rptr. 156, 465 P.2d 44].)” (People v. Jones (2003) 29 Cal. 4th
1229, 1244, 131 Cal.Rptr.2d 468, 64 P.3d 762.)

13
14
15
16
17
18

A defendant is entitled to have appointed counsel discharged upon a showing
that counsel is not providing adequate representation or that counsel and
defendant have become embroiled in such an irreconcilable conflict that
ineffective representation is likely to result. (People v. Earp (1999) 20 Cal. 4th
826, 876 [85 Cal.Rptr.2d 857, 978 P.2d 15] (Earp ); People v. Memro (1995) 11
Cal. 4th 786, 857 [47 Cal.Rptr.2d 219, 905 P.2d 1305] (Memro ).) (People v.
Jones, supra, 29 Cal. 4th at pp. 1244–1245, 131 Cal.Rptr.2d 468, 64 P.3d 762.)

19
20
21
22

Defendant contends that, following the guilt phase of the trial, he sought to
make a motion for the appointment of different counsel to assist him in the
penalty phase, and the court, without conducting the hearing required by
Marsden, prejudicially erred by declining to rule on his motion until the penalty
phase was concluded.

23
24
25

The Attorney General responds that defendant was not making a motion for the
appointment of substitute counsel to represent him in the penalty phase. Rather,
the Attorney General contends, defendant moved for the appointment of

26
27
7

Petitioner’s claim Schultz’s lack of preparation for the penalty phase denied him counsel fails for reasons stated

28 above in claims III(C-E).

59

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separate counsel for the purposes of preparing a motion for a new trial based
on, among other grounds, incompetence of counsel during the guilt phase. Once
the court ascertained that defendant was seeking the appointment of separate
counsel to prepare a new trial motion, the Attorney General argues, the court
properly declined to rule on it until the trial was over, at which time separate
counsel for that purpose was appointed.
While the matter is not entirely free from doubt, doubt engendered largely by
the court's confused and confusing references to Marsden, we agree with the
Attorney General's characterization of defendant's motion.
Defendant's trial counsel, Marvin F. Schultz, clearly framed the matter as, not a
motion for substitute counsel to represent defendant in the penalty phase, but
rather as a motion for the appointment of separate counsel to represent
defendant in the preparation of a motion for a new trial, which motion, counsel
said, was likely to include, among other grounds, allegations *** that he acted
incompetently in the guilt phase. The disagreements between defendant and
himself, counsel said, regarded “trial tactic decisions that were made on
witnesses who were called and not called and the way some things were
presented.” The idea for the appointment of separate counsel for this limited
purpose, according to counsel, was his, not defendant's.12

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----------------------------------------FOOTNOTE--------------------n.12 “MR. SCHULTZ: I have explained to Mr. Dickey the ground—the types of
things that could be presented to the Court as part of a motion for a new trial
when the time is appropriate for that motion, and that there are some
disagreements between Mr. Dickey and I as to some trial tactic decisions that
were made on witnesses who were called and not called and the way some
things in the case were presented.
In terms of including in a motion for new trial any issues of incompetency of
counsel I advised Mr. Dickey that, obviously, I think my decisions were correct.
And I understand why he would disagree with that. But in terms of being able to
present that issue as a motion for a new trial, it was my advice to Mr. Dickey
that the request should be made to the Court for an attorney to—a separate
attorney to review the record, considering we do have an existing transcript that
somebody can review at this point, and determine whether or not he can consult
with that attorney on the issues that he disagreed with me on, to determine
whether or not there was a legitimate basis or any basis for making a motion for
new trial based on incompetence of counsel.
And I was concerned when Mr. Dickey presented the request to the Court that it
would include conversations that we had discussing the trial tactics and
witnesses and things might come up. And I thought it was—it's not really a pure
Marsden hearing, but there are obviously disagreements as to tactics. And I
think the only way that I can think of to resolve that issue was to have Mr.
Dickey request of the Court that the transcripts be reviewed by a separate
attorney to determine whether or not there's basis for the motion for new trial on
the incompetency issue.” (Italics added.)

27
28

------------------------------------END FOOTNOTE-----------------60

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The court asked defense counsel when defendant wished the matter to be heard.
Counsel responded, “Well, my understanding procedurally is that the motion for
new trial would have to wait until after the penalty phase.” The court replied,
“That was my thinking.”
The court then addressed defendant. It referred to Marsden, and it stated,
incorrectly, that Marsden hearings are not to be conducted “in the middle of a
trial.” (Cf. Memro, supra, 11 Cal. 4th at p. 856, 47 Cal.Rptr.2d 219, 905 P.2d
1305 [the defendant made several Marsden motions, including one just before
the penalty trial began].) However, the court added, “I'll hear whatever you have
to say. I may have to tell you at the end of the statement that this is not the time
to get into that, but I don't know until I hear you out.”13 The following colloquy
ensued.
----------------------------------------FOOTNOTE--------------------n.13 “THE COURT: Mr. Dickey, we don't constantly have Marsden hearings
during the course of a trial. We normally will hear a Marsden motion preceding
the trial if the issue arises. And the trial is had, and if there's a subsequent—not
a Marsden motion—well, you could have a Marsden motion before sentencing
if—once we get to that stage. But we don't do it in the middle of a trial. And we
still are—we're not through with your case, we still have the second part, the
penalty phase, to get out of the way, if we get to that. I've been advised there are
some motions counsel want[s] to make before we get to the penalty phase. So
I'll have to hear them out and determine whether or not this is a case where we
are going to get to the penalty phase.
“I'll hear whatever you have to say. I may have to tell you at the
end of the statement that this is not the time to get into that, but I
don't know until I hear you out.”

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

------------------------------------END FOOTNOTE-----------------“THE DEFENDANT: Well, if this is not the time then this is not the time.
“THE COURT: I can't tell. See, you apparently want to make some statements
concerning what you believe to be—I don't know, unwise choice[s] on the part
of Mr. Schultz concerning calling witnesses, questions asked of them. I don't
know what you're getting to. That would be the sort of thing we'd want to hear
after the trial is over with, and before sentencing.
“THE DEFENDANT: Yes, I'm not satisfied with the competency of my
attorney. There are witnesses that are—that were available that [were] not called
that I feel [were] crucial to my defense, and issues that were not raised that I
feel [were] crucial, and questions that [were] not asked of me while I was on the
stand that should have been raised.
“THE COURT: That sounds like the sort of thing that you'd want to raise
after—before sentencing rather than at this time.
“THE DEFENDANT: Okay, I'll leave that to your discretion, you know.
“THE COURT: From what you've just stated, that seems like the sort of thing
you'd want to discuss then.
“THE DEFENDANT: There's other issues of motions for new trial other than
that. But I don't believe this is the appropriate time.
61

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12
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14
15
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19

“THE COURT: Once we get to the end of the trial, a transcript will be provided
to another attorney, to review the case and determine whether or not he feels
there's grounds for new trial based on incompetency of counsel. We have to be
through with the trial.
“THE DEFENDANT: Yes.” (Italics added.)
The court did appoint separate counsel, Katherine Hart, to assist defendant in
the preparation of a motion for a new trial. Ms. Hart's new trial motion, which
was heard following the penalty phase of the trial, was based on the grounds,
among others, that (1) defendant's trial counsel, Mr. Schultz, was ineffective in
the guilt phase, and (2) the court erred in failing to conduct a Marsden hearing
following the guilt phase.
The new trial motion was denied. As to defendant's Marsden claim, the court
said, “I think at the time you were arguing this, that in my view there was a poor
choice of words on the Court's part. I know Mr. Schultz let me know that it was
not strictly a Marsden motion, and then I started to talking about a Marsden
motion. And I do, of course, know the law, that you can have a Marsden motion
at any stage of the proceedings. [¶] Mr. Dickey was not asking that the Court
have that Marsden hearing. He, of course, was dissatisfied with the results after
the jury returned the verdict of guilty and found the special circumstances to be
true. [¶] So I do find that [the prosecutor] is absolutely correct, it was a poor
choice of words on the Court's part, and there was no reason to have a Marsden
hearing at the time. It was not asked for.”
We conclude the court did not commit Marsden error. Although no formal
motion is necessary, there must be “at least some clear indication by defendant
that he wants a substitute attorney. (People v. Mendoza (2000) 24 Cal. 4th 130,
157 [99 Cal.Rptr.2d 485, 6 P.3d 150], quoting People v. Lucky (1988) 45 Cal.
3d 259, 281, fn. 8 [247 Cal.Rptr. 1, 753 P.2d 1052].) (People v. Valdez (2004)
32 Cal. 4th 73, 97, 8 Cal.Rptr.3d 271, 82 P.3d 296.) Defendant did not clearly
indicate he wanted substitute counsel appointed for the penalty phase. To the
extent he made his wishes known, he wanted to use counsel's assertedly
incompetent performance in the guilt phase as one of the bases of a motion for
new trial, and he wanted to have separate counsel appointed to represent him in
the preparation of such a motion. As his expressed wishes were honored, he has
no grounds for complaint now.14

20

----------------------------------------FOOTNOTE---------------------

21

n.14 Defendant contends his comments the following day, when he stated he did
not wish to be present in the courtroom during the penalty phase, manifested an
irreconcilable conflict with counsel. We disagree. Defendant's remarks
suggested he had lost confidence, not in counsel, but in the jury. “I would just as
soon that the defense not even say nothing, just rest. I don't intend to plead
nothing to the jury. I'd just as soon sit in the cell. I have no intentions or desire
to try to have any sympathy or pity from the jury that convicted me of these
crimes. I don't intend to be present, neither; I don't wish to be.”

22
23
24
25
26

------------------------------------END FOOTNOTE------------------

27
28

Moreover, it is clear a Marsden motion would have been baseless.
62

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3
4

Again, in his colloquy with the court at the time he made the motion, defendant
stated, “There are witnesses that are—that were available that [were] not called
that I feel [were] crucial to my defense, and issues that were not raised that I
feel [were] crucial, and questions that [were] not asked of me while I was on the
stand that should have been raised.”

11

The one point in Ms. Hart's new trial motion that appears relevant to these
complaints is her claim that Mr. Schultz failed to accede to defendant's request
that he present a defense of “third-party culpability,” i.e., that Gene Buchanan
was “the real perpetrator.”15 Buchanan disappeared right after the crime, and
Buchanan's truck, which he owned with Gail Goldman, was abandoned. The
truck was later located by the repossessor. After R.C. committed suicide,
Buchanan reappeared. Buchanan's disappearance was unusual, because
Buchanan had lived with Goldman for five years, and during the time defendant
was residing with Goldman and Buchanan, Buchanan did not disappear for days
at a time. Defendant's theory is that Buchanan was the real perpetrator, that
Buchanan had the same motive to commit the killing as the prosecution imputed
to defendant (that is, a motive to rob or steal to obtain money for drugs), that
Buchanan disappeared right after the crime because he was guilty of the crime
and wished to avoid detection, and reemerged once R.C.' s suicide was
publicized.

12

----------------------------------------FOOTNOTE---------------------

13

n.15 Whether defendant was claiming Buchanan was the lone killer or
Cullumber's accomplice is not clear from Ms. Hart's moving papers.

5
6
7
8
9
10

14
15

------------------------------------END FOOTNOTE------------------

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28

In a preface to this portion of her written motion, Ms. Hart stated, “Defendant
requests a separate hearing on this issue only if his motion for new trial on the
basis of the actual record is denied. That is, there will be no need to conduct a
separate, detailed hearing on the issue of whether his defense was appropriately
presented if his motion for new trial is granted on other grounds. Also, at the
time this motion was being prepared, defendant was still investigating facts
supporting the claim of third-party culpability.... Defendant expects to present,
at the hearing on third-party culpability, declarations and witnesses not available
for submission at the time this motion was filed.”
Ms. Hart was appointed on March 26, 1991. She filed the motion for new trial
almost five months later, on August 16, 1991. The hearing on the motion was
held five months after that, on January 17, 1992. At the hearing, the court stated
it had been informed by Ms. Hart she was not abandoning the contention that
Buchanan was the killer, but that she had nothing further to present to support
the theory.
In denying the new trial motion, the court observed there did not appear to have
been “sufficient evidence available to Mr. Schultz to present a credible theory
that Mr. Buchanan would have been the person who went with RC that night
and who was responsible for the killing. [¶] So I don't find that there was any
error on Mr. Schultz's part in failing to present this theory, and that it was not
ineffective assistance of counsel to fail to do that.”
63

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2
3
4
5

We do not find Marsden error where complaints of counsel's inadequacy
involve tactical disagreements. (People v. Cole (2004) 33 Cal. 4th 1158, 1192,
17 Cal.Rptr.3d 532, 95 P.3d 811; People v. Welch (1999) 20 Cal. 4th 701, 728–
729, 85 Cal.Rptr.2d 203, 976 P.2d 754 (Welch ); People v. Barnett (1998) 17
Cal. 4th 1044, 1107, fn. 37, 74 Cal.Rptr.2d 121, 954 P.2d 384.) The conflict
between defendant and counsel, over whether defendant's theory that Buchanan
was the real killer should have been presented to the jury, was a tactical
disagreement, and in the apparent absence of any evidence supporting the
theory, a disagreement in which counsel seems to have taken the wiser view.

6 Dickey, 35 Cal. 4th 884, 917–22.
7

(1)

8

Petitioner argues Schultz failed to fully apprise the trial court that a complete

No Irreconcilable Conflict Necessitating Substitute Counsel

9 breakdown in his relationship with Petitioner required substitute counsel. (Doc. No. 51-1, ¶
10 356.)
11

Petitioner points to his belief Schultz was incompetent (RT 5045-48); his refusal to

12 appear in court with Schultz as his attorney (RT 5100); and his waiver of personal presence at
13 the penalty trial and refusal to use a personal presence waiver form because it was prepared by
14 Schultz (RT 5114-15).
15

Petitioner argues the relationship breakdown was such that it was unlikely Schultz

16 could provide effective representation at the penalty phase and that Schultz was obligated to
17 withdraw. (Doc. No. 51-1 ¶¶ 359-62, citing California Rule of Professional Conduct 3-700
18 (C)(1)(d), (an attorney may withdraw from representing a client if the client “renders it
19 unreasonably difficult for the member to carry out the employment effectively.”).)
20

Marsden provides that the trial court has discretion to appoint substitute counsel if “the

21 defendant has shown that a failure to replace the appointed attorney would substantially impair
22 the right to assistance of counsel [citation], or, stated slightly differently, if the record shows
23 that the first appointed attorney is not providing adequate representation or that the defendant
24 and the attorney have become embroiled in such an irreconcilable conflict that ineffective
25 representation is likely to result.” People v. Smith, 6 Cal. 4th 684, 696 (1993) (citing People v.
26 Marsden, 2 Cal. 3d. 118 (1970)).
27

The state supreme court reasonably could find unpersuasive Petitioner’s arguments in

28
64

1 support of an irreconcilable conflict, as follows.
2

Petitioner Did Not Request Substitute Counsel under Marsden

3

The state supreme court reasonably could find Petitioner did not make a Marsden

4 request to the trial court. Petitioner argues his irreconcilable conflict was apparent in Schultz’s
5 mischaracterization of Petitioner’s desire for substitute counsel as a mere disagreement over
6 guilt phase tactics, allowing Schultz to avoid a Marsden proceeding. (See Doc. No. 142 at 49,
7 citing People v. Lucky, 45 Cal. 3d 259, 281 (1988) (“The mere fact that there appears to be a
8 difference of opinion between a defendant and his attorney over trial tactics does not place a
9 court under a duty to hold a Marsden hearing.”).
10

At the in limine hearing, Schultz told the trial court that “in terms of being able to

11 present [incompetency of counsel] as a motion for a new trial, it was my advice to [Petitioner]
12 that the request should be made to the court for an attorney to – a separate attorney to review
13 the record … to determine whether or not there is a legitimate basis or any basis for making a
14 motion for new trial based on incompetence of counsel.” (RT 5045-46.)
15

Schultz explained he requested the in limine hearing because “[he] was concerned

16 [Petitioner would raise] conversations that we had discussing the trial tactics and witnesses and
17 things might come up. And I thought it was – it’s not really a pure Marsden hearing, but there
18 are obvious disagreements as to tactics.” (RT 5046.)
19

Schultz contends he advised Petitioner on the procedure for a post-penalty phase new

20 trial motion because he believed Petitioner meant to raise incompetency of counsel issues. (RT
21 5047.)
22

The trial court acknowledged that the matter raised by Schultz “may be in the form of a

23 Marsden motion” and that Schultz “wanted to have [Petitioner] to have a chance to tell the
24 court as to his feelings.” (RT 5045.) The trial court left open the question whether Petitioner
25 might be seeking relief under Marsden. (RT 5047.)
26

The trial court then engaged Petitioner on the communication breakdown raised by

27 Schultz, telling Petitioner that: “I’ll hear whatever you have to say. I might have to tell you at
28
65

1 the end of your statement that this is not the time to get into that, but I don’t know until I hear
2 you out.” (RT 5047.)
3

Petitioner, during in limine colloquy agreed with the trial court that the issue he wanted

4 to raise involved guilt phase trial tactics, stating that:
5
6
7
8
9

[Y]es, I’m not satisfied with the competency of my attorney. There was
witnesses that are – that were available that was not called that I feel was crucial
to my defense, and issues that were not raised that I feel was crucial, and
questions that was not asked of me while I was on the stand that should have
been raised.
[…]

10
11

[T]here’s other issues of motions for new trial other than that. But I don’t
believe this is the appropriate time.

12 (RT 5048.)
13

The trial court considered the matter and concluded that what Petitioner wanted was

14 substitute counsel on a new trial motion, stating that “[o]nce we get to the end of the trial, a
15 transcript will be provided to another attorney, to review the case and determine whether or not
16 he feels there’s grounds for a new trial based on incompetency of counsel. We have to be
17 through with the trial.” (RT 5048-49.) Petitioner responded “[y]es.”
18

The state supreme court reasonably could find the record to suggest that Petitioner took

19 issue with Schultz’s guilt phase decisions, rather than raising Marsden rights regarding
20 Schultz’s continued representation at the penalty phase. (See Doc. No. 142 at 51); cf. Schell,
21 218 F.3d at 1025 (“It is well established and clear that the Sixth Amendment requires on the
22 record an appropriate inquiry into the grounds for such a [Marsden] motion, and that the matter
23 be resolved on the merits before the case goes forward.”).
24

Subsequently, on reaching the motion for new trial, the trial court conceded that it

25 “used the wrong words” when telling Petitioner that “we don’t conduct Marsden hearing in the
26 middle of the trial.” (RT 5533.) Yet the trial court went on to confirm its belief that it did not
27 appear “[Petitioner] was really asking for a Marsden type hearing. (RT 5533); that although
28
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1 that court “used the words Marsden hearing [ ] in truth it doesn’t appear [ ] that he was asking
2 for a Marsden hearing.” (Id.)
3

The state supreme court found as a matter of state law “[w]e do not find Marsden error

4 where complaints of counsel’s inadequacy involve tactical disagreements.” Dickey, 35 Cal. 4th
5 at 922. That court could reasonably find that Petitioner did not motion under Marsden for
6 substitute counsel, but rather sought substitute counsel for a new trial motion to be heard after
7 the penalty trial, such that Schultz’s failure to request a Marsden hearing was not deficient.
8 (Doc. No. 51-1 at ¶¶ 346-347, citing Schell, 218 F.3d at 1026; see also RT 5045-49, 5533; CT
9 571-576; Pet. Ex. 12 ¶ 12.)
10

Petitioner Was not Denied Effective Assistance of Counsel

11

The state supreme court could reasonably find the noted breakdown in relationship

12 between Schultz and Petitioner did not deny effective assistance of counsel. The record
13 suggests Schultz discussed Petitioner’s concerns over the guilt phase defense and advised him
14 as to redressing those concerns. Schultz told the trial court of Petitioner’s dissatisfaction with
15 the guilt phase defense and that he had advised Petitioner to seek substitute counsel on a new
16 trial motion. Schultz told the trial court that:
17
18
19

I didn’t anticipate having that motion heard before the second part of the trial.
Obviously, that’s up to the court. But that’s not the procedure that I explained to
him.

20 (RT 5047.) Specifically, Schultz “explained to [Petitioner] the ground – the types of things
21 that could be presented to the court as part of a motion for a new trial when the time is
22 appropriate for that motion, and that there are some disagreements between [Petitioner] and I
23 as to some trial tactic decisions….” (RT 5045.) Notably, Schultz characterized the issues he
24 felt includable in a motion for new trial included “any issues of incompetency of counsel.”
25 (Id.). The Court observes these appear to be the same issues Petitioner raised during his
26 colloquy with the trial court.
27

Schultz confirmed in his habeas declaration the nature and extent of the breakdown in

28
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1 his relationship with Petitioner; that it had its genesis in guilt phase tactics, stating that:
2
3
4
5
6
7
8
9

Following the guilt phase verdicts, there was a breakdown in the
communication between the [Petitioner] and myself. [Petitioner] advised me
that he felt I had rendered ineffective assistance during the trial. Without being
specific, he told me that he disagreed with several of my tactics. He told me
that he would no longer talk to me or participate in any proceedings at which I
was his attorney. He told me that he would not be attending the penalty phase
of the proceedings. I informed the court that the defendant had questioned my
competency at an in limine hearing outside the presence of the prosecutor. I
advised the judge that I felt that the complaints of [Petitioner] concerning
ineffectiveness were the proper subject of a motion for new trial following the
penalty phase of the proceedings. I did tell the judge that the defendant had
advised me that he would no longer be talking to me, cooperating with me, or
attending further proceedings in the trial.

10 (Pet. Ex. 12 ¶ 12.)
11

Still, the state supreme court reasonably could find Schultz continued to provide

12 effective assistance to Petitioner. The record reflects that Schultz continued to advise
13 Petitioner prior to the start of the penalty trial. Schultz was present when the trial court took
14 Petitioner’s oral waiver of personal presence. (RT 5102-03.) Subsequently, when it became
15 apparent state law required a written waiver and Petitioner refused Schultz’s proffered form
16 waiver, (RT 5114-15), Schultz nonetheless approved as defense counsel the written waiver
17 provided by the trial court and signed by Petitioner. (CT 475-476; see also Penal Code §
18 977(b)(2); RT 5116-20.) Schultz advised Petitioner regarding his stipulation to the prior
19 Nevada conviction charged in the information. (RT 5073-74.) Schultz also represented
20 Petitioner in court at the penalty trial in which Petitioner participated remotely. (RT 5124-41.)
21

Moreover, the state supreme court reasonably could find Petitioner’s absenting himself

22 from the penalty trial was not a manifestation of an irreconcilably broken relationship with
23 Schultz, but rather dissatisfaction at being convicted and disinclination to present any penalty
24 defense. (See claims III(B), VI and VII, post.) The state supreme court observed Petitioner’s
25 statement to the trial court that:
26
27
28

I would just as soon that the defense not even say nothing, just rest. I don't
intend to plead nothing to the jury. I'd just as soon sit in the cell. I have no
intentions or desire to try to have any sympathy or pity from the jury that
68

1

convicted me of these crimes. I don't intend to be present, neither; I don't wish
to be.

2 Dickey, 35 Cal. 4th at 923; RT 5101-02.) Significantly, this statement is consistent with
3 Petitioner’s pre-trial defense interviews, wherein he stated that he was not interested in anyone
4 saving his life if a jury should be so stupid as to convict him. (Pet. Ex. 23 at SH002137.)
5

In this context, the state supreme court reasonably could find Schultz’s statement to the

6 trial court that he did not oppose the waiver of personal presence (RT 5100); that he had
7 “discussed it with [Petitioner] and I think that decision is his” and that “I was not going to
8 make a recommendation one way or the other” (id.) is not suggestive of a denial of assistance
9 of counsel. Especially so given that following his waiver of personal presence, Petitioner
10 nonetheless monitored proceedings from a holding cell and had ready access to the courtroom
11 and to Schultz. (See RT 5101; CT 475-476.)
12

Furthermore, Petitioner’s expressed distrust of Schultz and doubts as to Schultz’s

13 competency appear equivocal on the record. While Petitioner questioned guilt phase trial
14 tactics and refused to sign a form waiver of personal presence prepared by Schultz, he
15 nonetheless agreed to proceed to the penalty phase with Schultz as his attorney and accepted
16 representation thereat by Schultz. See Daniels, 428 F.3d at 1197 (citing Morris v. Slappy, 461
17 U.S. 1, 3-4 (1983)) (“[T]he right to counsel does not guarantee a right to counsel with whom
18 the accused has a ‘meaningful attorney-client relationship.”).
19

Petitioner has not demonstrated that he had any objection to Schultz’s penalty defense

20 or the penalty phase evidence or that he was denied opportunity to consult with Schultz
21 thereon. The penalty defense theory did not involve contesting the aggravating evidence
22 placed before the jury, i.e. the fact of Petitioner’s felony burglary conviction and the five
23 autopsy photographs. As noted, during pretrial interviews with the defense team, Petitioner
24 expressed his desire that facts underlying his burglary conviction be kept from the jury,
25 something the penalty defense accomplished.
26

Additionally, Petitioner participated in the penalty phase proceedings by audio and

27 video feed to his holding cell and had the option of returning to court and consulting Schultz at
28
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1 any time. (RT 5101-02.) Significantly, Petitioner was not denied access to and advice from
2 Schultz. (See Lod. Doc. No. 8, Response to SHCP, at 123-26); see Morris, 461 U.S. at 13-14
3 (holding that the Sixth Amendment requires only competent representation and does not
4 guarantee a meaningful relationship between a defendant and counsel). As noted, Petitioner
5 allowed Schultz to continue advising and representing him up through sentencing.
6

ii.

7

Petitioner argues Shultz’s allegedly deficient conduct denied him effective assistance of

Prejudice

8 counsel at the penalty phase and was presumptively prejudicial. (Doc. No. 51-1, ¶ 354, citing
9 Brown, 424 F.2d at 1170 (trial court’s failure to inquire into defendant’s dissatisfaction with
10 counsel and failure to communicate with counsel denied effective assistance of counsel).
11

Even if Schultz was deficient as alleged, Petitioner has failed to show prejudice, for the

12 reasons that follow.
13

(1)

14

Petitioner argues he was constructively denied counsel at the penalty trial such that

Presumed Prejudice

15 prejudice can be presumed. (Doc. No. 51-1, ¶ 363, citing Roe v. Flores-Ortega, 528 U.S. 470,
16 483 (2000) (no specific showing of prejudice is required in instances where the reliability of
17 the judicial process itself is implicated such as the actual or constructive denial of the
18 assistance of counsel); United States v. Cronic, 466 U.S. 648, 658 (1984) (a presumption of
19 prejudice is warranted if the failures of counsel make the adversary process presumptively
20 unreliable); Holloway v. Arkansas, 435 U.S. 475, 485-86 (1978) (defendant has a constitutional
21 right not to be represented by an attorney with whom he has developed an irreconcilable
22 conflict); see also Doc. No. 142 at 52-53, citing Strickland, 466 U.S. at 692.)
23

Petitioner supports alleged denial of counsel by pointing out Schultz’s failure to: (i)

24 properly advise Petitioner regarding the waiver of presence at the penalty phase; (ii) develop
25 and present an adequate mitigation defense; and (iii) argue adequately at penalty phase closing.
26 (Doc. No. 51-1 ¶¶ 356-58, citing RT 5114-18; see also Doc. No. 142 at 52, citing RT 5134.)
27 Particularly, Petitioner argues that “he was not able to communicate with Schultz to formulate
28
70

1 a defense” and that “[a]s a result, no evidence was presented by [him] at the penalty phase, and
2 a death verdict was assured.” (Doc. No. 142 at 53.)
3

However, the state supreme court reasonably could find Petitioner was not

4 constructively denied counsel at the penalty phase entitling him to a presumption of prejudice,
5 for the reasons stated. See Perry, 488 U.S. at 278-79. That court reasonably could find
6 Petitioner did not seek substitute counsel for the penalty phase; acquiesced in Schultz’s
7 continuing as penalty phase counsel and retained access to those proceedings and to Schultz;
8 and participated in and did not object to the penalty defense and argument or demonstrate such
9 was constitutionally inadequate. As noted, on the eve of the penalty trial Petitioner stated his
10 desire that no mitigation defense be presented.
11

(2)

12

Alternatively, Petitioner alleges Schultz’s conflict adversely impacted the penalty phase

Specific Prejudice

13 representation. To the extent the presumed prejudice standard does not apply, Petitioner must
14 meet the Strickland prejudice standard by establishing a reasonable probability that, but for
15 counsel’s deficient conduct, the result of the proceedings would have been different. See
16 Strickland, 466 U.S. at 694; see also Chaidez v. Knowles, 258 F. Supp. 2d 1069, 1082-83 (N.D.
17 Cal. 2003), aff’d, 111 F. App’x 899 (9th Cir. 2004) (Strickland applicable where no
18 constructive denial of assistance of counsel).
19

However, the state supreme court reasonably could find that Petitioner has not shown

20 Strickland prejudice arising from the penalty defense, for the same reasons discussed above
21 and summarized below. That court reasonably could find the totality of the proffered
22 mitigation evidence and that apparent in the record to be insubstantial and outweighed by the
23 aggravating and potential rebuttal evidence, such that there does not remain a reasonable
24 probability of a different outcome. (See the discussion of claims III(C-E) above.)
25

Additionally, Petitioner does not point to evidence in the record suggesting

26 disagreement or dissatisfaction with the penalty defense mounted at trial. Petitioner was on
27 record that he did not want to present any penalty defense to the jury that had just convicted
28
71

1 him. (RT 5101-02.) Petitioner has not demonstrated he was denied adequate consultation on
2 the penalty defense. See Lang, 725 F.Supp.2d at 1054 (adequate consultation between counsel
3 and client is an essential elements of competent representation). Similarly, he does not point to
4 facts suggesting he was unable to assist in his penalty defense. Id. Rather the record shows his
5 expressed desire not to present a penalty defense and not to be present in court during the
6 penalty defense. (RT 5101-02.)
7

Petitioner suggests that absent Schultz’s alleged deficient conduct, he would have

8 personally attended and participated in the penalty trial. However, Petitioner participated in
9 penalty phase proceedings remotely by audio and video feed and had access to Schultz who
10 continued to represent him during the penalty phase. See Sullivan, 446 U.S. at 346 (reasonably
11 appeared that counsel and defendant accepted any conflict by proceeding). He has not shown
12 on the factual record that in the course thereof he was denied the opportunity to assist counsel
13 in his defense or any particular input he was denied.
14

“It is not enough ‘to show that the errors had some conceivable effect on the outcome

15 of the proceeding.’” Richter, 562 U.S. at 104 (quoting Strickland, 466 U.S. at 693).
16 “Counsel’s errors must be ‘so serious as to deprive the defendant of a fair trial, a trial whose
17 result is reliable.’” Id. (quoting Strickland, 466 U.S. at 687). That is, only when “the
18 likelihood of a different result [is] substantial, not just conceivable,” has the petitioner met
19 Strickland’s demand that defense errors were “so serious as to deprive [him] of a fair trial.” Id.
20 at 104 (quoting Strickland, 466 U.S. at 687).
21

iii.

22

A fair-minded jurist could find that Petitioner failed to establish counsel’s performance

Conclusions

23 fell below an objective standard of reasonableness and that absent counsel’s alleged
24 deficiencies, there remains a reasonable probability of a different outcome. Strickland, 466
25 U.S. at 694.
26

Accordingly, the California Supreme Court’s rejection of this claim was not contrary

27 to, or an unreasonable application of, clearly established federal law, or an unreasonable
28
72

1 determination of the facts in light of the evidence presented in the state court proceeding. 28
2 U.S.C. § 2254(d).
3

Claim II(I) shall be denied.

4

4.

5

Petitioner alleges counsel Schultz was ineffective by failing to accept the trial judge’s

Claim II(U)

6 offer to deliver an admonition to the jury regarding an outburst by the family of victim Marie
7 Caton, violating his rights under the Fifth, Sixth, Eighth and Fourteenth Amendments. (Doc.
8 No. 51-1 ¶¶ 409-414.)
9
10

a.

Supplemental Legal Standards

“[I]f the State chooses to permit the admission of victim impact evidence and

11 prosecutorial argument on that subject, the Eighth Amendment erects no per se bar. A State
12 may legitimately conclude that evidence about the victim and about the impact of the murder
13 on the victim's family is relevant to the jury's decision as to whether or not the death penalty
14 should be imposed. There is no reason to treat such evidence differently than other relevant
15 evidence is treated.” Payne v. Tennessee, 501 U.S. 808, 827 (1991).
16

b.

17

Petitioner presented claim II and all its subclaims in the second state exhaustion petition

State Court Direct and Collateral Review

18 (see Lod. Doc. No. 30 at 105-99) and it was summarily denied on the merits with certain
19 subclaims including subclaim U also denied on procedural grounds (Lod. Doc. No. 31, Order
20 Denying Cal. Pet., In re Colin Raker Dickey, No. S165302 (May 29, 2012)).
21

Petitioner also presented claim II(U) on direct appeal and it was denied on the merits.

22 Dickey, 35 Cal. 4th at 916-17.
23

c.

Analysis

24

i.

Deficient Performance

25

Petitioner argues that Schultz, following the trial court’s denial of his motion to

26 discharge the jury, failed to respond to the trial court’s offer of a special instruction
27 admonishing the jury to disregard the outburst and show of emotion in court by victim family
28
73

1 members. (See RT 5072-73.)
2

The record reflects that following reading of the guilt phase verdict on March 15, 1991,

3 Ms. Garratt, daughter of victim Marie Caton and mother of perpetrator R.C. (RT 4238, 4308),
4 exclaimed in open court “yes, yes” whereupon family members also reacted less emphatically
5 to the hoped-for verdict. (RT 5051.) The trial court immediately directed Ms. Garratt to “keep
6 it down, ma’am.” (RT 5053, 5051.) Prosecutor Hahus also told Ms. Garratt to “remain silent.”
7 (RT 5053.)
8

Schultz’s motion four days later to discharge the jury, on grounds the outburst was an

9 inflammatory and improper victim impact statement that biased the jury, was denied by the
10 trial court. (Doc. No. 51-1, ¶ 410; RT 5050; CT 470-71.) That court, while expressing regret
11 in not earlier instructing those in the courtroom not to display emotions during reading of the
12 guilt phase verdict (RT 5051), suggested “instruct[ing] the jury to disregard any display by any
13 spectators in the courtroom and any – the statement made by any spectator in the courtroom
14 when the verdicts were being read, unless the defendant does not want me to do that.” (RT
15 5072-73.)

Schultz stated “[he would] have to make a decision on that.” (RT 5073.)

16 Ultimately, Schultz did not request the admonition and the trial court did not give it. (RT
17 5107-08.)
18

The California Supreme Court considered and denied the claim, stating that:

19
20
21
22
23
24
25
26
27
28

At the conclusion of the guilt phase of the trial, when the jury's verdicts and
findings were read in open court, Lavelle Garratt, the daughter of victim Marie
Caton, said in a loud voice, “Yes, yes.” The court admonished her to “[k]eep it
down, ma'am”; and the prosecutor also loudly instructed her to remain silent.
Other members of Mrs. Caton's family embraced one another, cried, and
whispered among themselves.
The following week defense counsel moved to discharge the jury on the ground
it had been exposed to constitutionally impermissible victim impact evidence
under Booth v. Maryland (1987) 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440.
In denying the motion, the court expressed doubt as to whether any prejudice
occurred, but offered to admonish the jury to disregard the outburst and not let it
influence their penalty deliberations, unless the defense preferred that an
admonition not be given, as it might serve to highlight the incident in the minds
of the jurors. Defense counsel said he would have to decide whether to ask for
such an admonition. As it turned out, no admonition was given. While the
record does not reflect whether defense counsel expressly declined the court's
74

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20

offer, it strongly suggests he did. The next day the court stated that “some
matters had been discussed in chambers and we've gone over” the penalty phase
instructions. After the court listed the instructions it intended to give, it asked
whether either counsel wanted other instructions. Defense counsel stated, “I
have no other requests.” Earlier, defense counsel had stated he felt no
admonition could be effective—that the proverbial bell could not be unrung.
Assuming arguendo an admonition would have cured any prejudice, defendant
contends his trial counsel was ineffective in failing to request an admonition.
Again, we disagree.
The brief, spontaneous reaction of the members of Marie Caton's family to the
jury verdicts did not constitute victim impact evidence of the sort proscribed in
Booth v. Maryland, supra, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440.
Moreover, while this case has been on appeal, the United States Supreme Court,
partially overruling Booth and South Carolina v. Gathers (1989) 490 U.S. 805,
109 S.Ct. 2207, 104 L.Ed.2d 876, held that “[i]n a capital trial, evidence
showing the direct impact of the defendant's acts on the victims' friends and
family is not barred by the Eighth or Fourteenth Amendments to the federal
Constitution. (Payne v. Tennessee (1991) 501 U.S. 808, 825–827 [111 S.Ct.
2597, 115 L.Ed.2d 720] [(Payne )].)” (People v. Pollock (2004) 32 Cal. 4th
1153, 1180, 13 Cal.Rptr.3d 34, 89 P.3d 353.) Payne applies retroactively.
(People v. Clair (1992) 2 Cal. 4th 629, 672, 7 Cal.Rptr.2d 564, 828 P.2d 705
(Clair ).)
“Under California law, victim impact evidence is admissible at the penalty
phase under section 190.3, factor (a), as a circumstance of the crime, provided
the evidence is not so inflammatory as to elicit from the jury an irrational or
emotional response untethered to the facts of the case. (People v. Boyette, supra,
29 Cal. 4th at p. 444 [127 Cal.Rptr.2d 544, 58 P.3d 391]; People v. Edwards
(1991) 54 Cal. 3d 787, 835–836 [1 Cal.Rptr.2d 696, 819 P.2d 436].)” (People v.
Pollock, supra, 32 Cal. 4th at p. 1180, 13 Cal.Rptr.3d 34, 89 P.3d 353.) It would
come as no surprise to a jury that a victim's family was anguished by her
murder, relieved that part of the trial was over, and satisfied with the guilty
verdicts. The relatively muted reaction of Marie Caton's family to the jury
verdicts was certainly not “so inflammatory as to elicit from the jury an
irrational or emotional response untethered to the facts of the case.” (Ibid.)
Finally, defense counsel may have made a reasonable tactical decision that an
admonition was not, on balance, desirable, because it would remind the jury of
the incident.

21
22 Dickey, 35 Cal. 4th at 916–17.
23

(1)

24

Petitioner argues Schultz’s failure to request an admonition left unmitigated the

Foregoing Admonition Was a Reasonable Trial Tactic

25 extreme prejudice resulting from the outburst and left unpreserved the related due process and
26 cruel and unusual punishment violations. (Doc. No. 51-1, ¶ 411-13.) He suggests that for the
27 reasons asserted in claim II(I) above, Schultz had effectively abandoned him by the time the
28
75

1 trial court offered the admonition such that Schultz’s failure to respond was not tactical,
2 denying him an adequate penalty phase defense. (See Doc. No. 142 at 56-57; see also Pet. Ex.
3 12 at ¶ 12.)
4

However, Schultz expressly stated his tactical reasoning in his habeas declaration, that:

5
6
7

When the court agreed to provide an admonition to the jury on the outburst from
the family members following rendition of the guilty verdicts, my decision to
forego such an admonition was a reasoned decision not to again ring the bell
regarding this emotional victim impact information.

8 (Pet. Ex. 12 ¶ 11.) This is consistent with Schultz’s statements during hearing on the motion to
9 discharge the jury prior to the penalty phase, that admonition would be ineffective; that the
10 outburst was “constitutionally impermissible information” and “there’s no way that they cannot
11 have that information at this point … you can’t unring the bell.” (RT 5052.) Schultz also
12 observed that four days had passed for the jury to think about the outburst. (RT 5062.)
13 Moreover, the trial court itself discussed the possibility of such a tactic. (RT 5066-67.)
14

The state supreme court reasonably could find the tactical underpinning was as stated

15 by Schultz. (See Pet. Ex. 12 at ¶ 11.) The admonition would have re-directed the jurors’
16 attention to an event that occurred days before. An event a reasonable juror might find
17 unremarkable, that a murder victim’s child might agree with a verdict for the prosecution.
18 People v. Pollock, 32 Cal. 4th 1153, 1180 (2004) (“[E]vidence showing the direct impact of
19 the defendant's acts on the victims' friends and family is not barred by the Eighth or Fourteenth
20 Amendments to the federal Constitution.”)
21

ii.

22

Petitioner argues the outburst was highly inflammatory and necessarily considered by

Prejudice

23 the jury during their penalty deliberations. (Doc. No. 51-1, ¶ 409.) Particularly, he complains
24 he was unable to “confront [Ms. Garratt] as a witness or cross-examine her during the
25 coliseum-style proceedings.” (Doc. No. 142 at 57.)
26

However, the California Supreme Court reasonably could find the outburst not

27 prejudicial under Strickland. The jury was charged with considering in aggravation the facts
28
76

1 and circumstances of the capital crime which included guilt phase evidence relating to Ms.
2 Garratt’s discovery of her gravely injured mother; Ms. Garratt’s statements and testimony; and
3 Ms. Garratt’s offer of reward money. As the trial court observed, the jury might reasonably
4 consider the outburst a “natural display” of emotion by victim family members. (RT 5064.)
5

The outburst occurred after the jury had rendered all its guilty verdicts; consisted only

6 of the words “yes, yes” appearing in the record along with murmured sobbing reaction from
7 family members; and was condemned on the record by the trial court and the prosecutor. (See
8 RT 5057.) The state supreme court reasonably could have viewed any prejudice therefrom as
9 attenuated and quickly waning, distinguishable from the situation in Booth, relied upon by
10 Petitioner, where victim impact statements described family members opinions of the crimes
11 and petitioner and the severe emotional impact of the crimes. Booth v. Maryland, 482 U.S.
12 496, 498-99 (1987) overruled by Payne, 501 U.S. at 829.
13

Additionally, Petitioner argues but fails to demonstrate how the non-testimonial

14 outbursts, even if arguendo evidentiary in nature, could have been effectively confronted at the
15 penalty trial.8
16

Here, the jury presumably followed instruction that it consider only evidence presented

17 in court, as noted by the trial court in denying the motion. (CT 489; RT 5072.) The state
18 supreme court reasonably could find Petitioner failed to demonstrate otherwise.
19

iii.

20

A fair-minded jurist could find that Petitioner failed to establish counsel’s performance

Conclusions

21 fell below an objective standard of reasonableness and that absent counsel’s alleged
22 deficiencies, there remains a reasonable probability of a different outcome. Strickland, 466
23 U.S. at 694.
Accordingly, the California Supreme Court’s rejection of this claim was not contrary

24

25 to, or an unreasonable application of, clearly established federal law, or an unreasonable
26 determination of the facts in light of the evidence presented in the state court proceeding. 28
27
8

The Court does not reach Respondent’s argument that Petitioner’s claim he was denied the opportunity to

28 confront the outburst is unexhausted (see Doc. No. 143 at 51 n.14) because the claim is denied on the merits.
77

1 U.S.C. § 2254(d).
2

Claim II(U) shall be denied.

3

5.

4

Petitioner alleges that Schultz was ineffective by failing to make appropriate pre-trial

Claim III(A)

5 motions regarding the death penalty, violating his rights under the Fifth, Sixth, Eighth, and
6 Fourteenth Amendments. (Doc. No. 51-1, ¶¶ 421-27.)
7

a.

8

During the sentence selection stage, the Supreme Court has imposed a requirement that

Supplemental Legal Standards

9 the jury make “an individualized determination on the basis of the character of the individual
10 and the circumstances of the crime.” Tuilaepa v. California, 512 U.S. 967, 972-73 (1994)
11 (citing Zant v. Stephens, 462 U.S. 862, 879 (1983)); see also Woodson v. North Carolina, 428
12 U.S. 280, 303-304 (1976)). This “requirement is met when the jury can consider relevant
13 mitigating evidence of the character and record of the defendant and the circumstances of the
14 crime.” Id. (citing Blystone v. Pennsylvania, 494 U.S. 299, 307 (1990)) (“[The] requirement of
15 individualized sentencing in capital cases is satisfied by allowing the jury to consider all
16 relevant mitigating evidence”).
17

The court may not “impede [] the sentencing jury’s ability to carry out its task of

18 considering all relevant facets of the character and record of the individual offender” by
19 excluding “relevant mitigating evidence.” Skipper v. South Carolina, 476 U.S. 1, 8 (1986).
20 Nevertheless, the court retains “the traditional authority of a court to exclude, as irrelevant,
21 evidence not bearing on the defendant’s character, prior record, or the circumstances of his
22 offense.” Lockett, 438 U.S. at 605 n.12.
23

b.

24

Petitioner presented claim III including all subclaims in the second state exhaustion

State Court Direct and Collateral Review

25 petition (Lod. Doc. No. 30 at 200-302) and it was summarily denied on the merits with certain
26 subclaims including subclaim A denied on procedural grounds (Lod. Doc. No. 31, Order
27 Denying Cal. Pet., In re Colin Raker Dickey, No. S165302 (May 29, 2012)).
28
78

1

c.

Analysis

2

i.

Deficient Performance

3

Petitioner alleges that Schultz was deficient by failing to (i) object to pursuit of the

4 death penalty in this case on grounds California’s death penalty violates international law and
5 is arbitrary and capricious because it fails to narrow its reach and is disproportionate and
6 discriminatory; (ii) seek timely and full discovery of relevant evidence; and (iii) seek
7 admission of evidence of third-party culpability in support of mitigating lingering doubt and
8 evidence of involvement of another. (Doc. No. 142 at 59-60.)
9

The state supreme court reasonably could find the claim lacks internal factual support

10 and is reliant upon Petitioner’s “other penalty claims.” (Doc. No. 142 at 60.) Also, that court
11 reasonably could find the claim to be vague and conclusory on its face. See Campbell v. Wood,
12 18 F.3d 662, 679 (9th Cir. 1994) (citing Boehme v. Maxwell, 423 F.2d 1056, 1058 (9th Cir.
13 1970) (an evidentiary hearing is not required on allegations that are “conclusory and wholly
14 devoid of specifics)); see also Habeas Rule 2 (the petition must state the facts supporting each
15 ground). Particularly, the state supreme court reasonably could deny the claim, as follows.
16

(1)

Reasonable Investigation, Development and Presentation of the Trial

17 Defense
18

This Court previously denied guilt phase claims II(B) and II(C) alleging ineffective

19 assistance in the investigation, development and presentation of the guilt phase defense
20 including as to exculpatory evidence, third-party culpability, expert opinion, and claim XXVI
21 alleging insufficiency of the prosecution’s guilt phase case. (See Doc. No. 135.) Petitioner’s
22 reargument of those claims is unpersuasive.
23

Additionally, the California Supreme Court reasonably could find Schultz was not

24 prejudicially deficient in the investigation, development and presentation of the mitigation
25 defense for the reasons stated above in the discussion of claims III(C-E).
26

(2)

Schultz Was Not Unreasonable by Failing to Contest the Constitutionality

27 of California Death Penalty Statute
28
79

1

The California Supreme Court reasonably could have rejected Petitioner’s

2 constitutional challenges to California’s death penalty statute, for the reasons stated in the
3 discussion of claims XXV(A-L) below, summarized here.
4

Narrowing and Prosecutorial Charging Discretion

5

The California Supreme Court, on direct appeal stated that:

6

The death penalty law adequately narrows the class of death-eligible offenders.
(People v. Brown (2004) 33 Cal. 4th 382, 401, 15 Cal.Rptr.3d 624, 93 P.3d 244
(Brown ); Prieto, supra, 30 Cal. 4th at p. 276, 133 Cal.Rptr.2d 18, 66 P.3d
1123.)

7
8

9 Dickey, 35 Cal. 4th at 931. That court was not unreasonable in finding the state’s death penalty
10 statute satisfies clearly established constitutional requirements. See Karis v. Calderon, 283
11 F.3d 1117, 1141 n.11 (2002) (California’s sentencing scheme adequately narrows the class of
12 persons eligible for death). First, the subclass of defendants eligible for the death penalty is
13 rationally narrowed to those who have the predicate felony of robbery. Tuilaepa, 512 U.S. at
14 969-73. The robbery special circumstance sufficiently guides the sentencer and is not
15 unconstitutionally vague. See Godfrey v. Georgia, 446 U.S. 420, 428 (1980) (the sentencer’s
16 discretion must be guided by “clear and objective standards.”).
17

In California v. Ramos, the United States Supreme Court stated that “once the jury

18 finds that the defendant falls within the legislatively defined category of persons eligible for
19 the death penalty” the jury’s consideration of a myriad of factors and exercise of “unbridled
20 discretion” in determining whether death is the appropriate punishment is not arbitrary and
21 capricious.

463 U.S. 992, 1008-09 (1983).

At the selection stage, an individualized

22 determination includes consideration of the character and record of the defendant, the
23 circumstances of the crime, and an assessment of the defendant’s culpability. Tuilaepa, 512
24 U.S. at 972-73. However, the jury “need not be instructed how to weigh any particular fact in
25 the capital sentencing decision.” Id. at 979.
26

The California Supreme Court reasonably determined that California’s death penalty

27 scheme in effect in 1990 did not fail to genuinely narrow the class of murderers eligible for the
28
80

1 death penalty. California’s scheme, which narrows the class of death eligible offenders to less
2 than the definition of first-degree murder and permits consideration of all mitigating evidence,
3 has been approved by the Supreme Court, Tuilaepa, 512 U.S. at 972-79; Pulley v. Harris, 465
4 U.S. 37, 38 (1984).
5

California’s death penalty process does not fail to sufficiently narrow the class of

6 offenders who are eligible for death penalty and does not deny due process. Atkins v. Virginia,
7 536 U.S. 304, 319 (2002); Furman, 408 U.S. at 313 (White, J., concurring); see also Gregg v.
8 Georgia, 428 U.S. 153, 189 (1976) (plur. opn.) (“D]iscretion must be suitably directed and
9 limited so as to minimize the risk of wholly arbitrary and capricious action.”).
10

Furthermore, the mere existence of prosecutorial discretion over charging decisions

11 does not deny equal protection or render a capital punishment scheme unconstitutional absent
12 some showing that a particular decision was based on a discriminatory standard. McCleskey v.
13 Kemp, 481 U.S. 279, 306-07 (1987).
14

Sentencing Factors

15

California’s death penalty process is not unconstitutional on grounds it fails to require

16 the jury’s death determination and weighing of aggravating and mitigating factors be made
17 unanimously and beyond a reasonable doubt. “[A] capital sentencer need not be instructed
18 how to weigh any particular fact in the capital sentencing decision.” Tuilaepa, 512 U.S. at 979.
19 “Once the jury finds that the defendant falls within the legislatively defined category of
20 persons eligible for the death penalty . . . the jury then is free to consider a myriad of factors to
21 determine whether death is the appropriate punishment.” Id. (quoting Ramos, 463 U.S. at
22 1008).
23

The jury instructions were not erroneous because they: included inapplicable

24 sentencing factors; included vague terms and limiting mitigation terms such as “extreme” and
25 “substantial;” provided the existence of a special circumstance be considered an aggravating
26 circumstance; failed to identify which sentencing factors were aggravating and which were
27 mitigating; and failed to include any burden of proof at the penalty phase. See, e.g., Ayers v.
28
81

1 Belmontes, 549 U.S. 7, 24 (2006) (the jury heard mitigating evidence, the trial court directed
2 the jury to consider all the evidence presented, and the parties addressed the mitigating
3 evidence in their closing arguments); Brown, 544 U.S. at 133; Boyde, 494 U.S. at 370;
4 Dunckhurst v. Deeds, 859 F.2d 110, 114 (1988). The Eighth Amendment does not require that
5 a jury be instructed on particular statutory mitigating factors. Buchanan v. Amgelone., 522
6 U.S. 269, 275-77 (1998) (the state may shape and structure the jury's consideration of
7 mitigation so long as it does not preclude the jury from giving effect to any relevant mitigating
8 evidence). “[I]t must be recognized that the States may adopt capital sentencing processes that
9 rely upon the jury, in its sound judgment, to exercise wide discretion.” Tuilaepa, 512 U.S. at
10 974.
11

Particularly, the Supreme Court has stated that factor (k) directed the jury to consider

12 “any other circumstance that might excuse the crime. . . .” Boyde, 494 U.S. at 382; see also
13 Hendricks v. Vasquez, 974 F.2d 1099, 1109 (1992) (the jury was advised it could consider any
14 other mitigating matter).
15

Moreover, to the extent Petitioner raises only state law errors, he fails to state a basis

16 for federal habeas relief. 28 U.S.C. § 2254(a); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991)
17 (“[F]ederal habeas corpus relief does not lie for errors of state law.”). “In the absence of a
18 federal constitutional violation, no relief can be granted even if the instruction given might not
19 have been correct as a matter of state law.” Mitchell v. Goldsmith, 878 F.2d 319, 324 (1989).
20

International Law

21

Petitioner fails to point to clearly established Supreme Court precedent at the time his

22 conviction became final that capital punishment was illegal in this country based on
23 International Law. In Coleman v. Mitchell, 268 F.3d 417 (6th Cir. 2001), the Sixth Circuit
24 explained that “the claim that international law completely bars this nation’s use of the death
25 penalty is unsupportable since the United States is not party to any treaty that prohibits capital
26 punishment per se, and since total abolishment of capital punishment has not yet risen to the
27 level of customary international law.” Id., at 443 n.12; Medellin v. Dretke, 544 U.S. 660, 664
28
82

1 (2005) (Vienna Convention did not create individual judicially enforceable rights); see also
2 Sosa v. Alvarez-Machain, 542 U.S. 692, 734-35 (2004) (UN Charter, Universal Declaration of
3 Human Rights, and International Convention on Civil and Political Rights do not create
4 obligations enforceable in federal court); Jamison v. Collins, 100 F. Supp. 2d 647, 766 (2000)
5 (International Covenant on Civil and Political Rights is not self-executing); People v. Ghent,
6 43 Cal. 3d 739, 778-79 (1987) (United Nations charter does not supersede domestic
7 legislation); People v. Brown, 33 Cal. 4th 382, 404 (2004) (“International law does not prohibit
8 a sentence of death rendered in accordance with state and federal constitutional and statutory
9 requirements. [Citations.]”).
10

Furthermore, Petitioner lacks standing to invoke the jurisdiction of international law.

11 The principles of international law apply to disputes between sovereign governments and not
12 between individuals. Hanoch Tel-Oren v. Libyan Arab Republic, 517 F. Supp. 542, 545-47
13 (D.D.C. 1981).
14

Proportionality

15

The California Supreme Court reasonably could find Petitioner’s intra-case and inter-

16 case proportionality claims to be foreclosed by the Supreme Court’s decision in Pulley v.
17 Harris. See 465 U.S. at 41. Therein, the Supreme Court reviewed California’s death penalty
18 procedure and considered the fact that California did not require any sort of comparative
19 proportionality review. The Supreme Court found that the Eighth Amendment did not require
20 a “state appellate court, before it affirms a death sentence, to compare the sentence in the case
21 before it with the penalties imposed in similar cases if requested to do so by the prisoner.”
22 Pulley, 465 U.S. at 43-44.
23

The Supreme Court also held that “on its face, [California’s] system, without any

24 requirement or practice of comparative proportionality review, cannot be successfully
25 challenged under Furman v. Georgia, [408 U.S. 238 (1972)] and our subsequent cases.”
26 Pulley, 465 U.S. at 53. The Supreme Court considered and upheld California’s scheme where
27 “a person convicted of first-degree murder is sentenced to life imprisonment unless one or
28
83

1 more special circumstances are found, in which case the punishment is either death or life
2 imprisonment without parole”, Pulley, 465 U.S. at 51; “the judge is required to state on the
3 record the reasons for his findings [denying a] motion for modification [of the verdict]”, id. at
4 53; and “there is an automatic appeal [from denial of a motion for modification]”, id. at 53.
5

Appellate Review

6

Written findings by the jury regarding the death penalty are not required by the United

7 States Constitution. Walton v. Arizona, 497 U.S. 639, 647-48 (1990), rev’d on other grounds,
8 Ring v. Arizona, 536 U.S. 584, 589 (2002)); see also Williams, 52 F.3d, at 1484-85. Especially
9 so as “the United States Supreme Court has never stated that a beyond-a-reasonable-doubt
10 standard is required when determining whether a death penalty should be imposed.” Harris,
11 692 F.2d at 1195.
12

Rather, all that is federally required is an “adequate basis for appellate review.” Id. In

13 California, the trial court’s express reasons for its findings in ruling on the automatic motion
14 for modification provide the “adequate basis” for appellate review. Id.; see also People v.
15 Diaz, 3 Cal. 4th 495, 571-573 (1992). The California Supreme Court reasonably could find the
16 record in this case is sufficient for appellate review under this standard.
17

ii.

18

The state supreme court reasonably could find Petitioner failed to show Strickland

Prejudice

19 prejudice. Petitioner supports the claim by citing to “other penalty claims.” (Doc. No. 142 at
20 60.) Yet his various constitutional challenges to California’s death penalty statute fail for the
21 reasons stated in the discussion below of claims XXV(A-L).
22

The California Supreme Court reasonably could find that absent counsel’s alleged

23 deficiencies, there does not remain a reasonable probability of a different outcome. Strickland,
24 466 U.S. at 694; see also Apelt, 878 F.3d at 815-16 (denying habeas relief even though trial
25 counsel failed to uncover mitigating evidence that the defendant grew up very poor, had an
26 alcoholic and violent father who beat his children with an iron rod, was raped twice as a child,
27 and suffered from mental illness); Cain, 870 F.3d at 1021 (denying habeas relief despite new
28
84

1 mitigating evidence that the defendant was severely beaten and punished by his stepmother,
2 had an untreated childhood head injury, and had learning disabilities). The assertion of these
3 unmeritorious constitutional challenges would not have increased the probability of a more
4 favorable sentencing determination. Moreover, “[t]he mere criticism of trial tactics is
5 insufficient to establish ineffectiveness or prejudice.” Ferreira-Alameda, 815 F.2d at 1254.
6

iii.

7

A fair-minded jurist could find that Petitioner failed to establish counsel’s performance

Conclusions

8 fell below an objective standard of reasonableness and that absent counsel’s alleged
9 deficiencies, there remains a reasonable probability of a different outcome. Strickland, 466
10 U.S. at 694.
11

Accordingly, the California Supreme Court’s rejection of this claim was not contrary

12 to, or an unreasonable application of, clearly established federal law, or an unreasonable
13 determination of the facts in light of the evidence presented in the state court proceeding. 28
14 U.S.C. § 2254(d).
15

Claim III(A) shall be denied.

16

6.

17

Petitioner alleges that Schultz was ineffective by failing to investigate and declare a

Claim III(B)

18 doubt as to Petitioner’s competency at the penalty trial and during his waiver of personal
19 presence thereat, violating his rights under Fifth, Sixth, Eighth, and Fourteenth Amendments.
20 (Doc. No. 51-1, ¶¶ 428-32.)
21

a.

22

“A criminal defendant may not be tried unless he is competent.” Pate v. Robinson, 383

Supplemental Legal Standards

23 U.S. 375, 378 (1966); accord Medina v. California, 505 U.S. 437, 439 (1992). He may not
24 waive his right to counsel or plead guilty unless he does so “competently and intelligently[.]”
25 Johnson v. Zerbst, 304 U.S. 458, 468 (1938); see also Godinez v. Moran, 509 U.S. 389, 396
26 (1993) (same).
27

The trial or conviction of a person who is legally incompetent is a substantive due

28
85

1 process violation. Cooper v. Oklahoma, 517 U.S. 348, 354 (1996); see also Maxwell v. Roe,
2 606 F.3d 561, 568 (9th Cir. 2010) (quoting Robinson, 383 U.S. at 378) (“It is undisputed that
3 ‘the conviction of an accused person while he is legally incompetent violates due process.’”).
4

“[T]he standard for competence to stand trial is whether a defendant has sufficient

5 present ability to consult with his lawyer with a reasonable degree of rational understanding
6 and has a rational as well as factual understanding of the proceedings against him.” Moran,
7 509 U.S. at 396 (citing Dusky v. United States, 362 U.S. 402, 402 (1960)); see also Clark v.
8 Arnold, 769 F.3d 711, 729 (9th Cir. 2014). Mental competence requires only that a criminal
9 defendant “has the capacity to understand the proceedings and to assist counsel.” Moran, 509
10 U.S. at 402. “It has long been accepted that a person whose mental condition is such that he
11 lacks the capacity to understand the nature and object of the proceedings against him, to
12 consult with counsel, and to assist in preparing his defense may not be subjected to a trial.”
13 Anderson v. Gipson, 902 F.3d 1126, 1133 (2018) (citing Drope v. Missouri, 420 U.S. 162, 171
14 (1975)). Factors relevant to the competency determination include courtroom demeanor, prior
15 irrational behavior, and mental health history. Drope, 420 U.S. at 180.
16

A “substantive” competency claim focuses on whether the defendant was actually

17 incompetent at trial. Boyde, 404 F.3d at 1165. “Even where the evidence before the trial judge
18 was insufficient to raise a good faith doubt with respect to Steinsvik's competency, he would
19 still be entitled to relief if it now appears that he was in fact incompetent.” Steinsvik v. Vinzant,
20 640 F.2d 949, 954 (9th Cir. 1981) (citing Zapata v. Estelle, 588 F.2d 1017, 1021 (5th Cir.
21 1979)).
22

Petitioner bears the burden of proof by a preponderance of the evidence. Hayes v.

23 Woodford, 301 F.3d 1054, 1078 at n.28 (9th Cir. 2002) (citing Simmon v. Blodgett, 110 F.3d
24 39, 41 (9th Cir. 1997)) (rehearing en banc Hayes v. Brown, 399 F.3d 972 (9th Cir. 2005))
25 (panel decision reversed on other grounds).
26

Trial incompetency, if demonstrated, is structural error not amenable to harmless error

27 analysis under Brecht, but rather necessitating automatic reversal. United States v. Walters,
28
86

1 309 F.3d 589, 593 (9th Cir. 2002) (quoting Neder v. United States, 527 U.S. 1, 7 (1999)).
2

b.

3

Petitioner presented claim III including all subclaims in the second state exhaustion

State Court Direct and Collateral Review

4 petition (Lod. Doc. No. 30 at 200-302) and it was summarily denied on the merits with certain
5 subclaims including subclaim B denied on procedural grounds (Lod. Doc. No. 31, Order
6 Denying Cal. Pet., In re Colin Raker Dickey, No. S165302 (May 29, 2012)).
7

The California Supreme Court on direct appeal also considered and denied on the

8 merits Petitioner’s claim his absence from the penalty phase proceedings violated his
9 constitutional rights. Dickey, 35 Cal. 4th at 922-24.
10

c.

Analysis

11

i.

Deficient Performance

12

Petitioner alleges that Schultz was deficient by failing to declare a doubt as to his

13 competence. (Doc. No. 142 at 61-63; see also the discussion of claim II(I) above and claims
14 VI and VII below.)
15

Petitioner faults Schultz for not investigating competency and requesting a Penal Code

16 section 1368 et seq. hearing to present the habeas proffered evidence that Petitioner’s organic
17 brain damage, PTSD, mental illness, depression, and chronic substance abuse must have left
18 him incompetent by the start of the penalty trial. (Doc. No. 51-1 ¶¶ 428-429; Doc. No. 142 at
19 61-63.) He argues that he was unable to competently assist in the penalty defense and validly
20 waive presence at the penalty trial. (Id.) He argues his incompetence was readily apparent in
21 the noted breakdown in his relationship with Schultz. (Id.; see also the discussion of claim
22 II(I) above and claims VI and VII below.)
23

The California Supreme Court rejected on direct appeal Petitioner’s claim that his

24 absence from the penalty trial violated federal rights, stating that:
25
26
27
28

At his request and pursuant to his written waiver, defendant absented himself
from the courtroom during the penalty phase of the trial and observed the
proceedings on a television monitor in the holding cell. Defendant now
contends his absence violated the federal Constitution and sections 977 and
1043. We conclude defendant validly waived his constitutional right to be
87

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8
9
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15
16
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23
24
25
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present, and although sections 977 and 1043 were violated, the error was
harmless under People v. Watson (1956) 46 Cal. 2d 818, 836, 299 P.2d 243.
Before the penalty phase began, defense counsel informed the court defendant
did not wish to be in the courtroom during the proceeding. Counsel advised the
court he had discussed the issue with defendant, and that he did not oppose
defendant's wishes in this regard. He observed, “with the video setup that's
available in the holding area, obviously there's no confrontation issue.”
The court confirmed “we have a holding cell right next to this courtroom, we
have a TV monitor in there ... so that you will both be able to see and hear what
is going on in this courtroom.” While stating he was prepared to comply with
defendant's wish to be absent, the court advised defendant “it would probably be
wiser to be in the courtroom during the taking of the testimony,” and if
defendant changed his mind at any time, “we'll bring you back immediately.”
Defendant responded, “I would just as soon that the defense not even say
nothing, just rest. I don't intend to plead nothing to the jury. I'd just as soon sit in
the cell. I have no intentions or desire to try to have any sympathy or pity from
the jury that convicted me of these crimes. I don't intend to be present, neither; I
don't wish to be.”
Having readvised defendant of his confrontation and cross-examination rights,
the court took an oral waiver in which defendant confirmed he understood his
right to be present, that he was voluntarily asking to absent himself, and that he
understood he could return to the courtroom “anytime you want to come back.”
The oral waiver was confirmed in a written waiver signed in open court after
defendant himself actively participated in its wording.
A defendant has the right, under the Sixth Amendment of the federal
Constitution, to be present at trial during the taking of evidence. Nonetheless, as
a matter of both federal and state constitutional law, a capital defendant may
validly waive his presence at critical stages of the trial. (People v. Weaver
(2001) 26 Cal. 4th 876, 966, 111 Cal.Rptr.2d 2, 29 P.3d 103 (Weaver ); People
v. Jackson (1996) 13 Cal. 4th 1164, 1209–1210, 56 Cal.Rptr.2d 49, 920 P.2d
1254 (Jackson ).) Defendant's waiver was valid; accordingly, his constitutional
rights were not violated.
A capital defendant cannot voluntarily waive his rights under sections 977 and
1043 to be present at trial. (Weaver, supra, 26 Cal. 4th at pp. 967–968, 111
Cal.Rptr.2d 2, 29 P.3d 103; Jackson, supra, 13 Cal. 4th at p. 1210, 56
Cal.Rptr.2d 49, 920 P.2d 1254.) However, permitting defendant to waive those
rights was merely statutory error, and thus we should reverse the judgment on
this ground only if we conclude the error was prejudicial. (Weaver, at p. 968,
111 Cal.Rptr.2d 2, 29 P.3d 103; Jackson, at p. 1211, 920 P.2d 1254.) The
standard for reviewing error in permitting a defendant to absent himself from
the penalty phase of a capital case is whether there is a “ ‘reasonable possibility
’ ” the jury would have reached a different result had the error not occurred.
(People v. Hernandez (2003) 30 Cal. 4th 835, 877, 134 Cal.Rptr.2d 602, 69 P.3d
446, italics added; People v. Brown (1988) 46 Cal. 3d 432, 448, 250 Cal.Rptr.
604, 758 P.2d 1135.) Weaver and Jackson were also capital cases, and we used
the reasonable probability standard in those cases. (Weaver, at p. 968, 111
Cal.Rptr.2d 2, 29 P.3d 103; Jackson, at p. 1211, 56 Cal.Rptr.2d 49, 920 P.2d
1254.) However, the error in Weaver occurred in the sanity phase of the trial
(Weaver, at p. 965, 111 Cal.Rptr.2d 2, 29 P.3d 103), and in the guilt phase in
88

1
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3
4
5
6
7
8
9
10

Jackson (Jackson, at p. 1209, 56 Cal.Rptr.2d 49, 920 P.2d 1254).
We conclude it is not reasonably possible a result more favorable to defendant
would have been reached in the absence of the error. First, the television
monitor in the holding room enabled defendant to see and hear the proceedings,
and the court made it clear defendant would be brought back into the courtroom
the moment defendant decided he wanted to return. Second, the only witness
who testified during the penalty phase was the detective who provided the
foundation for the admission of the autopsy photographs of the victims. The
admissibility of the autopsy photographs had already been vigorously contested
by defense counsel, and it is not apparent what value defendant's presence
during the detective's testimony would have been to defense counsel. (See
Weaver, supra, 26 Cal. 4th at p. 968, 111 Cal.Rptr.2d 2, 29 P.3d 103.) Third,
given defendant's professed lack of any desire to receive “sympathy or pity from
that jury that convicted me of these crimes,” his demeanor, had he been present
in the courtroom, might have undermined his counsel's argument. Finally, the
court advised the jury that defendant had exercised his option of not being
present, but that he was following the proceedings on a television screen in the
holding cell, and that they were not to consider his absence in their
deliberations.

11 Dickey, 35 Cal. 4th 884, 922–24.
No Reasonable Doubt as to Petitioner’s Competency

12

(1)

13

Petitioner argues his “serious organic brain damage, PTSD, chronic underlying mental

14 illness, depression and chronic substance abuse and dependency,” considered in the context of
15 the stress of trial and the breakdown in his relationship with Schultz, were sufficient to raise a
16 reasonable doubt as to his competency. (Doc. No. 51-1 ¶¶ 428-29; see also Doc. No. 142 at
17 61; discussion of claim II(I)) above and claims VI and VII below.)
18

Petitioner argues these illnesses and impairments prevented him from (i) rationally

19 assisting counsel, and (ii) making any knowing, intelligent and voluntary waiver of his right to
20 be present during the penalty trial. (Doc. No. 51-1 at ¶¶ 430-31, citing Miranda v. Arizona,
21 384 U.S. 436, 444-445 (1996) (waiver of constitutional rights is valid only if knowing,
22 intelligent and voluntary, and the person making the waiver is competent to do so); Withrow v.
23 Williams, 507 U.S. 680, 688-89 (1993) (validity of waiver turns on the totality of the
24 circumstances).

He argues Schultz’s failure to raise a doubt as to his competency was

25 unreasonable and not motived by trial tactics. (Doc. No. 51-1, ¶ 432.)
26

However, the state supreme court reasonably could find Petitioner’s ability to

27 understand the proceedings against him, assist counsel, and waive constitutional rights were
28
89

1 not reasonably in doubt, as follows. See Moran, 509 U.S. at 402.
2

The Defense Investigation

3

Petitioner’s argument that Schultz did not reasonably investigate his mental state and

4 thereupon declare a doubt as to his trial competency (see Doc. No. 51-1 ¶ 428) fails for the
5 reasons discussed in claims III(C-E) above. Although the defense investigation revealed
6 Petitioner’s possible personality and psychosexual disorders, his drug use history, and criminal
7 history which included juvenile acts of sexual molestation and an act of necrophilia for which
8 he was charged and convicted as adult, (see Pet. Ex. 23 at SH002051-2137), the investigation
9 did not reasonably suggest Petitioner was unable to rationally understand and assist in his
10 defense. Notably, Petitioner expressed concern over the impact the admission of his criminal
11 history might have on the jury. He unilaterally suggested a change of venue strategy in this
12 regard. (Pet. Ex. 23 at SH002091-94.)
13

Furthermore, Petitioner’s undiscounted psychosocial history does not suggest he was

14 ever diagnosed or found incompetent, or that his competency had been or reasonably could
15 have been placed in doubt. The defense investigation as detailed to Schultz did not uncover
16 facts suggesting Petitioner’s abusive and dysfunctional upbringing left him, by the time of the
17 penalty phase, unable to understand proceedings in court and assist with his defense. (See
18 section VII, A, 2, c, ante.) Notably, during pretrial defense interviews with Petitioner’s
19 mother, she described his level of functionality in terms not suggesting incompetency, as
20 follows:
21
22
23
24
25
26
27
28

Petitioner was health growing up with no unusual diseases or medical problems;
he was sometimes hyperactive and developed a nervous twitch around age 9 or
10 years;
Petitioner’s family life included physical abuse, particularly, the father beat
Petitioner severely, but also included family vacations to places such as
Disneyland and the San Diego Zoo;
Petitioner’s parents drank and used drugs, passed bad checks, were sometimes
without housing arrangements, living with relatives or others, the father had
difficultly holding a job due to his drinking, at times the father was in jail or
otherwise absent from the home, and the family lived on welfare;
Petitioner and his siblings witnessed and were victims of violence in the home;
90

1

The mother started working in fast food, became heavily addicted to drugs and
engaged in sexual liaisons and severe beatings of the children including
Petitioner;

2
3
4

The father engaged in sexual misconduct with relatives including the repeated
rape of the mother’s 13-year-old sister while the children including Petitioner
watched;

5

Petitioner sometimes acted strangely, abusing his younger brother;

6

Petitioner sexually molested his younger sister.

7 (Pet. Ex. 23 at SH002040-49.)
8

Guilt phase psychiatrist Dr. Hackett did not opine Petitioner was incompetent. Guilt

9 phase psychologist Dr. Thompson, while acknowledging a possible character disorder, found
10 no basis for a psychiatric defense. As this Court previously observed in its order denying guilt
11 phase claims:
12
Petitioner was interviewed in jail by Dr. Hackett, ((Doc. No. 51-1 ¶ 523;
SSHCP, Ex. 2 at 119-120), who diagnosed him with antisocial personality
disorder but nonetheless found him competent to assist in his defense (id.).

13
14

Petitioner also was evaluated by Dr. Thompson (id. at 114), who found
petitioner mildly depressed (SSHCP, Ex. 2 at 121-23; id. at Ex. 19), but
showing no obvious symptoms of psychosis either manifest or latent. (SSHCP,
Ex. 2 at 122). Dr. Thompson opined that a psychiatric defense would be of no
value (id.).

15
16
17

18 (Doc. No. 135 at 45.)
19

The state supreme court reasonably could find Schultz, given the facts and

20 circumstances he faced, was entitled to rely upon these experts that a competency defense was
21 not in play.9 Babbitt v. Calderon, 151 F.3d 1170, 1174 (1998) (counsel has no duty to contact
22 other experts when he reasonably thought those consulted were well-qualified and no duty to
23 ensure the trustworthiness of an expert’s conclusions); see also Murtishaw v. Woodford, 255
24 F.3d 926, 947-48 (9th Cir. 2001) (based on information from experts including that petitioner’s
25 EEG was within normal limits, counsel reasonably could have concluded that further
26 investigation of his possible brain damage was unwarranted); Ortiz v. Stewart, 149 F.3d 923,
27
9

The record reflects Thompson may have practiced marriage family, or child counseling on a revoked state

28 license. (See Pet. Ex. 23 at SH002297-98.)

91

1 933 (9th Cir. 1998), overruled on other grounds by Apelt, 878 F.3d at 827-28 (alleged lack of
2 preparation for sentencing in capital case failed prejudice prong where petitioner failed to show
3 how insufficient preparation prejudiced him).
4

Similarly, Dr. Callahan, mental health expert on the new trial motion, aware of

5 Petitioner’s “extremely chaotic…highly stressful…abusive” background and its possible
6 impact upon his necrophilia, diagnosed Petitioner only with a “passive inadequate” and
7 “avoidant” personality and did not suggest Petitioner was incompetent. (RT 5461-83.)
8

For the reasons stated, Schultz reasonably could have decided the defense investigation

9 did not suggest a reasonable doubt as to competency and that further mental state investigation
10 as to penalty phase competency was not warranted. See Ake v. Oklahoma, 470 U.S. 68, 83-84
11 (1985) (in capital sentencing proceeding, due process requires access to psychiatric
12 examination on relevant issues, testimony of psychiatrist, and assistance in preparation at
13 sentencing phase).
14

Demeanor at Trial

15

Petitioner argues his conduct following the guilty verdict reasonably placed his

16 competency in doubt. He points to the breakdown in his relationship with Schultz and refusal
17 to personally be present at the penalty trial. (Doc. No. 51-1 ¶ 428.)
18

However, Schultz, prior to and during the trial proceedings, was able to observe

19 Petitioner’s demeanor in court and while testifying. He had first-hand information as to
20 Petitioner’s ability to understand proceedings in court and assist with the defense. Petitioner
21 has not shown that Schultz at any time questioned Petitioner’s competency to rationally
22 understand and assist with his trial and defense. (See Pet. Ex. 12; see also discussion of claim
23 II(I) above.)
24

Trial counsel’s assessment of a defendant’s competency is significant and relevant

25 evidence. See Hernandez v. Ylst, 930 F.2d 714, 718 (9th Cir. 1990); Williams v. Woodford,
26 384 F.3d 567, 606 (9th Cir. 2004). Especially so where there is not uncontradicted evidence of
27 a history of pronounced irrational behavior. See Robinson, 383 U.S. at 384-86; Odle v.
28
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1 Woodford, 238 F.3d 1084, 1088 (9th Cir. 2001); cf. de Kaplany v. Enomoto, 540 F.2d 975,
2 979 (9th Cir. 1976) (“[O]rientation as to time and place and some recollection of events is not
3 enough [to show trial competence].”)
4

Petitioner’s guilt phase testimony reflected an understanding of the proceedings in court

5 and ability to assist and further the defense theory, recollection of events perceived, and an
6 understanding he was under oath at trial. (See RT 4869-85, 4900-27.) Moreover, he was able
7 to rationally discuss with Schultz and the trial court his issues with Schultz’s guilt phase
8 performance and desire to absent himself from the courtroom during penalty proceedings. The
9 noted record suggests that Petitioner exhibited a “sufficient present ability to consult with his
10 lawyer with a reasonable degree of rational understanding” and “a rational as well as factual
11 understanding of the proceedings against him.” Moran, 509 U.S. at 396.
12

As discussed above, the state supreme court reasonably could find Petitioner’s decision

13 to discontinue communication with Schultz and absent himself from the courtroom during
14 penalty phase proceedings suggested his dissatisfaction with guilt phase tactics and verdicts
15 rather than incompetency. Particularly, Petitioner’s colloquy with the trial court regarding
16 such matters and his detailed requests for limiting language in the written waiver of personal
17 presence reasonably suggest he understand the nature and purpose of the penalty phase and that
18 he did not wish to mount and assist in a penalty defense. Petitioner has not demonstrated on
19 the record that his decisions in these regards were indicative of or attributable to incompetence.
20

Furthermore, the trial court did not suggest Petitioner’s conduct during trial raised

21 doubt as to his competency. To the contrary, that court observed during post-trial motions that
22 Petitioner “has been an absolutely model defendant. Not once did he get out of hand, even in
23 the slightest.” (RT February 21, 1992 at 50.)
24

Defense Habeas Experts

25

Petitioner argues his habeas experts raised a reasonable doubt as to his competency at

26 the time of the penalty trial.
27

As noted, Dr. Khazanov found that Petitioner demonstrated multiple indicia of brain

28
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1 damage and impairment particularly in the frontal lobe variously suggesting impulse control
2 and aggression issues. (Doc. No. 142 at 106; see also Pet. Ex. 2 at 19-20, 31, 220-21; id., Ex. 2
3 at Ex. H at 7, 65.) Particularly, Dr. Khazanov observed Petitioner to suffer PTSD, depression,
4 physically and emotionally self-destructive behaviors, and organic brain damage including
5 frontal lobe deficits relevant in mitigation. (Pet. Ex. 2 at Ex. H at 25.)
6

Dr. Khazanov opined Petitioner’s serious organic brain damage and underlying mental

7 impairments left him unable to respond rationally to situations facing him, especially so when
8 combined with substance abuse. (Pet. Ex. 2 at Ex. H at 23.) She opined Petitioner’s brain
9 damage was present at the time of trial (id.) and would have been evident to a
10 neuropsychologist had one then been retained (id. at 24).
11

Dr. Khazanov further opined that decompensation from Petitioner’s organic brain

12 damage and mental illnesses “contributed directly to [his] incompetency to proceed at the
13 penalty phase of the trial [and that he] was unable to assist his counsel in a rational manner in
14 the presentation and defense of the penalty phase of the trial” (id.) including as to the
15 breakdown in communication with Schultz and the waiver the presence in the courtroom (id.).
16

Dr. Khazanov based her findings on “possible” deficits which “could” affect

17 Petitioner’s capacity to perceive and relate information and when combined with Petitioner’s
18 other conditions or impairments “would most likely render [him] severely impaired in many
19 areas of functioning.” (Pet. Ex. 2 at Ex. H at 2.) She found that “[Petitioner’s] ability to
20 accurately perceive, retain and relate even basic information is severely impaired.” (Pet. Ex. 2
21 at Ex. H at 23.)
22

Dr. Khazanov went on to opine that:

23
24
25
26
27
28

Given his history of victimization, the combined stress of protracted legal
proceedings, as well as the courtroom setting itself, could have produced further
mental decompensation. In particular, [Petitioner’s] organic brain damage and
underlying mental illnesses contributed directly to his incompetency to proceed
at the penalty phase of the trial. [Petitioner] was unable to assist his counsel in
a rational manner in the presentation and defense of the penalty phase of the
trial. [Petitioner’s] mental illnesses and brain impairments directly impacted his
decisions to absent himself and to discontinue communicating with his defense
counsel and his ability to assist in his defense in any way.
94

1 (Id. at 24.)
2

However, the state supreme court reasonably could find Dr. Khazanov’s opinions

3 subject to discount. She examined Petitioner fourteen years after trial. Her findings appear
4 unsupported in Petitioner’s prior mental health history and contravene the opinions of the
5 mental health professionals who actually examined Petitioner at the time of trial and the
6 demeanor evidence from Petitioner’s conduct prior to and during trial. Significantly, Schultz
7 did not find Petitioner’s behavior and demeanor to raise question as to his competency; nor did
8 the trial court.
9

Moreover, Dr. Khazanov’s conclusions were conclusory and equivocal. She stated that

10 “while it is difficult to ascertain [Petitioner’s] mental status at the time of trial in 1991,
11 combined disabilities identified by my assessment suggest that the possibility exists that his
12 ability to assist his attorney in conducting his defense was hindered.” (Id., emphasis added.)
13 See Leavitt v. Arave, 646 F.3d 605, 614 (9th Cir. 2011) (holding, in pre-AEDPA case, that
14 mental health opinions that “couch results in tentative language” are “simply not enough to
15 show prejudice”).
16

Furthermore, to the extent Petitioner relies upon Dr. Counter, the psychologist who

17 prepared a habeas psychosocial history for Petitioner (see Pet. Ex. 2), Dr. Counter seems to
18 have assembled the noted opinions of others without herself opining on Petitioner’s mental
19 state at the time of trial. See Runningeagle v. Ryan, 825 F.3d 970, 987 (9th Cir. 2016)
20 (discounting mental health declaration that “gave no affirmative diagnosis”). Apart from Dr.
21 Khazanov, none of the sources cited by Dr. Counter seem to opine upon Petitioner’s
22 incompetency at the time of trial. Dr. Counter did not herself opine on Petitioner’s
23 incompetency. (Id.)
24

Petitioner’s statements to Dr. Counter during their 2007 interview suggest he was

25 oriented and well able to articulate his thoughts. For example, he told Dr. Counter that the
26 abuse he suffered at home “annihilated my self-esteem” such that “I didn’t interact normally. I
27 was so afraid to express myself. I had this mortal fear to interact with people. Social
28
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1 anxiety…I couldn’t act in a normal way…The beatings, I could have gotten past that. But the
2 emotional beatings were the worst.” (Pet. Ex. 2 at 54.) The state supreme court reasonably
3 could find such retrospection not indicative of incompetency.
4

Dr. Counter observed that Petitioner sometimes struggled in school. (See Pet. Ex. 2 at

5 52, 78; Pet. Ex. 23 at SH002065, SH002085.) Yet the record suggests some level of academic
6 achievement. In June of 1983 at age 18, Petitioner graduated from Tulare Union High School
7 182nd in a class of 291. (Pet. Ex. 2 at 95.) While in prison in Nevada, Petitioner was able to
8 successfully program. (Pet. Ex. 2 at 101.) Upon release, Petitioner successfully completed
9 truck driving school at the top of his class. (Id. at 103.) He also was able to maintain
10 employment in an auto parts store and in the roofing trade. (Id. at 105.)
11

The habeas proffered institutional mental state experts did not find Petitioner

12 incompetent upon his arrival on death row following the capital conviction. In 1992, Petitioner
13 was examined by San Quentin staff psychologist Dr. M. Lyons, who observed “no signs or
14 symptoms of psychosis, organicity or serious psychological impairment in social functioning.”
15 Dr. Lyons observed that “[Petitioner’s] cognitive functions were adequately developed, and [ ]
16 his level of conceptual thinking and reasoning was adequate for the formation of good
17 judgment.” (Pet. Ex. 2 at 128; id., Ex. 23 at SH002798.) Subsequent examinations by prison
18 mental health professionals concluded Petitioner presented “no psych considerations.” (Id. at
19 129; see also Pet. Ex. 23 at SH003128-29.) Thereafter, Petitioner was able to successfully
20 navigate death row administrative procedures and adjust to institutional life. (Pet. Ex. 2 at 13621 45.)
22

ii.

23

Petitioner argues that absent Schultz’s deficient conduct, there is a reasonable

Prejudice

24 probability he would not have been subject to penalty phase proceedings while incompetent,
25 not personally present, and unable to assist counsel, and thereby avoided a death sentence.
26 (Doc. No. 51-1, ¶ 432, citing Deere v. Woodford, 339 F.3d 1084, 1086 (9th Cir. 2003)
27 (remanding capital habeas case for evidentiary hearing on competence where petitioner
28
96

1 presented expert testimony in habeas that his “multiple impairments, exacerbated by pressures
2 from his former girlfriend and the conditions of his confinement [at the time of his arrest],
3 rendered him incompetent to rationally comprehend his trial proceedings or to aid and assist
4 counsel.”).) Particularly, Petitioner suggests his absence from the penalty phase was taken by
5 jurors as a sign of disinterest and lack of remorse. (Doc. No. 51-1 at ¶ 430.)
6

However, the state supreme court reasonably could find Petitioner failed to demonstrate

7 on the factual record that he was incompetent at the time of the penalty trial, for the reasons
8 stated. Based thereon, that court reasonably could find no structural error and conclude there
9 was no reasonable probability of a more favorable sentencing outcome.
10

Moreover, Petitioner has not demonstrated his absence from the penalty trial impacted

11 the fullness of his mitigation defense. (See the discussion of claims VI and VII, below.)
12 Petitioner was on record as not wanting to present any mitigation defense. (Id.)
13

Additionally, the jury was specifically instructed that “you are not to consider for any

14 purpose, the reason that [Petitioner] is not here. He’s free to make the election that he has
15 made and you’re not to, in any way at all, use it in your decision-making in this phase of the
16 case.” (RT 5124.) The state supreme court reasonably could find the jury understood and
17 followed that instruction. Weeks v. Angelone, 528 U.S. 225, 234 (2000).
18

iii.

19

A fair-minded jurist could find that Petitioner failed to establish counsel’s performance

Conclusions

20 fell below an objective standard of reasonableness and that absent counsel’s alleged
21 deficiencies, there remains a reasonable probability of a different outcome. Strickland, 466
22 U.S. at 694.
23

Accordingly, the California Supreme Court’s rejection of this claim was not contrary

24 to, or an unreasonable application of, clearly established federal law, or an unreasonable
25 determination of the facts in light of the evidence presented in the state court proceeding. 28
26 U.S.C. § 2254(d).
27

Claim III(B) shall be denied.

28
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1

7.

2

Petitioner alleges that Schultz was ineffective by presenting an incompetent penalty

Claim III(F)

3 phase closing argument, violating his rights under the Fifth, Sixth, Eighth and Fourteenth
4 Amendments. (Doc. No. 51-1 ¶¶ 569-603.)
5

a.

6

“There can be no doubt that closing argument for the defense is a basic element of the

Supplemental Legal Standards

7 adversary factfinding process in a criminal trial.” Herring v. New York, 422 U.S. 853, 858
8 (1975).
9
10

b.

State Court Direct and Collateral Review

Petitioner presented claim III including all subclaims in the second state exhaustion

11 petition (Lod. Doc. No. 30 at 200-302) and it was summarily denied on the merits (Lod. Doc.
12 No. 31, Order Denying Cal. Pet., In re Colin Raker Dickey, No. S165302 (May 29, 2012)).
13

Petitioner also claimed on direct appeal that counsel was ineffective based upon the

14 brevity of the penalty phase closing argument; the California Supreme Court denied the claim.
15 Dickey, 35 Cal. 4 th at 927.
16

c.

Analysis

17

i.

Deficient Performance

18

Petitioner argues Schultz’s five-minute closing argument was incomprehensible,

19 ineffective, and entirely unsupported by any evidence at the penalty phase. (Id.; see also Doc.
20 No. 142 at 144-45.) He characterizes Schultz’s closing summation, which comprised two and
21 one-half pages of transcript, as “incomprehensible . . . [and] marred by erroneous statements of
22 fact and law.” (Doc. No. 51-1, ¶ 569.)
23

According to Petitioner, Schutz unreasonably failed to: discuss the law on mitigation;

24 present any evidence in mitigation; argue mitigating effect of the guilt phase evidence;
25 investigate and address the aggravating evidence consisting of Petitioner’s prior felony
26 conviction for second degree burglary and the autopsy photographs of the slain victims (see RT
27 5127-31); and argue lingering doubt. (Doc. No. 51-1 ¶573; Doc. No. 142 at 140; see also RT
28
98

1 5127-31; CT 479.)
2

Particularly, Petitioner argues Schultz omitted important facts and misstated and failed

3 to state the important aspects of the instructions the jury would be given to weigh the
4 aggravating and mitigating factors. He argues Schultz improperly conceded the absence of
5 mitigation. (See Doc. No. 51-1 ¶¶ 575-78.) He argues Schultz failed to argue available
6 mitigating facts under CALJIC 8.85 including: (i) his role in the murders was as a mere
7 accomplice and aider and abettor (Pen. Code § 190.3 (a); see also RT 5135-36); (ii) his prior
8 conviction for non-residential burglary was a non-violent felony (Pen. Code § 190.3 (c)); (iii)
9 his relatively young age (26 years) at the time of the capital crime (Pen. Code § 190.3 (i)); his
10 minor role in what he believed was to be only a robbery (Pen. Code § 190.3 (j)); and his
11 impairment by substance abuse at the time of the capital crime and remorse after the crime
12 (Pen. Code § 190.3 (k)).
13

The record shows that Schultz’s penalty phase closing argument in its entirety was as

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

Colin will die in prison. You vote to kill him or he will just never get out. The
trial was conducted on an aider and abettor theory. The prosecutor told you in
his first argument the statement of Colin was, “while we were there R.C. flipped
out and killed two people; what should I do, should I roll over on R.C.?”
You were told that the -- in order to find a special circumstance that the death
had to be in the course of a robbery and not incidental to it, somebody just shot
somebody because that's what they wanted to do, intentionally walked up to
somebody and shot them, they would look at 25 to life with the possibility of
parole. On a felony murder where the intent was to steal and R.C. flipped out,
we get into the two most severe and treacherous penalties the law allows. Life
without the possibility of parole is not leniency, is not condoning conduct; it's
not ignoring the conscious [sic] of the community.
And you are not the conscience of the community. You are 12 separate people.
And each of you has to pull the switch. You can't pass the buck to anybody else.
You can't say, “Take a poll.”
The absence of any mitigating factor on that chart is not an aggravating factor.
The law does not require you to vote for death. The instruction will be that the
aggravating factors must substantially -- substantially outweigh the mitigating
factors and then -- and then you still have to decide between life and death.
There is nothing that tells you that law favors death. If the factors were equal, it
would be life. If the factor -- if mitigating outweighs the aggravating, it's life.

28
99

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

We're all subject to human frailty, anything -- anything in the back of your mind
during the guilt phase that wasn't sufficient to amount to a reasonable doubt, any
lingering thought you have is sufficient for mitigation.
If you accept Gene and Gail then you have to accept the remorse.
Three people are dead. This crime could never have occurred without R.C.
Nobody knew where the money was, nobody knew how to get in to [sic] the
house, nobody had the other information, nobody could get over there without
R.C.; it couldn't have occurred. Three people are dead, the State says, “Make it
four and that's appropriate, if we get four dead that's appropriate.” The option is
the second most severe penalty the law allows. He'll never get out. It means
what it says.
The second opportunity that Mr. Hahus had to talk to you, he said that Colin
was shook, he was upset; a robbery had been planned, nothing but a burglary -of the home for cash and he ended up riding a murder beef. R.C. told Colin
about his grandmother's house; the money was in the house, they'd go over there
and take it and the burglary went sideways.
They refer to you -- whether or not -- in number [“e”] whether or not the victim
participated in the defendant's homicidal act or consented. Well, obviously that's
not true, there is no concept that it is true. But the only theory that was
presented in the prosecution was an aider and abettor, that the homicidal act was
done by R.C. He referred to the defendant's act.
The appropriateness of the penalty -- in terms of worst cases or better cases or
more serious cases or more aggravated cases -- there's one burglary, that's it,
that's it, and they want him to die, they want you to kill him. They point to a
burglary in 1983 and say, “He didn't learn.”
You're going to teach him by killing him? Is death really going to solve this?
The punishment boggles the mind, never getting out of prison, never. Is one
more death the solution? Thank you.

18 (RT 5138-40.)
19

The California Supreme Court, in denying claimed ineffectiveness of counsel arising

20 from the brevity of the closing argument stated that:
21
22
23
24
25
26
27
28

Defendant next contends defense counsel was ineffective because his penalty
phase argument was brief. It was brief; in transcript, three pages long. (The
prosecutor's argument was longer by only a page.) However, the effectiveness
of an advocate's oral presentation is difficult to judge accurately from a written
transcript, and the length of an argument is not a sound measure of its quality.
(Weaver, supra, 26 Cal. 4th at p. 979, 111 Cal.Rptr.2d 2, 29 P.3d 103; People v.
Cudjo (1993) 6 Cal. 4th 585, 634–635, 25 Cal.Rptr.2d 390, 863 P.2d 635.)
Defense counsel argued the trial was conducted on an aider and abettor theory;
that Richard Cullumber was the actual killer; that defendant had expressed
remorse as he told his story to Goldman and Buchanan; that the prosecutor in
argument had acknowledged only a burglary had been planned; that life
imprisonment without possibility of parole meant that defendant would never
100

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2
3
4
5
6
7
8
9

get out of prison; that sending another man to his death was not an appropriate
response to this tragedy; that sentencing defendant to life imprisonment without
possibility of parole was the second most severe penalty the law allowed and
would not serve to condone defendant's crime; that the aggravating factors had
to substantially outweigh the mitigating factors to warrant the death penalty; and
that any lingering doubt the jurors may have had during the guilt phase, even
though not amounting to a reasonable doubt, was sufficient for mitigation.
We conclude defense counsel's argument, though brief, did not fall below the
standard of reasonably competent representation, and we find no reasonable
probability that a different argument would have convinced the jury to vote for
life over death. (Weaver, supra, 26 Cal. 4th at p. 979, 111 Cal.Rptr.2d 2, 29
P.3d 103; People v. Lewis (2001) 25 Cal. 4th 610, 675, 106 Cal.Rptr.2d 629, 22
P.3d 392 [penalty phase argument two pages in length not inadequate
representation]; Mayfield, supra, 5 Cal. 4th at pp. 186–187, 19 Cal.Rptr.2d 836,
852 P.2d 331 [brief, “perfunctory” penalty phase argument not inadequate
representation].)

10 Dickey, 35 Cal. 4th at 927.
11

The state supreme court reasonably denied the claim, as discussed below.

12

(1)

13

Mitigating Evidence and Sentencing Factors

14

Petitioner faults Schultz for failing to argue the mitigating value of guilt phase evidence

The Penalty Defense and Trial Tactics

15 (see Doc. No. 51-1, ¶¶ 569-603; see also CT 498-499) and the habeas proffered mitigation
16 evidence. (Doc. No. 51-1 ¶¶ 579, 592, citing CALJIC 8.84, 8.85.) He argues Schultz lacked
17 any strategic basis for his failure to do so.
18

However, the state supreme court reasonably could find Schultz’s closing touched upon

19 evidence in the record supporting the primary penalty defense theory that Petitioner played
20 only a minor role in the theft portion of the crime; that he did not intend to harm anyone and
21 did not do so. (See RT 5138.)
22

Schultz alluded to the mitigating aspects of lingering doubt as to Petitioner’s

23 involvement in the crime; that he was a mere aider and abettor of a planned burglary gone
24 wrong; that R.C. was the principal in the crime and killed both victims. (RT 5139-40.)
25 Moreover, the jury knew the prosecutor conceded the absence of direct evidence that Petitioner
26 aided the killings or formed an intent to kill before seeing victim Freiri apparently dead. (See
27 RT 4975-80.)
28
101

1

Schultz argued Petitioner’s confession to his roommates, apparently accepted by the

2 jury, suggested remorse by his emotional recounting of the crime and questioning whether to
3 turn himself in to authorities. (RT 4357-62, 5139; see also Doc. No. 51-1, ¶¶ 579, 590-597;
4 Doc. No. 142 at 148; Doc. No. 135 regarding guilt phase claims (II(B-C, L).) He argued
5 Petitioner’s involvement in the crime was not highly aggravated on its facts, highlighting for
6 the jury the severity of the felony murder rule. (RT 5138.) He argued the 1983 burglary
7 conviction lacked aggravating weight. (RT 5140.) He argued that life without the possibility
8 of parole (hereinafter “LWOP”) was a proportionate and appropriate punishment and that
9 Petitioner would never be released from prison if sentenced to LWOP. (RT 5138-39.)
10

As to the brevity of the defense closing, Schultz stated on habeas his reasoning that “a

11 very concise statement to the jury would have the most positive effect.” (Pet. Ex. 12 ¶ 14.)
12 He averred that “I emphasized the defendant’s limited role as aide and abettor to the underlying
13 felonies and his insubstantial criminal history. My final argument lasted for approximately
14 five minutes.” (Id.) The state supreme court reasonably could according strategic weight to
15 Schultz’s reasoning.
16

Petitioner’s Other Arguments

17

Petitioner’s additional arguments that Schultz was deficient in his penalty phase closing

18 reasonably appear unpersuasive. Schultz did not concede “an absence of any mitigating
19 factor.” Instead, Schultz argued that “t]he absence of any mitigating factor on that [Penal Code
20 section 190.3] chart [of sentencing factors discussed by the prosecutor] was not an aggravating
21 factor.” (RT 5139.) The state supreme court reasonably could find this to be a correct
22 statement of the law and not a concession that the evidence before the jury had no mitigating
23 weight. Petitioner argument otherwise based upon a passage lifted out of context is at best
24 unpersuasive. (See e.g. Doc. No. 144 at 30-31.)
25

The state supreme court could reasonably find Schultz was not deficient by failing to

26 argue each of the CALJIC 8.85 factors in mitigation. Any failure by Schultz to link the
27 CALJIC 8.85 sentencing factors to mitigating aspects of the trial record was ameliorated by
28
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1 jurors’ awareness of these factors from the prosecutor’s earlier penalty phase closing argument
2 and the illustrative chart in the courtroom. (See RT 5134-38; CT 498-499 (regarding CALJIC
3 8.85).) Schultz told the jury that “the aggravating factors must substantially outweigh the
4 mitigating factors.” (RT 5139.) The jury specifically was instructed on the Penal Code section
5 190.3 sentencing factors. (CT 498-503.) Jurors are presumed to understand the court’s
6 instructions and follow them. Weeks, 528 U.S. at 234.
7

Moreover, the jury was aware Petitioner had no prior history of violent crime; the

8 prosecutor conceded as much. (RT 5134.) The jury knew Petitioner was only 26 years-of-age
9 at the time of the crime; the prosecutor had stated as much. (RT 4871.) The jury knew that
10 “[Petitioner was young” when the capital crime occurred (RT 5136).
11

Petitioner has not pointed to facts in the record that he was under the influence of drugs

12 at the time of the capital crimes.
13

For the reasons stated, the state supreme court reasonably could find Schultz argued the

14 mitigating evidence and factors and discounted the aggravating evidence and factors consistent
15 with the trial defense theory and the possibility of lingering doubt and his reasonable trial
16 strategy of keeping Petitioner’s criminal history from the penalty phase jury. See Gentry, 540
17 U.S. at 4 (deference accorded to counsel’s decisions in closing argument).
18

ii.

19

Petitioner argues that absent Schultz’s deficient conduct there is a reasonable

Prejudice

20 probability the result of the sentencing trial would have been different. (Doc. No. 51-1 ¶ 603.)
21

However, the state supreme court reasonably could find otherwise. The jury was

22 instructed that argument is not evidence (RT 5146; CT 488). They were adequately instructed
23 at the penalty phase (see discussion of claims III(G) and XII(D-H) below), including
24 instruction that they could consider evidence from the entire trial unless instructed otherwise.
25 (RT 5145.) For the reasons stated, Petitioner has not shown on the factual record that the jury
26 was precluded from considering any and all mitigating evidence. (See the discussion of claim
27 III(A) above and claim III(G) below); see also Lockett, 438 U.S. at 604.
28
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iii.

2

A fair-minded jurist could find Petitioner failed to establish that counsel’s performance

Conclusions

3 fell below an objective standard of reasonableness, and that absent counsel’s alleged
4 deficiencies there remains a reasonable probability of a different outcome. Strickland, 466
5 U.S. at 694.
Accordingly, the California Supreme Court’s rejection of this claim was not contrary

6

7 to, or an unreasonable application of, clearly established federal law, or an unreasonable
8 determination of the facts in light of the evidence presented in the state court proceeding. 28
9 U.S.C. § 2254(d).
10

Claim III((F) shall be denied.

11

8.

12

Petitioner alleges that Schultz was ineffective by failing to object to inappropriate

Claim III(G)

13 penalty phase instructions and request appropriate penalty phase instructions, denying him a
14 fair and reliable sentence determination, violating his rights under the Fifth, Sixth, Eighth and
15 Fourteenth Amendments.10 (Doc. No. 51-1, ¶¶ 604-616.)
16

a.

17

The Constitution requires that the jury must “not be precluded from considering, as a

Supplemental Legal Standards

18 mitigating factor, any aspect of a defendant’s character or record and any of the circumstances
19 of the offense that the defendant proffers as a basis for a sentence less than death.” Lockett,
20 438 U.S. at 604.
Any error in the state court’s determination of whether state law supported an

21

22 instruction in this case cannot form the basis for federal habeas relief. See McGuire, 502 U.S.
23 at 71 (“[T]he Due Process Clause does not permit the federal courts to engage in a finely tuned
24 review of the wisdom of state evidentiary rules”). “Failure to give [a jury] instruction which
25 might be proper as a matter of state law, by itself, does not merit federal habeas relief.”
26 Menendez v. Terhune, 422 F.3d 1012, 1029 (9th Cir. 2005), quoting Miller v. Stagner, 757
27
10

Claim III(G) does not include argument that counsel failed to object to penalty phase instructions. (See Doc.

28 No. 51-1 ¶¶ 604-614.)

104

1 F.2d 988, 993 (9th Cir. 1985).
2

The Supreme Court has stated instead that a claim that a court violated a petitioner’s

3 due process rights by omitting an instruction requires a showing that the error “so infected the
4 entire trial that the resulting conviction violate[d] due process.” Henderson v. Kibbe, 431 U.S.
5 145, 154 (1977). The burden on petitioner is especially heavy “where ... the alleged error
6 involves the failure to give an instruction.” Clark v. Brown, 450 F.3d 898, 904 (9th Cir. 2006).
7

Even if constitutional instructional error has occurred, the federal court must still

8 determine whether petitioner suffered actual prejudice, that is, whether the error “had
9 substantial and injurious effect or influence in determining the jury’s verdict.” Brecht, 507
10 U.S. at 637. A “substantial and injurious effect” means a “reasonable probability” that the jury
11 would have arrived at a different verdict had the instruction been given. Clark, 450 F.3d at
12 916.
13

In evaluating a claim of instructional error, a single instruction is not viewed in

14 isolation, but rather in the context of the overall charge. Spivey v. Rocha, 194 F.3d 971, 976
15 (1999). “[T]he proper inquiry . . . is whether there is a reasonable likelihood that the jury has
16 applied the challenged instruction” in an unconstitutional manner. Boyde, 494 U.S. at 380.
17

Additionally, a reviewing court does not engage in a technical parsing of the

18 instruction’s language, but instead approaches the instructions in the same way that the jury
19 would -- with a “commonsense understanding of the instructions in the light of all that has
20 taken place at the trial.” Johnson v. Texas, 509 U.S. 350, 368 (1993). Lastly, federal courts
21 presume that juries follow instructions, including cautionary instructions. Weeks, 528 U.S. at
22 234; see also Boyde, 494 U.S. at 381-85; Tan v. Runnels, 413 F.3d 1101, 1115 (2005).
23

b.

24

Petitioner presented claim III including all subclaims in the second state exhaustion

State Court Direct and Collateral Review

25 petition (Lod. Doc. No. 30 at 200-302) and it was summarily denied on the merits with certain
26 subclaims including subclaim G denied on procedural grounds (Lod. Doc. No. 31, Order
27 Denying Cal. Pet., In re Colin Raker Dickey, No. S165302 (May 29, 2012)).
28
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c.

Analysis

2

i.

Deficient Performance

3

Petitioner faults counsel for failing to prepare and request special case law-based

4 instructions appropriate for his penalty defense. (See Doc. No. 142 at 159-60.)
5

However, Petitioner does not point to any clearly established Supreme Court law as a

6 basis for relief. See Blystone, 494 U.S. at 305 (it is sufficient that “jury be allowed to consider
7 and give effect to all relevant mitigating evidence”); id. at 308 (no general Eighth Amendment
8 requirement for a mercy instruction); Brown, 479 U.S. at 543 (instructing the jury that they
9 cannot consider mere sympathy for the defendant at penalty determination does not violate the
10 United States Constitution).
11

Petitioner’s specific arguments, discussed below, were reasonably rejected by the state

12 supreme court.
13

(1)

14

Petitioner argues Schultz failed to request instruction that the jury may consider

Lingering Doubt

15 lingering doubt. (See RT 5107-08.) Petitioner argues that under California law lingering doubt
16 can be a factor in mitigation such that an instruction on lingering doubt would have been
17 available to highlight an important mitigation factor. (See Doc. No. 51-1, ¶¶ 606-08, citing
18 People v. Kaurish, 52 Cal. 3d 648, 705 (1990) (trial court instructed jury that it could consider
19 lingering doubt of defendant's guilt to be a factor in mitigation); see also Doc. No. 144 at 32,
20 citing People v. Terry, 61 Cal. 2d 137, 145 (1964) (“[T]he lingering doubts of jurors in the
21 guilt phase may well cast their shadows into the penalty phase and in some measure affect the
22 nature of the punishment.”), overruled on other grounds by People v. Laino, 32 Cal. 4 th 878,
23 893 (2004).) Petitioner argues the standard instructions given by the trial court “did not
24 provide adequate guidance on this mitigation factor.” (Doc. No. 144 at 34.)
25

However, Petitioner has not pointed to clearly established law that a trial court is

26 required to instruct a jury to consider lingering doubt as a mitigating factor. The California
27 Supreme Court has found no such requirement. See People v. Jackson, 1 Cal. 5th 269, 369-70
28
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1 (2016) (neither state nor federal law requires a trial court to instruct a penalty jury to consider
2 lingering doubt as a factor in mitigation).
3

The record shows the jury was instructed to consider “all of the evidence received

4 during any part of the trial in this case,” and “[w]hether or not the defendant was an
5 accomplice to the offense and his participation in the commission of the offenses was relatively
6 minor” and “[a]ny other circumstance which extenuates the gravity of the crime even though it
7 is not a legal excuse for the crime [. . . . ]” (CT at 498-499.)
8

Additionally, Schultz argued for lingering doubt, that:

9
10
11

We're all subject to human frailty, anything -- anything in the back of your mind
during the guilt phase that wasn't sufficient to amount to a reasonable doubt, any
lingering thought you have is sufficient for mitigation.

12 (RT 5139.)
13

Accordingly, the state supreme court reasonably could have found the instructions

14 given and the arguments of counsel relative thereto sufficiently covered these areas raised by
15 Petitioner.
16

(2)

17

Petitioner argues Schultz failed to request instruction regarding the propriety of

Sympathetic Evidence

18 considering sympathy. (Doc. No. 142 at 164, citing RT 5108.) He points out the jury was
19 instructed at the guilt phase not to be influence by sympathy or pity (CT 388) and argues no
20 contrary instruction was given at the penalty phase. (Doc. No. 142 at 162.) He argues the jury
21 was entitled to consider sympathy. (See Doc. No. 142 citing Lockett v. Ohio, 438 U.S. 586
22 (1978); Eddings v. Oklahoma, 455 U.S. 104 (1982).) He argues that California’s death penalty
23 statute includes an inherent right in the jury to afford mercy to a capital defendant. (See Doc.
24 No. 51-1, ¶ 610, citing Gregg, 428 U.S. at 199; People v. Gallego, 52 Cal. 3d 115, 199 (1990)
25 (defendant entitled to instruction necessary to convey to jury its authority to consider and act
26 on defendant’s mitigating evidence).)
27

Relatedly, Petitioner argues Schultz failed to request instruction that the jury may vote

28
107

1 for LWOP even in the absence of mitigating factors. (Doc. No. 51-1 ¶¶ 609-614, citing People
2 v. Bonin, 46 Cal. 3d 659, 698 (1988), overruled on other grounds by People v. Hill, 17 Cal. 4th
3 800, 823 (1998) (no sua sponte requirement to instruct on the meaning of LWOP); Penry v.
4 Lynaugh, 492 U.S. 302 (1989), abrogated by Atkins v. Virginia, (jury must be able to consider
5 and give effect to mitigating evidence relevant to defendant’s background, character, or
6 circumstances of crime); People v. Murtishaw, 48 Cal. 3d 1001, 1027 (1989) (each juror must
7 assign whatever moral or sympathetic value he deems appropriate to the relevant sentencing
8 factors, singly and in combination [he/she] must believe aggravation is so relatively great, and
9 mitigation so comparatively minor, that the defendant deserves death rather than society's next
10 most serious punishment, life in prison without parole); see also Doc. No. 142 at 161, citing
11 People v. Duncan, 53 Cal. 3d 955, 978 (1991) (jury may decide, even in the absence of
12 mitigating evidence, that the aggravating evidence is not comparatively substantial enough to
13 warrant death).
14

Petitioner points out that although the trial court stated outside the jury’s presence its

15 intention to instruct the penalty phase jury that they could consider sympathy for Petitioner
16 (RT 5072), Schultz failed to ensure that was done. (RT 5108.) He argues Schultz’s failure to
17 request such instruction was not motivated by trial tactics. (Doc. No. 142 at 163-64.)
18

Petitioner also argues that given death qualification bias and Schultz’s failure to present

19 mitigating evidence, Schultz should have requested an instruction that jurors were not required
20 to impose the death penalty. (Doc. No. 51-1, ¶¶ 609, 612; see also Doc. No. 142 at 159-60,
21 citing People v. Brown, 40 Cal. 3d 512, 541 (1985) reversed in part by California v. Brown,
22 479 U.S. 538 (1987) (sentencing factor “k” allows jury’s consideration of any mitigating
23 evidence).
24

However, the Court observes that the California Supreme Court has considered and

25 rejected these allegations in the context of trial court error, stating that:
26
27
28

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
108

1
2
3
4
5

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.

6 People v. Bolin, 18 Cal. 4th 297, 343-44 (1998).
7

In reviewing penalty phase instructions, the test is “whether there is a reasonable

8 likelihood that the jury has applied the challenged instruction in a way that prevents the
9 consideration of constitutionally relevant evidence.” Boyde, 494 U.S. at 380. Further, a single
10 instruction “may not be judged in artificial isolation,” but must be considered in light of the
11 instructions as a whole and the entire trial record. McGuire, 502 U.S. at 72.
12

Petitioner has not identified clearly established authority from the United States

13 Supreme Court holding that a jury must be instructed in a particular manner. Accordingly,
14 since the Supreme Court has not decided the issue, the state supreme court’s decision could not
15 be contrary to or an unreasonable application of United States Supreme Court precedent.
16 Musladin, 549 U.S. at 76.
17

The California Supreme Court has found no requirement that a jury be instructed that it

18 may vote for LWOP even in the absence of mitigating factors. People v. Watson, 43 Cal. 4th
19 652, 704 (Cal. 2008) (citing People v. Cunningham, 25 Cal. 4th 926 (2001)) (California's death
20 penalty statute is not unconstitutional for failing to require a jury instruction as to which factors
21 are aggravating and which are mitigating, or an instruction that the absence of mitigating
22 factors does not constitute aggravation). Notably, that court on direct appeal in this case stated
23 that “[t]he jury is not constitutionally required to presume life imprisonment without possibility
24 of parole is the appropriate punishment.” Dickey, 35 Cal. 4 th at 931.
25

Here, the state supreme court reasonably could find the jury was not precluded from

26 considering constitutionally relevant mitigating and sympathetic evidence during their sentence
27 deliberations. The Supreme Court has never required a sentencing court to instruct a jury on
28
109

1 how to weigh and balance factors in aggravation and mitigation. In Tuilaepa, the Supreme
2 Court stated, “[a] capital sentencer need not be instructed how to weigh any particular fact in
3 the capital sentencing decision.” 512 U.S. at 979. “Once the jury finds that the defendant falls
4 within the legislatively defined category of persons eligible for the death penalty, . . . the jury
5 then is free to consider a myriad of factors to determine whether death is the appropriate
6 punishment.” Id. (quoting Ramos, 463 U.S. at 1008.)
7

In Kansas v. Marsh, the Supreme Court stated:

8
9
10
11

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.”

12 548 U.S. 163, 175 (2006) (quoting Franklin v. Lynaugh, 487 U.S. 164, 179 (1988)).
13

Petitioner’s argument that such an instruction was nonetheless available at the time of

14 his trial fails to address instruction given to his jury that it may consider:
15
16
17
18

[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. You must disregard any jury instruction given to you in the guilt or
innocence phase of this trial which conflicts with this principle.

19 (RT 5152.)
20

Moreover, considerations of sympathy, mercy, and pity were addressed in instructions

21 given and Schultz argued in favor of such at the penalty closing. The jury was instructed that,
22 unlike in the guilt phase, it could consider sympathy during penalty phase deliberations. (Doc.
23 142 at 163 [quoting RT at 5072]; see CT at 502-03 [regarding CALJIC 8.88] describing juror’s
24 duty to weigh aggravating and mitigating factors under California law and allowing the jurors
25 to “assign whatever moral or sympathetic value you deem appropriate”.) The jury was
26 instructed “to disregard all other instructions given to you in other phases of this trial.” (CT
27 486); see Bolin, 18 Cal. 4th at 343 (special instruction on sympathy not required).
28
110

1

The jury was aware that from other instructions given that it was not required to vote

2 for death. (See CT at 494 [individual opinion], CT 498-99 [consider all evidence and
3 applicable factors], 502-03 [consider all evidence, applicable factors, and appropriateness of
4 death to determine which penalty is justified].) Petitioner’s argument that the penalty phase
5 instructions mislead the jury by omitting the possibility of a hung jury is unpersuasive for
6 reasons discussed in claim XII(D) below. (See also section of claim XII(E) below; RT 5145.)
7 Moreover, the record reflects that counsel for both sides touched on the issue of sympathy
8 during penalty phase closing argument. (RT 5134-40.)
9

Accordingly, the state supreme court reasonably could have found the instructions

10 given and the arguments of counsel sufficiently covered these areas raised by Petitioner.
11

(3)

12

Petitioner argues Schultz failed to request instruction that the jury is not permitted to

Special Circumstances

13 double-count special circumstances. (See Doc. No. 51-1, ¶611, citing People v. Melton, 44
14 Cal. 3d 713, 768-69 (1988) (since statutory special circumstances are a subset of the
15 circumstances of the crime, a jury given no clarifying instructions might conceivably double16 count any such circumstances which were also special circumstances[;] on defendant's request,
17 the trial court should admonish the jury not to do so).)
18

Petitioner argues instruction with CALJIC 8.85 (regarding Penal Code section

19 190.3)(a)) that “in determining the appropriate penalty [the jury may consider] … the
20 circumstances of the crime of which the defendant was convicted in … the present proceeding
21 and the existence of any special circumstances found to be true”) allowed double-counting of
22 the special circumstances. (Doc. No. 142 at 164-65; CT 498-99.) He argues a clarifying
23 instruction should have been given. (Id., citing Melton, 44 Cal. 3d at 774 (conc. opn. of
24 Broussard, J.) (“I believe we should adhere to the policy of prior decisions and interpret Penal
25 Code section 190.3 to avoid duplicative aggravating factors derived from a single, indivisible
26 course of conduct.”).
27

However, the same claim was rejected by the United States Supreme Court, as follows:

28
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1
2
3
4
5
6
7
8
9
10
11
12
13

At the penalty phase, the jury is instructed to consider numerous other factors
listed in § 190.3 in deciding whether to impose the death penalty on a particular
defendant. Petitioners contend that three of those § 190.3 sentencing factors are
unconstitutional and that, as a consequence, it was error to instruct their juries to
consider them. Both Proctor and Tuilaepa challenge factor (a), which requires
the sentencer to consider the “circumstances of the crime of which the
defendant was convicted in the present proceeding and the existence of any
special circumstances found to be true.” Tuilaepa challenges two other factors
as well .... We conclude that none of the three factors is defined in terms that
violate the Constitution.
Petitioners’ challenge to factor (a) is at some odds with settled principles, for
our capital jurisprudence has established that the sentencer should consider the
circumstances of the crime in deciding whether to impose the death penalty.
See, e.g., Woodson, 428 U.S., at 304, 96 S. Ct., at 2991 (“consideration of ... the
circumstances of the particular offense [is] a constitutionally indispensable part
of the process of inflicting the penalty of death”). We would be hard pressed to
invalidate a jury instruction that implements what we have said the law requires.
In any event, this California factor instructs the jury to consider a relevant
subject matter and does so in understandable terms. The circumstances of the
crime are a traditional subject for consideration by the sentencer, and an
instruction to consider the circumstances is neither vague nor otherwise
improper under our Eighth Amendment jurisprudence.

14 Cornwell v. Warden, San Quentin State Prison, No. 2:06-CV-00705 TLN KJN, 2018 WL
15 934542, at *104–05 (E.D. Cal. Feb. 15, 2018), citing Tuilaepa, 512 U.S. at 975–76.
16

Accordingly, Petitioner cannot point to clearly established federal law that duplicative

17 aggravating circumstances violate federal rights.
18

Furthermore, the California Supreme Court has found that “[f]actor (a) of section 190.3

19 … does not impermissibly result in ‘double-counting’ or automatically create a bias in favor of
20 a death verdict.” People v. Tully, 54 Cal. 4th 952, 1068 (2012). According to that court, no
21 such clarifying instruction is required. People v. Tafoya, 42 Cal. 4th 147, 188 (2007) (trial
22 court is not required “to instruct the jury not to ‘double count’ the same facts as circumstances
23 of the crime and as special circumstances.”).
24

Accordingly, the state supreme court reasonably could find the instructions given and

25 the arguments of counsel sufficiently covered these areas raised by Petitioner.
26

(4)

27

Petitioner faults Schultz for failing to request instructions defining LWOP and that the

Definition of LWOP and Execution of Sentence

28
112

1 jury may assume the penalty selected would be carried out. (Doc. No. 51-1, ¶ 613; Doc. No.
2 142 at 166, citing People v. Thompson, 45 Cal. 3d 86, 131 (1988) (trial court may address issue
3 whether sentence would be carried out if raised by the jury).) He argues such instructions
4 would have reduced the risk that the jury would impose a death sentence merely to ensure that
5 Petitioner was not released back into society. (See Doc. No. 142 at 167.)
6

Claims of instructional error will constitute a violation of due process under the

7 Fourteenth Amendment only where the alleged error by itself infects the entire trial to such an
8 extent that the resulting conviction violates due process. Cupp v. Naughten, 414 U.S. 141, 147
9 (1973); see also Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). Where the alleged error
10 is the failure to give an instruction, the burden on the Petitioner is “especially heavy.” Kibbe,
11 431 U.S. at 155; see also Clark, 450 F.3d at 904.
12

Here, the California Supreme Court has found instruction relating to whether the

13 sentence imposed, LWOP or death, would be carried out is not required but rather disfavored.
14 People v. Letner and Tobin, 50 Cal. 4th 99, 203-07 (2010).] Petitioner’s reliance upon
15 Thompson is misplaced as that case is not authority otherwise. See 45 Cal. 3d. at 130-31.
16

Additionally, Petitioner acknowledges the jury was instructed at the penalty phase to

17 “[d]isregard all other instructions given to you in the other phases of this trial,” and not to be
18 “influenced” by “bias” toward Petitioner. (CT 486; see also Doc. No. 142 at 162 n.30.)
19

Any error in the state court’s determination of whether state law supported an

20 instruction in this case cannot form the basis for federal habeas relief. See McGuire, 502 U.S.
21 at 71 (“[T]he Due Process Clause does not permit the federal courts to engage in a finely tuned
22 review of the wisdom of state evidentiary rules”).]
23

ii.

24

Petitioner argues these instructional errors undermined the reliability of his death

Prejudice

25 sentence.
26

In evaluating a claim of instructional error, a single instruction is not viewed in

27 isolation, but rather in the context of the overall charge. Spivey, 194 F.3d at 976. “[T]he
28
113

1 proper inquiry . . . is whether there is a reasonable likelihood that the jury has applied the
2 challenged instruction” in an unconstitutional manner. Boyde, 494 U.S. at 380. Additionally, a
3 reviewing court does not engage in a technical parsing of the instruction’s language, but
4 instead approaches the instructions in the same way that the jury would -- with a
5 “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; see also Boyde, 494 U.S. at 381-85;
8 Tan, 413 F.3d at 1115.
9

Even if the trial court erred as alleged, the California Supreme Court reasonably could

10 find such error had no substantial and injurious effect on the jury’s penalty selection. Brecht,
11 507 U.S. at 620. Petitioner has not demonstrated on the evidentiary record any reasonable
12 likelihood the jury applied the trial court’s total instructional charge so as to preclude
13 consideration of constitutionally relevant evidence. A common-sense application of the
14 instructions given to the facts and circumstances of this case suggests the possibility of
15 prejudice from the omitted instructions is only remote.
16

The omitted instructions likely would not have been helpful to the jury. The requested

17 instructions readily appear cumulative of the instructions given by the trial court. (See CT
18 483-503; discussion below of claims XII(D-H), XXV(E, J).) A federal court can presume that
19 jurors follow all the instructions given them. Weeks, 528 U.S. at 234.
20

Accordingly, the California Supreme Court reasonably found that such omitted

21 instructions would not have provided any necessary guidance, such that their omission was not
22 prejudicial.
23

iii.

24

A fair-minded jurist could find that Petitioner failed to establish counsel’s performance

Conclusions

25 fell below an objective standard of reasonableness and that absent counsel’s alleged
26 deficiencies, there remains a reasonable probability of a different outcome. Strickland, 466
27 U.S. at 694.
28
114

1

Accordingly, the California Supreme Court’s rejection of this claim was not contrary

2 to, or an unreasonable application of, clearly established federal law, or an unreasonable
3 determination of the facts in light of the evidence presented in the state court proceeding. 28
4 U.S.C. § 2254(d).
5

Claim III(G) shall be denied.

6

B.

Claims Relating to Trial Court Error

7

1.

Legal Standards

8

Trial court error violates due process where it renders the resulting criminal trial

9 fundamentally unfair. Chambers v. Mississippi, 410 U.S. 284, 294, 303 (1973).
10

2.

11

Petitioner alleges that during the period between the guilt and penalty phases, the trial

Claim V

12 court erred by failing to hold a Marsden hearing and thereupon appointing new counsel,
13 violating his rights under the Fifth, Sixth, Eighth and Fourteenth Amendments. (Doc. No. 51-1
14 ¶¶ 627-651.)
15

a.

16

It is clearly established that the right to the assistance of counsel, as guaranteed by the

Supplemental Legal Standards

17 Sixth Amendment of the United States Constitution entitles a defendant to representation that
18 is free from conflict. Wood, 450 U.S. at 271; see also discussion of claim II(I) above.
19

b.

20

Petitioner presented claim on direct appeal and it was denied on the merits. Dickey, 35

State Court Direct and Collateral Review

21 Cal. 4th at 917-22.
22

The same claim was presented in the first state exhaustion petition (see Lod. Doc. No. 7

23 at 142-55) and denied on the merits (see Lod. Doc. No. 10.)
24

c.

Analysis

25

i.

Trial Court Error

26

Petitioner revisits his claim II(I) (ineffective assistance of counsel) allegations that a

27 complete breakdown of the attorney-client relationship was sufficient to trigger pre-penalty
28
115

1 phase proceedings under Marsden, recast here as trial court error.
2

Petitioner argues that he made a motion for substitute counsel and demonstrated

3 irreconcilable conflict with Schultz and that the trial court erred by wrongly denying the
4 motion. (See Doc. No. 142 at 168-69, citing Smith, 6 Cal. 4th at 696 (substitute counsel should
5 be appointed where representation is or likely will become ineffective); Sanchez v. Chappell,
6 No. 1:97-CV-06134-AWI, 2015 WL 4496379, at *49 (E.D. Cal. July 23, 2015) (“[t]he
7 overarching constitutional question is whether the attorney-client conflict has become so great
8 that it resulted in a total lack of communication or other significant impediment that resulted in
9 turn in an attorney-client relationship that fell short of that required by the Sixth
10 Amendment.”); see also Doc. No. 144 at 40-41.)
11

However, the state supreme court reasonably could find the trial court did not err as

12 alleged, for the reasons the follow.
Petitioner’s Substitute Counsel Request Related to New Trial Motion

13

(1)

14

Petitioner argues the trial court wrongly construed his Marsden request for substitute

15 counsel for the penalty phase as a request applicable only to the new trial motion. (Doc. No.
16 51-1 ¶ 646.)
17

Petitioner faults the trial court for delaying until the conclusion of the penalty phase the

18 replacement of Schultz with Katherine Hart, who represented Petitioner on the motion for new
19 trial. (RT 5175-76.) He argues the trial court, when informed of his irreconcilable conflict
20 with Schultz and his desire for substitute counsel, erred in refusing to hold a Marsden hearing
21 prior to the penalty phase. (See Doc. No. 142 at 175, citing Schell, 218 F.3d at 1025 (“the
22 Sixth Amendment requires . . . that the matter be resolved on the merits before the case goes
23 forward.”)); Stenson v. Lambert, 504 F.3d 873, 886 (9th Cir. 2007) (“To determine whether a
24 conflict rises to the level of ‘irreconcilable,’ a court looks to three factors: 1) the extent of the
25 conflict; 2) the adequacy of the inquiry by the trial court; and 3) the timeliness of the motion
26 for substitution of counsel.”).
27

No Marsden Motion Before the Trial Court

28
116

1

The state supreme court reasonably could find Petitioner did not seek

2 Marsden counsel for the penalty trial.
3

Petitioner argues the state supreme court unreasonably determined facts in the record

4 for purposes of 28 U.S.C. § 2254(d)(2) when it rejected his claim that he was entitled to a
5 Marsden hearing prior to the penalty phase. He argues that court ignored evidence (i) he was
6 dissatisfied with Schultz’s guilt phase performance, (ii) Schultz was incompetent, (iii) Schultz
7 failed to advise him as to the Marsden process and the consequences of not personally
8 attending the penalty phase proceedings, and (iv) he did not trust Schultz even to prepare the
9 form waiver of personal appearance at the penalty phase. (See Doc. No. 142 at 170-74; see
10 also RT 5045-48, 5115-18.)
11

Petitioner suggests the trial court, when appointing Ms. Hart to represent Petitioner

12 following the penalty verdict, acknowledged improper postponement of substitute counsel by
13 stating that “[Petitioner] had indicted at the conclusion of the guilt phase that he was - he
14 wanted somebody else to continue with the representation of him in this case.” (RT 5175.)
15 He suggests the trial court intentionally avoided a Marsden inquiry in the middle of trial as a
16 matter of judicial expediency. (Doc. No. 142 at 176.)
17

Still, based on the record discussed in claim II(I) above, summarized here, the state

18 supreme court reasonably could find Petitioner’s request for substitute counsel related to the
19 motion for new trial rather than the penalty phase. See Dickey, 35 Cal. 4th at 921; see also
20 United States v. Robinson, 913 F.2d. 712, 716 (9th Cir. 1990) (defendant’s anger over
21 counsel’s failure to present frivolous defenses not a motion for substitute counsel; cf. Schell,
22 218 F.3d at 1025 (a motion for new counsel should be resolved on the merits before the case
23 moves forward).
24

The state supreme court reasonably could find the record to suggest Petitioner took

25 issue with Schultz’s guilt phase tactics, rather than raising Marsden rights regarding Schultz’s
26 continued representation at the penalty phase. (See Doc. No. 142 at 51, citing Schell, 218 F.3d
27 at 1025 (“It is well established and clear that the Sixth Amendment requires on the record an
28
117

1 appropriate inquiry into the grounds for such a [Marsden] motion, and that the matter be
2 resolved on the merits before the case goes forward.”).)
3

The trial court, on the motion for new trial, conceded that it “used the wrong words”

4 when telling Petitioner that “we don’t conduct Marsden hearing in the middle of the trial.”
5 (RT 5533.) Yet the trial court went on to observe that it did not appear “[Petitioner] was really
6 asking for a Marsden type hearing. (RT 5533); that although that court “used the words
7 Marsden hearing [ ] in truth it doesn’t appear [ ] that he was asking for a Marsden hearing.”
8 (Id.) The noted record suggests that was the case.
9

The state supreme court found as a matter of state law “[w]e do not find Marsden error

10 where complaints of counsel’s inadequacy involve tactical disagreements.” Dickey, 35 Cal. 4th
11 at 922. That court could reasonably find that Petitioner did not motion under Marsden for
12 substitute counsel, but rather sought substitute counsel to raise guilt phase ineffective
13 assistance claims on a new trial motion to be heard after the penalty trial, such that Schultz’s
14 failure to request a Marsden hearing was not deficient. (Doc. No. 51-1 at ¶¶ 346-347, citing
15 Schell, 218 F.3d at 1026; see also RT 5045-49, 5533; CT 571-576; Pet. Ex. 12 ¶ 12.)
16

No Constructive Denial of Counsel at the Penalty Phase

17

The state supreme court reasonably could find Petitioner was effectively represented by

18 Schultz at the penalty phase proceeding. Based on the record discussed in claim II(I) above,
19 summarized here, the state supreme court reasonably could find the noted breakdown in
20 relationship between Schultz and Petitioner did not deny him effective assistance of counsel
21 thereafter.
22

A breakdown in the attorney-client relationship can result in a denial of the right to

23 effective assistance of counsel. Frazer, 18 F.3d at 782-83, 785; see also Brown, 424 F.2d. at
24 1169-70 (trial court’s failure to conduct inquiry into irreconcilable conflict arising from the
25 client’s refusal to communicate or cooperate with counsel resulted in denial of effective
26 assistance of counsel); Schell, 218 F.3d at 1026, citing Smith, 923 F.2d at 1320 (the
27 overarching constitutional question is whether the attorney-client conflict has become so great
28
118

1 that “[i]t resulted in a total lack of communication or other significant impediment that resulted
2 in turn in an attorney-client relationship that fell short of that required by the Sixth
3 Amendment.”). “The court must consider: (i) the extent of the conflict; (ii) whether the trial
4 judge made an appropriate inquiry into the extent of the conflict; and (iii) the timeliness of the
5 motion to substitute counsel.” Daniels, 428 F.3d at 1197-98 (citing United States v. Moore,
6 159 F.3d 1154, 1159 n.3 (9th Cir. 1998).
7

The record reflects that at the beginning of the penalty phase, Schultz advised the trial

8 court in limine that Petitioner believed Schultz made incompetent decisions during the guilt
9 phase (RT 5045) and that Petitioner did not want to be personally present in court during
10 penalty proceedings (RT 5100).
11

Petitioner confirmed his tactical disagreements with Schultz’s guilt phase

12 representation (RT 5048) and that he did not want to attend the penalty phase and did not want
13 to present a penalty defense (RT 5100-02). After colloquy with the trial court, Petitioner
14 waived personal presence at the penalty trial. (RT 5100-18.)
15

Petitioner argues as he did above that the breakdown in communication with Schultz

16 and the latter’s unwillingness to advise Petitioner regarding waiver of personal presence at
17 penalty proceedings suggested a total breakdown in the attorney-client relationship and
18 abandonment by Schultz. (Doc. No. 51-1 ¶¶ 642-647; see also RT 5045-49; 5114-20; Doc.
19 No. 144 at 42.) He points to his alleged refusal to communicate with Schultz and continue
20 with him as counsel and waiving personal presence at the penalty phase proceedings. He
21 points to his questioning Schultz’s competence, citing to the latter’s decisions regarding
22 presentation of the guilt phase defense including issues raised, witnesses called, and witness
23 examination. (RT 5048.)
24

Petitioner contends he was unequivocal in his request for Marsden counsel prior to the

25 penalty trial and that the trial court erred by denying him a Marsden hearing. (Id.; Doc. No.
26 51-1 ¶ 639, citing Douglas v. Woodford, 316 F.3d 1079, 1094 (9th Cir. 2003) (Marsden
27 hearing appropriately requested after guilt phase and prior to penalty phase). He notes his
28
119

1 mistrust of Schultz after the guilt phase verdicts as manifest in his refusal to sign a form waiver
2 prepared by Schultz.
3

However, mere disagreements over trial tactics, as here, do not alone require a Marsden

4 hearing. Schell, 218 F.3d at 1025. The state supreme court, on the facts and circumstances of
5 this case, reasonably could find any conflict or disagreement between Petitioner and Schultz as
6 to handling of the guilt phase defense did not precipitate a total breakdown in the attorney7 client relationship rendering Schultz ineffective as penalty phase counsel.
8

When a trial court is informed of a conflict between trial counsel and a defendant, “the

9 trial court should question the attorney or defendant ‘privately and in depth,’ and examine
10 available witnesses [. . . .]” United States v. Nguyen, 262 F.3d 998, 1004 (9th Cir. 2001)
11 (quoting Moore, 159 F.3d at 1160). A conflict inquiry is adequate if it “ease[s] the defendant's
12 dissatisfaction, distrust, and concern” and “provide[s] a ‘sufficient basis for reaching an
13 informed decision.’ ” United States v. Adelzo–Gonzalez, 268 F.3d 772, 777 (2001). The state
14 supreme court reasonably could find the trial court’s noted in limine inquiry and colloquy
15 sufficed in these regards. (See discussion of claim II(I), above.)
16

Particularly, Schultz’s advised Petitioner on legal issues and recourse relating to the

17 latter’s concerns of the poor guilt phase result. Schultz advised him to seek substitute counsel
18 on a new trial motion. (See RT 5045-47.) Schultz disclosed Petitioner’s concerns at an in
19 limine hearing. The trial court questioned both Schultz and Petitioner regarding the nature and
20 extent of the breakdown in communications and based thereon determined it related to issues
21 right for new trial motion.
22

The record reflects that Schultz continued to advise Petitioner. Schultz was present

23 when the trial court took Petitioner’s oral waiver of personal presence. (RT 5102-03.)
24 Subsequently, when it became apparent state law required a written waiver and Petitioner
25 refused Schultz’s proffered form waiver, (RT 5114-15), Schultz nonetheless approved as
26 defense counsel the written waiver provided by the trial court and signed by Petitioner. (CT
27 475-476; see also Penal Code § 977(b)(2); RT 5116-20.) Schultz advised Petitioner regarding
28
120

1 his stipulation to the prior Nevada conviction charged in the information. (RT 5073-74.)
2 Schultz also represented Petitioner in court at the penalty trial. (RT 5124-41.)
3

The state supreme court reasonably could find Petitioner’s absenting himself from the

4 penalty trial was not a manifestation of an irreconcilably broken relationship with Schultz, but
5 rather of dissatisfaction at being convicted and of disinclination to present a penalty defense.
6 (See claims III(B), VI and VII, post.) Following his waiver of personal presence, Petitioner
7 monitored proceedings from a hold cell and had ready access to the courtroom and to Schultz.
8 (See RT 5101.)
9

Likewise on these facts, Petitioner’s expressed distrust of Schultz and doubts as to his

10 competency appear equivocal. While Petitioner questioned guilt phase trial tactics and refused
11 to sign a form waiver of personal presence prepared by Schultz, he nonetheless agreed to
12 proceed to the penalty phase with Schultz as his attorney and accepted representation by
13 Schultz, reserving the issue of substitute counsel for the new trial motion. See Daniels, 428
14 F.3d at 1197 (citing Morris v. Slappy, 461 U.S. 1, 3-4 (1983)) (“[T]he right to counsel does not
15 guarantee a right to counsel with whom the accused has a ‘meaningful attorney-client
16 relationship.”).
17

Significantly, Petitioner has not demonstrated that he had any objection to the penalty

18 defense, evidence, and argument or that he was denied opportunity to consult with Schultz
19 thereon. The penalty defense theory did not involve contesting the aggravating evidence
20 placed before the jury, i.e. the fact of Petitioner’s felony burglary conviction and the five
21 autopsy photographs. As noted, during pretrial interviews with the defense team, Petitioner
22 expressed his desire that facts underlying his burglary conviction be kept from the jury. (See
23 Pet. Ex. 23 at SH002091-94.)
24

Petitioner participated in the penalty phase proceedings by audio and video feed to his

25 holding cell and had the option of returning to court and consulting Schultz at any time. (RT
26 5101-02; see also Lod. Doc. No. 8, Response to SHCP, at 123-26); see Morris, 461 U.S. at 1327 14 (holding that the Sixth Amendment requires only competent representation and does not
28
121

1 guarantee a meaningful relationship between a defendant and counsel). Petitioner allowed
2 Schultz to continue advising and representing him through sentencing.
3

Additionally, for the same reasons discussed above, the state supreme court reasonably

4 could find the alleged conflict as not serious enough to justify delaying the penalty trial for
5 substitute counsel. See Moore, 159 F.3d at 1161; Adelzo-Gonzalez, 268 F.3d at 780.
6

ii.

7

Even assuming arguendo the trial court erred as alleged, the California Supreme Court

Any Error Was Non-Structural and Harmless

8 reasonably could find the error not structural and harmless.
9
10

(1)

Structural Error

Petitioner argues structural error; that prejudice is presumed from constructive denial of

11 counsel during the critical penalty phase proceedings. (Doc. No. 142 at 176-77 citing Cronic,
12 466 U.S. at 667.)
13

Structural error is error that permeates “[t]he entire conduct of the trial from the

14 beginning to end” or “affect[s] the framework within which the trial proceeds.” Campbell, 408
15 F.3d at 1171, citing Arizona v. Fulminante, 499 U.S. 279, 309-10 (1991). The list of structural
16 errors is short and includes “total deprivation of the right to counsel at trial.” See id., at 1172.
17

As noted, a “serious conflict” between Petitioner and counsel may give rise to a

18 presumption of prejudice. Perry, 488 U.S. at 278-79; see also Schell, 218 F.3d 1027.
19

However, the state supreme court reasonably could find Petitioner was not

20 constructively denied counsel at the penalty phase entitling him to a presumption of prejudice,
21 for the reasons discussed above. See Perry, 488 U.S. at 278-79. In sum, that court reasonably
22 could find on the record before it that Petitioner did not request substitute counsel for the
23 penalty phase; continued with Schultz as penalty phase counsel and had access to those
24 proceedings and to Schultz; and did not object to the penalty defense and argument or
25 demonstrate such was constitutionally inadequate or that he was denied participation therein.
26

(2)

27

Petitioner argues in the alternative the alleged trial court error was more than harmless

Harmless Error

28
122

1 because it had a substantial and injurious effect or influence in the jury’s determination of his
2 sentence.
3

Where the constitutional error in issue is not structural, habeas relief is unavailable

4 unless the error had a substantial and injurious effect on the verdict. Brecht, 507 U.S. at 637.
5

Petitioner argues the trial court’s error was more than harmless because it is highly

6 likely a Marsden hearing would have resulted in appointment of substitute counsel and an
7 effective penalty defense consistent with his habeas proffer evidence discussed above. (See
8 Doc. No. 51-1 ¶ 650.)
9

However, for the reasons stated, the state supreme court reasonably could find

10 Petitioner was not denied counsel at and participation in the penalty phase defense. (See e.g.,
11 discussion of claim II(I) above and claim VI and VII below.) Notably, Petitioner assisted the
12 mitigation defense investigation by providing identities of witnesses and life history
13 information and discussing mitigation phase tactics with the defense team. He waived personal
14 presence at the penalty trial following advisement of rights, the written approval of Schultz,
15 and subject to audio and video monitoring from a cell adjacent to the courtroom and the ability
16 to return to court and consult with Schultz who continued to represent him. See Sullivan, 446
17 U.S. at 346 (reasonably appeared that counsel and defendant accepted any conflict by
18 proceeding).
19

The state supreme court reasonably could have determined that Schultz, by leaving to

20 Petitioner the decision whether to attend the penalty trial, did not deny Petitioner’s right to
21 counsel during that portion of the proceeding. Particularly, the trial court confirmed in
22 colloquy with Petitioner that he was aware of the nature of the penalty phase trial as well as the
23 rights he sought to waive. (See RT 5115-18.) Petitioner engaged the trial court in a discussion
24 of the terms of the waiver and demanded edits limiting the waiver to “personal presence only”
25 and to the “balance of the penalty phase.” (Id.) Petitioner specified the waiver applied only
26 while the audio video feed was working. (RT 5103.) He ultimately signed a personal presence
27 waiver prepared by the trial court (RT 5120) and approved by Schultz as Petitioner’s attorney
28
123

1 (CT 475-476).
2

Moreover, seemingly apart from his issues with Schultz, Petitioner stated his desire that

3 no evidence in mitigation be presented. (RT 5101-02.) Petitioner has not shown his anti4 mitigation defense position, which he appeared to attribute to the jury’s verdict of conviction
5 (see RT 5201-02), would have changed had substitute counsel been appointed. Even if
6 Petitioner might have changed his mind upon appointment of substitute counsel, it remains the
7 totality of the mitigating evidence appears outweighed by the aggravating and rebuttal
8 evidence, for the reasons stated. (See claim III(C-E), above.) In short, Petitioner has not
9 shown how substitute counsel, had one been appointed, would have enabled a more favorable
10 outcome on these facts and circumstances.
11

For the reasons stated, the state supreme court reasonably could find any error was not

12 more than harmless.
13

iii.

14

The California Supreme Court was not unreasonable in denying allegations the trial

Conclusions

15 court prejudicially erred by failing to hold a Marsden hearing and appoint new counsel during
16 the period intervening the guilt and penalty phase.
17

Accordingly, the California Supreme Court’s rejection of this claim was not contrary

18 to, or an unreasonable application of, clearly established federal law, or an unreasonable
19 determination of the facts in light of the evidence presented in the state court proceeding. 28
20 U.S.C. § 2254(d).
21

Claim V shall be denied.

22

3.

23

Petitioner revisits incompetency allegations in claim III(B) above, here recast as claims

Claims VI and VII

24 the trail court erred by (i) failing to inquire into his competency (i.e. claim VI) and (ii)
25 accepting his incompetent waiver of personal presence at the penalty phase trial (i.e. claim
26 VII), violating his rights under Fifth, Sixth, Eighth and Fourteenth Amendments. (Doc. No.
27 51-1 ¶¶ 652-677.)
28
124

1

a.

2

The trial or conviction of a person who is legally incompetent is a substantive due

Supplemental Legal Standard

3 process violation. Cooper, 517 U.S. at 354; see also section VII, A, 6, a, ante.
4

“[T]he standard for competence to stand trial is whether a defendant has sufficient

5 present ability to consult with his lawyer with a reasonable degree of rational understanding
6 and has a rational as well as factual understanding of the proceedings against him.” Moran,
7 509 U.S. at 396, citing Dusky, 362 U.S. at 402); see also Clark, 769 F.3d at 729.
8

b.

9

Petitioner presented claim VI in his second state exhaustion petition (Lod. Doc. No. 30

State Court Direct and Collateral Review

10 at 305-12) and it was denied on the merits and on procedural grounds (Lod. Doc. No. 31, Order
11 Denying Cal. Pet., In re Colin Raker Dickey, No. S165302 (May 29, 2012)).
12

Petitioner presented claim VII on direct appeal and it was denied on the merits. Dickey,

13 35 Cal. 4th at 922-24.
14

c.

Analysis

15

i.

Trial Court Error

16

Petitioner argues the trial court had before it evidence of incompetence sufficient to (i)

17 raise a reasonable doubt triggering the need for a state law competency hearing (see Penal
18 Code sections 1368 providing the trial court may sua sponte order a competency hearing when
19 “a doubt arises in the mind of the judge as to the mental competence of the defendant”) and (ii)
20 call in question the validity of his purported waiver of personal presence at the penalty phase
21 trial. (See Doc. No. 142 at 178-93.) His specific arguments are considered below.
22

(1)

23

Petitioner argues that due process required the trial court to inquire sua sponte whether

Failure to Hold Competency Hearing

24 he was competent for the penalty trial. He points to his precarious mental state, breakdown in
25 communication with Schultz, absence from the courtroom during the penalty trial, and sleep
26 deprivation caused by untenable conditions of confinement during trial. (See claims II(I),
27 III(B); see also Moran, 509 U.S. at 400-01; Doc. No. 135 at 109-12 [regarding guilt claim
28
125

1 XXIV].) Petitioner characterizes as “suicidal” his decisions to absent himself from the penalty
2 trial and break off all communication with Schultz. (Doc. No. 144 at 43-44.)
3

Petitioner also points to habeas proffered expert opinion that after the guilt verdicts, he

4 lost all hope and his cognitive limitations and psychiatric impairments impacted his ability to
5 assist his attorney in conducting his defense. (Pet. Ex. 2 Ex. H at 24.) As noted, Dr. Kharanov
6 found that Petitioner’s “history of victimization, the combined stress of protracted legal
7 proceedings, as well as the courtroom setting itself, could have produced further mental
8 decompensation”, leaving him unable to consult with his attorney and assist in his defense and
9 thus incompetent at the penalty phase. (Id.; see also Doc. No. 142 at 180-81); Godinez, 509
10 U.S. at 396.
11

Petitioner argues the foregoing circumstances should have suggested to the trial court

12 “a change [in his mental state] that would render [him] unable to meet the standards of
13 competence” and the need for a competency hearing. Drope, 420 U.S. at 181; (see also Doc.
14 No. 51-1 ¶¶ 660-661; Doc. No. 144 at 43.) He argues that had such a hearing been held, he
15 would have been found incompetent for the penalty trial.
16

However, the state supreme court reasonably could find Petitioner failed to demonstrate

17 indicia in incompetency sufficient to support the claim, for the reasons stated. (See discussion
18 of claims II(I) and III(B) above; see also Doc. No. 135 at 109-12 [regarding guilt phase claim
19 XXIV allegations that petitioner’s conditions of confinement impaired his ability to
20 concentrate and left him incompetent for the penalty trial].) Notably, the record reflects that
21 shortly after Petitioner’s colloquy with the trial court regarding issues with Schultz’s
22 competency, he admitted his prior felony conviction based upon consultation and advisement
23 by Schultz. (RT 5073-79.) Schultz did not raise a doubt as to Petitioner’s competency.
24

Petitioner himself proceeded to delineate the parameters of his desired waiver of

25 presence from the penalty phase; that he was waiving presence only at “tomorrow’s court
26 proceedings”, i.e. the “sentencing phase” and for “no other proceeding, no other court is to be
27 conducted out of my presence[.]” (RT 5115-16.) He directed preparation of the written waiver
28
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1 of personal presence by the trial court containing such limitations. (RT 5115-19.) He
2 expressly conditioned his waiver of personal presence upon being able to view and hear the
3 proceedings and refused to enter a waiver if the audio/video feed failed during the penalty
4 proceedings. (Id.; see also RT at 5103.)
5

As noted above, Schultz’s failure to observe and raise issues of competency, while not

6 dispositive, Odle, 238 F.3d at 1088-89, are nonetheless significant evidence of Petitioner’s
7 competency.
8

Furthermore, Petitioner’s alleged indicia of incompetency are not on par with those in

9 United States v. Loyola-Dominguez, a case upon which he relies. 125 F.3d 1315, 1318-19 (9th
10 Cir. 1997) (inadequately explained attempted suicide on the eve of trial); cf. Amaya-Ruiz v.
11 Stewart, 121 F.3d 486, 489 (9th Cir. 1997) (no bona fide doubt as to competency where
12 defendant was evaluated by mental health professional who determined his alleged irrational
13 behavior appeared the result of a strategy of non-cooperation, and in absence of any history of
14 erratic behavior).
15

Accordingly, the state supreme court reasonably could find the trial court was not

16 chargeable with a reasonable doubt as to Petitioner’s penalty phase competency.
17

(2)

18

Petitioner argues the trial court erred by failing to raise a doubt whether he had the

Acceptance of Personal Presence Waiver

19 competency to waive personal presence at the penalty trial and did so voluntarily, intelligently,
20 and knowingly. (See discussion of claims II(I) and III(B) above; see also Moran, 509 U.S. at
21 400-01; Doc. No. 135 at 109-12 [regarding claim XXIV].)
22

The state supreme court reasonably could find Petitioner’s specific arguments,

23 discussed below, to be unpersuasive.
24

Penalty Trial as a Critical Stage of Proceeding

25

Petitioner argues the penalty trial was a critical stage of his proceeding at which his

26 right to counsel and personal presence were constitutionally required. (Doc. No. 51-1 ¶ 669;
27 Doc. No. 142 at 189-90, citing Kentucky v. Stincer, 482 U.S. 730, 745 (1987) (a defendant is
28
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1 guaranteed the right to be present at any stage of the criminal proceeding that is critical to its
2 outcome if his presence would contribute to the fairness of the procedure); see also Gerlaugh
3 v. Stewart, 129 F.3d 1027, 1045 (9th Cir. 1997) (Reinhardt, J., concurring and dissenting)
4 (penalty phase is the most critical stage of the proceeding).
5

“It has long and clearly been held that criminal defendants are entitled to effective

6 assistance of counsel during all critical stages of the criminal process.” Nunes, 350 F.3d at
7 1052. “[I]t is counsel's dut[y] to consult with the defendant on important decisions and to keep
8 the defendant informed of important developments in the course of the prosecution. Those
9 obligations ensure that the ultimate authority remains with the defendant to make certain
10 fundamental decisions regarding the case, as to whether to plead guilty, waive a jury, testify in
11 his or her own behalf, or take an appeal.” Id. at 1053. Relatedly, a criminal defendant has the
12 right to be present for all critical stages of his trial. United States v. Gagnon, 470 U.S. 522,
13 526 (1985).
14

However, Petitioner has not demonstrated clearly established federal law that the

15 penalty phase represented a critical phase of his trial. See Moore v. Campbell, 344 F.3d 1313,
16 1323 (11th Cir. 2003) (“the issue of whether a defendant must be present at all times in a
17 capital trial has not yet been settled by the Supreme Court”).
18

A criminal defendant has the right to be present at trial “whenever his presence has a

19 relation, reasonably substantial, to the fullness of his opportunity to defend against the charge.”
20 Stincer, 482 U.S. at 745. The Supreme Court has not clearly established what would contribute
21 to the fairness of the procedure at a stage critical to [the criminal proceeding’s] outcome for
22 purposes of a due process violation). See Stincer, 482 U.S. at 745. Still a defendant need not
23 be present “when presence would be useless, or the benefit but a shadow.” Id., quoting Snyder
24 v. Massachusetts, 291 U.S. 97, 106-07 (1934) (overruled in part on other grounds by Malloy v.
25 Hogan, 378 U.S. 1 (1964)); see also Rice v. Wood, 77 F.3d 1138, 1140 at n.2 (listing cases
26 finding right to presence not violated).
27

The California Supreme Court has “repeatedly rejected the argument that the Sixth

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1 Amendment [C]onfrontation [C]lause of the United States Constitution or the due process
2 clause of the California Constitution prevents a criminal defendant from waiving the right of
3 presence at a critical stage of a capital trial.” Bolin, 18 Cal. 4th at 325. In California, a capital
4 defendant may validly waive his presence at critical stages of the trial, at least where evidence
5 is not taken. See e.g., People v. Weaver 26 Cal. 4th 876, 966 (2001); People v. Jackson 13 Cal.
6 4th 1164, 1209–1210 (1996). Such a waiver is ordinarily an intentional relinquishment or
7 abandonment of a known right or privilege. Johnson, 304 U.S. at 464.
8

In California, a defendant’s “absence from various court proceedings, even without

9 waiver, may be declared non-prejudicial in situations where his presence does not bear a
10 reasonably substantial relation to the fullness of his opportunity to defend against the charge.”
11 People v. Johnson, 6 Cal. 4th 1, 18 (1993), citing People v. Garrison, 47 Cal. 3d 746, 782
12 (1989), quoting People v. Bloyd, 43 Cal. 3d 333, 359-60 (1987), abrogated on other grounds
13 by People v. Rogers, 39 Cal. 4th 826, 879 (2006).
14

The state supreme court, on the facts and circumstances of this case, reasonably could

15 find Petitioner has not demonstrated that his physical presence in the courtroom could have
16 contributed to the fairness of his penalty trial; or that his physical presence would have
17 impacted the sentence determination. The penalty defense theory did not involve contesting
18 the aggravating evidence placed before the jury, i.e. the fact of Petitioner’s felony burglary
19 conviction and the five autopsy photographs. Petitioner has not demonstrated that he had any
20 objection to the evidence or was denied opportunity to consult with counsel thereon.
21

Moreover, Schultz was present at the penalty trial and represented Petitioner without

22 apparent objection. See discussion of claim II(I) above; Campbell, 408 F.3d at 1173
23 (defendant’s absence from chambers conference regarding defense counsel’s potential conflict
24 of interest not a due process violation where no denial of fair and impartial trial). Petitioner
25 participated in the penalty phase proceedings by audio and video feed to his holding cell and
26 had the option of returning to court and presumably consulting Schultz at any time.
27

Penalty Trial as an Evidentiary Stage of Proceeding

28
129

1

Petitioner argues an unwaivable state law right in a capital defendant to personal

2 presence at every portion of a proceeding where evidence is taken. (Doc. No. 51-1 ¶ 676,
3 citing People v. Frye, 18 Cal. 4th 894, 1010-12 (1998); see also Doc. No. 142 at 193, citing
4 Penal Code §§ 977, 1043.) Petitioner argues deprivation of this state right made his penalty
5 trial fundamentally unfair, denying him due process. (Id., citing Hicks v. Oklahoma, 447 U.S.
6 343, 346-47 (1980)).
7

Under California law, “i]n all cases in which a felony is charged, the accused shall be

8 present . . . during those portions of the trial when evidence is taken before the trier of fact[.]”
9 Penal Code § 977.
10

The state supreme court conceded Petitioner was denied his state law right to personal

11 presence when evidence was taken. See Dickey, 35 Cal. 4th 923-24. That court found the trial
12 court erred in this regard, but that the error was harmless, as discussed below. (See also, id.)
13

Competent, Voluntary, Knowing and Intelligent Waiver

14

Petitioner revisits his noted arguments and evidence that he was incompetent at the

15 penalty phase and unable to waive rights such that any purported waiver was not voluntary,
16 knowing and intentional. (Doc. No. 142 at 50, citing Brady v. United States, 397 U.S. 742, 748
17 (1970)) (“[W]aivers of constitutional rights not only must be voluntary but must be knowing,
18 intelligent acts done with sufficient awareness of the relevant circumstances and likely
19 consequences.”); see also Drope, 420 U.S. at 181; Doc. No. 51-1 ¶¶ 660-661; Doc. No. 144 at
20 43.) Based thereon, he argues incompetence to waive rights to personal presence at the penalty
21 phase.
22

Petitioner suggests that Schultz then was unable to assist him given that the waiver

23 followed on the heels of the breakdown in communication with Schultz and the trial court’s
24 improper denial of a Marden hearing. (Doc. No. 142 at 192-93.) Petitioner argues he was not
25 informed as to the circumstances and consequences surrounding the waiver of personal
26 presence. (See Doc. No. 51-1 ¶ 671.) He argues the only advice he received was the trial
27 court’s admonition that “I do want to let you know, however, that it probably would be wiser to
28
130

1 be in the courtroom during the taking of testimony[.]” (RT 5101.)
2

However, the state supreme court reasonably could find Petitioner was not incompetent

3 at the penalty trial, for the reasons stated. (See the discussion of claims II(I) and III(B) above.)
4

Additionally, the state supreme court reasonably could find Petitioner’s personal

5 presence waiver was voluntary, knowing and intelligent. The record shows that Petitioner
6 waived personal presence orally on the record and in writing. Before doing so, the trial court
7 engaged him in a colloquy regarding the nature and extent of the waiver and his understanding
8 of it. (See RT 5100-03, 5113-20; see also Doc. No. 51-1 ¶¶ 671-674.) As noted, in the course
9 thereof, Petitioner was advised by the trial court that “it would probably be wiser to be in the
10 courtroom”. (RT 5101.)
11

At that time, the trial court provided specific advisement regarding waiver of rights

12 consistent with Penal Code section 977 and discussed Petitioner’s requests for modification of
13 the court’s proposed form waiver language. (See RT 5113-20.) Petitioner requested and
14 received changes to the form waiver including that he be provided with an audio and video
15 feed of penalty phase proceedings and that the waiver be limited to presence at the penalty
16 trial. (Id.; CT 475-76.)
17

During the personal presence waiver proceedings, Petitioner acknowledged his

18 understanding of the nature of the penalty phase; that it was his opportunity to avoid the death
19 penalty by presenting evidence evoking sympathy and pity, and stated that he had no desire to
20 present a mitigation defense, to wit that:
21
22
23
24

[He] would just as soon that the defense not even say nothing, just rest. I don’t
intend to plead nothing to the jury. I’d just as soon sit in the cell. I have no
intentions or desire to try to have any sympathy or pity from the jury that
convicted me of these crimes. I don’t intend to be present, neither; I don’t wish
to be.

25 (RT 5201-02); see also Dickey, 35 Cal. 4th at 923; see also Doc. No. 51-1 ¶¶ 671-674;
26 Campbell v. Rice, 408 F.3d 1166, 1173 (1991) (defendant’s absence from chambers conference
27 regarding defense counsel’s potential conflict of interest not a due process violation where no
28
131

1 denial of fair and impartial trial). Relatedly, during pre-trial defense interviews, Petitioner
2 stated that he was not interested in anyone saving his life if a jury should be so stupid as to
3 convict him. (Pet. Ex. 23 at SH002137.)
4

Petitioner argues that his written waiver of personal presence was invalid and coerced

5 because it was procured without the advice of counsel (see RT 5047) and based upon
6 misinformation provided by Schultz regarding entitlement to a Marsden hearing. (See Doc.
7 No. 142 at 185-86, citing Schell, 218 F.3d at 1025 (9th Cir. 2000) (Marsden motion to be
8 resolved before the case moves forward); see also the discussion of Claim V above.) He
9 argues that trial court erred by failing to explore the obvious breakdown in the attorney-client
10 relationship when it was raised by Petitioner prior to the penalty phase. (Doc. No. 142 at 187,
11 citing RT 5048, 5100-15.)
12

However, these conclusory arguments fail because the state supreme court reasonably

13 could find Petition was not denied assistance of counsel at the penalty phase, for the reasons
14 stated. (See discussion of claims II(I) and III(B) above; see also Campbell, 18 F.3d at 672).
15 Notably, Petitioner has not shown Schultz failed to advise him regarding waiver of personal
16 presence at the penalty trial including the consequences thereof. The records reflect only that
17 Schultz told Petitioner the decision was “up to him” and that Schultz “was not going to make a
18 recommendation one way or the other.” (RT 5100.) Schultz and Petitioner acquiesced in
19 Petitioner’s absence from the penalty phase following the latter’s colloquy by the trial court
20 and the trial court’s determination that a Marsden motion was not then before it. Petitioner
21 received an audio and video feed from a room off the courtroom. Petitioner had the option of
22 returning to the courtroom, and presumably consulting with Schultz who continued to represent
23 him during the entirety of the penalty trial. The state supreme court reasonably could reject
24 claimed coercion of the waiver on these facts. Petitioner has not demonstrated otherwise on
25 the factual record.
26

To the extent Petitioner argues his waiver was possibly impaired by his conditions of

27 confinement including medication, lack of sleep, and anxiety (see Doc. No. 51-1 at 188, 191,
28
132

1 citing Johnson, 304 U.S. at 464-65), the argument fails for the same reasons discussed by this
2 Court in denying guilt phase claim XXIV. (See Doc. No. 135 at 109-12.) Significantly,
3 Petitioner does not point to facts suggesting confusion, disorientation, or problems
4 understanding and participating in court proceedings. His demeanor and conduct in court,
5 especially in negotiating his limited waiver of personal presence, reasonably suggest no such
6 impairment.
7

ii.

8

Petitioner argues his asserted incompetency raises structural error such that meeting the

Any Error Was neither Structural nor More Than Harmless

9 Brecht standard of harm is not required. (See Doc. No. 51-1 at ¶ 665; Doc. No. 142 at 183,
10 citing Brecht, 507 U.S. at 637-38 & n.9.) Alternatively, he argues the allegations in these
11 claims raise errors that are more than harmless under Brecht because the errors made his
12 penalty trial unfair. (See Id.)
13

However, Petitioner has not demonstrated structural error because the state supreme

14 court reasonably rejected his competency allegations, for the reasons stated.
15

Moreover, the state supreme court reasonably could find Petitioner’s personal presence

16 at the penalty trial to be waivable to the extent his presence did not bear “a substantial relation
17 to the fullness of his opportunity to defend against the charge.” Johnson, 6 Cal. 4th at 18. The
18 state supreme court on direct appeal found harmless the trial court’s state law error in accepting
19 Petitioner’s personal presence waiver, stating that:
20
21
22
23
24
25
26
27
28

A capital defendant cannot voluntarily waive his rights under sections 977 and
1043 to be present at trial. (Weaver, supra, 26 Cal. 4th at pp. 967–968, 111
Cal.Rptr.2d 2, 29 P.3d 103; Jackson, supra, 13 Cal. 4th at p. 1210, 56
Cal.Rptr.2d 49, 920 P.2d 1254.) However, permitting defendant to waive those
rights was merely statutory error, and thus we should reverse the judgment on
this ground only if we conclude the error was prejudicial. (Weaver, at p. 968,
111 Cal.Rptr.2d 2, 29 P.3d 103; Jackson, at p. 1211, 920 P.2d 1254.) The
standard for reviewing error in permitting a defendant to absent himself from
the penalty phase of a capital case is whether there is a “ ‘reasonable possibility
’ ” the jury would have reached a different result had the error not occurred.
(People v. Hernandez (2003) 30 Cal. 4th 835, 877, 134 Cal.Rptr.2d 602, 69 P.3d
446, italics added; People v. Brown (1988) 46 Cal. 3d 432, 448, 250 Cal.Rptr.
604, 758 P.2d 1135.) Weaver and Jackson were also capital cases, and we used
the reasonable probability standard in those cases. (Weaver, at p. 968, 111
Cal.Rptr.2d 2, 29 P.3d 103; Jackson, at p. 1211, 56 Cal.Rptr.2d 49, 920 P.2d
133

1
2
3
4
5
6
7
8
9
10
11

1254.) However, the error in Weaver occurred in the sanity phase of the trial
(Weaver, at p. 965, 111 Cal.Rptr.2d 2, 29 P.3d 103), and in the guilt phase in
Jackson (Jackson, at p. 1209, 56 Cal.Rptr.2d 49, 920 P.2d 1254).
We conclude it is not reasonably possible a result more favorable to defendant
would have been reached in the absence of the error. First, the television
monitor in the holding room enabled defendant to see and hear the proceedings,
and the court made it clear defendant would be brought back into the courtroom
the moment defendant decided he wanted to return. Second, the only witness
who testified during the penalty phase was the detective who provided the
foundation for the admission of the autopsy photographs of the victims. The
admissibility of the autopsy photographs had already been vigorously contested
by defense counsel, and it is not apparent what value defendant's presence
during the detective's testimony would have been to defense counsel. (See
Weaver, supra, 26 Cal. 4th at p. 968, 111 Cal.Rptr.2d 2, 29 P.3d 103.) Third,
given defendant's professed lack of any desire to receive “sympathy or pity from
that jury that convicted me of these crimes,” his demeanor, had he been present
in the courtroom, might have undermined his counsel's argument. Finally, the
court advised the jury that defendant had exercised his option of not being
present, but that he was following the proceedings on a television screen in the
holding cell, and that they were not to consider his absence in their
deliberations.

12
13 Dickey, 35 Cal. 4th at [923–24.
14

The state supreme court reasonably found harmless error for the reasons stated by the

15 court and those discussed above. Brecht, 507 U.S. at 637. A defendant’s “absence from
16 various court proceedings, even without waiver, may be declared non-prejudicial in situations
17 where his presence does not bear a reasonably substantial relation to the fullness of his
18 opportunity to defend against the charge.” Johnson, 6 Cal. 4th at 18.
19

The state supreme court reasonably could find Petitioner was not denied sufficient

20 opportunity to assist in his penalty phase defense or that he might have raised concerns that
21 could have been addressed by the trial court. As noted, Petitioner stated on the record that he
22 did not want to present mitigation evidence and defense. (RT 5101-02) Even so, the defense
23 team investigated and developed a mitigation defense. Schultz’s decision not to present
24 mitigating evidence was informed by adequate investigation and based upon tactical
25 considerations. Petitioner had access to audio and video feed of the penalty trial from a room
26 adjacent to the courtroom and was free to consult with Schultz and return to the courtroom at
27 any time.
28
134

Petitioner’s suggestion his waiver of presence was related to the trial court’s refusal to

1

2 convene a Marsden hearing (see Doc. No. 51-1 ¶ 675) is inference unsupported by the record,
3 and fails for reasons discussed in claims II(I) and V above.
4

iii.

5

The California Supreme Court was not unreasonable in denying allegations the trial

Conclusions

6 court prejudicially erred by failing to inquire into his competency at the penalty phase and in
7 waiving personal presence at the penalty phase.
Accordingly, the California Supreme Court’s rejection of the claims was not contrary

8

9 to, or an unreasonable application of, clearly established federal law, as determined by the
10 Supreme Court, or an unreasonable determination of facts in light of the evidence presented in
11 the state court proceeding. See 28 U.S.C. § 2254(d).11
12

Claims VI and VII shall be denied.

13

4.

14

Petitioner alleges the trial court erred by denying Schultz’s motion to discharge the jury

Claim IX

15 following the emotional outburst in court by Lavelle Garratt, the daughter of victim Marie
16 Caton, following the guilt verdict, violating his rights under Fifth, Sixth, Eighth and Fourteenth
17 Amendments. (Doc. No. 51-1 ¶¶ 683-687.)
18

a.

19

Due process requires that the defendant be tried by “a jury capable and willing to

Supplemental Legal Standards

20 decide the case solely on the evidence before it.” Smith v. Phillips, 455 U.S. 209, 217 (1982);
21 see also United States v. Plache, 913 F.2d 1375, 1377-78 (9th Cir. 1990) (“It is well-settled
22 that a single partial juror deprives a defendant of his Sixth Amendment right to a trial by an
23 impartial jury.”).
24

b.

25

Petitioner presented this claim on direct appeal and it was denied on the merits. Dickey,

State Court Direct and Collateral Review

26
27
28

11

Petitioner’s further allegation that all prior counsel were ineffective for failing to raise these claims fails for the
reasons stated. (See Doc. No. 51-1 ¶ 666; see also Doc. No. 142 at 183.)

135

1 35 Cal. 4th at 916-17.
2

c.

Analysis

3

i.

Trial Court Error

4

Petitioner revisits allegations (of ineffective assistance of counsel) in claim II(U) ante,

5 relating to the outburst in court by Ms. Garratt and other family members following rendition
6 of the guilt phase verdicts, here recast as claimed trial court error. (See Doc. No. 142 at 194.)
7

As discussed above, following reading of the guilt phase verdicts relatives of victim

8 Marie Caton reacted in support of the conviction. Ms. Garrett stated “yes, yes” and other
9 family members embraced, cried, and whispered amongst themselves. (RT 5051.) The trial
10 court immediately directed Ms. Garratt to “keep it down, ma’am.”

(RT 5053, 5051.)

11 Prosecutor Hahus told Ms. Garratt to “remain silent.” (RT 5053.)
12

Schultz moved for discharge of the jury four days later relying upon Penal Code

13 190.4(c) and Booth v. Maryland, 482 U.S. 496 (1987). (See CT 470-71.) The trial court
14 denied the motion (see CT 470-71), proposing instead to “instruct the jury to disregard any
15 display by any spectators in the courtroom and any – the statement made by any spectator in
16 the courtroom when the verdicts were being read, unless the defendant does not want me to do
17 that.” (Doc. No. 142 at 195, citing RT 5072-73.)
18

Schultz did not accept the trial court’s offer of an ameliorative admonition that the jury

19 “disregard any display by any spectators in the courtroom and any – the statement made by any
20 spectator in the courtroom when the verdicts were being read….” (RT 5072.) Petitioner
21 observes that no such admonition was given. (See Doc. No. 142 at 195.)
22

As discussed in claim II(U) above, the state supreme court denied the claim (couched as

23 ineffective assistance of counsel), stating that:
24
25
26
27

At the conclusion of the guilt phase of the trial, when the jury's verdicts and
findings were read in open court, Lavelle Garratt, the daughter of victim Marie
Caton, said in a loud voice, “Yes, yes.” The court admonished her to “[k]eep it
down, ma'am”; and the prosecutor also loudly instructed her to remain silent.
Other members of Mrs. Caton's family embraced one another, cried, and
whispered among themselves.

28
136

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

The following week defense counsel moved to discharge the jury on the ground
it had been exposed to constitutionally impermissible victim impact evidence
under Booth v. Maryland (1987) 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440.
In denying the motion, the court expressed doubt as to whether any prejudice
occurred, but offered to admonish the jury to disregard the outburst and not let it
influence their penalty deliberations, unless the defense preferred that an
admonition not be given, as it might serve to highlight the incident in the minds
of the jurors. Defense counsel said he would have to decide whether to ask for
such an admonition. As it turned out, no admonition was given. While the
record does not reflect whether defense counsel expressly declined the court's
offer, it strongly suggests he did. The next day the court stated that “some
matters had been discussed in chambers and we've gone over” the penalty phase
instructions. After the court listed the instructions it intended to give, it asked
whether either counsel wanted other instructions. Defense counsel stated, “I
have no other requests.” Earlier, defense counsel had stated he felt no
admonition could be effective—that the proverbial bell could not be unrung.
Assuming arguendo an admonition would have cured any prejudice, defendant
contends his trial counsel was ineffective in failing to request an admonition.
Again, we disagree.
The brief, spontaneous reaction of the members of Marie Caton's family to the
jury verdicts did not constitute victim impact evidence of the sort proscribed in
Booth v. Maryland, supra, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440.
Moreover, while this case has been on appeal, the United States Supreme Court,
partially overruling Booth and South Carolina v. Gathers (1989) 490 U.S. 805,
109 S.Ct. 2207, 104 L.Ed.2d 876, held that “[i]n a capital trial, evidence
showing the direct impact of the defendant's acts on the victims' friends and
family is not barred by the Eighth or Fourteenth Amendments to the federal
Constitution. (Payne v. Tennessee (1991) 501 U.S. 808, 825–827 [111 S.Ct.
2597, 115 L.Ed.2d 720] [(Payne )].)” (People v. Pollock (2004) 32 Cal. 4th
1153, 1180, 13 Cal.Rptr.3d 34, 89 P.3d 353.) Payne applies retroactively.
(People v. Clair (1992) 2 Cal. 4th 629, 672, 7 Cal.Rptr.2d 564, 828 P.2d 705
(Clair ).)
“Under California law, victim impact evidence is admissible at the penalty
phase under section 190.3, factor (a), as a circumstance of the crime, provided
the evidence is not so inflammatory as to elicit from the jury an irrational or
emotional response untethered to the facts of the case. (People v. Boyette, supra,
29 Cal. 4th at p. 444 [127 Cal.Rptr.2d 544, 58 P.3d 391]; People v. Edwards
(1991) 54 Cal. 3d 787, 835–836 [1 Cal.Rptr.2d 696, 819 P.2d 436].)” (People v.
Pollock, supra, 32 Cal. 4th at p. 1180, 13 Cal.Rptr.3d 34, 89 P.3d 353.) It would
come as no surprise to a jury that a victim's family was anguished by her
murder, relieved that part of the trial was over, and satisfied with the guilty
verdicts. The relatively muted reaction of Marie Caton's family to the jury
verdicts was certainly not “so inflammatory as to elicit from the jury an
irrational or emotional response untethered to the facts of the case.” (Ibid.)
Finally, defense counsel may have made a reasonable tactical decision that an
admonition was not, on balance, desirable, because it would remind the jury of
the incident.

26
27 Dickey, 35 Cal. 4th at 916–17.
28
137

1

Petitioner concedes Schultz decided not to revisit the issue for fear of reminding the

2 jury of the outburst. (Doc. No. 142 at 195.) Still, he argues there was good cause for the trial
3 court to discharge the jury under Penal Code section 190.4(c) because Ms. Garratt’s outburst
4 was entirely audible, inflammatory, unduly prejudicial and prevented the jury from performing
5 its function – making his penalty phase trial unfair. (Doc. No. 142 at 194-95.) He emphasizes
6 the gravity of the outburst by pointing out the trial court conceded its failure to admonish
7 spectators not to display emotions during the reading of the verdicts. (See RT 5051.) He
8 argues the outburst was akin to unconfronted evidence.
9

Petitioner supports these arguments by pointing out that Ms. Garratt’s private reward

10 fund instigated his prosecution and that she was a key witness such that her outburst served to
11 bias jurors in favor of victims at the penalty phase. (RT 4238, 4308; Doc. No. 142 at 196-97.)
12

However, the state supreme court was not unreasonable in denying the claimed trial

13 court error on grounds the outburst was not so inflammatory as to make the subsequent penalty
14 proceeding unfair. See Musladin, 549 U.S. at 77 (observing that lack of clearly established
15 Supreme Court holdings regarding the potentially prejudicial effect of spectators’ courtroom
16 conduct). A reasonable juror might anticipate that members of the victim’s family would
17 support a guilt verdict. Moreover, the outburst occurred between the guilt trial and the penalty
18 trial, and was not evidence considered by the jury at the penalty phase. The record shows the
19 outburst was brief and immediately rebuked by the trial court and the prosecutor.
20

Although the habeas proffered declaration of Schultz was not before the state supreme

21 court on direct appeal, his reasoning in not requesting the admonition, i.e. to avoid again
22 ringing the bell, was otherwise apparent in the noted record. (See RT 5052-53); Dickey, 35
23 Cal. 4th at 916-17. The state supreme court reasonably could have viewed Schultz’s decision
24 to be a matter of trial tactics given the admonition would have re-directed the jurors’ attention
25 to an event no longer in the forefront, an event that occurred days before.
26

Additionally, Petitioner has not demonstrated his right to confront evidence was

27 implicated must less violated. He has not shown the penalty phase outburst constituted
28
138

1 evidence against him or impeded his ability to present a complete penalty defense. See
2 Maryland v. Craig, 497 U.S. 836, 845 (1990) (“The central concern of the Confrontation
3 Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it
4 to rigorous testing in the context of an adversary proceeding before the trier of fact.”); Crane v.
5 Kentucky, 476 U.S. 683, 690 (1986) (citing California v. Trombetta, 467 U.S. 479, 485 (1984))
6 (the Constitution guarantees criminal defendants “a meaningful opportunity to present a
7 complete defense.”).
8

Even if arguendo the outburst was evidentiary in nature, Petitioner has not explained

9 how the non-testimonial outburst could have been effectively confronted at the penalty trial.12
10 A reasonable juror could find it unremarkable that a murder victim’s child might agree with a
11 verdict for the prosecution, such constituting evidence of specific harm caused by the crime as
12 countenanced by the Supreme Court in Payne. 501 U.S. at 825.
13

Petitioner does not support with facts in the record his further argument that

14 “estrange[ment]” from Schultz left [Petitioner] unable to “evaluat[e]” the trial court’s
15 admonition offer, leaving the jury unable to perform its function. (See Doc. No. 142 at 196.)
16 Nor does he support with facts in the record his further argument that he was denied effective
17 assistance of counsel in this regard, actually or constructively. (See discussion of claims II(I),
18 II(U) and III(B) above.)
19

ii.

20

Petitioner argues the trial court’s errant failure to discharge the jury raised a reasonable

Any Error was Harmless

21 probability of a different sentencing outcome and thus was more than harmless under Brecht.
22 He argues the showing in aggravation was so minimal that Ms. Garratt’s outburst must have
23 adversely affected the sentencing determination. (Doc. No. 51-1 ¶ 686; see also Doc. No. 142
24 at 198-99.) He points to Ms. Garratt’s pivotal role in the trial proceedings and that the
25 outburst was unrebutted and unconfronted. (Doc. No. 142 at 196-97.) He suggests the
26 outburst was not “relatively muted’, but instead significant and load. (See RT 5051.)
27
28

12

See n.8, ante.

139

1

Petitioner goes on to argue that even the pro death jury assembled by Schultz (see Doc.

2 No. 135 at 21-29 [regarding guilt phase claim I]) must have found the sentencing determination
3 to be a close call because they deliberated five hours over two days during the course of which
4 they submitted questions to the trial court and had testimony re-read. (CT 477-480.) This
5 even though the prosecution presented only minimal evidence in aggravation (i.e. the brief
6 testimony by detective Douglas Stokes authenticating autopsy photos [see RT 5126-33; CT
7 478-79], the five autopsy photographs (id.), and a stipulation that Petitioner committed a
8 burglary in 1983 (CT 479)), and the defense presented no mitigation evidence (RT 5134).
9 Petitioner observes the parties’ penalty phase presentations together lasted a mere sixteen
10 minutes. (CT 478.)
11

However, the state supreme court was not unreasonable in rejecting the claimed trial

12 court error. The outburst occurred four days prior to the start of the penalty trial; appeared to
13 span no more than a few seconds; was relatively subdued; and was quickly condemned by the
14 trial court and the prosecutor. To the extent the outburst reflected the impact of Petitioner’s
15 crime, the jury could properly have considered such as an aggravating circumstance of the
16 crime. See Payne, 501 U.S. at 825-827.
17

Furthermore, Petitioner merely surmises prejudice from the alleged trial court error.

18 The jury was instructed at the penalty phase that it should not be influenced by “bias nor
19 prejudice against the defendant, nor swayed by public opinion or public feelings.” (CT 486.)
20 Petitioner’s jurors presumably understood and followed their instructions. Weeks, 528 U.S. at
21 234; see also Boyde, 494 U.S. at 381-85; Tan 413 F.3d at 1115.
22

iii.

23

The California Supreme Court was not unreasonable in denying allegations the trial

Conclusions

24 court erred by failing to discharge the jury following the outburst by victim family members.
25

Accordingly, the California Supreme Court’s rejection of this claim was not contrary

26 to, or an unreasonable application of, clearly established federal law, or an unreasonable
27 determination of the facts in light of the evidence presented in the state court proceeding. 28
28
140

1 U.S.C. § 2254(d).
2

Claim IX shall be denied.

3

5.

4

Petitioner alleges the trial court erred by admitting, over Schultz’s objection, post-

Claim X

5 mortem (i.e. autopsy) photos of the victims, violating his rights under Fifth, Sixth, Eighth and
6 Fourteenth Amendments. (Doc. No. 51-1 ¶¶ 688-693.)
7

a.

8

Trial court error violates due process where it renders the resulting criminal trial

Supplemental Legal Standards

9 fundamentally unfair. Chambers, 410 U.S. at 294, 303. See also Jammal v. Van de Kamp, 926
10 F.2d 918, 919 (9th Cir. 1991) (due process claim can be stated where graphic photos of victims
11 make the trial fundamentally unfair).
12

b.

13

Petitioner presented this claim on direct appeal and it was denied on the merits.

State Court Direct and Collateral Review

14 (Dickey, 35 Cal. 4th at 924-25.)
15

c.

Analysis

16

i.

Trial Court Error

17

Petitioner argues the trial court erred in admitting as aggravating circumstances of the

18 crime (under Penal Code section 190.3(a)) five autopsy photos of victims Freiri and Caton.
19 The trial court admitted the photos over the objection of Schultz on grounds that: (i) the photos
20 were not relevant to Petitioner’s conviction as a mere aider and abetter who did not participate
21 in the killings, and (ii) the photos were more prejudicial than probative under Evidence Code
22 section 352. (Doc. No. 51-1 ¶¶ 688, 691; see also Doc. No. 142 at 199; RT 5085-98.)
23

Particularly, Petitioner argues the photos made his trial unfair because they show

24 beating and stabbing injuries inflicted not by him, but rather by R.C., the actual killer. (See RT
25 5091-92.) He argues the photos caused the jury to punish him for the brutality inflicted by
26 R.C. (Doc. No. 142 at 201, citing CT 486.)
27

The trial court found the circumstances of the crime including photographs not

28
141

1 admitted at the guilt phase to be equally admissible against the aider and abettor and his co2 conspirator. (RT 5093-94.)
3

The trial court also found the photos relevant to the circumstances of the crime,

4 showing the nature and seriousness of the wounds. (RT 5098-99.) The trial court found the
5 photos prejudicial, but concluded their probative value outweighed the prejudice. (RT 5098.)
6 The trial court did direct that one of the photos be modified to “crop” out non-probative or
7 prejudicial matter. (Id.)
8

The California Supreme Court considered and denied the claim on direct appeal, stating

9 that:
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24

“We repeatedly have determined that photographs of victims' bodies may be
admissible at the penalty phase to demonstrate graphically the circumstances of
the crime, a factor relevant to the issues of aggravation and penalty. (E.g.,
People v. Lucas [(1995)] 12 Cal. 4th [415,] 490 [48 Cal.Rptr.2d 525, 907 P.2d
373]; People v. Sanchez (1995) 12 Cal. 4th 1, 63–65 [47 Cal.Rptr.2d 843, 906
P.2d 1129]; People v. Medina (1995) 11 Cal. 4th 694, 775 [47 Cal.Rptr.2d 165,
906 P.2d 2]; People v. Wader (1993) 5 Cal. 4th 610, 655 [20 Cal.Rptr.2d 788,
854 P.2d 80]; People v. Raley (1992) 2 Cal. 4th 870, 914 [8 Cal.Rptr.2d 678,
830 P.2d 712]; People v. Hardy (1992) 2 Cal. 4th 86, 199–200 [5 Cal.Rptr.2d
796, 825 P.2d 781].)” (People v. Smithey (1999) 20 Cal. 4th 936, 990, 86
Cal.Rptr.2d 243, 978 P.2d 1171.)
Defendant contends the photographs should not have been admitted against him
because he was merely an aider and abettor. However, we have upheld the
admission of autopsy photographs in the penalty phase of the trial of a
defendant convicted on an aiding and abetting theory. (People v. Sanchez,
supra, 12 Cal. 4th at pp. 63–65, 47 Cal.Rptr.2d 843, 906 P.2d 1129.) Defendant
notes there was more evidence in Sanchez of the defendant's direct involvement
in the murderous acts. (Id. at p. 22, 47 Cal.Rptr.2d 843, 906 P.2d 1129.) That is
beside the point. The “circumstances of the crime of which the defendant was
convicted in the present proceeding” (§ 190.3, factor (a)), which include the
brutality of its commission, and whether the defendant's “participation in the
commission of the offense was relatively minor” (§ 190.3, factor (j)) are
separate sentencing factors. The circumstances of the offense here, as evidenced
by the photographs of the victims, were arguably an aggravating factor, and the
prosecutor made that argument. The nature of defendant's involvement, that he
was an aider and abettor, was arguably a mitigating factor, and defense counsel
made that argument. The jury was properly instructed. No error appears.

25 Dickey, 35 Cal. 4th at 924–25.
26

The California Supreme Court reasonably found the trial court did not abuse its

27 discretion in admitting this evidence. See Wood v. Alaska, 957 F.2d 1544, 1550 (9th Cir. 1992)
28
142

1 (trial judges have broad discretion both to determine relevance and to determine whether
2 prejudicial effect or other concerns outweigh the probative value of the evidence).
3

“[T]he Constitution leaves to the judges who must make these decisions ‘wide latitude’

4 to exclude evidence that is ‘repetitive …, only marginally relevant’ or poses an undue risk of
5 ‘harassment, prejudice, [or] confusion of the issues.’” Crane, 476 U.S. at 689-90 (quoting
6 Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)); see also Taylor v. Illinois, 484 U.S. 400,
7 410-11 (1988) (defendant’s right to present evidence is not absolute for defendant must comply
8 with established rules of evidence and procedure). In California, the trial court enjoys “wide
9 discretion” in determining the relevancy of evidence. People v. Green, 27 Cal. 3d 1, 19
10 (1980), abrogated on other grounds by People v. Martinez, 20 Cal. 4th 225 (1999).
11

The “admissibility of evidence in a state trial is matter of state law,” which is binding

12 on the federal court unless there is a due process violation. Clark, 16 F.3d at 963-64. Only if
13 no permissible inferences can be drawn from admitted evidence will due process be violated.
14 Jammal, 926 F.2d at 920; cf. McGuire, 502 U.S. at 67 (Ninth Circuit erroneously “relied in part
15 on its conclusion that the [prior injury] evidence was ‘incorrectly admitted . . . pursuant to
16 California law’ in ruling that McGuire’s due process rights were violated by admission of the
17 evidence.”).
18

Here, the trial court found the photos to be relevant and more probative than prejudicial

19 evidence of the circumstances of the crime. (RT 5098.) As that court noted, the autopsy
20 photos depicted injuries sustained in the attack that led to death and capital charges; evidence
21 of the circumstances surrounding the crime in which Petitioner participated as an aider and
22 abettor of felony murder. See Villafuerte v. Stewart, 111 F.3d 616, 627 (9th Cir. 1997) (photos
23 depicting blood at crime scene and victim injuries relevant to crimes charged are admissible).
24

The state supreme court reasonably could find as a matter of state law that the autopsy

25 photos were relevant and more probative than prejudicial evidence of the circumstances of the
26 charged crimes. As was the case above in the discussion of claim IX, Petitioner merely
27 surmises the photos must have been more prejudicial than probative given the summary nature
28
143

1 of his penalty proceedings and sparse evidence admitted thereat. He fails to discuss and give
2 weight to the aggravating and highly probative facts from the guilt phase surrounding his
3 participation in the capital crime, reflected in the photos. (See e.g. Doc. 135 discussion
4 denying guilt claims XXVI & XXVIII.) Photographs that are relevant to charged crimes are
5 generally admissible. Villafuerte, 111 F.3d 627. In California, “photographs which disclose
6 the manner in which the victim was wounded are relevant on the issues of malice and
7 aggravation of the crime and the penalty.” People v. Thompson, 50 Cal. 3d 134, 182 (1990).
8

ii.

9

Assuming arguendo the photos were errantly admitted, the state supreme court

Any Error was Harmless

10 reasonably could find Petitioner has not shown more than harmless error, i.e. an error that
11 substantially influenced the sentencing outcome. Brecht, 507 U.S. at 637-39.
12

Petitioner argues the alleged error must have been more than harmless given the scant

13 showing in aggravation; the brevity of penalty proceedings; and the relative length of penalty
14 deliberations. (Doc. No. 142 at 201-02; see also Doc. No. 144 at 48, citing 5098; RT 5126-33;
15 CT 477-480.)
16

Still, the guilt phase evidence of the crimes and surrounding circumstances and

17 Petitioner’s involvement therein was before the penalty phase jury. The photos reasonably
18 could be seen as relevant and probative evidence depicting the victims in circumstances
19 already known to the jury; circumstances relating to Petitioner’s guilt phase defense that he
20 merely aided and abetted a burglary gone wrong and that it was R.C. who committed the
21 killings in the photos.
22

The jury was properly instructed on weighing aggravating and mitigating factors and

23 presumably understood and followed their instructions. (See CT 498-99, 502-03; see also the
24 discussion of claims XII(E, F), XXV(E), post.)
25

iii.

26

The California Supreme Court was not unreasonable in denying allegations the trial

Conclusions

27 court erred by admitting over objection the post-mortem photos of the victims.
28
144

1

Accordingly, the California Supreme Court’s rejection of this claim was not contrary

2 to, or an unreasonable application of, clearly established federal law, or an unreasonable
3 determination of the facts in light of the evidence presented in the state court proceeding. 28
4 U.S.C. § 2254(d).
5

Claim X shall be denied.

6

6.

7

Petitioner alleges the trial court erred by denying his motion for modification of the

Claim XI

8 verdict, violating his rights under Fifth, Sixth, Eighth and Fourteenth Amendments. (Doc. No.
9 51-1 ¶¶ 694-700.)
10

a.

11

Trial court error violates due process where it renders the resulting criminal trial

Supplemental Legal Standards

12 fundamentally unfair. Chambers, 410 U.S. at 294, 303; Jammal, 926 F.2d at 919.
13

b.

14

Petitioner presented this claim on direct appeal and it was denied on the merits. Dickey,

State Court Direct and Collateral Review

15 35 Cal. 4th at 932-33.
16

c.

Analysis

17

i.

Trial Court Error

18

Petitioner argues the trial court denied him due process because it “failed to apply the

19 proper [i.e. independent] standard of review, failed to state reasons for its findings and ruling,
20 failed to consider important mitigating circumstances, and gave undue weight to claimed
21 aggravating circumstances.” (Doc. No. 51-1 ¶ 694; see also Doc. No. 142 at 202-03, citing
22 Penal Code § 190.4(e)); see also Hicks, 447 U.S. at 346.
23

Appellate review of California’s capital cases is authorized by California Penal Code

24 sections 190.4(e) and 1239(b). Section 190.4 provides an automatic application for
25 modification of a verdict imposing the death penalty, by which the trial judge reviews the
26 evidence and reweighs the section 190.3 aggravating and mitigating circumstances before
27 imposing sentence based on the jury’s verdict.
28
145

1

Denial of modification of a verdict of death is reviewed on the automatic appeal

2 pursuant to section 1293(b). Such review includes the “evidence relied on by the [trial] judge.”
3 Pulley, 465 U.S. at 53 (quoting People v. Frierson, 25 Cal. 3d 142, 179 (1979)) (“the statutory
4 requirements that the jury specify the special circumstances which permit imposition of the
5 death penalty, and that the trial judge specify the reasons for denying the modification of the
6 death penalty, serve to assure thoughtful and effective appellate review, focusing upon the
7 circumstances present in each particular case.”).
8

At the time of Petitioner’s trial, section 1239(b) provided, “[w]hen upon any plea a

9 judgment of death is rendered, an appeal is automatically taken by the defendant without any
10 action by him or his counsel.” Even where defendant’s counsel takes no action, the California
11 Supreme Court has a duty to examine the complete trial record to “ascertain[] whether
12 defendant was given a fair trial.” People v. Perry, 14 Cal. 2d 387, 392 (1939).
13

Aside from the state statutory duty to examine the complete trial record for fairness and

14 the federal constitutional requirement that an appeal be available to indigent appellants, there
15 are no obligations placed on the California Supreme Court that could cause a violation of an
16 appellant’s federal constitutional rights. Sections 190.4(e) and 1239(b), and the cases
17 construing them, provide the mechanism for meaningful appellate review.
18

The California Supreme Court denied this claim, stating that:

19
20
21
22
23
24
25
26
27
28

Defendant contends the trial court, in ruling on the automatic motion to modify
the verdict (§ 190.4, subd. (e)), failed to apply the proper standard, properly
consider the aggravating and mitigating factors, adequately state the reasons for
its findings, or direct the clerk to record its reasons in the minutes. Only the last
point has merit, and the error with regard to it was not, we conclude, prejudicial.
In ruling upon an automatic motion to modify the verdict under section 190.4,
subdivision (e), the trial court “shall review the evidence, consider, take into
account, and be guided by the aggravating and mitigating circumstances
referred to in Section 190.3, and shall make a determination as to whether the
jury's findings and verdicts that the aggravating circumstances outweigh the
mitigating circumstances are contrary to law or the evidence presented. The
judge shall state on the record the reasons for his findings. [¶] The judge shall
set forth the reasons for his ruling on the application and direct that they be
entered on the Clerk's minutes.”
Section 190.4, subdivision (e) requires a court ruling upon a motion for
146

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18

modification to reweigh independently the evidence of aggravating and
mitigating circumstances and then determine whether, in its independent
judgment, the weight of the evidence supports the jury's verdict. (Catlin, supra,
26 Cal. 4th at p. 177, 109 Cal.Rptr.2d 31, 26 P.3d 357; People v. Crittenden
(1994) 9 Cal. 4th 83, 150, 36 Cal.Rptr.2d 474, 885 P.2d 887.)
Defendant contends the court erroneously applied a deferential standard of
review appropriate to appellate proceedings. To the contrary, the court expressly
stated, “I do understand and agree that the Court must use its independent
judgment in reweighing the evidence of mitigating and aggravating
circumstances in determining what the penalty ought to be in this case and
whether or not this Court agrees with the jury's verdict.”
And contrary to defendant's claims, the court carefully reviewed the evidence
bearing on each of the aggravating and mitigating factors and clearly explained
why it found the aggravating factors substantially outweighed the mitigating
factors. Defense counsel urged defendant's culpability was only that of an aider
and abettor. The court agreed Cullumber was the “major culprit,” but noted the
evidence showed defendant's role was “not minor.” Defense counsel brought up
defendant's “drug use.” However, there was no evidence, the court observed,
defendant was under the influence of drugs at the time of the offenses. Defense
counsel noted the remorse defendant had shown when confessing to Gail
Goldman. However, the court observed that defendant's expression of remorse
on that occasion was triggered by the television story concerning the crime, and
that he had shown no remorse immediately after the murders, but rather had
grandly purchased drugs for all of his housemates with the money he had stolen.
The circumstances of the crime—that defendant participated in the brutal
murders of his elderly victims to obtain money to buy drugs—was, the court
stated, the most significant aggravating factor.
Apparently, the court did neglect to direct the clerk to enter the reasons for its
ruling on the application in the minutes. However, the reporter's transcript
provides an entirely adequate basis for review, and so it is not reasonably
possible that this failure to comply with a statutory directive prejudiced
defendant.

19 Dickey, 35 Cal. 4th at 932–33. That court reasonably denied the claim, as follows.
20

Standard of Review

21

Petitioner argues the trial court failed to “independently” reweigh the evidence of

22 aggravating and mitigating circumstances and determine whether the weight of the evidence
23 supports the jury verdict. (Doc. No. 51-1 ¶ 697-698, citing People v. Burgener, 29 Cal. 4th
24 833, 890 (2003) (section 190.4(e) requires the judge make an independent determination
25 whether imposition of the death penalty upon the defendant is proper in light of the relevant
26 evidence and applicable law”); see also Doc. No. 142 at 203, citing Penal Code § 190.4(e).)
27 He argues the prosecution asserted and the trial court used an improper standard of review, i.e.,
28
147

1 a more deferential standard of “substantial evidence.” (Id. at 204.) He argues “the trail court’s
2 assessment of aggravating versus mitigating factors was being done through the eyes of the
3 jury, not independently.” (Doc. No. 144 at 50.)
4

However, Petitioner merely surmises the trial court failed to independently reweigh the

5 evidence of aggravating and mitigating circumstances and determine whether, in the judge’s
6 independent judgment, the weight of the evidence supported the jury’s verdict. He points to
7 argument by the prosecution which he contends advocated that the section 190.4 standard of
8 review was a more deferential “substantial evidence” standard. (See RT February 21, 1992 at
9 14, 20-21.) He argues that although the trial court recited the proper standard, it did not
10 understand and apply that standard. (See Doc. No. 144 at 50.) He also faults the trial court for
11 failing to state the reasons for its findings on the record. Penal Code § 190.4(e).
12

Petitioner argues the trial court’s error led it to “[give] undue weight to factor (a)

13 aggravating evidence [primarily the conduct of R.C.] and failed properly to consider available
14 mitigating evidence [of Petitioner’s minor participation, remorse and drug use], thereby
15 depriving Petitioner of the individualized assessment of the appropriateness of the death
16 penalty required by the Eighth Amendment.” (Doc. No. 144 at 51, citing RT Feb. 21, 1992 at
17 24-25.)
18

Petitioner relies upon inference arising from his reargument of Petitioner’s limited role

19 as an aider and abettor of felony murder. According to Petitioner, the trial court unduly
20 credited aggravating circumstances of the crimes directly attributable to perpetrator R.C. and
21 discounted the mitigating circumstances and Petitioner’s minor involvement in the crimes.
22 (Doc. No. 142 at 206.)
23

Still, as the state supreme court noted, the trial court considered the proper standard by

24 stating “[I] do understand and agree that the Court must use its independent judgment in
25 reweighing the evidence of mitigating and aggravating circumstances in determining what the
26 penalty ought to be in this case and whether or not this Court agrees with the jury's verdict.’”
27 (RT February 21, 1992 at 24; see also Dickey, 35 Cal. 4 th at 932-33. The trial court proceeded
28
148

1 to state on the record its reasoning regarding the sentencing factors in the context of the
2 aggravating and mitigating evidence before the jury. (RT February 21, 1992 at 24-30.)
3

The trial court discussed sentencing factor “a” “circumstances of the crime of which the

4 Defendant was convicted in this proceeding.” (Id. at 24.) That court noted that Petitioner and
5 R.C. “got together for the purpose of burglarizing the home of Mrs. Caton” (id. at 25), that the
6 victims were particularly vulnerable (id. at 26), that the killings were brutal, and the injuries
7 inflicted were severe (id. at 26).
8

The trial court discussed sentencing factor “j,” “whether or not the Defendant was an

9 accomplice to the offense and his participation in the offense was relatively minor.” (Id. at 28.)
10 That court considered that Petitioner was tried as an aider and abettor of felony murder; that
11 “[Petitioner] was not the principal culprit in the case; [R.C.] was and that is something that I
12 accept; that “all the evidence points to [R.C.] being the major culprit.” (Id. at 28-29.) Even
13 so, the trial court noted that Petitioner’s participation in the crime “was not minor”, that “he
14 was seen . . . cutting a piece of cord . . . similar to that . . . found around the neck of Mr.
15 Freiri” and that Petitioner “shared in the ill-gotten gains from that burglary and robbery.” (Id.)
16

The trial court found that “[h]aving considered the factors in aggravation and

17 mitigation, it is clear . . . the factors in aggravation do substantially outweigh the mitigating
18 factors.” (Id. at 30.)
19

For the reasons stated, the state supreme court was not unreasonable in rejecting

20 Petitioner’s asserted improper weighing of sentencing factors.
21

Written Statement of Findings

22

Petitioner faults the trial court to the extent the clerk’s minutes of the proceedings did

23 not include the reasons for its ruling, but stated only that the matter was “argued, submitted,
24 and denied.” (See CT 609.)
25

The California procedure requires the trial judge to provide a written statement

26 upholding or overturning the jury’s verdict. Penal Code § 190.4(e). The California procedure
27 was approved by the Supreme Court in Pulley v. Harris, where it was stated:
28
149

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

If the jury finds the defendant guilty of first-degree murder and finds at least
one special circumstance, the trial proceeds to a second phase to determine the
appropriate penalty. Additional evidence may be offered and the jury is given a
list of relevant factors. § 190.3. “After having heard all the evidence, the trier of
fact shall consider, take into account and be guided by the aggravating and
mitigating circumstances referred to in this section, and shall determine whether
the penalty shall be death or life imprisonment without the possibility of
parole.” Ibid. If the jury returns a verdict of death, the defendant is deemed to
move to modify the verdict. § 190.4(e). The trial judge then reviews the
evidence and, in light of the statutory factors, makes an “independent
determination as to whether the weight of the evidence supports the jury’s
findings and verdicts.” Ibid. The judge is required to state on the record the
reasons for his findings. Ibid. If the trial judge denies the motion for
modification, there is an automatic appeal. §§ 190.4(e), 1239(b). The statute
does not require comparative proportionality review or otherwise describe the
nature of the appeal. [Footnote omitted.] It does state that the trial judge’s
refusal to modify the sentence “shall be reviewed.” § 190.4(e). This would seem
to include review of the evidence relied on by the judge. As the California
Supreme Court has said, “the statutory requirements that the jury specify the
special circumstances which permit imposition of the death penalty, and that the
trial judge specify his reasons for denying modification of the death penalty,
serve to assure thoughtful and effective appellate review, focusing upon the
circumstances present in each particular case.” People v. Frierson, 25 Cal. 3d
142, 179, 158 Cal. Rptr. 281, 302, 599 P.2d 587, 609 (1979)….
The jury’s “discretion is suitably directed and limited so as to minimize the risk
of wholly arbitrary and capricious action.” Gregg, 428 U.S. at 189, 96 S.Ct., at
2932. Its decision is reviewed by the trial judge and the California Supreme
Court. On its face, this system … cannot be successfully challenged under
Furman and our subsequent cases.

17 465 U.S. at 51-53.
18

All that is federally required is an “adequate basis for appellate review.” Id. In

19 California, the trial court’s express reasons for its findings in ruling on the automatic motion
20 for modification provide the “adequate basis” for appellate review. Id.; see Diaz, 3 Cal. 4th at
21 571-573. Nothing more is constitutionally required and Petitioner cannot point to any clearly
22 established Supreme Court precedent stating otherwise. Williams, 52 F.3d, at 1484
23 (California’s statute “ensures meaningful appellate review”) (citing Brown, 479 U.S. at 543);
24 Bonin v. Vasquez, 794 F. Supp. 957, 987-88 (C.D. Cal. 1992), aff’d sub nom. Bonin v.
25 Calderon, 59 F.3d 815 (9th Cir. 1995) (the trial judge’s determinations on the record pursuant
26 to section 190.4(e) provide ample basis for appellate review).
27

Here, Petitioner correctly notes the trial court failed to make a clerk’s record of his

28
150

1 findings and rulings on the motion for modification of the verdict. (Doc. No. 142 at 205; CT
2 609.)
3

Even so, the state supreme court reasonably found the trial court’s reasoning as stated

4 in the trial record was sufficient written support for its independent reweighing of the evidence
5 of aggravation and mitigation toward an individualized assessment of the jury’s sentencing
6 determination. (See RT Feb. 21, 1992 at 2-52.) As the state supreme court observed, the
7 “reporter’s transcript provides an entirely adequate basis for review, and so it is not reasonably
8 possible that this failure to comply with a statutory directive prejudiced defendant.” Dickey, 35
9 Cal. 4th at 933.
10

The death penalty is constitutional if it “is imposed only after a determination that the

11 aggravating circumstances outweigh the mitigating circumstances present in the particular
12 crime committed by the particular defendant, or that there are no such mitigating
13 circumstances.” Blystone, 494 U.S. at 305. To the extent automatic modification under
14 California’s capital sentencing statute was part of the manner by which California fulfills its
15 constitutional duty to tailor and apply its death sentencing scheme in a rational manner, see
16 Pulley, 465 U.S. at 52, the evidentiary record shows the trial court reviewed the verdict,
17 considered and discussed the aggravating and mitigating circumstances and factors and made
18 an individualized determination of whether death was the proper punishment. (See RT Feb. 21,
19 1992 at 2-52; see Turner v. Calderon, 281 F.3d 851, 871 (9th Cir. 2002).
20

The California Supreme Court’s conclusion that the trial court’s review was proper

21 under state law is binding on this Court. Wainwright v. Goode, 464 U.S. 78, 84 (1983).
22

ii.

23

Petitioner argues the trial judge prejudicially erred in reweighing the evidence of

Any Error was Harmless

24 aggravating and mitigating circumstances. He argues the trial judge failed to consider
25 important mitigating circumstances and gave undue weight to claimed aggravating
26 circumstances. (Doc. No. 142 at 206.) He points to the trial court’s statement that Penal Code
27 section 190.3(a) factor “circumstances of the crime” factor was most important the jury
28
151

1 considered (Doc. No. 142 at 206, citing RT 24-25 [Feb. 21, 1992]) and argues error given that
2 R.C., not Petitioner, was the actual killer. He argues this error caused the trial court to discount
3 the mitigating effect of Penal Code section 190.3(j) factor “whether or not the defendant was
4 an accomplice to the offense and his participation in the commission of the offense was
5 relatively minor.” (See Doc. No. 142 at 207.)
6

However, the trial court referred to the evidence supporting its findings and rulings on

7 these and the other Penal Code section 190.3 factors. (See RT Feb. 21, 1992 at 2-52.)
8 Petitioner concedes the trial judge “discussed each of the aggravating and mitigating factors
9 listed in Penal Code section 190.3” and “the evidence presented at the penalty phase by each
10 side.” (Doc. No. 142 at 205.)
11

Still, Petitioner faults the trial judge for failing to specifically indicate whether the

12 evidence was interpreted as aggravating or mitigating. (Doc. No. 142 at 205, citing RT 24-31
13 (Feb. 21, 1992).) But the trial court reviewed and analyzed on the record each factor and the
14 evidence offered by the parties and concluded that “the aggravating factors do substantially
15 outweigh the mitigating factors.” (Id.) The state supreme court reasonably was unpersuaded
16 that more is necessary or required.
17

Petitioner argues the trial court improperly discounted mitigating evidence of his

18 remorse under Penal Code section 190.3(k), and his drug use on the day of the murders under
19 Penal Code section 190.3(h). (Doc. No. 142 at 208-09.) But the trial court found “no
20 evidence, at the moment the crime was committed, [that Petitioner] was under the influence of
21 drugs. (RT Feb. 21, 1992 at 27.) That court also observed Petitioner’s absence of remorse in
22 the aftermath of the killings, when he used money taken from the victims to buy and share
23 drugs. (RT Feb. 21, 1992 at 29-30.) The record reflects the trial court’s independent judgment
24 in reviewing and reweighing the evidence relative to these factors and its determination the
25 jury’s findings and verdicts were not contrary to law or the evidence presented. (RT Feb. 21,
26 1992 at 27-28.) Petitioner’s disagreement with the trial court’s findings and ruling is not a
27 basis for error.
28
152

1

Petitioner also argues prejudice from the trial court’s failure to direct that the clerk’s

2 minutes of proceedings include reasons for the court’s ruling. However, the state supreme
3 court reasonably found on direct appeal that “[the] reporter’s transcript provides an entirely
4 adequate basis for review, and so it is not reasonably possible that this failure to comply with a
5 statutory directive prejudiced defendant.” Dickey, 35 Cal. 4th at 933.
6

Petitioner’s further argument that the trial court’s record lacked specificity as to

7 whether evidence was aggravating or mitigating and does not show “thoughtful and effective
8 appellate review” (see Doc. No. 142 at 205) is unpersuasive, for the reasons stated.
9

Even if the state court did err as a matter of state law, such is not alone a basis for

10 federal habeas relief. McGuire, 502 U.S. at 72-73.
11

Petitioner has not demonstrated constitutional error from alleged failure of the trial to

12 adhere to the directive of Penal Code section 190.4(e) that it “review the evidence, consider,
13 take into account, and be guided by the aggravating and mitigating circumstances referred to in
14 Section 190.3, and [ ] make a determination as to whether the jury’s findings and verdicts that
15 the aggravating circumstances outweigh the mitigating circumstances are contrary to law or the
16 evidence presented.”
17

iii.

18

The California Supreme Court was not unreasonable in denying allegations the trial

Conclusions

19 court erred by denying Petitioner’s motion for modification of the verdict.
20

Accordingly, the California Supreme Court’s rejection of this claim was not contrary

21 to, or an unreasonable application of, clearly established federal law, or an unreasonable
22 determination of the facts in light of the evidence presented in the state court proceeding. 28
23 U.S.C. § 2254(d).
24

Claim XI shall be denied.

25

7.

26

Petitioner alleges the trial court erred by instructing the jury it must return a verdict

Claim XII(D)

27 either for LWOP or death, omitting instruction in the event of a hung jury, violating his rights
28
153

1 under the Fifth, Sixth, Eighth, and Fourteenth Amendments. (Doc. No. 51-1 ¶ 711-713.)
2

a.

3

A jury must “not be precluded from considering, as a mitigating factor, any aspect of a

Supplemental Legal Standards

4 defendant’s character or record and any of the circumstances of the offense that the defendant
5 proffers as a basis for a sentence less than death.” Lockett, 438 U.S. at 604.
6

Any error in the state court’s determination of whether state law supported an

7 instruction in this case cannot form the basis for federal habeas relief. See McGuire, 502 U.S.
8 at 71 (“[T]he Due Process Clause does not permit the federal courts to engage in a finely tuned
9 review of the wisdom of state evidentiary rules”).
10

The Supreme Court has stated instead that a claim that a court violated a petitioner’s

11 due process rights by omitting an instruction requires a showing that the error “so infected the
12 entire trial that the resulting conviction violate[d] due process.” Kibbe, 431 U.S. at 154. The
13 burden on petitioner is especially heavy “where ... the alleged error involves the failure to give
14 an instruction.” Clark, 450 F.3d at 904.
15

In evaluating a claim of instructional error, a single instruction is not viewed in

16 isolation, but rather in the context of the overall charge. Spivey, 194 F.3d at 976. “[T]he
17 proper inquiry . . . is whether there is a reasonable likelihood that the jury has applied the
18 challenged instruction” in an unconstitutional manner. Boyde, 494 U.S. at 380.
19

Even if constitutional instructional error has occurred, the federal court must still

20 determine whether petitioner suffered actual prejudice, that is, whether the error “had
21 substantial and injurious effect or influence in determining the jury’s verdict.” Brecht, 507
22 U.S. at 637. A “substantial and injurious effect” means a “reasonable probability” that the jury
23 would have arrived at a different verdict had the instruction been given. Clark, 450 F.3d at
24 916.
25

b.

26

Petitioner presented this claim in his second state exhaustion petition (Lod. Doc. No. 30

State Court Direct and Collateral Review

27 at 312-14) which the California Supreme Court denied on the merits and on procedural
28
154

1 grounds (Lod. Doc. No. 31, Order Denying Cal. Exh. Pet., In re Colin Raker Dickey, No.
2 S165302 (May 29, 2012)).
3

c.

Analysis

4

i.

Trial Court Error

5

Petitioner argues the trial court erred by failing to instruct the jury of the consequences

6 of not reaching a unanimous verdict of either LWOP or death, i.e. that in the event of a hung
7 jury a new penalty phase jury would be empaneled pursuant to Penal Code section 190.4(b).
8 (Doc. No. 51-1 at ¶ 711, citing People v. Huggins, 38 Cal. 4th 175, 186 (2006) (a new jury was
9 empaneled following mistrial); see also Doc. No. 142 at 210, citing RT 5145.)
10

The record shows the jury was instructed that “[i]t is the law of this state that the

11 penalty for a defendant found guilty of murder of the first degree shall be death or confinement
12 in the state prison for life without possibility of parole … you must now determine which of
13 said penalties shall be imposed on [the] defendant.” (CT 485; see also CT 502.)
14

Petitioner complains his jury was instructed that “it must return a verdict of either life

15 or death” (Doc. No. 142 at 210, citing RT 5145), and that “to return a judgment of death, each
16 of you must be persuaded that the aggravating circumstances are so substantial in comparison
17 with the mitigating circumstances that it warrants death instead of life without parole.” (Doc.
18 No. 142 at 211, citing RT 5154.) He argues this instructional error misinformed the jury on its
19 true sentencing options (see Doc. No. 144 at 53) and misled jurors on the consequences of
20 deadlock (Doc. No. 142 at 211, citing Morris v. Woodford, 273 F.3d 826, 842 (9th Cir. 2001)
21 (when penalty phase instructions mislead the jury and evidence suggests that the jury was
22 confused by the instruction, the instruction is constitutionally improper)). He argues the jury
23 should have been instructed that “if unable to reach a verdict, a new jury would be empaneled
24 to try the penalty phase of the case.” (Doc. No. 142 at 211.)
25

Petitioner argues the error created a risk of arbitrary and capricious sentencing that

26 must have been realized here because “record indicates that the jury was not in immediate
27 agreement on imposition of the death penalty” and may have felt forced to reach a verdict or
28
155

1 speculated on the consequences of failing to do so. (Doc. No. 142 at 211-12.)
2

However, the California Supreme Court reasonably could have rejected Petitioner’s

3 claim the penalty instructions were misleading and confusing because they failed to include
4 instruction on state law that a new jury would be empaneled upon inability to reach a
5 unanimous sentencing determination. (Doc. No. 51-1 ¶¶ 711-712; see also Doc. No. 142 at
6 210-11, citing Penal Code 190.4(b).)
7

Petitioner makes no showing that clearly established federal law required instruction on

8 empanelment of a new jury in the event of a failure to reach a sentencing verdict. Rather, the
9 Ninth Circuit has found no constitutional error by a trial court’s refusal to inform the jury of
10 the consequences of deadlock. See Rich v. Calderon, 187 F.3d 1064, 1069 (9th Cir. 1999).
11 This is not a case like Morris, where the jury actually was confused by a misleading instruction
12 and asked the trial court for clarity.
13

Furthermore, Petitioner has not demonstrated his desired instruction was required as a

14 matter of state law. Penal Code section 190.4(b) provides in pertinent part that “[i]f the trier of
15 fact is a jury and has been unable to reach a unanimous verdict as to what the penalty shall be,
16 the court shall dismiss the jury and shall order a new jury impaneled to try the issue as to what
17 the penalty shall be.” This language suggests enpanelment of a new jury represents a
18 contingency to be addressed if at all by the trial court.
19

Petitioner has not demonstrated state law required instruction on deadlock or that

20 empanelment of a new jury was a sentencing option available to his jury under state law. See
21 People v. Memro, 11 Cal. 4th 786, 882 (1995) (a court is not required to educate the jury on the
22 consequences of a deadlock).
23

Notably, the state supreme court considered on direct appeal the trial court’s giving the

24 standard sentencing instructions CALJIC 8.85 and 8.88, which include death or LWOP as the
25 sentencing options available to the jury, and found no error. Dickey, 35 Cal. 4th at 927-31.
26

Whether or not the penalty instructions given by the trial court were a correct statement

27 of California law is not a basis for federal relief. See McGuire, 502 U.S. at 67 (whether some
28
156

1 action violated a state’s law forms “no part” whatsoever [i.e., not a little, not at all] of an
2 inquiry whether that action violated the Constitution); see also Bradshaw v. Richey, 546 U.S.
3 74, 76 (2005) (“a state court’s interpretation of state law ... binds a federal court sitting in
4 federal habeas”); Mitchell, 878 F.2d at 324 (“In the absence of a federal constitutional
5 violation, no relief can be granted even if the instruction given might not have been correct as a
6 matter of state law.”).
7

For the reasons stated, the state supreme court reasonably could have found the alleged

8 instructional error did not result in a failure to guide the jury’s discretion and the risk of
9 arbitrary and capricious action and that Petitioner was not denied due process. (Doc. No. 142
10 at 212, citing Gregg, 428 U.S. at 193.)
11

ii.

12

Petitioner argues the failure to give this instruction was prejudicial. He observes the

Any Error was Harmless

13 jury was unable to reach an immediate verdict, deliberating for five hours (CT 477-479), and
14 suggests the jurors must have been confused by the possibility they might be unable to reach a
15 verdict. He concludes that had the jury been properly instructed as to the consequences of
16 deadlock, at least one juror would have held out for LWOP. (See Doc. No. 144 at 54.) But the
17 argument is supported only by speculation.
18

Assuming arguendo that the trial court erred as alleged, the California Supreme Court

19 reasonably could have found that Petitioner had not shown a resulting substantial and injurious
20 effect or influence in the jury’s determination of his verdict. Brecht, 507 U.S. at 62; see also
21 Calderon v. Coleman, 525 U.S. 141, 146-47 (1998) (Brecht harmless error standard applies to
22 instructional error). The jurors were able to return a unanimous verdict on the sentencing
23 alternatives before them. (See CT 477-482.) At no point did the jury indicate an inability to
24 reach a verdict or request instruction thereon. Even if they had, Petitioner has not
25 demonstrated that Penal Code section 190.4(b) is a sentencing option for the jury, for the
26 reasons stated.
27

It follows that the sentencing discretion of Petitioner’s jury was “suitably directed and

28
157

1 limited so as to minimize the risk of wholly arbitrary and capricious action.” Gregg, 428 U.S.
2 at 189. Petitioner has not shown the jury was prevented from considering LWOP and
3 mitigating evidence. Brecht, 507 U.S. at 637; Hedgpeth v. Pulido, 555 U.S. 57, 58 (2008)
4 (Brecht standard applicable to instructional error).
5

iii.

6

The California Supreme Court was not unreasonable in denying allegations the trial

Conclusions

7 court prejudicially erred by failing to instruct the jury it must return a verdict either for LWOP
8 or death, omitting instruction in the event of a hung jury.
9

Accordingly, the California Supreme Court’s rejection of this claim was not contrary

10 to, or an unreasonable application of, clearly established federal law, or an unreasonable
11 determination of the facts in light of the evidence presented in the state court proceeding. 28
12 U.S.C. § 2254(d).
13

Claim XII(D) shall be denied.

14

8.

15

Petitioner alleges the trial court erred by failing to instruct the jury on the standard for

Claim XII(E)

16 weighing aggravating and mitigating factors, violating his rights under the Fifth, Sixth, Eighth,
17 and Fourteenth Amendments. (Doc. No. 51-1 ¶¶ 714-715.)
18

a.

19

See section VII, B, 7, a, ante.

20

b.

21

Petitioner presented this claim on direct appeal and it was denied on the merits. Dickey,

Supplemental Legal Standards

State Court Direct and Collateral Review

22 35 Cal. 4th at 927-28.
23

c.

Analysis

24

i.

Trial Court Error

25

Petitioner argues that CALJIC 8.85, given in this case to instruct jurors on Penal Code

26 section 190.3 factors in aggravation and mitigation (see CT 498-99), is unconstitutionally
27 vague, overbroad and misleading with respect to the manner in which aggravating and
28
158

1 mitigating factors are to be weighed, denying meaningful consideration of all mitigating
2 evidence. (Doc. No. 142 at 212-13, citing Abdul-Kabir v. Quarterman, 550 U.S. 233, 247
3 (2007), citing Lockett, 438 U.S. at 640 (the Eighth and Fourteenth Amendments require that
4 the sentencer, in all but the rarest kind of capital case, not be precluded from considering, as a
5 mitigating factor, any aspect of a defendant's character or record and any of the circumstances
6 of the offense that the defendant proffers as a basis for a sentence less than death); Eddings,
7 455 U.S. at 113-114 (adopting rule in Lockett); see also Doc. No. 144 at 55.)
8

“The standard against which we assess whether jury instructions satisfy the rule of

9 Lockett and Eddings was set forth in Boyde, 494 U.S. 370 (1990).” Johnson, 509 U.S. at 36710 68. In Boyde, the Supreme Court held that “there is no . . . constitutional requirement of
11 unfettered sentencing discretion in the jury, and States are free to structure and shape
12 consideration of mitigating evidence ‘in an effort to achieve a more rational and equitable
13 administration of the death penalty.’” 494 U.S. at 377 (quoting Franklin, 487 U.S. at 181).
14

In evaluating the instructions, the “reviewing court must determine ‘whether there is a

15 reasonable likelihood that the jury has applied the challenged instruction in a way that prevents
16 the consideration of constitutionally relevant evidence.’” Johnson, 509 U.S. at 367 (quoting
17 Boyde, 494 U.S. at 380). “[W]e do not engage in a technical parsing of this language of the
18 instructions, but instead approach the instructions in the same way that the jury would—with a
19 commonsense understanding of the instructions in the light of all that has taken place at the
20 trial.” Id. at 368 (quoting Boyde, 494 U.S. at 381). Further, a single instruction “may not be
21 judged in artificial isolation but must be considered in light of the instructions as a whole and
22 the entire trial record.” McGuire, 502 U.S. at 72.
23

The jury was instructed on the Penal Code 190.3 sentencing factors pursuant to the

24 standard CALJIC 8.85 instruction, that:
25
26
27

In determining which penalty is to be imposed on defendant, you shall consider
all of the evidence which has been received during any part of the trial of this
case. You shall consider, take into account and be guided by the following
factors, if applicable:

28
159

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21

(a) The circumstances of the crime of which the defendant was convicted in the
present proceeding and the existence of any special circumstance[s] found to be
true.
(b) The presence or absence of criminal activity by the defendant, other than the
crime[s] for which the defendant has been tried in the present proceedings,
which involved the use or attempted use of force or violence or the express or
implied threat to use force or violence.
(c) The presence or absence of any prior felony conviction, other than the
crimes for which the defendant has been tried in the present proceedings.
(d) Whether or not the offense was committed while the defendant was under
the influence of extreme mental or emotional disturbance.
(e) Whether or not the victim was a participant in the defendant's homicidal
conduct or consented to the homicidal act.
(f) Whether or not the offense was committed under circumstances which the
defendant reasonably believed to be a moral justification or extenuation for his
conduct.
(g) Whether or not the defendant acted under extreme duress or under the
substantial domination of another person.
(h) Whether or not at the time of the offense the capacity of the defendant to
appreciate the criminality of his conduct or to conform his conduct to the
requirements of law was impaired as a result of mental disease or defect or the
effects of intoxication.
(i) The age of the defendant at the time of the crime.
(j) Whether or not the defendant was an accomplice to the offense and his
participation in the commission of the offense was relatively minor.
(k) 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.] You must disregard any jury instruction given to you in the guilt or
innocence phase of this trial which conflicts with this principle.

22 (CT 498-499; see also RT 5150-5152.)
23

The California Supreme Court considered and denied the claim on direct appeal, stating

24 that:
25
26
27
28

Defendant contends the standard instruction given here with regard to the
factors the jury might take into account in determining the penalty (§ 190.3;
CALJIC No. 8.85) failed to adequately guide its discretion, in violation of
defendant's rights under the Eighth and Fourteenth Amendments to the United
States Constitution.
160

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

Defendant's various attacks on CALJIC No. 8.85 have been repeatedly rejected
by this court, and we conclude he gives us no compelling reason to reconsider
our decisions.
CALJIC No. 8.85 does not encourage the double-counting of aggravating
factors. (People v. Lewis, supra, 25 Cal. 4th at p. 669, 106 Cal.Rptr.2d 629, 22
P.3d 392; People v. Ayala (2000) 24 Cal. 4th 243, 288–289, 99 Cal.Rptr.2d 532,
6 P.3d 193.)
The federal Constitution does not bar consideration of unadjudicated criminal
activity. (Tuilaepa v. California (1994) 512 U.S. 967, 976–977, 114 S.Ct. 2630,
129 L.Ed.2d 750; People v. Marks (2003) 31 Cal. 4th 197, 237, 2 Cal.Rptr.3d
252, 72 P.3d 1222; People v. Anderson, supra, 25 Cal. 4th at p. 601, 106
Cal.Rptr.2d 575, 22 P.3d 347.) Moreover, defendant seems to complain the jury
was permitted to consider prior criminal activity involving use or attempted use
of force, whereas the prosecutor candidly acknowledged to the jury, “There is
no evidence at all of any previous violent activity on the part of [defendant].”
“[A] reasonable juror would readily have identified” the “emotional
disturbance” and “diminished capacity” factors as mitigating. (People v. Benson
(1990) 52 Cal. 3d 754, 802, 276 Cal.Rptr. 827, 802 P.2d 330; see People v.
Williams (1997) 16 Cal. 4th 153, 268–269, 66 Cal.Rptr.2d 123, 940 P.2d 710;
People v. McPeters (1992) 2 Cal. 4th 1148, 1191, 9 Cal.Rptr.2d 834, 832 P.2d
146.) “The presumption that the jurors in this case understood and followed the
mitigation instruction supplied to them is not rebutted by empirical assertions to
the contrary based on research that is not part of the present record and has not
been subject to cross-examination. [Citation.]” (Welch, supra, 20 Cal. 4th at p.
773, 85 Cal.Rptr.2d 203, 976 P.2d 754.)17

16

----------------------------------------FOOTNOTE---------------------

17

n.17 As here, the defendant in Welch relied upon an article “claiming that
interviews with former jurors or with randomly selected subjects show that
many of the subjects failed to properly understand the concept of mitigation
correctly after they had been given CALJIC No. 8.88. [Citations.]” (Welch,
supra, 20 Cal. 4th at pp. 772–773, 85 Cal.Rptr.2d 203, 976 P.2d 754.)

18
19
20
21
22
23
24
25
26

------------------------------------END FOOTNOTE-----------------Finally, failure to delete inapplicable statutory sentencing factors from CALJIC
No. 8.85 as given did not violate defendant's rights under the federal
Constitution. (People v. Box (2000) 23 Cal. 4th 1153, 1217, 99 Cal.Rptr.2d 69,
5 P.3d 130; People v. Turner (1994) 8 Cal. 4th 137, 207–208, 32 Cal.Rptr.2d
762, 878 P.2d 521.) Likewise, the failure to identify which factors were
aggravating and which mitigating was not error; the aggravating or mitigating
nature of the factors is self-evident within the context of each case. (People v.
Hillhouse (2002) 27 Cal. 4th 469, 509, 117 Cal.Rptr.2d 45, 40 P.3d 754; see
Box, at p. 1217, 99 Cal.Rptr.2d 69, 5 P.3d 130.)

27 Dickey, 35 Cal. 4th at 927-28.
28
161

1

Petitioner does not identify clearly established authority from the United States

2 Supreme Court holding that a jury must be instructed in a particular manner. The Eighth
3 Amendment does not require that a jury be instructed on particular statutory mitigating factors.
4 Buchanan, 522 U.S. at 275-77. Since the Supreme Court has not decided the issue, the state
5 supreme court’s decision could not be contrary to or an unreasonable application of United
6 States Supreme Court precedent. Musladin, 549 U.S. 76.
7

The state supreme court reasonably denied Petitioner’s specific arguments, as follows.

8

(1)

9

Petitioner recasts as trial court error his claim III(G) (ineffective assistance of counsel)

Double Counting Aggravating Circumstances

10 allegations, ante, that CALJIC 8.85, factor (a), instructing on Penal Code section 190.3(a)
11 “circumstances of the crime” and “special circumstances found to be true” encourages jurors to
12 double count aggravating circumstances, resulting in an arbitrary and capricious verdict.
13

Petitioner argues the California Supreme Court’s rejection of the claim ignores that jury

14 confusion was likely given the two first degree felony murder convictions and five special
15 circumstances found true, arising from Petitioner’s status as an aider and abettor of felony
16 murder. (Doc. No. 142 at 214.) He revisits his theme the errant instruction allowed the jury to
17 emphasize aggravating evidence and de-emphasize mitigating evidence that “Petitioner did not
18 harbor any intent to kill either victim, and did not participate, encourage, or endorse the
19 murders.” (Doc. No. 144 at 56.)
20

However, as was the case in the above denial of claim III(G), Petitioner cannot

21 demonstrate clearly established federal law that duplicative aggravating circumstances violate
22 federal rights. The same claim was rejected by the United States Supreme Court in Tuilaepa,
23 where the Court concluded that:
24
25
26
27

[T]he sentencer should consider the circumstances of the crime in deciding
whether to impose the death penalty . . . this California factor instructs the jury
to consider a relevant subject matter and does so in understandable terms. The
circumstances of the crime are a traditional subject for consideration by the
sentencer, and an instruction to consider the circumstances is neither vague nor
otherwise improper under our Eighth Amendment jurisprudence.

28
162

1 Tuilaepa, 512 U.S. at 975-76.
2

The Supreme Court has examined the language in California’s jury instruction on

3 mitigation several times and upheld it against constitutional challenges. See Belmontes, 549
4 U.S. at 24; Brown v. Payton, 544 U.S. 133, 142 (2005); Boyde, 494 U.S. at 386. Particularly,
5 the Supreme Court has stated that “[a] capital sentencer need not be instructed how to weigh
6 any particular fact in the capital sentencing decision.” Tuilaepa, 512 U.S. at 978-79 (1994).
7 Similarly, in Marsh, the Supreme Court stated:
8
9
10
11

In aggregate, our precedents confer upon defendants the right to present
sentencers with information relevant to the sentencing decision and obligate
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.”

12 548 U.S. at 175 (quoting Franklin, 487 U.S. at 179) (citing Stephens, 462 U.S. at 875–876,
13 n.13).
14

Likewise, the state supreme court has repeatedly rejected this claim. See People v.

15 Lewis, 25 Cal. 4th 610, 669 (2001); People v. Ayala, 24 Cal. 4th 243, 288-289 (2000). That
16 court has found “[f]actor (a) of section 190.3 … does not impermissibly result in ‘double17 counting’ or automatically create a bias in favor of a death verdict.” Tully, 54 Cal. 4th at 1068.
18

In any event, Petitioner offers nothing more than surmise in support of the claim, for

19 the reasons stated.
20

(2)

21

Petitioner argues that CALJIC 8.85 fails to instruct jurors that Penal Code section 190.3

Identifying Aggravating and Mitigating Factors

22 factors (a, b, c, and i) are to be considered aggravating and all other factors are to be considered
23 mitigating. (Doc. No. 142 at 215, citing People v. Coffman, 34 Cal. 4th 1, 108 (2004)
24 (“[Aggravating evidence must pertain to the circumstances of the capital offense (§ 190.3,
25 factor (a)), other violent criminal conduct by the defendant (id., factor (b)) or prior felony
26 convictions (id., factor (c)); only these three factors, and the experiential or moral implications
27 of the defendant's age (id., factor (i)), are properly considered in aggravation of penalty.”)
28
163

1

Petitioner argues this error kept the jury from appreciating that his minor participation

2 the crimes committed by R.C. could only be mitigating and not aggravating. (Doc. No. 144 at
3 56-57.) He observes in this regard the prosecution argument that being an accomplice “was
4 just as bad as personally committing the murders.” (Doc. No. 144 at 57.)
5

The California Supreme Court rejected the claim as it has in other cases, finding “self-

6 evident within the context of each case” the aggravating or mitigating nature of the sentencing
7 factors. Dickey, 35 Cal. 4th at 928.
8

That court was not unreasonable in rejecting the claim. Petitioner’s suggestion CALJIC

9 8.85 prevented the jury from meaningfully considering his minor participation the crime as a
10 mere accomplice ignores the plain language of the instruction.
11

Additionally, the failure to identify whether factors are aggravating or mitigating is not

12 contrary to or an unreasonable application of Supreme Court authority. In Pulley, the Supreme
13 Court reviewed California’s sentencing system, including the manner in which the jury
14 considered relevant factors in deciding the penalty. 465 U.S. at 51. The Supreme Court noted
15 that the 1977 death penalty law (like the 1978 law applicable in this case) did not identify or
16 separate the aggravating or mitigating factors. Id., at 53 n.14. The Court nonetheless found
17 California’s death penalty law to be constitutional. Id., at 51 (“Assuming that there could be a
18 capital sentencing system so lacking in other checks on arbitrariness that it would not pass
19 constitutional muster without comparative proportionality review, the 1977 California statute is
20 not of that sort.”). Pulley was clearly established authority at the time Petitioner’s conviction
21 became final on May 23, 2005.
22

In Tuilaepa, the Supreme Court revisited California’s death penalty sentencing scheme.

23 The Supreme Court rejected the argument that California’s “single list of factors” was
24 unconstitutional. The Court stated:
25
26
27
28

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
164

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

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]
Accordingly, Petitioner has not demonstrated the trial court erred by instructing the jury

14 with the 190.3 factors to consider in determining the penalty pursuant to CALJIC 8.85.
15

ii.

16

Petitioner argues the jury applied the erroneous instruction in an extra-aggravating

Any Error was Harmless

17 manner. (Doc. No. 142 at 214-14, citing Boyde, 494 U.S. at 388. He argues, as he did above,
18 that the unique facts of this case raise a reasonable likelihood the jury applied the instruction so
19 as to prevent consideration of constitutionally relevant evidence. (Doc. No. 142 at 215, citing
20 Boyde, 494 U.S. at 371.) Particularly, he argues that the error “prohibited the jury from giving
21 ‘meaningful consideration and effect to’ the fact that Petitioner was an accomplice and his
22 purported participation in the crime was relatively minor.” (Doc. No. 142 at 217, citing Abdul23 Kabir, 550 U.S. at 247.)
24

Petitioner supports the argument by pointing to CALJIC factor “j”, a mitigating factor,

25 and contends the prosecution’s argument that Petitioner’s culpability as a mere aider and
26 abettor was on par with that of R.C., the actual killer, allowed the jury to convert factor “j” into
27 an aggravating factor. He points to the prosecutor’s argument that although “[Petitioner] was
28
165

1 an accomplice, both he and R.C. did the burglary, did the robbery, committed the conduct that
2 resulted in these deaths.” (See RT 5137.)
3

Yet the California Supreme Court reasonably found that the instructions were adequate

4 to permit jurors to consider all the relevant mitigating evidence, Boyde, 494 U.S. at 381-82
5 (1990), and that on the facts and circumstances of this case Penal Code section 190.3(d)(g) did
6 not limit the jurors’ discretion in this regard. See Richter, 562 U.S. at 101 (state court finding
7 that a claim lacks merit precludes federal habeas relief so long as fair-minded jurists could
8 disagree on the correctness of the state court’s decision); see also the discussion of claim
9 XXV(E) below.
10

That court reasonably could find the sentencing discretion of Petitioner’s jury was

11 “suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious
12 action.” Gregg, 428 U.S. at 189. So even if California’s death penalty statute is infirm as
13 alleged, Petitioner has not demonstrated on the factual record any “substantial and injurious
14 effect or influence in determining [the] jury’s verdict,” under Brecht. Coleman, 525 U.S. at
15 145-46.
16

In sum, Petitioner has not demonstrated that the instructions given in this case in any

17 way foreclosed the jury from considering any relevant mitigating evidence.
18

iii.

19

For the reasons stated, the California Supreme Court was not unreasonable in denying

Conclusions

20 allegations the trial court erred by failing to instruct the jury on the standard for weighing
21 aggravating and mitigating factors.
22

Accordingly, the California Supreme Court’s rejection of this claim was not contrary

23 to, or an unreasonable application of, clearly established federal law, or an unreasonable
24 determination of the facts in light of the evidence presented in the state court proceeding. 28
25 U.S.C. § 2254(d).
26

Claim XII(E) shall be denied.

27

9.

Claim XII(F)

28
166

1

Petitioner alleges the trial court’s use of CALJIC 8.88 regarding weighing of

2 aggravating and mitigating factors violated his rights under the Fifth, Sixth, Eighth and
3 Fourteenth Amendments. (Doc. No. 51-1 ¶¶ 716-717.)
4

a.

5

See section VII, B, 7, a, ante.

6

b.

7

Petitioner presented this claim on direct appeal and it was denied on the merits.

Supplemental Legal Standards

State Court Direct and Collateral Review

8 Dickey, 35 Cal. 4th at 929.
9

c.

Analysis

10

i.

Trial Court Error

11

Petitioner argues that CALJIC 8.88, given in this case to instruct the jurors on weighing

12 of aggravating and mitigating factors was vague and improperly reduced the prosecution’s
13 burden of proof and inadequately defined mitigating circumstances. (Doc. No. 142 at 217.)
14

“[T]he Eighth and Fourteenth Amendments require that the sentencer, in all but the

15 rarest kind of capital case, not be precluded from considering, as a mitigating factor, any aspect
16 of a defendant’s character or record and any of the circumstances of the offense that the
17 defendant proffers as a basis for a sentence less than death.” Lockett, 438 U.S. 586 at 604;
18 Eddings, 455 U.S. at 113-114 (adopting rule in Lockett).
19

“The standard against which we assess whether jury instructions satisfy the rule of

20 Lockett and Eddings was set forth in Boyde, 494 U.S. 370 (1990).” Johnson, 509 U.S. at 36721 68. In Boyde, the Supreme Court held that “there is no . . . constitutional requirement of
22 unfettered sentencing discretion in the jury, and States are free to structure and shape
23 consideration of mitigating evidence ‘in an effort to achieve a more rational and equitable
24 administration of the death penalty.’” 494 U.S. at 377 (quoting Franklin, 487 U.S. at 181.
25

In evaluating the instructions, the “reviewing court must determine ‘whether there is a

26 reasonable likelihood that the jury has applied the challenged instruction in a way that prevents
27 the consideration of constitutionally relevant evidence.’” Johnson, 509 U.S. at 367 (quoting
28
167

1 Boyde, 494 U.S. at 380). “[W]e do not engage in a technical parsing of this language of the
2 instructions, but instead approach the instructions in the same way that the jury would—with a
3 commonsense understanding of the instructions in the light of all that has taken place at the
4 trial.” Id. at 368 (quoting Boyde, 494 U.S. at 381). Further, a single instruction “may not be
5 judged in artificial isolation but must be considered in light of the instructions as a whole and
6 the entire trial record.” McGuire, 502 U.S. at 72.
7

The jury was instructed pursuant to CALJIC 8.88 and in pertinent part that:

8
9
10
11
12
13
14

The weighing of aggravating and mitigating circumstances does not mean a
mere mechanical counting of 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.
To return a judgment of death, each of you must be persuaded that the
aggravating circumstances are so substantial in comparison with the mitigating
circumstances that it warrants death instead of life without parole.

15 (CT 502-503; RT 5154.)
16

The California Supreme Court in denying the claim stated that:

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

Defendant contends giving the standard instruction on the weighing of
aggravating and mitigating factors (CALJIC No. 8.88) violated his rights under
the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States
Constitution. We have repeatedly rejected similar claims, and defendant gives
us no compelling reason to reconsider our decisions.
“Defendant contends that the standard instruction on the weighing of mitigating
and aggravating factors was impermissibly vague and misleading in that it failed
to inform the jury that unless it found that the factors in aggravation outweighed
the factors in mitigation, it could not impose a sentence of death, and in that it
failed to inform the jury that if factors in mitigation outweighed those in
aggravation, it must impose a sentence of life in prison without the possibility of
parole. He also complains that the instruction's direction that before the jury
may return a verdict of death, it must find that the aggravating circumstances
are ‘so substantial’ as to warrant a sentence of death and not life imprisonment
without possibility of parole, was vague and led to arbitrary decision-making.
He claims violation of his right to due process of law and to a reliable and
nonarbitrary penalty determination under the Eighth Amendment of the United
States Constitution. [¶] We repeatedly have rejected identical claims and decline
defendant's invitation to reconsider our prior rulings. [Citations.]” (People v.
Catlin (2001) 26 Cal. 4th 81, 174, 109 Cal.Rptr.2d 31, 26 P.3d 357 (Catlin ).)
168

1
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3
4
5
6

Defendant also contends the standard instruction, in referring to the “totality” of
the aggravating and mitigating circumstances, erroneously implied a single
mitigating circumstance could not outweigh any and all aggravating
circumstances. However, the instruction was not susceptible of this
interpretation. (People v. Berryman (1993) 6 Cal. 4th 1048, 1099–1100, 25
Cal.Rptr.2d 867, 864 P.2d 40.)
Finally, no instruction defining life imprisonment without possibility of parole
was required. (People v. Hughes (2002) 27 Cal. 4th 287, 405, 116 Cal.Rptr.2d
401, 39 P.3d 432 (Hughes ).)

7 Dickey, 35 Cal. 4th at 929.
8

Petitioner does not identify clearly established authority from the United States

9 Supreme Court holding that a jury must be instructed in a particular manner. The Eighth
10 Amendment does not require that a jury be instructed on particular statutory mitigating factors.
11 Buchanan, 522 U.S. at 275-77. Since the Supreme Court has not decided the issue, the state
12 supreme court’s decision could not be contrary to or an unreasonable application of United
13 States Supreme Court precedent. Musladin, 549 U.S. 76.
14

The Supreme Court has examined the language in California’s jury instruction on

15 mitigation multiple times and upheld it against constitutional challenges every time. See
16 Belmontes, 549 U.S. at 24; Payton, 544 U.S. at 142; Boyde, 494 U.S. 370, 386.
17

The state supreme court reasonably denied Petitioner’s specific arguments, as follows.

18

(1)

19

Petitioner argues that on the facts and circumstances of this case, CALJIC 8.88

Weighing Process

20 improperly suggested that jurors use a quantitative weighing process. He points to that portion
21 of CALJIC 8.88 instructing that “[i]n weighing the various circumstances you determine under
22 the relevant evidence which penalty is justified and appropriate by considering the totality of
23 the aggravating circumstances with the totality of the mitigating circumstances.” (CT 502-503;
24 RT 5154; see also Doc. No. 142 at 219.) He argues this language is inherently quantitative and
25 implicitly weighs in favor of death because it addresses the weight of the totality of
26 circumstances rather than the weight of any one circumstance.
27

However, Petitioner concedes the jury was instructed against “mere mechanical

28
169

1 counting” of factors and that they could assign “whatever moral and sympathetic value” they
2 deemed appropriate to any of the factors. (Doc. No. 142 at 219.) The jury was instructed that
3 “[i]n weighing the various circumstances you determine under the relevant evidence which
4 penalty is justified and appropriate by considering the totality of the aggravating circumstances
5 with the totality of the mitigating circumstances.” (RT at 5154.)
6

Given the foregoing, the totality of the instructions given, and the presumption that

7 jurors understand and follow their instructions, the state supreme court’s rejection of the claim
8 was not unreasonable.
9
10

(2)

Ambiguous Terminology

Petitioner argues that on the facts and circumstances of this case, the definitions of

11 “aggravating” and “mitigating” provided in CALJIC 8.88 created juror confusion. (Doc. No.
12 142 at 220.)
13

The jury was instructed pursuant to CALJIC 8.88 and in pertinent part that:

14
15
16
17
18

An aggravating factor is any fact, condition or event attending the commission
of a crime which increases its guilt or enormity, or adds to its injurious
consequences which is above and beyond the elements of the crime itself.
A mitigating circumstance is any fact, condition or event which as such, does
not constitute justification or excuse for the crime in question, but may be
considered as an extenuating circumstance in determining the appropriateness of
the death penalty.

19 (CT 502; RT 5153-54.) Petitioner argues particularly that terms used in the definition of
20 “mitigating circumstance” such as “extenuating” are not plain language terms and required
21 further definition. (Doc. No. 142 at 221.)
22

As noted, the proper inquiry when an instruction is challenged as ambiguous is

23 “whether there is a reasonable likelihood that the jury has applied the challenged instruction in
24 a way that prevents the consideration of constitutionally relevant evidence.” Payton, 544 U.S.
25 at 143 (quoting Boyde, 494 U.S. at 380). The Supreme Court further emphasized:
26
27
28

[J]urors do not sit in solitary isolation booths parsing instructions for subtle
shades of meaning in the same way that lawyers might. Differences among them
in interpretation of instructions may be thrashed out in the deliberative process,
170

1

with commonsense understanding of the instructions in the light of all that has
taken place at the trial likely to prevail over technical hairsplitting.

2 Payton, 544 U.S. at 143 (quoting Boyde, 494 U.S. at 380-81).
3

Here again, the state supreme court reasonably could find the challenged language to be

4 plain on its face. That court could reasonably find Petitioner has not demonstrated a
5 reasonable likelihood that the jury has applied the challenged instruction in a way that prevents
6 the consideration of constitutionally relevant evidence.
7

Moreover, the Eighth Amendment does not require that a jury be instructed on

8 particular statutory mitigating factors. Buchanan, 522 U.S. at 275-77.
9

Given the foregoing, the totality of instructions given, and the presumption that jurors

10 understand and follow their instructions, the state supreme court’s rejection of the claim was
11 not unreasonable.
12

(3)

13

Petitioner argues that CALJIC 8.88 fails to incorporate the standard of proof stated in

Burden of Proof

14 Penal Code section 190.3.
15

The jury was instructed pursuant to CALJIC 8.88 and in pertinent part that:

16

After having heard and received all of the evidence, and after having heard and
considered the arguments of counsel, you shall consider, take into account and
be guided by the applicable factors of aggravating and mitigating circumstances
upon which you have been instructed.

17
18
19
20

To return a judgment of death, each of you must be persuaded that the
aggravating circumstances are so substantial in comparison with the mitigating
circumstances that it warrants death instead of life without parole.

21 (CT 502.)
22

Petitioner argues that CALJIC 8.88 unfairly omits language contained in section 190.3

23 which provides that:
24
25
26

[A]fter having heard and received all of the evidence, and after having heard
and considered the arguments of counsel, the trier of fact shall consider, take
into account and be guided by the aggravating and mitigating circumstances

27
28
171

1
2
3

referred to in this section, and shall impose a sentence of death if the trier of fact
concludes that the aggravating circumstances outweigh the mitigating
circumstances. If the trier of fact determines that the mitigating circumstances
outweigh the aggravating circumstances the trier of fact shall impose a sentence
of confinement in state prison for a term of life without the possibility of parole.

4
5
6

(Doc. No. 142 at 218; see also CT 502-03.)
Petitioner argues that on the facts and circumstances of this case, the term “so

7 substantial” is ambiguous and impermissibly prevented the jury from selecting LWOP where a
8 single mitigating factor was found. (Id.) He argues these errors left the jury impermissible
9 “open-ended discretion” regarding imposition of the death penalty, reducing the prosecution’s
10 burden of proof. (Doc. No. 142 at 219, citing Maynard v. Cartwright, 486 U.S. 356, 361–62
11 (1988) (channeling and limiting of the sentencer's discretion in imposing the death penalty is a
12 fundamental constitutional requirement for sufficiently minimizing the risk of wholly arbitrary
13 and capricious action).)
14

However, upon consideration of the entire instructional charge to the jury and related

15 argument, the state supreme court reasonably could find it is unlikely the alleged vagueness
16 prevented consideration of constitutionally relevant evidence in the sentence determination.
17 Boyde, 494 U.S. at 380.
18

Furthermore, for the reasons stated in the discussion of claim XII(G), below,

19 California’s penalty phase process is moral and normative and does not place a burden of proof
20 upon the prosecution. Petitioner’s argument to the contrary is unavailing.
21

For the reasons stated, the California Supreme Court reasonably rejected the claim as it

22 has in other cases, finding that CALJIC 8.88 did not prevent proper weighing of aggravating
23 and mitigating evidence. Dickey, 35 Cal. 4th at 929 (finding the aggravating or mitigating
24 nature of the factors to be self-evident within the context of each case).
25
26

ii.

27

Petitioner argues the erroneous instruction led to juror confusion in the process of

Any Error was Harmless

28
172

1 weighing aggravating and mitigating evidence and prevented the jury from giving full meaning
2 and effect to all evidence in mitigation. Especially so here, he argues, given that he was
3 charged and convicted as a mere accomplice. See Boyde, 494 U.S. at 381 (the term
4 “extenuate” was defined for the jury removing the possibility of confusion by the jury in
5 applying factor (k)). Petitioner argues this confusion denied him an individualized and reliable
6 penalty determination.
7

Here again, the California Supreme Court reasonably could find the instructions were

8 adequate to permit jurors to consider all the relevant mitigating evidence, Boyde, 494 U.S. at
9 381-82 (1990), and did not limit the jurors’ discretion in this regard. See Richter, 562 U.S. at
10 101 (state court finding that a claim lacks merit precludes federal habeas relief so long as fair11 minded jurists could disagree on the correctness of the state court’s decision). The sentencing
12 discretion of Petitioner’s jury was “suitably directed and limited so as to minimize the risk of
13 wholly arbitrary and capricious action.” Gregg, 428 U.S. at 189.
14

It can be presumed the jury followed the instructions, including the cautionary

15 instructions, Weeks, 528 U.S. at 234, applying a “commonsense understanding of the
16 instruction in the light of all that has taken place at the trial.” Johnson, 509 U.S. at 368; see the
17 discussion of claim III(G), ante.
18
19
20
21
22
23
24
25
26
27

iii.

Conclusions

The California Supreme Court was not unreasonable in denying allegations the trial
court erred by using CALJIC 8.88 regarding weighing of aggravating and mitigating factors.
Accordingly, the California Supreme Court’s rejection of this claim was not 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. 28
U.S.C. § 2254(d).
Claim XII(F) shall be denied.
10.

Claim XII(G)

28
173

1

Petitioner alleges the trial court erred by failing to instruct the jury that a “reasonable

2 doubt” standard was applicable to their determinations at the penalty phase, violating his rights
3 under the Fifth, Sixth, Eighth, and Fourteenth Amendments. (Doc. No. 51-1 ¶¶ 718-719.)
4

a.

5

See section VII, B, 7, a, ante.

6

b.

7

Petitioner presented this claim on direct appeal and it was denied on the merits. Dickey,

Supplemental Legal Standards

State Court Direct and Collateral Review

8 35 Cal. 4th at 929-31.
9

c.

Analysis

10

i.

Trial Court Error

11

Petitioner argues the trial court prejudicially erred by failing to instruct the jury that a

12 “beyond a reasonable doubt” burden of proof applied at the penalty phase. (Doc. No. 142 at
13 221-24.)
14

The California Supreme Court in denying the claim stated that:

15
16
17
18
19
20
21
22
23
24
25
26
27
28

Defendant contends failure to instruct the jury that the reasonable doubt
standard governs the penalty determination violated his rights under the Fifth,
Eighth, and Fourteenth Amendments to the United States Constitution. We have
rejected the identical contention, and defendant gives us no reason to reconsider
our decision.
Defendant claims that it is unconstitutional to impose a sentence of death unless
the aggravating circumstances outweigh the mitigating circumstances beyond a
reasonable doubt. This claim was first rejected by our court in People v.
Rodriguez [(1986)] 42 Cal. 3d [730,] 777–779 [230 Cal.Rptr. 667, 726 P.2d
113], and has been rejected ever since. (See, e.g., [People v.] Snow [(2003)] 30
Cal. 4th [43,] 125–127 [132 Cal.Rptr.2d 271, 65 P.3d 749]; Burgener, supra, 29
Cal. 4th at p. 884, fn. 7 [129 Cal.Rptr.2d 747, 62 P.3d 1]; People v. Gutierrez
(2002) 28 Cal. 4th 1083, 1150–1151 [124 Cal.Rptr.2d 373, 52 P.3d 572]; Clair,
supra, 2 Cal. 4th at p. 691 [7 Cal.Rptr.2d 564, 828 P.2d 705].) As we recently
stated: ‘The Constitution does not require the jury to find beyond a reasonable
doubt that a particular factor in aggravation exists, that the aggravating factors
outweighed the mitigating factors, or that death was the appropriate penalty.’
(Burgener, supra, 29 Cal. 4th at p. 884 [129 Cal.Rptr.2d 747, 62 P.3d 1].)
(People v. Cox (2003) 30 Cal. 4th 916, 971, 135 Cal.Rptr.2d 272, 70 P.3d 277.)
Defendant acknowledges this court has previously rejected similar arguments.
However, as did the defendant in Cox, defendant “asks us to reconsider this
position in light of two recent United States Supreme Court cases, Apprendi v.
New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435], and Ring v.
174

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

Arizona (2002) 536 U.S. 584 [122 S.Ct. 2428, 153 L.Ed.2d 556]. Specifically,
defendant argues that the two cases read together mandate that the aggravating
circumstances necessary for the jury's imposition of the death penalty be found
beyond a reasonable doubt. We disagree. As this court recently stated in [People
v.] Snow, supra, 30 Cal. 4th at page 126, footnote 32 [132 Cal.Rptr.2d 271, 65
P.3d 749]: ‘We reject that argument for the reason given in People v. Anderson
[, supra,] 25 Cal. 4th [at pp.] 589–590, footnote 14 [106 Cal.Rptr.2d 575, 22
P.3d 347]: “[U]nder the California death penalty scheme, once the defendant
has been convicted of first degree murder and one or more special
circumstances has been found true beyond a reasonable doubt, death is no more
than the prescribed statutory maximum for the offense; the only alternative is
life imprisonment without possibility of parole. (§ 190.2, subd. (a).) Hence,
facts which bear upon, but do not necessarily determine, which of these two
alternative penalties is appropriate do not come within the holding of
Apprendi.” The high court's recent decision in Ring v. Arizona [, supra,] 536
U.S. 584 [122 S.Ct. 2428, 153 L.Ed.2d 556] does not change this analysis.
Under the Arizona capital sentencing scheme invalidated in Ring, a defendant
convicted of first-degree murder could be sentenced to death if, and only if, the
trial court first found at least one of the enumerated aggravating factors true. (Id.
at p. 603 [122 S.Ct. 2428].) Under California's scheme, in contrast, each juror
must believe the circumstances in aggravation substantially outweigh those in
mitigation, but the jury as a whole need not find any one aggravating factor to
exist. The final step in California capital sentencing is a free weighing of all the
factors relating to the defendant's culpability, comparable to a sentencing court's
traditionally discretionary decision to, for example, impose one prison sentence
rather than another. Nothing in Apprendi or Ring suggests the sentencer in such
a system constitutionally must find any aggravating factor true beyond a
reasonable doubt.’ (Accord, People v. Smith (2003) 30 Cal. 4th 581, 642 [134
Cal.Rptr.2d 1, 68 P.3d 302]; People v. Prieto (2003) 30 Cal. 4th 226, 275 [133
Cal.Rptr.2d 18, 66 P.3d 1123] [(Prieto )].)” (People v. Cox, supra, 30 Cal. 4th at
pp. 971–972, 135 Cal.Rptr.2d 272, 70 P.3d 277.)

17 Dickey, 35 Cal. 4th at 929-31.
18

Petitioner complains that with the exception of the charged prior conviction as to which

19 the jury was instructed a “proof beyond a reasonable doubt” standard applied, no penalty phase
20 burden of proof instruction was given. (Doc. No. 142 at 221-22.) He argues this was error
21 because the penalty phase requires Penal Code section 190.3 fact finding as an element of
22 capital murder and imposition of a sentence greater than that authorized by the guilt phase
23 verdict. (Doc. No. 142 at 223, citing Apprendi v. New Jersey, 530 U.S. 466, 478 (2000); Ring
24 v. Arizona, 536 U.S. 584, 589 (2002).) He argues the jury should have been instructed that
25 before a death verdict could be returned, the jury was required to find that: (i) any aggravating
26 factors upon which it relied were true beyond a reasonable doubt; and (ii) the aggravating
27 factor or factors outweighed the mitigating factors beyond a reasonable doubt. (Doc. No. 142
28
175

1 at 223.)
2

Particularly, Petitioner takes issue with the California Supreme Court’s finding that:

3
4
5
6
7

[O]nce the defendant has been convicted of first-degree murder and one or more
special circumstances has been found true beyond a reasonable doubt, death is
no more than the prescribed statutory maximum for the offense; the only
alternative is life imprisonment without possibility of parole. (§ 190.2, subd.
(a).) Hence, facts which bear upon, but do not necessarily determine, which of
these two alternative penalties is appropriate do not come within the holding of
Apprendi.

8 Dickey, 35 Cal. 4th at 931. Petitioner argues this finding is contrary to Ring’s requirement that
9 findings of fact which increase the punishment authorized must be found by a jury beyond a
10 reasonable doubt. (Doc. No. 142 at 224, citing Ring, 536 U.S. at 602.)
11

However, the California Supreme Court reasonably denied the claim. State and federal

12 courts have rejected the claim. See, e.g. Williams v. Calderon, 52 F.3d 1465, 1484-85 (9th Cir.
13 1995) (failure to require a specific finding that death is the appropriate penalty beyond a
14 reasonable doubt does not render California’s death penalty statute unconstitutional); People v.
15 Webb, 6 Cal. 4th 494, 536 (1993). Under California law “neither death nor life is
16 presumptively appropriate or inappropriate under any set of circumstances, but in all cases the
17 determination of the appropriate penalty remains a question for each individual juror.” People
18 v. Samayoa, 15 Cal. 4th 795, 853 (1997).
19

Petitioner’s argument that the Constitution requires the jury to determine beyond a

20 reasonable doubt that death is the appropriate penalty runs contrary to the conclusion of a
21 plurality of the Supreme Court that a defendant may constitutionally be required to establish
22 the existence of mitigating circumstances by only a preponderance of the evidence standard.
23 See Walton, 497 U.S. at 649-651.
24

In California, for a defendant to be eligible for the death penalty, the jury must, beyond

25 a reasonable doubt, find him guilty of murder in the first degree, and must find true one of the
26 special circumstances set forth in Penal Code section 190.2. Tuilaepa, 512 U.S. at 975. But
27 once a defendant is convicted, “the prosecution has no burden of proof that death is the
28
176

1 appropriate penalty, or that one or more aggravating factors or crimes exist, in order to obtain a
2 judgment of death.” People v. Anderson, 25 Cal. 4th 543, 589 (2001). Instead, the clearly
3 established law at the time Petitioner’s conviction became final vested the jury with “unbridled
4 discretion in determining whether the death penalty should be imposed after it has found that
5 the defendant is a member of the class made eligible for that penalty.” Tuilaepa, 512 U.S. at
6 979-80.
7

Further, “the United States Supreme Court has never stated that a beyond a reasonable

8 doubt standard is required when determining whether a death penalty should be imposed.”
9 Harris v. Pulley, 692 F.2d 1189, 1195 (1982), rev’d on other grounds by Pulley v. Harris, 465
10 U.S. 37, 41 (1984). Nor is there any Supreme Court authority requiring a burden of proof or
11 persuasion be assigned to any of the jury’s penalty phase determinations. On the contrary, the
12 Supreme Court has held that no “specific method for balancing mitigating and aggravating
13 factors in a capital sentencing proceeding is constitutionally required.” Marsh, 548 U.S. at
14 175. California’s death penalty sentencing scheme has been consistently upheld as
15 constitutional by the Supreme Court. Tuilaepa, 512 U.S. at 975-80; Pulley, 465 U.S. at 53.
16

In these regards, the California Supreme Court has held that:

17
18
19
20
21
22
23
24

We also reject defendant’s contention that the California death penalty law
violates the Eighth and Fourteenth Amendments because the jury is not
instructed as to any burden of proof in selecting the penalty to be imposed. As
we have explained, ‘[u]nlike the guilt determination, “the sentencing function is
inherently moral and normative, not factual” … and, hence, not susceptible to a
burden-of-proof quantification.’ … The instructions as a whole adequately
guide the jury in carrying out their ‘moral and normative’ function.” (People v.
Jenkins, supra, 22 Cal. 4th at pp. 1053–1054, 95 Cal. Rptr. 2d 377, 997 P.2d
1044.) The death penalty statute is not unconstitutional because it fails “to
impose a burden of proof on either party, even if only proof by a preponderance
of the evidence, or, alternatively, in failing to instruct the jury on the absence of
a burden of proof. [Citations].” (People v. Vines (2011) 51 Cal. 4th 830, 891,
124 Cal. Rptr. 3d 830, 251 P.3d 943.)

25 Tully, 54 Cal. 4th at 1068.
26

Here, the jury was instructed that an aggravating criminal conviction must be proved

27 beyond a reasonable doubt. (RT 8940-41; CT 500.) They were instructed to consider the
28
177

1 applicable factors of aggravating and mitigating circumstances and that in order to find for
2 death each juror must be persuaded that the aggravating evidence and/or circumstances is so
3 substantial in comparison with the mitigating circumstances that it warrants death instead of
4 life without parole. (RT 8942-43; see also CT 502-503 (CALJIC 8.88).) Due process requires
5 no more. Harris, 692 F.2d at 1194.
6

California is not required to adopt specific standards for instructing the jury on

7 consideration of aggravating and mitigating circumstances. Stephens, 462 U.S. at 890; see also
8 Ortiz, 149 F.3d at 944 (citing Stephens, 462 U.S. at 880) (the Constitution requires only that a
9 state provide procedures to guide the sentencer’s discretion generally). The Ninth Circuit has
10 rejected argument otherwise. See Smith v. Stewart, 140 F.3d 1263, 1272 (9th Cir. 1998). As to
11 Petitioner’s claim that the jury must determine that death is the appropriate penalty beyond a
12 reasonable doubt, this too has been rejected. Harris, 692 F.2d at 1195.
13

For the reasons stated, the state supreme court reasonably could find the requirement

14 under California’s death penalty statute, that the jury weigh aggravating and mitigating factors
15 before imposing the death penalty, adequately guarantees the jury’s discretion will be guided
16 and its considerations deliberate.
17

ii.

18

Petitioner argues the allegedly erroneous failure to instruct that the reasonable doubt

Any Error Was neither Structural nor More Than Harmless

19 standard governed sentence selection denied him rights to due process, a fair trial, effective
20 assistance of counsel, and a reliable sentence. He argues this error was structural and
21 reversable per se. (Doc. No. 142 at 224.)
22

However, the state supreme court reasonably could find no structural error because the

23 claimed burden of proof at the penalty phase was reasonably rejected, for the reasons stated.
24

Alternatively, Petitioner argues the alleged trial court error was more than harmless

25 because it had a substantial and injurious effect or influence in the jury’s determination of his
26 verdict. (See Doc. No. 142 at 222.)
27

Where the constitutional error in issue is not structural, habeas relief is unavailable

28
178

1 unless the error had a substantial and injurious effect on the verdict. Brecht, 507 U.S. at 637.
2

Here, the state supreme court reasonably could find that if the state court erred as

3 alleged, Petitioner’s penalty trial was nonetheless fair and his sentence reliable. As noted, in
4 reviewing penalty phase instructions, the test is “whether there is a reasonable likelihood that
5 the jury has applied the challenged instruction in a way that prevents the consideration of
6 constitutionally relevant evidence.” Boyde, 494 U.S. at 380. Further, a single instruction “may
7 not be judged in artificial isolation,” but must be considered in light of the instructions as a
8 whole and the entire trial record. McGuire, 502 U.S. at 72.
9

The state supreme court reasonably could find on the facts and circumstances of this

10 case that the jury was not precluded from considering constitutionally relevant mitigating and
11 sympathetic evidence during their sentence deliberations. The sentencing discretion of
12 Petitioner’s jury was “suitably directed and limited so as to minimize the risk of wholly
13 arbitrary and capricious action.” Gregg, 428 U.S. at 189.
14

The Supreme Court has never required a sentencing court to instruct a jury on how to

15 weigh and balance factors in aggravation and mitigation. In Tuilaepa, the Supreme Court
16 stated, “[a] capital sentencer need not be instructed how to weigh any particular fact in the
17 capital sentencing decision.” 512 U.S. at 979. “Once the jury finds that the defendant falls
18 within the legislatively defined category of persons eligible for the death penalty, . . . the jury
19 then is free to consider a myriad of factors to determine whether death is the appropriate
20 punishment.” Id. (quoting Ramos, 463 U.S. at 1008.)
21

In Marsh, the Supreme Court stated:

22
23
24
25

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.”

26 548 U.S. at 175 (quoting Franklin, 487 U.S. at 179).
27

It can be presumed the jury followed the instructions, including the cautionary

28
179

1 instructions, Weeks, 528 U.S. at 234, applying a “commonsense understanding of the
2 instruction in the light of all that has taken place at the trial.” Johnson, 509 U.S. at 368; see
3 also the discussion of claim III(G), ante.
4

For the reasons stated, the state supreme court reasonably could find any alleged error

5 to be non-structural and harmless.
6

iii.

7

The California Supreme Court was not unreasonable in denying allegations the trial

Conclusions

8 court erred by failing to instruct the jury that a “reasonable doubt” standard was applicable to
9 their determinations at the penalty phase.
10

Accordingly, the California Supreme Court’s rejection of this claim was not contrary

11 to, or an unreasonable application of, clearly established federal law, or an unreasonable
12 determination of the facts in light of the evidence presented in the state court proceeding. 28
13 U.S.C. § 2254(d).
14

Claim XII(G) shall be denied.

15

11.

16

Petitioner alleges the trial court erred by failing to instruct the jury that unanimity was

Claim XII(H)

17 required for findings of aggravating factors, denying his rights under the Fifth, Sixth, Eighth
18 and Fourteenth Amendments. (Doc. No. 51-1 ¶¶ 720-721.)
19

a.

Supplemental legal Standards

20

i.

Sentencing Discretion

21

See section VII, B, 7, a, ante.

22

b.

23

Petitioner presented this claim on direct appeal and it was denied on the merits. Dickey,

State Court Direct and Collateral Review

24 35 Cal. 4th at 931.
25

c.

Analysis

26

i.

Trial Court Error

27

Petitioner revisits his claim XII(G) argument above that Penal Code section 190.3

28
180

1 requires fact finding as to aggravating and mitigating circumstances as an element of capital
2 murder, contending here that unanimity is required on such findings. (Doc. No. 142 at 225; see
3 also Doc. No. 144 at 225.)
4

The California Supreme Court in denying the claim on direct appeal stated that:

5
6
7

Nor is the jury constitutionally required to achieve unanimity as to aggravating
factors. (Brown, supra, 33 Cal. 4th at p. 402, 15 Cal.Rptr.3d 624, 93 P.3d 244;
People v. Jenkins (2000) 22 Cal. 4th 900, 1053, 95 Cal.Rptr.2d 377, 997 P.2d
1044.)

8 Dickey, 35 Cal. 4 th at 931.
9

As he did above in claim XII(G), Petitioner relies upon Apprendi and Ring, arguing that

10 the jury likely did not reach agreement on the reasons for imposing the death penalty. (Doc.
11 No. 142 at 225.)
12

However, the state supreme court was not unreasonable in denying the claim for the

13 reasons stated, summarized here. (See discussion of claim XII(G) above. )
14

In California, for a defendant to be eligible for the death penalty, the jury must, beyond

15 a reasonable doubt, find him guilty of murder in the first degree, and must find true one of the
16 special circumstances set forth in Penal Code section 190.2. Tuilaepa, 512 U.S. at 975. But
17 once a defendant is convicted, “the prosecution has no burden of proof that death is the
18 appropriate penalty, or that one or more aggravating factors or crimes exist, in order to obtain a
19 judgment of death.” Anderson, 25 Cal. 4th at 589. Instead, the clearly established law at the
20 time Petitioner’s conviction became final vested the jury with “unbridled discretion in
21 determining whether the death penalty should be imposed after it has found that the defendant
22 is a member of the class made eligible for that penalty.” Tuilaepa, 512 U.S. at 979-80.
23

Here, the jury was instructed that an aggravating criminal conviction must be proved

24 beyond a reasonable doubt. (RT 5152.) They were instructed to consider the applicable
25 factors of aggravating and mitigating circumstances and that in order to find for death each
26 juror must be persuaded that the aggravating evidence and/or circumstances is so substantial in
27 comparison with the mitigating circumstances that it warrants death instead of life without
28
181

1 parole. (RT 5154; see also CT 502-503 (CALJIC 8.88).) Due process requires no more.
2 Harris, 692 F.2d at 1194.
3

California is not required to adopt specific standards for instructing the jury on

4 consideration of aggravating and mitigating circumstances. Stephens, 462 U.S. at 890; see also
5 Ortiz, 149 F.3d at 944 (citing Stephens, 462 U.S. at 880) (the Constitution requires only that a
6 state provide procedures to guide the sentencer’s discretion generally). The Ninth Circuit has
7 rejected argument otherwise. See Smith, 140 F.3d at 1272. As to Petitioner’s claim that the
8 jury must determine that death is the appropriate penalty beyond a reasonable doubt, this too
9 has been rejected. Harris, 692 F.2d at 1195.
10

For the reasons stated, the state supreme court reasonably could find the requirement

11 under California’s death penalty statute, that the jury weigh aggravating and mitigating factors
12 before imposing the death penalty, adequately guarantees the jury’s discretion will be guided
13 and its considerations deliberate.
14

ii.

15

If arguendo the trial court erred as alleged, the state supreme court reasonably could

Any Error was Harmless

16 find the error to be harmless.
17

Petitioner argues that absent an unanimity instruction at the penalty phase, “it is highly

18 probable that the jury could have been divided with respect to both the number and weight of
19 the aggravating factors, and that a sentence to death was imposed without any basis for
20 agreement regarding the reasons therefor.” (Doc. No. 51-1 ¶720.)
21

Petitioner argues the alleged trial court error was more than harmless because it had a

22 substantial and injurious effect or influence in the jury’s determination of his verdict. He
23 argues this error denied him due process, a fair trial, effective assistance of counsel, and a
24 reliable sentence determination. (Id., at ¶ 721.)
25

Where the constitutional error in issue is not structural, habeas relief is unavailable

26 unless the error had a substantial and injurious effect on the verdict. Brecht, 507 U.S. at 637.
27

Here, the state court reasonably could have found that the jury was not precluded from

28
182

1 considering constitutionally relevant mitigating and sympathetic evidence during their sentence
2 deliberations. Boyde, 494 U.S. at 380. For the reasons stated, the sentencing discretion of
3 Petitioner’s jury was “suitably directed and limited so as to minimize the risk of wholly
4 arbitrary and capricious action.” Gregg, 428 U.S. at 189. Petitioner has not demonstrated on
5 the factual record any “substantial and injurious effect or influence in determining [the] jury’s
6 verdict,” under Brecht. Coleman, 525 U.S. at 145-46. The Supreme Court has never required
7 a sentencing court to instruct a jury on how to weigh and balance factors in aggravation and
8 mitigation.
9

In Tuilaepa, the Supreme Court stated, “[a] capital sentencer need not be instructed

10 how to weigh any particular fact in the capital sentencing decision.” 512 U.S. at 979. “Once
11 the jury finds that the defendant falls within the legislatively defined category of persons
12 eligible for the death penalty, . . . the jury then is free to consider a myriad of factors to
13 determine whether death is the appropriate punishment.” Id. (quoting Ramos, 463 U.S. at
14 1008.)
15

In Marsh, the Supreme Court stated:

16
17
18
19

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.”

20
21 548 U.S. at 175 (quoting Franklin, 487 U.S. at 179).
22

It can be presumed the jury followed the instructions, including the cautionary

23 instructions, Weeks, 528 U.S. at 234, applying a “commonsense understanding of the
24 instruction in the light of all that has taken place at the trial.” Johnson, 509 U.S. at 368.
25

iii.

26

The California Supreme Court was not unreasonable in denying allegations the trial

Conclusions

27 court erred by failing to instruct the jury that unanimity was required for findings of
28
183

1 aggravating factors.
2

Accordingly, the California Supreme Court’s rejection of this claim was not contrary

3 to, or an unreasonable application of, clearly established federal law, or an unreasonable
4 determination of the facts in light of the evidence presented in the state court proceeding. 28
5 U.S.C. § 2254(d).
6

Claim XII(H) shall be denied.

7

C.

Claims Relating to Jury Misconduct

8

1.

Legal Standards

9

Due process requires that the defendant be tried by “a jury capable and willing to

10 decide the case solely on the evidence before it.” Smith, 455 U.S. at 217; see also Plache, 913
11 F.2d at 1377-78 (“It is well-settled that a single partial juror deprives a defendant of his Sixth
12 Amendment right to a trial by an impartial jury.”).
13

On collateral review, juror misconduct claims “are generally subject to a ‘harmless

14 error’ analysis, namely, whether the error had ‘substantial and injurious’ effect or influence in
15 determining the jury’s verdict.” Brecht, 507 U.S. at 638; Fields v. Brown, 503 F.3d 755, 781
16 n.19 (noting that Brecht provides the standard of review for harmless error in cases involving
17 unconstitutional juror misconduct); Jeffries v. Blodgett, 5 F.3d 1180, 1190 (9th Cir. 1993) (a
18 habeas petitioner must show that the alleged error “had substantial and injurious effect or
19 influence in determining the jury’s verdict.”).
20

2.

21

Petitioner alleges that his jury engaged in prejudicial misconduct by considering

Claim XX

22 extraneous evidence during deliberations, giving rise to a presumption of prejudice, violating
23 his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments. (Doc. No. 51-1 ¶¶ 85024 856.)
25

a.

26

A jury’s consideration of extraneous evidence violates a criminal defendant’s right to

Supplemental Legal Standards

27 trial by jury. Turner v. Louisiana, 379 U.S. 466, 471-73 (1965).
28
184

1

The introduction of prejudicial extraneous influences into the jury room constitutes

2 misconduct which may result in the reversal of a conviction. Parker v. Gladden, 385 U.S. 363,
3 364-65 (1966).
4

A claim that jurors were exposed to extrajudicial evidence is considered based on an

5 objective standard - whether the evidence would have affected a reasonable juror’s
6 consideration of the evidence. Fields, 503 F.3d, at 781 n.22.
7

b.

8

Petitioner raised this claim in his second state exhaustion petition (Lod. Doc. No. 30 at

State Court Direct and Collateral Review

9 335-38) and it was summarily denied on the merits and on procedural grounds (Lod. Doc. No.
10 31, Order Denying Cal. Exh. Pet., In re Colin Raker Dickey, No. S165302 (May 29, 2012)).
11

c.

Analysis

12

i.

Consideration of Extraneous Evidence

13

Petitioner argues that during penalty phase deliberations the jurors considered and were

14 biased by “extrajudicial evidence regarding the facts underlying Petitioner’s prior conviction
15 for burglary.” (Doc. No. 51-1 ¶ 855; see also Doc. No. 142 at 226-28, citing Irvin v. Dowd,
16 366 U.S. 717, 722 (1961) (the right to jury trial guarantees to the criminally accused a fair trial
17 by a panel of impartial, indifferent jurors); Sassounian v. Roe, 230 F. 3d 1097, 1108-11 (9th
18 Cir. 2000) (jury’s consideration of extrinsic evidence found prejudicial under Brecht).
19

Specifically, Petitioner argues that during deliberations, the jury had access to and

20 likely considered newspaper accounts before and during trial of extrinsic facts underlying the
21 prior felony burglary conviction to which he had stipulated. (Doc. No. 142 at 228-29, citing
22 RT 5133.) He argues the jury was not entitled to consider these facts which involved the theft
23 and sexual assault upon the body of a seven-year-old girl from a funeral home in Reno,
24 Nevada. (See RT 5081.)
25

However, the state supreme court reasonably denied the claim. Petitioner speculates

26 upon but does not point to facts in the record demonstrating the jury was aware of and
27 considered facts underlying the felony burglary conviction.
28
185

1

Petitioner argues the state supreme court unreasonably denied the claim “despite its

2 obligation to accept as true that the jury improperly considered the facts underlying the
3 burglary conviction in rendering its verdict.” (Doc. No. 144 at 63.) But as this Court
4 previously pointed out, in cases of summary denial it appears that state supreme court
5 “generally assumes the allegations in the petition to be true, but does not accept wholly
6 conclusory allegations, and will also review the record of the trial ... to assess the merits of the
7 Petitioner's claims.” (Doc. No. 135 at 14.) This is not a case where facts in the record
8 supported a prima facie claim. Cf. Cannedy v. Adams, 706 F.3d 1148, 1161 (9th Cir. 2013)
9 (counsel ineffective for failure to adequately investigate colorable claim).
10

Moreover, the jury was instructed to consider only evidence developed at trial and that

11 they must “neither be influenced by bias nor prejudice against the defendant, nor swayed by
12 public opinion or public feelings.” (CT 486, 489; see also RT 5146.) They were instructed
13 “not to make any independent investigat[ion] of the facts or the law or consider or discuss facts
14 as to which there is no evidence.” (RT 5146-47.) The jurors presumptively understood and
15 followed their instructions. Weeks, 528 U.S. at 234; see also Boyde, 494 U.S. at 381-85; Tan,
16 413 F.3d at 1115.
17

ii.

18

Petitioner argues the error is structural and reversible per se. (Doc. No. 51-1 ¶856; see

Any Error was Non-Structural and Harmless

19 also Doc. No. 142 at 230.)
20

However, Petitioner has not demonstrated structural error because the state supreme

21 court reasonably could have found the jury was unaware of and did not consider during
22 deliberations facts underlying the felony burglary conviction, for the reasons stated.
23

Petitioner argues alternatively that the trial court’s error was more than harmless

24 because the alleged juror misconduct “so infected the integrity of the proceedings that the error
25 cannot be deemed harmless.” (Doc. No. 51-1 ¶ 856; see also Doc. No. 142 at 230.) Where the
26 constitutional error in issue is not structural, habeas relief is unavailable unless the error had a
27 substantial and injurious effect on the verdict. Brecht, 507 U.S. at 637-38.
28
186

1

Specifically, Petitioner argues the facts of the burglary and necrophilia were highly

2 inflammatory and prejudicial and likely biased the jury against Petitioner. (Doc. No. 142 at
3 230, citing McGuire, 425 U.S. at 505.)
4

If arguendo the jury considered extraneous evidence as alleged, Petitioner has not

5 shown on the factual record that absent that misconduct there is a reasonable probability he
6 would have avoided the death penalty. The state supreme court reasonably could find
7 Petitioner failed to identify specific facts underlying the prior felony burglary conviction to
8 which the jury allegedly was exposed and support inference of prejudice and bias arising
9 therefrom.
10

Moreover, the jury expressly was instructed to consider only evidence admitted at

11 court, (RT 5146), and presumably followed their instructions, Weeks, 528 U.S. at 234.
12

iii.

13

The California Supreme Court was not unreasonable in denying allegations the jurors

Conclusions

14 engaged in prejudicial misconduct by considering extraneous evidence during deliberations.
15

Accordingly, the California Supreme Court’s rejection of this claim was not contrary

16 to, or an unreasonable application of, clearly established federal law, or an unreasonable
17 determination of the facts in light of the evidence presented in the state court proceeding. 28
18 U.S.C. § 2254(d).
19

Claim XX shall be denied.

20

D.

Claims Relating to the Constitutionality of California’s Death Penalty

21 Statute
22

1.

23

A state capital sentencing system must: “(1) rationally narrow the class of death-

Legal Standards

24 eligible defendants; and (2) permit a jury to render a reasoned, individualized sentencing
25 determination based on a death-eligible defendant’s record, personal characteristics, and the
26 circumstances of his crime.” Marsh, 548 U.S. at 173-74. If the “state system satisfies these
27 requirements,” then the “state enjoys a range of discretion in imposing the death penalty,
28
187

1 including the manner in which aggravating and mitigating circumstances are to be weighed.”
2 Id., (citing Franklin, 487 U.S. at 179), (Stephens, 462 U.S. at 875-876, n.13).
3

A state may narrow the class of murderers eligible for the death penalty by defining

4 degrees of murder. Sawyer v. Whitley, 505 U.S. 333, 342 (1992). A state may further narrow
5 the class of murderers by finding “beyond a reasonable doubt at least one of a list of statutory
6 aggravating factors.” Id.; see also Gregg, 428 U.S. at 196-97.
7

If the reviewing court finds constitutional error, it must additionally decide whether the

8 error had “had substantial and injurious effect or influence in determining [the] jury’s verdict,”
9 the test announced in Brecht. Coleman, 525 U.S. at 145-46.
10

State law error is not alone a basis for federal habeas relief. See Pulley, 465 U.S. at 41

11 (“A federal court may not issue the writ on the basis of a perceived error of state law.”).
12

2.

13

Petitioner alleges that California’s death penalty review process is influenced by

Review of Claim XXV(A)

14 political and economic pressures resulting in arbitrary and capricious outcomes. (Doc. No. 5115 1 ¶ 902.)
16

a.

17

Due process guarantees include the right to a fair trial by an impartial and unbiased

Supplemental Legal Standards

18 judge. Tumey v. Ohio, 273 U.S. 510, 535 (1927); see also In re Murchison, 349 U.S. 133, 136
19 (1955) (A “fair trial in a fair tribunal is a basic requirement of due process.”)
20

There is a “presumption of honesty and integrity in those serving as adjudicators” that

21 one must overcome in order to establish a claim of bias. Withrow v. Larkin, 421 U.S. 35, 47
22 (1975).
23

b.

24

Petitioner presented this claim in the second state exhaustion petition (Lod. Doc. No. 30

State Court Direct and Collateral Review

25 at 357) and it was summarily denied on the merits (Lod. Doc. No. 31, Order Denying Cal. Exh.
26 Pet., In re Colin Raker Dickey, No. S165302 (May 29, 2012)).
27

c.

Analysis

28
188

1

Petitioner argues “the California Supreme Court and federal courts have labored under

2 political and economic pressures which do not permit it to decide death penalty cases in a fair
3 and impartial manner, resulting in a capital sentencing scheme which is applied in an arbitrary
4 and capricious manner.” (Doc. No. 51-1 ¶ 902; see also Doc. No. 142 at 232.)
5

However, Petitioner does not point to clearly established law that political and

6 economic pressures result in arbitrary and capricious outcomes in death penalty cases.
7

Moreover, the claim is entirely conclusory. Petitioner does not identify on the factual

8 record political and economic pressures that made his trial unfair.
9

Petitioner’s related arguments lack merit. The California Supreme Court reasonably

10 determined that California’s death penalty scheme did not fail to genuinely narrow the class of
11 murderers eligible for the death penalty. As noted, California’s scheme, which narrows the
12 class of death eligible offenders to less than the definition of first-degree murder and permits
13 consideration of all mitigating evidence, has been approved by the Supreme Court, Tuilaepa,
14 512 U.S. at 972-79; Pulley, 465 U.S. at 38. See McKenzie v. Risley, 842 F.2d 1525, 1540-41
15 (1988) (noting that the Supreme Court has upheld the constitutionality of the death sentence for
16 felony murder where the defendant killed, attempted to kill or intended that lethal force be
17 used); Karis, 283 F.3d 1117 at 1141 n.11 (California’s sentencing scheme adequately narrows
18 the class of persons eligible for death).
19

In California v. Ramos, the United States Supreme Court stated that “once the jury

20 finds that the defendant falls within the legislatively defined category of persons eligible for
21 the death penalty” the jury’s consideration of a myriad of factors and exercise of “unbridled
22 discretion” in determining whether death is the appropriate punishment is not arbitrary and
23 capricious. 463 U.S. at 1008-09.
24

The sentencing discretion of Petitioner’s jury was “suitably directed and limited so as to

25 minimize the risk of wholly arbitrary and capricious action.” Gregg, 428 U.S. at 189. The jury
26 expressly was instructed to consider only evidence admitted at court, (RT 5146), and
27 presumably followed their instructions, Weeks, 528 U.S. at 234.
28
189

1

Petitioner has not demonstrated on the factual record any “substantial and injurious

2 effect or influence in determining [the] jury’s verdict,” under Brecht. Coleman, 525 U.S. at
3 145-46.
4

The state supreme court reasonably could find Petitioner failed to rebut the presumption

5 of honesty and integrity in those serving as adjudicators. Larkin, 421 U.S. at 47.
6

d.

7

The California Supreme Court was not unreasonable in denying allegations California’s

Conclusions

8 death penalty process is unconstitutional due to political and economic pressures.
9

Accordingly, the California Supreme Court’s rejection of this claim was not contrary

10 to, or an unreasonable application of, clearly established federal law, or an unreasonable
11 determination of the facts in light of the evidence presented in the state court proceeding. 28
12 U.S.C. § 2254(d).
13

Claim XXV(A) shall be denied.

14

3.

15

Petitioner alleges that execution following lengthy confinement on death row would

Review of Claim XXV(B)

16 constitute cruel and unusual punishment and violate international covenants, treaties, and
17 norms. (Doc. No. 51-1 ¶¶ 903-910.)
18

a.

19

“[T]he Cruel and Unusual Punishments Clause prohibits the infliction of uncivilized

Supplemental Legal Standards

20 and inhuman punishments. The State, even as it punishes, must treat its members with respect
21 for their intrinsic worth as human beings. A punishment is ‘cruel and unusual,’ therefore, if it
22 does not comport with human dignity.” Furman, 408 U.S. at 270.
23

The mental suffering, demoralization, uncertainty and consequent psychological hurt

24 inherent in the punishment must be considered in interpreting Eighth Amendment. Id. at 27125 72.
26

An execution “cannot be so totally without penological justification that it results in the

27 gratuitous infliction of suffering.” Gregg, 428 U.S. at 183.
28
190

1

The assessment should be whether punishment is cruel and unusual in consideration of

2 the standards of decency that mark the progress of a maturing society, or standards of decency
3 that are more or less universally accepted. Id.
4

b.

5

Petitioner presented this claim in the second state exhaustion petition (Lod. Doc. No. 30

State Court Direct and Collateral Review

6 at 357-60) and it was denied on the merits (Lod. Doc. No. 31, Order Denying Cal. Exh. Pet., In
7 re Colin Raker Dickey, No. S165302 (Cal. May 29, 2012)).
8

c.

9

Petitioner argues that execution following his 1989 arrest and continuous confinement

Analysis

10 thereafter would amount to cruel and unusual punishment and violate international laws,
11 covenants, treaties, and norms. (Doc. No. 142 at 232.)
12

Petitioner argues the passage of time is not attributable to him. (Doc. No. 142 at 232-

13 33, citing Lackey v. Texas, 514 U.S. 1045 (1995) (mem. den. cert. Stevens, J.) (issue whether
14 execution following lengthy confinement violates the Eighth Amendment's prohibition against
15 cruel and unusual punishment would benefit from further study); see also Jones v. Chappell,
16 31 F. Supp. 3d, at 1050 (C.D. Cal. 2014), rev’d sub nom. Jones v. Davis, 806 F.3d 538 (9th Cir.
17 2015) (finding systemic delay in the administration of California’s death penalty renders any
18 ensuing executions arbitrary and violative of the Eighth Amendment).
19

Petitioner argues the passage of time has negated any penological and social benefit

20 from carrying out his death sentence. (Id., citing McKenzie v. Day, 57 F.3d 1461, 1484-89 (9th
21 Cir. 1995) (Norris, J., dissenting) (noting penological goals of retribution and deterrence are
22 attenuated by the passage of time, and the extraordinary psychological duress and extreme
23 physical and social restrictions on death row); see also Doc. No. 51-1 ¶ 909, citing Furman,
24 408 U.S. at 312 (White, J., concurring) (“[A] major goal of the criminal law - to deter others by
25 punishing the convicted criminal - would not be substantially served where the penalty is so
26 seldom invoked that it ceases to be the credible threat essential to influence the conduct of
27 others”); Gregg, 428 U.S. at 183 (“The sanction imposed cannot be so totally without
28
191

1 penological justification that it results in the gratuitous infliction of suffering”).
2

However, the California Supreme Court’s rejection of this claim was not unreasonable.

3 Petitioner does not cite any clearly established Supreme Court authority that a prolonged
4 detention is cruel and unusual punishment. See Allen v. Ornoski, 435 F.3d 946, 958-59 (9th
5 Cir. 2006) (“The Supreme Court has never held that execution after a long tenure on death row
6 is cruel and unusual punishment . . . Allen cannot credibly claim that there is any clearly
7 established law, as determined by the Supreme Court, which would support this . . . claim”);
8 see also McKenzie, 57 F.3d at 1494 (casting doubt that delays caused by satisfying the Eighth
9 Amendment can violate it); Smith v. Mahoney, 611 F.3d 978, 997-98 (9th Cir. 2010) (citing
10 McKenzie and finding Lackey claim barred by Teague v. Lane, 489 U.S. 299, 316 (1989));
11 People v. Taylor 26 Cal. 4th 1155, 1176-77 (2001) (rejecting claim that relatively lengthy
12 period of incarceration constitutes cruel and unusual punishment on grounds such delay is
13 necessary to permit careful appellate review).
14

As noted, Justice Stevens, in his memorandum respecting denial of certiorari in Lackey

15 suggested this issue needed further study. 514 U.S. 1045. Lackey indicates that the issue has
16 never been squarely addressed by the Supreme Court, nor have lower courts in the United
17 States given the issue ample consideration. Id.
18

Four years later, Justice Thomas stated in concurring on a denial of certiorari that:

19
20
21

I am unaware of any support in the American constitutional tradition or in this
Court’s precedent for the proposition that a defendant can avail himself of the
panoply of appellate and collateral procedures and then complain when his
execution is delayed.

22
23 Knight v. Florida, 528 U.S. 990 (1999); see also Allen, 435 F.3d, at 958-59.
24

Since the Supreme Court has not decided the issue, the state court’s decision could not

25 be contrary to or an unreasonable application of Supreme Court precedent. Musladin, 549 U.S.
26 at 77; Sims v. Rowland, 414 F.3d 1148, 1153 (9th Cir. 2005) (same).
27

At least one other circuit has held that the time consumed by a petitioner’s direct and

28
192

1 collateral review proceedings “is a function of the desire of our courts, state and federal, to get
2 it right, to explore exhaustively, or at least sufficiently, any argument that might save
3 someone’s life.” Johns v. Bowersox, 203 F.3d 538, 547 (8th Cir. 2000) (quoting Chambers v.
4 Bowersox, 157 F.3d 560, 570 (8th Cir. 1998)).
5

d.

6

The California Supreme Court was not unreasonable in denying allegations that

Conclusions

7 execution following lengthy confinement on death row is unconstitutional.
8

Accordingly, the California Supreme Court’s rejection of these allegations was not

9 contrary to, or an unreasonable application of, clearly established federal law, as determined by
10 the Supreme Court. 28 U.S.C. § 2254(d). Nor was the state court’s ruling based on an
11 unreasonable determination of the facts in light of the evidence presented in the state court
12 proceeding. Id.
13

Claim XXV(B) shall be denied.

14

4.

15

Petitioner alleges that California’s death penalty process fails to sufficiently narrow the

Review of Claims XXV(C-D)

16 class of offenders who are eligible for death penalty and denies due process because: (i) county
17 prosecutors have unbounded discretion to charge the death penalty (i.e. claim XXV(C)), and
18 (ii) there is no distinguishing between death and non-death eligible first-degree murders (i.e.
19 claim XXV(D)). (Doc. No. 51-1 ¶¶ 911-934.)
20

a.

21

A state capital sentencing system must rationally narrow the class of death-eligible

Supplemental Legal Standards

22 defendants and permit a jury to render a reasoned, individualized sentencing determination
23 based on a death-eligible defendant’s record, personal characteristics, and the circumstances of
24 his crime. Marsh, 548 U.S. at 173-74.
25

“Where discretion is afforded a sentencing body on a matter so grave as the

26 determination of whether a human life should be taken or spared, that discretion must be
27 suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious
28
193

1 action.” Gregg, 428 U.S. at 189.
2

If the reviewing court finds constitutional error, Petitioner must show the error had a

3 substantial and injurious effect or influence on the jury’s verdict pursuant to Brecht. Coleman,
4 525 U.S. at 145-46.
5

b.

6

Petitioner presented claims XXV(C-D) on direct appeal and these claims were denied

State Court Direct and Collateral Review

7 on the merits. Dickey, 35 Cal. 4th at 931-32.
8

c.

9

Petitioner argues California’s statute is unconstitutionally vague, overbroad and

Analysis

10 arbitrary, lacks proportionality, fails to narrow the class of death-eligible murderers, and vests
11 unbounded discretion in prosecutors. (Doc. No. 142 at 234-43, citing Stephens, 462 U.S. at
12 878; Furman, 408 U.S. at 249-57, 306-14; Lockett, 438 U.S. at 600-01.)
13

Petitioner points to California’s nearly thirty special circumstances as evidence that it

14 fails to “distinguish death-eligible and non-death-eligible first-degree murders in a meaningful
15 and non-arbitrary way.” (Doc. No. 142 at 242.)
16

Petitioner points to California’s lack of guidelines for its District Attorneys regarding

17 when to seek the death penalty as evidence the state has eliminated any “meaningful basis for
18 distinguishing the few cases in which it is imposed from the many cases in which it is not.”
19 (Doc. No. 51-1 ¶ 926, citing Furman, 408 U.S. at 313 (conc. opn. of White, J).)
20

The California Supreme Court, in denying these allegations on direct appeal stated that:

21
22
23

The death penalty law adequately narrows the class of death-eligible offenders.
(People v. Brown (2004) 33 Cal. 4th 382, 401, 15 Cal.Rptr.3d 624, 93 P.3d 244
(Brown ); Prieto, supra, 30 Cal. 4th at p. 276, 133 Cal.Rptr.2d 18, 66 P.3d
1123.)

24
25

[…]

26
27
28

Nor is it defective in failing to require intercase proportionality review. (Brown,
supra, 33 Cal. 4th at p. 402, 15 Cal.Rptr.3d 624, 93 P.3d 244; Prieto, supra, 30
Cal. 4th at p. 276, 133 Cal.Rptr.2d 18, 66 P.3d 1123; People v. Lewis (2001) 26
194

1
2
3

Cal. 4th 334, 394–395, 110 Cal.Rptr.2d 272, 28 P.3d 34.)
The law is not constitutionally defective because the prosecutor retains
discretion whether or not to seek the death penalty. (Brown, supra, 33 Cal. 4th
at p. 403, 15 Cal.Rptr.3d 624, 93 P.3d 244; Hughes, supra, 27 Cal. 4th at p. 404,
116 Cal.Rptr.2d 401, 39 P.3d 432.)

4 Dickey, 35 Cal. 4th at 931-32.
5

That court reasonably denied the claims, for the reasons discussed below.

6

i.

7

Petitioner argues that California’s statute fails to ensure “only the most deserving of

Failure to Narrow

8 execution are put to death.” Atkins, 536 U.S. at 319. He revisits his argument California’s
9 death penalty scheme is contrary to Furman because it defines death eligibility so broadly that
10 it fails to ensure the constitutionally required “narrowing” function is performed. See Doc. No.
11 51-1 ¶¶ 915, 930, citing People v. Adcox, 47 Cal. 3d 207, 275-76 (1988) (dis. opn of
12 Broussard, J.); Gregg, 428 U.S. at 189 (“D]iscretion must be suitably directed and limited so
13 as to minimize the risk of wholly arbitrary and capricious action.”)
14

A death penalty law must narrow the class of death-eligible defendants and provide for

15 individualized penalty determination. McCleskey, 481 U.S. at 308.
16

However, under California’s death penalty statute, a defendant may be sentenced to

17 death for first degree murder if the trier of fact finds the defendant guilty and finds true one or
18 more of special circumstances listed in Penal Code section 190.2. As relevant here, one of the
19 circumstances is a robbery-murder special circumstance, which when applied to an aider and
20 abettor of the actual killer having a homicidal mens rea. (See CT 422-425; Penal Code
21 190.2(a)(17)); see also McKenzie, 842 F.2d at 1540-41 (noting that the Supreme Court has
22 upheld the constitutionality of the death sentence for felony murder where the defendant killed,
23 attempted to kill or intended that lethal force be used).
24

The California Supreme Court was not unreasonable in finding this sentencing scheme

25 satisfies clearly established constitutional requirements. See Karis, 283 F.3d at 1141 n.11
26 (California’s sentencing scheme adequately narrows the class of persons eligible for death).
27 First, the subclass of defendants eligible for the death penalty is rationally narrowed to those
28
195

1 who have the predicate felony of robbery. Tuilaepa, 512 U.S. at 969-73. The robbery special
2 circumstance sufficiently guides the sentencer and is not unconstitutionally vague.

See

3 Godfrey, 446 U.S. at 428 (the sentencer’s discretion must be guided by “clear and objective
4 standards.”).
5

At the penalty phase, an individualized sentence includes consideration of the character

6 and record of the defendant, the circumstances of the crime, and an assessment of the
7 defendant’s culpability. Tuilaepa, 512 U.S. at 972-73. The jury “need not be instructed how to
8 weigh any particular fact in the capital sentencing decision.” Id. at 979.
9

Similarly, the Supreme Court in California v. Ramos stated that “once the jury finds

10 that the defendant falls within the legislatively defined category of persons eligible for the
11 death penalty” the jury’s consideration of a myriad of factors and exercise of “unbridled
12 discretion” in determining whether death is the appropriate punishment is not arbitrary and
13 capricious. 463 U.S. at 1008-09.
14

The California Supreme Court reasonably determined that California’s death penalty

15 scheme did not fail to genuinely narrow the class of murderers eligible for the death penalty.
16 California’s scheme, which narrows the class of death eligible offenders to less than the
17 definition of first-degree murder and permits consideration of all mitigating evidence, has been
18 approved by the Supreme Court. Tuilaepa, 512 U.S. at 972-79; Pulley, 465 U.S. at 38.
19

ii.

20

Petitioner argues California’s death penalty statute is arbitrary due to lack of

Proportionality

21 proportionality review.
22

“Where discretion is afforded a sentencing body on a matter so grave as the

23 determination of whether a human life should be taken or spared, that discretion must be
24 suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious
25 action.” Gregg, 428 U.S. at 189.
26

The California Supreme Court considered and rejected Petitioner’s intercase

27 proportionality claim, stating that:
28
196

1
2
3
4

Nor is [California’s death penalty statute] defective in failing to require
intercase proportionality review. (Brown, supra, 33 Cal. 4th at p. 402, 15
Cal.Rptr.3d 624, 93 P.3d 244; Prieto, supra, 30 Cal. 4th at p. 276, 133
Cal.Rptr.2d 18, 66 P.3d 1123; People v. Lewis (2001) 26 Cal. 4th 334, 394–395,
110 Cal.Rptr.2d 272, 28 P.3d 34.)

5 Dickey, 35 Cal. 4th at 931.
6

For the reasons stated in claims XXV(G, L) post, summarized here, the proportionality

7 allegation fails. The state supreme court reasonably could find Petitioner’s alleged limited
8 participation in the crime as an aider and abettor of felony murder was not alone a basis to find
9 his death sentence arbitrary and disproportionate and not in furtherance of societal goals of
10 retribution and deterrence. (See Doc. No. 51-1 ¶ 957; Doc. No. 142 at 255-56.)
11

The Supreme Court, in Pulley v. Harris, found that the Eighth Amendment did not

12 require a “state appellate court, before it affirms a death sentence, to compare the sentence in
13 the case before it with the penalties imposed in similar cases if requested to do so by the
14 prisoner.” 465 U.S. at 43-44. The Supreme Court also held that “on its face, [California’s]
15 system, without any requirement or practice of comparative proportionality review, cannot be
16 successfully challenged under Furman v. Georgia, [408 U.S. 238 (1972)] and our subsequent
17 cases.” Pulley, 465 U.S. at 53.
18

The California Supreme Court specifically has rejected the intra-case and inter-case

19 proportionality claim in numerous cases. Lewis, 26 Cal. 4th, at 394-95; see also People v.
20 Sanchez, 12 Cal. 4th 1, 83-85 (1995), disapproved on other grounds by People v. Doolin, 45
21 Cal. 4th 390, 421 n.22 (2009); People v. Cox, 53 Cal. 3d 618, 690-91 (1991), disapproved on
22 other grounds by People v. Doolin, 45 Cal. 4th 390, 417 (2009).
23

Furthermore, Petitioner has not demonstrated that the jury in considering his aider and

24 abettor and lingering doubt defenses was prevented from considering all potential mitigating
25 factors. (See discussion of claims XII(E-H).)
26

For the reasons stated, the California Supreme Court was not unreasonable in denying

27 allegations that California’s death penalty statute and his death sentence are constitutionally
28
197

1 infirm due to alleged lack of proportionality.
2

iii.

3

Petitioner argues that the unrestricted discretion in individual prosecutors may allow

Prosecutorial Discretion

4 reliance upon constitutionally irrelevant and impermissible considerations like race,
5 impermissible victim characteristics, and economic status. (Doc. No. 51-1 ¶¶ 915-918.) He
6 argues prosecutors may use their unrestricted discretion so as to violate separations of powers
7 and intrude upon the judicial prerogative of imposing sentences and exercising sentencing
8 discretion. (Doc. No. 51-1 ¶¶ 918-919, citing People v. Lang, 49 Cal. 3d 991, 1045 (1989),
9 abrogated by People v. Diaz on other grounds, 60 Cal. 4 th 1176, 1190 (2015) (discussing trial
10 court authority to impose sentence); see also Doc. No. 142 at 238, citing People v. Navarro,
11 497 P.2d 481, 487 (1972) (imposition of sentence and the exercise of sentencing discretion are
12 fundamentally and inherently judicial functions)); Cal. Const. Arts. 3, 6, § 1.
13

However, the Supreme Court has held that the mere existence of prosecutorial

14 discretion over charging decisions does not deny equal protection or render a capital
15 punishment scheme unconstitutional absent some showing that a particular decision was based
16 on a discriminatory standard. In rejecting a petitioner’s argument that the Georgia capital
17 punishment system operated in a discriminatory manner, the Supreme Court held, “absent a
18 showing that Georgia’s capital punishment system operates in an arbitrary and capricious
19 manner, [the petitioner] cannot prove a constitutional violation by demonstrating that other
20 defendants who may be similarly situated did not receive the death penalty.” McCleskey, 481
21 U.S. at 306-07.
22

Further, the Court has held that prosecutorial charging decisions are “particularly ill-

23 suited to judicial review.” Wayte v. United States, 470 U.S. 598, 607 (1985); see also
24 Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978) (“So long as the prosecutor has probable
25 cause to believe that the accused committed an offense defined by statute, the decision whether
26 or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely
27 in his discretion.”).
28
198

1

Prosecutorial discretion “is essential to the criminal justice process”, McCleskey, 481

2 U.S. at 297, and does not violate the federal Constitution. The Constitution forbids only
3 “purposeful discrimination” in the exercise of that prosecutorial discretion, id. at 292-93, and
4 in order to prevail in that regard, the Supreme Court emphasized that “we would demand
5 exceptionally clear proof before we would infer that the discretion has been abused.” Id. at
6 297. It follows that the fact California’s statutory scheme gives the prosecutor discretion does
7 not violate the United States Constitution. See 28 U.S.C. § 2254(a); Gregg, 428 U.S. at 225.
8

Petitioner does not suggest the prosecutor exercised discretion in a discriminatory

9 manner in his case.

(Doc. No. 51-1 ¶¶ 911-927.)

His reliance upon a concurring and

10 dissenting opinion by Justice McKeown in Morales v. Woodford, 388 F.3d 1159, 1185-88 (9th
11 Cir. 2004) relating to overbreadth of the lying-in-wait special circumstance (see Doc. No. 142
12 at 242), is not authority supporting his challenge to prosecutorial discretion.
13

d.

14

The California Supreme Court was not unreasonable in denying allegations that

Conclusions

15 California’s death penalty statute fails to sufficiently narrow the class of offenders who are
16 eligible for death penalty.
17

Accordingly, the California Supreme Court’s rejection of these claims was not contrary

18 to, or an unreasonable application of, clearly established federal law, or an unreasonable
19 determination of the facts in light of the evidence presented in the state court proceeding. 28
20 U.S.C. § 2254(d).
21

Claims XXV(C-D) shall be denied.

22

5.

23

Petitioner alleges the Penal Code section 190.3 sentencing factors as stated in CALJIC

Review of Claim XXV(E)

24 8.85 are vague and ambiguous and devoid of any burden of proof, leaving the jury’s sentencing
25 discretion unguided, violating his rights under the Fifth, Sixth, Eighth and Fourteenth
26 Amendments. (Doc. No. 51-1 ¶¶ 935-944.)
27

Specifically, Petitioner challenges CALJIC 8.85 to the extent it: (i) included

28
199

1 inapplicable sentencing factors, (ii) included vague and limiting mitigation terms such as
2 “extreme” and “substantial,” (iii) considered the existence of a special circumstance to be an
3 aggravating circumstance, (iv) failed to identify which factors were aggravating and which
4 were mitigating, and (v) failed to include any burden of proof. (Doc. No. 51-1 ¶ 936.)
5

a.

6

A claim of instructional error requires a showing that the error “so infected the entire

Supplemental Legal Standards

7 trial that the resulting conviction violate[d] due process.” Kibbe, 431 U.S. at 154.
8

“[T]he proper inquiry . . . is whether there is a reasonable likelihood that the jury has

9 applied the challenged instruction” in an unconstitutional manner. Boyde, 494 U.S. at 380. A
10 reviewing court does not engage in a technical parsing of the instruction’s language, but
11 instead approaches the instructions in the same way that the jury would -- with a
12 “commonsense understanding of the instructions in the light of all that has taken place at the
13 trial.” Johnson, 509 U.S. at 368. In evaluating a claim of instructional error, a single
14 instruction is not viewed in isolation, but rather in the context of the overall charge. Spivey,
15 194 F.3d at 976. Federal courts presume that juries understand and follow instructions. Weeks,
16 528 U.S. at 234; see also Boyde, 494 U.S. at 381-85; Tan, 413 F.3d at 1115.
17

A state capital sentencing system must: “(1) rationally narrow the class of death-

18 eligible defendants; and (2) permit a jury to render a reasoned, individualized sentencing
19 determination based on a death-eligible defendant’s record, personal characteristics, and the
20 circumstances of his crime.” Marsh, 548 U.S. at 173-74. If the “state system satisfies these
21 requirements,” then the “state enjoys a range of discretion in imposing the death penalty,
22 including the manner in which aggravating and mitigating circumstances are to be weighed.”
23 Id., (citing Franklin, 487 U.S. at 179; Stephens, 462 U.S. at 875-876, n.13).
24

Even if constitutional instructional error has occurred, the federal court must still

25 determine whether petitioner suffered actual prejudice, that is, whether the error “had
26 substantial and injurious effect or influence in determining the jury’s verdict.” Brecht, 507 U.S.
27 at 637. A “substantial and injurious effect” means a “reasonable probability” that the jury
28
200

1 would have arrived at a different verdict had the instruction been given. Clark, 450 F.3d at
2 916.
3

b.

4

Petitioner presented this claim on direct appeal and it was denied on the merits. Dickey,

State Court Direct and Collateral Review

5 35 Cal. 4th 928.
6

c.

7

Petitioner revisits his claim XII(E) (ineffective assistance of counsel) argument that the

Analysis

8 CALJIC 8.85 instruction on Penal Code section 190.3 sentencing factors is unconstitutional on
9 multiple grounds. (See the discussion of claim XII(E) above; Doc. No. 142 at 243.)
10

As noted, the jury was instructed on the Penal Code 190.3 sentencing factors pursuant

11 to the standard CALJIC 8.85 instruction, that:
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

In determining which penalty is to be imposed on defendant, you shall consider
all of the evidence which has been received during any part of the trial of this
case. You shall consider, take into account and be guided by the following
factors, if applicable:
(a) The circumstances of the crime of which the defendant was convicted in the
present proceeding and the existence of any special circumstance[s] found to be
true.
(b) The presence or absence of criminal activity by the defendant, other than the
crime[s] for which the defendant has been tried in the present proceedings,
which involved the use or attempted use of force or violence or the express or
implied threat to use force or violence.
(c) The presence or absence of any prior felony conviction, other than the
crimes for which the defendant has been tried in the present proceedings.
(d) Whether or not the offense was committed while the defendant was under
the influence of extreme mental or emotional disturbance.
(e) Whether or not the victim was a participant in the defendant's homicidal
conduct or consented to the homicidal act.
(f) Whether or not the offense was committed under circumstances which the
defendant reasonably believed to be a moral justification or extenuation for his
conduct.
(g) Whether or not the defendant acted under extreme duress or under the
substantial domination of another person.
(h) Whether or not at the time of the offense the capacity of the defendant to
201

1
2
3
4
5
6
7
8

appreciate the criminality of his conduct or to conform his conduct to the
requirements of law was impaired as a result of mental disease or defect or the
effects of intoxication.
(i) The age of the defendant at the time of the crime.
(j) Whether or not the defendant was an accomplice to the offense and his
participation in the commission of the offense was relatively minor.
(k) 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. You must disregard any jury instruction given to you in the guilt or
innocence phase of this trial which conflicts with this principle.

9 (CT 498-499; see also RT 5150-5152.)
10

The California Supreme Court in denying the claim stated that:

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

Defendant contends the standard instruction given here with regard to the
factors the jury might take into account in determining the penalty (§ 190.3;
CALJIC No. 8.85) failed to adequately guide its discretion, in violation of
defendant's rights under the Eighth and Fourteenth Amendments to the United
States Constitution.
Defendant's various attacks on CALJIC No. 8.85 have been repeatedly rejected
by this court, and we conclude he gives us no compelling reason to reconsider
our decisions.
CALJIC No. 8.85 does not encourage the double-counting of aggravating
factors. (People v. Lewis, supra, 25 Cal. 4th at p. 669, 106 Cal.Rptr.2d 629, 22
P.3d 392; People v. Ayala (2000) 24 Cal. 4th 243, 288–289, 99 Cal.Rptr.2d 532,
6 P.3d 193.)
The federal Constitution does not bar consideration of unadjudicated criminal
activity. (Tuilaepa v. California (1994) 512 U.S. 967, 976–977, 114 S.Ct. 2630,
129 L.Ed.2d 750; People v. Marks (2003) 31 Cal. 4th 197, 237, 2 Cal.Rptr.3d
252, 72 P.3d 1222; People v. Anderson, supra, 25 Cal. 4th at p. 601, 106
Cal.Rptr.2d 575, 22 P.3d 347.) Moreover, defendant seems to complain the jury
was permitted to consider prior criminal activity involving use or attempted use
of force, whereas the prosecutor candidly acknowledged to the jury, “There is
no evidence at all of any previous violent activity on the part of [defendant].”
“[A] reasonable juror would readily have identified” the “emotional
disturbance” and “diminished capacity” factors as mitigating. (People v. Benson
(1990) 52 Cal. 3d 754, 802, 276 Cal.Rptr. 827, 802 P.2d 330; see People v.
Williams (1997) 16 Cal. 4th 153, 268–269, 66 Cal.Rptr.2d 123, 940 P.2d 710;
People v. McPeters (1992) 2 Cal. 4th 1148, 1191, 9 Cal.Rptr.2d 834, 832 P.2d
146.) “The presumption that the jurors in this case understood and followed the
mitigation instruction supplied to them is not rebutted by empirical assertions to
the contrary based on research that is not part of the present record and has not
been subject to cross-examination. [Citation.]” (Welch, supra, 20 Cal. 4th at p.
202

1

773, 85 Cal.Rptr.2d 203, 976 P.2d 754.)17

2

----------------------------------------FOOTNOTE---------------------

3

n.17 As here, the defendant in Welch relied upon an article “claiming that
interviews with former jurors or with randomly selected subjects show that
many of the subjects failed to properly understand the concept of mitigation
correctly after they had been given CALJIC No. 8.88. [Citations.]” (Welch,
supra, 20 Cal. 4th at pp. 772–773, 85 Cal.Rptr.2d 203, 976 P.2d 754.)

4
5
6
7
8
9
10
11
12

------------------------------------END FOOTNOTE-----------------Finally, failure to delete inapplicable statutory sentencing factors from CALJIC
No. 8.85 as given did not violate defendant's rights under the federal
Constitution. (People v. Box (2000) 23 Cal. 4th 1153, 1217, 99 Cal.Rptr.2d 69,
5 P.3d 130; People v. Turner (1994) 8 Cal. 4th 137, 207–208, 32 Cal.Rptr.2d
762, 878 P.2d 521.) Likewise, the failure to identify which factors were
aggravating and which mitigating was not error; the aggravating or mitigating
nature of the factors is self-evident within the context of each case. (People v.
Hillhouse (2002) 27 Cal. 4th 469, 509, 117 Cal.Rptr.2d 45, 40 P.3d 754; see
Box, at p. 1217, 99 Cal.Rptr.2d 69, 5 P.3d 130.)

13 Dickey, 35 Cal. 4th at 927-28.
14

The California Supreme Court reasonably rejected the claim for the reasons discussed

15 below.
16

i.

17

Petitioner argues that instructing his jury on sentencing factors that were inapplicable

Inapplicable sentencing factors

18 on the facts and circumstances of his case was prejudicial error.
19

However, Petitioner does not point to clearly established federal law that a jury may not

20 be instructed with all sentencing factors. The Supreme Court stated in Gregg v. Georgia:
21
22
23
24
25

The petitioner objects, finally, to the wide scope of evidence and argument
allowed at [penalty] hearings. We think that the Georgia court wisely has
chosen not to impose unnecessary restrictions on the evidence that can be
offered at such a hearing and to approve open and far-ranging argument. So
long as the evidence introduced and the arguments made at the [penalty] hearing
do not prejudice a defendant, it is preferable not to impose restrictions. We think
it desirable for the jury to have as much information before it as possible when
it makes the sentencing decision.

26
27 428 U.S. at 203–04.
28
203

1

In addition, the Ninth Circuit has repeatedly rejected this claim. In Williams v.

2 Calderon, the Ninth Circuit stated:
3

Williams argues that it was error to read to the jury the entire list of factors the
state considered relevant to the sentencing decision, even when some did not
apply. To the contrary, the jury instructions expressly indicated that the jury was
to consider each factor only “if applicable.” Moreover, “[i]t seems clear ... that
the problem [of jury inexperience] will be alleviated if the jury is given
guidance regarding the factors about the crime and the defendant that the State,
representing organized society, deems particularly relevant to the sentencing
decision.” Gregg v. Georgia, 428 U.S. 153, 192, 96 S.Ct. 2909, 2934, 49
L.Ed.2d 859 (1976) (plurality opinion). The reading of the complete list gave
the jury more guidance, not less. We find nothing in the Constitution prohibiting
the very practice Gregg encouraged.

4
5
6
7
8

9 52 F.3d at 1481.
10

Petitioner has not demonstrated any requirement that a trial court redact the instructions

11 to include only those factors deemed applicable. Moreover, the instruction itself advises the
12 jury to consider the factors “if applicable.” (CT 498); see Bonin, 59 F.3d 815, 848 (9th Cir.
13 1995) (“the cautionary words ‘if applicable’ warned the jury that not all of the factors would be
14 relevant and that the absence of a factor made it inapplicable rather than an aggravating
15 factor.”).
16

For the reasons stated, the California Supreme Court was not unreasonable in denying

17 allegations that California’s death penalty statute and his death sentence are constitutionally
18 infirm due to instruction on inapplicable sentencing factors.
19

ii.

20

Petitioner argues that CALJIC factor “d” (relating to Penal Code section 190.3(d))

Vague and Limiting Mitigation Terms

21 provides that only “extreme” mental and emotional disturbance is mitigating (see CT 498)
22 thereby unconstitutionally limiting the mitigation defense where the evidence supports a lesser
23 level of disturbance.13 (Doc. No. 142 at 244.) He argues jurors would have understood the
24 instructions in their totality to exclude mitigating evidence of non-severe mental or emotional
25 distress.
26
27
28

Penal Code section 190.3 provides in pertinent part that: “[I]n determining which penalty is to be imposed on
defendant, you shall consider … take into account and be guided by the following factors, if applicable … (d)
whether or not the offense was committed while the defendant was under the influence of extreme mental or
emotional disturbance.”
13

204

1

Petitioner further argues the catchall language in CALJIC factor “k”, which instructs

2 the jury pursuant to Penal Code section 190.3(k) that it may consider any extenuating
3 circumstance as well any sympathetic aspect of defendant’s character, does not cure this
4 deficiency because the jury might have understood factor “k” itself to be aggravating rather
5 than mitigating. (Id. at 244-45.)
6

The state supreme court presumably observed the jury received multiple pertinent

7 instructions. In addition to CALJIC 8.85 factor “d”, jurors were instructed: (i) to consider
8 “whether or not the defendant acted under extreme duress or under the substantial domination
9 of another person” (CALJIC 8.85(g); CT 499); see also Penal Code § 190.3(g)); (ii) that “in
10 determining which penalty is to be imposed on defendant, you shall consider all of the
11 evidence which has been received during any part of the trial of this case . . .” (CALJIC 8.85;
12 CT 498); (iii) that “a mitigating circumstance is any fact, condition or event which as such,
13 does not constitute a justification or excuse for the crime in question, but may be considered as
14 an extenuating circumstance in determining the appropriateness of the death penalty”
15 (CALJIC 8.88; CT 502); (iv) that they may consider “any other circumstance which extenuates
16 the gravity of the crime, even though it is not a legal excuse for the crime, and any sympathetic
17 or other aspect of the defendant’s character or record that the defendant offers as a basis for a
18 sentence less than death, whether or not related to the offense for which he is on trial”
19 (CALJIC 8.85; CT 499); and (v) to consider the penalty phase instructions as a whole (CALJIC
20 1.09; CT 487).
21

The Supreme Court has reviewed these instructions on several occasions and

22 consistently rejected claims they restrict the jury’s consideration of mitigating evidence. See,
23 e.g., Belmontes, 549 U.S. at 24; Brown, 544 U.S. at 133; Boyde, 494 U.S. at 370. Particularly,
24 the Supreme Court has stated that factor (k) directed the jury to consider “any other
25 circumstance that might excuse the crime. . . .” Boyde, 494 U.S. at 382.
26

The Ninth Circuit also has rejected this allegation where, as here, the jury was advised

27 it could consider any other mitigating matter. See Hendricks, 974 F.2d at 1109. Moreover, the
28
205

1 190.3 factors are not read in isolation. For example, factor (k) on its face allows the jury to
2 consider non-extreme mental or emotional conditions when read in conjunction with
3 instructions on factor (d). See Sanchez, 12 Cal. 4th, at 80.
4

“[T]he factor (k) instruction is consistent with the constitutional right to present

5 mitigating evidence in capital sentencing proceedings.” Belmontes, 549 U.S. at 24. Contrary
6 to Petitioner’s contention, the factor (k) instruction made it clear to the jurors that they should
7 consider any evidence of mental or emotional disturbance of any degree, if they believed there
8 was such evidence presented.

See id. at 19-20 (same instructional language permitted

9 consideration of Belmontes’s mitigating evidence).
10

The state supreme court reasonably could find jurors would have understood the

11 instructions as a whole not to exclude mitigating evidence of non-severe mental or emotional
12 distress. As noted above, in evaluating a claim of instructional error, a single instruction is not
13 viewed in isolation, but rather in the context of the overall charge. Spivey, 194 F.3d at 976.
14 “[T]he proper inquiry . . . is whether there is a reasonable likelihood that the jury has applied
15 the challenged instruction” in an unconstitutional manner. Boyde, 494 U.S. at 380.
16

As noted, the Supreme Court has never required a sentencing court to instruct a jury on

17 how to weigh and balance factors in aggravation and mitigation. The Supreme Court has
18 stated that “a capital sentencer need not be instructed how to weigh any particular fact in the
19 capital sentencing decision.” Tuilaepa, 512 U.S. at 979; see also Marsh, 548 U.S. at 175
20 (quoting Franklin, 487 U.S. at 179) (citing Stephens, 462 U.S. at 875–876, n.13) (defendants
21 have the right to present relevant mitigating circumstances; although sentencers must consider
22 such circumstances, they need not be instructed on a specific method for balancing aggravating
23 and mitigating circumstances).
24

Additionally, Petitioner has not shown that the instructions in issue here precluded the

25 jury from considering mitigating value of evidence from the guilt phase. See Blystone, 494
26 U.S. at 307; Boyde, 494 U.S. at 377; see also McGuire, 502 U.S. at 72 (quoting Boyde, 494
27 U.S. at 380). Particularly, the facts and circumstances of Petitioner’s conviction as an aider
28
206

1 and abettor of felony murder were before the penalty phase jury.
2

The state supreme court reasonably could find Petitioner’s habeas proffer mental state

3 evidence, subject to discount for the reasons stated, lacked mitigating weight relating to
4 whether at the time of the crimes Petitioner suffered significant mental or emotional
5 disturbance. Nor does the record suggest he was under duress or domination of another during
6 the crime.
7

If the jury found the evidence showed that Petitioner’s actions as aider and abettor were

8 the result of mental or emotional disturbance of any degree, then CALJIC Nos. 8.85 and 8.88,
9 and particularly factor (k) of CALJIC No. 8.85, allowed the jury to consider it. Petitioner has
10 not demonstrated that the Constitution requires more. See Buchanan, 522 U.S. at 276 (as long
11 as state does not preclude jury from considering any constitutionally relevant mitigating
12 evidence, it need not “affirmatively structure in a particular way the manner in which juries
13 consider mitigating evidence.”).
14

iii.

15

Petitioner finds error in CALJIC 8.85 factor “a” which instructs on Penal Code section

Special Circumstance as Aggravating Factor

16 190.3(a) that “the existence of any special circumstances found to be true pursuant to Section
17 190.1 is an aggravating factor to be considered at penalty phase.” He argues this language
18 unconstitutionally limits the mitigation defense because there will always be one established
19 aggravating factor. (Doc. No. 51-1 ¶ 937, citing Penry, 492 U.S. at 319 (jury must be able to
20 consider and give effect to mitigating evidence relevant to defendant’s background, character,
21 or circumstances of crime); see also Doc. No. 142 at 243.)
22

However, as discussed in claim III(G) above, Petitioner cannot demonstrate clearly

23 established federal law that duplicative aggravating circumstances violates his federal rights.
24 The same claim was rejected by the Supreme Court in Tuilaepa, wherein the Court concluded
25 that:
26
27
28

[T]he sentencer should consider the circumstances of the crime in deciding
whether to impose the death penalty . . . this California factor instructs the jury
to consider a relevant subject matter and does so in understandable terms. The
207

1
2

circumstances of the crime are a traditional subject for consideration by the
sentencer, and an instruction to consider the circumstances is neither vague nor
otherwise improper under our Eighth Amendment jurisprudence.

3 512 U.S. at 975-76.
4

Furthermore, the California Supreme Court has found that “[f]actor (a) of section 190.3

5 … does not impermissibly result in ‘double-counting’ or automatically create a bias in favor of
6 a death verdict.” Tully, 54 Cal. 4th at 1068.
7

As above, the Supreme Court has never required a sentencing court to instruct a jury on

8 how to weigh and balance factors in aggravation and mitigation. Tuilaepa, 512 U.S. at 978-79;
9 Marsh, 548 U.S. at 175.
10

Likewise, the California Supreme Court has repeatedly rejected this claim, as noted

11 above. See Lewis, 25 Cal. 4th at 669; Ayala, 24 Cal. 4th at 288-289.
12

Additionally, Petitioner has not shown “a reasonable likelihood that the jury applied the

13 challenged instruction in a way that prevented consideration of constitutionally relevant
14 evidence.” Johnson, 509 U.S. at 367 (quoting Boyde, 494 U.S. at 380). The state supreme
15 court reasonably could find “a commonsense understanding of the instructions in the light of
16 all that has taken place at the trial” suggested otherwise. Boyde, 494 U.S. at 381.
17

iv.

18

Petitioner argues the jury was confused which sentencing factors were aggravating and

Failure to identify aggravating and mitigating factors

19 which were mitigating. (Doc. No. 142 at 243.)
20

Here again, states need not structure their jury instructions in any particular manner as

21 long as juries are given the opportunity to consider relevant mitigating evidence. Tuilaepa,
22 512 U.S. at 979-80; Lockett, 438 U.S. 586 at 604. “There is no . . . constitutional requirement
23 of unfettered sentencing discretion in the jury, and States are free to structure and shape
24 consideration of mitigating evidence in an effort to achieve a more rational and equitable
25 administration of the death penalty.” Boyde, 494 U.S. at 377 (quoting Franklin, 487 U.S. at
26 181). “[I]t must be recognized that the States may adopt capital sentencing processes that rely
27 upon the jury, in its sound judgment, to exercise wide discretion.” Tuilaepa, 512 U.S. at 974.
28
208

1

Petitioner fails to show clearly established authority from the United States Supreme

2 Court holding that a jury must be instructed in a particular manner. The Supreme Court has
3 upheld California’s instruction against constitutional challenge. See Belmontes, 549 U.S. at 24;
4 Payton, 544 U.S. at 141, 142; Boyde, 494 U.S. at 382.
5

The California Supreme Court also has consistently rejected this allegation. See, e.g.,

6 People v. Osband, 13 Cal. 4th 622, 705 (1996) (noting it has “regularly rejected the contention
7 that the court must specify which factors of section 190.3 apply in mitigation and which in
8 aggravation”).
9

For the reasons stated, the California Supreme Court reasonably found it clearly

10 established that a sentencing court need not identify which factors are aggravating and which
11 are mitigating. Pulley, 465 U.S. at 51 and 53 n.14; Tuilaepa, 512 U.S. at 975-80. It follows
12 that the failure to identify whether factors are aggravating or mitigating is not contrary to or an
13 unreasonable application of Supreme Court authority. Id.; see also Musladin, 549 U.S. at 77;
14 Sims, 414 F.3d, at 1153.
15

The Ninth Circuit so concluded in Williams v. Calderon, i.e. that “the death penalty

16 statute’s failure to label aggravating and mitigating factors is constitutional.” 52 F.3d, at 148417 1485. The Ninth Circuit has found California’s death penalty statute does not violate due
18 process by failure to label factors as aggravating or mitigating. Id.
19

v.

20

Petitioner argues the failure to provide the jury with a penalty phase standard of proof

Failure to Provide Burden of Proof

21 was constitutional error. (Doc. No. 142 at 243; see claim XII(G), ante.)
22

However, the California Supreme Court reasonably rejected these allegations. “[A]

23 capital sentencer need not be instructed how to weigh any particular fact in the capital
24 sentencing decision.” Tuilaepa, 512 U.S. at 979. “Once the jury finds that the defendant falls
25 within the legislatively defined category of persons eligible for the death penalty . . . the jury
26 then is free to consider a myriad of factors to determine whether death is the appropriate
27 punishment.” Id. (quoting Ramos, 463 U.S. at 1008).
28
209

1

Apprendi is not implicated by California’s death penalty scheme because once a

2 California jury convicts of first-degree murder with a special circumstance “the defendant
3 stands convicted of an offense whose maximum penalty is death.” People v. Ochoa, 26 Cal. 4th
4 398, 454 (2001), abrogated on other grounds by People v. Harris, 43 Cal. 4th 1269, 1306,
5 1310 (2008); see also People v. Prieto, 30 Cal. 4th 226, 263 & n.14 (2003) (same). Ring is
6 inapposite for the same reasons Apprendi is inapplicable.
7

Notably, federal and state courts have rejected this allegation. See, e.g. Williams, 52

8 F.3d, at 1485; Carriger, 971 F.2d, at 334; Webb, 6 Cal. 4th, at 536; People v. Cudjo, 6 Cal. 4th
9 585, 634 (1993).
10

As discussed in claim XII(G) above, summarized here, under California law “neither

11 death nor life is presumptively appropriate or inappropriate under any set of circumstances, but
12 in all cases the determination of the appropriate penalty remains a question for each individual
13 juror.” Samayoa, 15 Cal. 4th, at 853. In Walton v. Arizona, a plurality of the United States
14 Supreme Court concluded that a defendant may constitutionally be required to establish by a
15 preponderance of the evidence the existence of mitigating circumstances. 497 U.S. at 649-651,
16 rev’d on other grounds by Ring, 536 U.S. at 589. This conclusion appears to militate against a
17 beyond a reasonable doubt standard. See, e.g., Carriger, 971 F.2d at 334 (citing Walton in
18 rejecting allegation that beyond a reasonable doubt standard applies in determining
19 appropriateness of death sentence and absence of mitigating circumstances).
20

The California Supreme Court has consistently rejected Petitioner’s argument because

21 as noted above the maximum penalty for one convicted of first-degree murder with a special
22 circumstance is death, see Penal Code section 190.2(a); see also Anderson, 25 Cal. 4th, at 589,
23 and the penalty phase findings regarding aggravating and mitigating circumstances do not
24 increase that maximum statutory penalty. See Prieto, 30 Cal. 4th, at 263; People v. Navarette
25 30 Cal. 4th 458, 520-21 (2003) (noting California Supreme Court repeatedly has rejected this
26 claim notwithstanding Ring).
27

The penalty phase findings in California are in the nature of moral and normative

28
210

1 determinations. The Supreme Court in upholding the constitutionality of California’s death
2 penalty scheme noted that at the penalty phase, the jury merely weighs the aggravating and
3 mitigating factors to determine whether a defendant eligible for the death penalty should be
4 sentenced to death. See Tuilaepa, 512 U.S. at 972. “Once the jury finds that the defendant
5 falls within the legislatively defined category of persons eligible for the death penalty . . . the
6 jury then is free to consider a myriad of factors to determine whether death is the appropriate
7 punishment.” Ramos, 463 U.S. at 1008). The jury is presumed to understand and follow the
8 trial court’s instructions. Weeks, 528 U.S. at 234.
9

For the reasons stated, the California Supreme Court reasonably found Petitioner was

10 not denied a fair trial by any failure to instruct on a burden of proof at the penalty phase. See
11 Dunckhurst, 859 F.2d at 114 (instructional error must so infect the entire trial that the
12 defendant was deprived of his right to a fair trial guaranteed by the due process clause of the
13 fourteenth amendment).
14

d.

15

The California Supreme Court was not unreasonable in denying allegations 190.3

Conclusions

16 sentencing factors as stated in CALJIC 8.85 violated his federal rights.
17

Accordingly, the California Supreme Court’s rejection of this claim was not contrary

18 to, or an unreasonable application of, clearly established federal law, or an unreasonable
19 determination of the facts in light of the evidence presented in the state court proceeding. 28
20 U.S.C. § 2254(d).
21

Claim XXV(E) shall be denied.

22

6.

23

Petitioner alleges that his death sentence violates international law, treaties and precepts

Review of Claim XXV(F)

24 of fundamental human rights, denying his rights under the Eighth and Fourteenth
25 Amendments. (Doc. No. 51-1 ¶¶ 945-951.)
26

a.

27

Federal habeas relief lies for violations of the Constitution, laws, and treaties of the

Supplemental Legal Standards

28
211

1 United States. 28 U.S.C. § 2254(a). Federal courts may grant habeas relief to persons who are
2 in state custody as a result of judgment rendered in violation of the Constitution or laws or
3 treaties of the United States. 28 U.S.C. § 2241(c)(3).
4

“[T]he Cruel and Unusual Punishments Clause prohibits the infliction of uncivilized

5 and inhuman punishments. The State, even as it punishes, must treat its members with respect
6 for their intrinsic worth as human beings. A punishment is ‘cruel and unusual,’ therefore, if it
7 does not comport with human dignity.” Furman, 408 U.S. at 270.
8

The mental suffering, demoralization, uncertainty and consequent psychological hurt

9 inherent in the punishment must be considered in interpreting Eighth Amendment. Id. at 271,
10 272.
11

An execution “cannot be so totally without penological justification that it results in the

12 gratuitous infliction of suffering.” Gregg, 428 U.S. at 183.
13

The assessment should be whether punishment is cruel and unusual in consideration of

14 the standards of decency that mark the progress of a maturing society, or standards of decency
15 that are more or less universally accepted. Id.
16

b.

17

Petitioner presented this claim on direct appeal and it was denied on the merits. Dickey,

State Court Direct and Collateral Review

18 35 Cal. 4th at 932.)
19

c.

20

Petitioner argues that his death sentence violates international treaties and norms.

Analysis

21 (Doc. No. 142 at 246.)
22

The California Supreme Court in denying the allegation stated that:

23
24
25
26
27
28

Finally, “we need not consider whether a violation of state or federal
constitutional law would also violate international law, ‘because defendant has
failed to establish the premise that his trial involved violations of state and
federal constitutional law....’ ( [People v. Jenkins, supra, 22 Cal. 4th at p.] 1055
[95 Cal.Rptr.2d 377, 997 P.2d 1044].) Moreover, had defendant shown
prejudicial error under domestic law, we would have set aside the judgment on
that basis without recourse to international law.” (People v. Hillhouse, supra, 27
Cal. 4th at p. 511, 117 Cal.Rptr.2d 45, 40 P.3d 754; see Brown, supra, 33 Cal.
4th at pp. 403–404, 15 Cal.Rptr.3d 624, 93 P.3d 244; Burgener, supra, 29 Cal.
212

1

4th at p. 885, 129 Cal.Rptr.2d 747, 62 P.3d 1.)

2 Dickey, 35 Cal. 4th at 932.
3

Petitioner argues his death sentence is unconstitutional because it violates treaties

4 ratified by the United States as well as international legal norms underlying his federal rights.
5 (Doc. No. 51-1 ¶¶ 945-949; Doc. No. 142 at 246-48; see also AOB at claim XXXIII.)
6

Petitioner point to Articles VI (prohibiting the arbitrary deprivation of life) and VII

7 (prohibiting cruel, inhuman or degrading treatment or punishment) of the International
8 Covenant of Civil and Political Rights (hereinafter “ICCPR”) that was ratified by the United
9 States in 1990. (Doc. No. 142 at 246.) He argues the ICCPR prohibits his death sentence
10 given the improprieties in the capital sentencing process, conditions of incarceration, excessive
11 delays between sentencing and appointment of appellate counsel, and excessive delays
12 between sentencing and execution that are apparent in his case. (Id.; see also Doc. No. 51-1 ¶
13 947.)
14

Petitioner argues international norms are incorporated into the Fifth, Eighth, and

15 Fourteenth Amendments (see Doc. No. 142 at 247; see also Pratt & Morgan v. Attorney
16 General for Jamaica, 3 SLR 995, 2 AC 1, 4 All ER 769 (Privy Council 1993)) as guidance for
17 interpreting federal and state constitutional provisions, including the Eighth Amendment. See
18 Thompson v. Oklahoma, 487 U.S. 815, 830-31, 851-52 (1988); Soering v. United Kingdom,
19 161 Eur. Ct. H.R. (ser. A), at 34 [reprinted in 11 Eur. Hum. Rts. Rep. 439]. The European
20 Court in Soering, facing a decision whether to extradite an EU national to Virginia to face
21 capital murder charges, held that the protracted delays in carrying out death sentences in
22 Virginia, which it averaged at six to eight years, constituted inhuman and degrading
23 punishment in violation of Article 3 of The European Human Rights Convention Charter, a
24 provision that “enshrines one of the fundamental values of the democratic societies making up
25 the Council of Europe.” Soering, 161 Eur. Ct. H.R. (ser. A) at 26.
26

However, the California Supreme Court reasonably rejected the claim. Petitioner does

27 not point to clearly established federal law that the California death penalty violates
28
213

1 international law and that this alleged violation creates a cognizable claim on federal habeas
2 review. See Rowland v. Chappell, 902 F. Supp. 2d 1296, 1339 (N.D. Cal. 2012) (there is no
3 clearly established federal law holding that the California death penalty violates international
4 law, and that this alleged violation creates a cognizable claim on federal habeas review). To
5 the contrary, it appears that such challenges to imposition of the death penalty have been
6 repeatedly rejected, as follows:
7
8
9
10
11
12
13
14
15
16

In Coleman v. Mitchell, 268 F.3d 417 (6th Cir. 2001), for instance, the Sixth
Circuit explained that “the claim that international law completely bars this
nation’s use of the death penalty is unsupportable since the United States is not
party to any treaty that prohibits capital punishment per se, and since total
abolishment of capital punishment has not yet risen to the level of customary
international law.” Id., at 443 n.12. In Carter v. Chappell, 2013 WL 781910,
(C.D. Cal. Mar. 1, 2013), the district court noted that “[c]learly established
federal law does not hold the death penalty to violate international law or the
federal Constitution.” Similarly, in Rowland v. Chappell, 902 F. Supp. 2d 1296,
1339 (N.D. Cal. 2012), the district court rejected an essentially identical claim,
stating that “Petitioner cannot demonstrate that any claim of a violation of
international law is even cognizable on federal habeas review, given that such
review is designed to address claims that a Petitioner is in custody in violation
of the Constitution or laws or treaties of the United States.” “International law is
not United States law, and Petitioner does not demonstrate that the International
Covenant of Civil and Political Rights creates a form of relief enforceable in
United States courts.” Id.

17 Ervin v. Davis, No. 00-CV-01228-LHK, 2016 WL 3253942, at *12 (N.D. Cal. June 14, 2016);
18 see also Buell v. Mitchell, 274 F.3d 337, 370-76 (6th Cir. 2001) (rejecting challenge to death
19 sentence based international laws such as the noted American Declaration, International
20 Covenant, and customary international law norms); Am. Baptist Churches in the U.S.A. v.
21 Meese, 712 F. Supp. 756, 770 (N.D. Cal. 1989) (treaties that are not self-executing do not
22 provide a basis for private lawsuit absent appropriate implementing legislation); Brewer v.
23 Hall, 378 F.3d 952, 955 (9th Cir. 2004) (“If no Supreme Court precedent creates clearly
24 established federal law relating to the legal issue the habeas Petitioner raised in state court, the
25 state court’s decision cannot be contrary to or an unreasonable application of clearly
26 established federal law.”).
27

Furthermore, Petitioner lacks standing to invoke the jurisdiction of international law.

28
214

1 The principles of international law apply to disputes between sovereign governments and not
2 between individuals. Hanoch Tel-Oren, 517 F. Supp. at 545-47. It is only when a treaty is
3 self-executing, that is, when it prescribes rules by which private rights may be determined, that
4 it may be relied on for the enforcement of such rights. Dreyfus v. Von Finck, 534 F.2d 24, 30
5 (2d Cir. 1976) (disavowed on other grounds by Filaratiga v. Pena-Irala, 630 F.2d 876, 884-85
6 (2d Cir. 1980)).
7

In determining whether a treaty is self-executing, courts look to the following factors:

8 (i) the language and purpose of the agreement as a whole, (ii) the circumstances surrounding its
9 execution, (iii) the nature of the obligations imposed by the agreement, (iv) the availability and
10 feasibility of alternative enforcement mechanisms, (v) the implications of permitting a private
11 right of action, and (vi) the capability of the judiciary to resolve the dispute. Frolova v. Union
12 of Soviet Socialist Republics, 761 F.2d 370, 373 (7th Cir. 1985); see also People of Saipan v.
13 United States Dept. of Interior, 502 F.2d 90, 97 (9th Cir. 1974) (“The extent to which an
14 international agreement establishes affirmative and judicially enforceable obligations without
15 implementing legislation must be determined in each case by reference to many contextual
16 factors: the purposes of the treaty and the objectives of its creators, the existence of domestic
17 procedures and institutions appropriate for direct implementation, the availability and
18 feasibility of alternative enforcement methods, and the immediate and long-range social
19 consequences of self- or non-self-execution.”).
20

The California Supreme Court reasonably could find unpersuasive Petitioner’s

21 inferential argument the treaty upon which he relies is self-executing. (See 28 U.S.C. §
22 2254(a); Medellin, 544 U.S. at 664; see also Sosa, 542 U.S. at 734-35; Jamison, 100 F. Supp.
23 2d at 766 (International Covenant on Civil and Political Rights is not self-executing); People v.
24 Ghent, 43 Cal. 3d 739, 778-79 (1987) (United Nations charter does not supersede domestic
25 legislation); Brown, 33 Cal. 4th, at 404 (“International law does not prohibit a sentence of
26 death rendered in accordance with state and federal constitutional and statutory requirements.
27 [Citations.]”).
28
215

1

The California Supreme Court specifically has rejected international law as a basis for

2 finding unconstitutional capital punishment and the lengthy delays it can entail. See People v.
3 Bolden 29 Cal. 4th 515, 567 (2002) (“[W]e are not persuaded that international law prohibits a
4 sentence of death rendered in accordance with state and federal constitutional and statutory
5 requirements.”
6

Even if the ICCPR were viewed as self-executing, its provisions do not prohibit the

7 death penalty, but rather merely limit its application including as to arbitrary deprivation of life
8 and execution of the severely mentally ill. See e.g., Atkins, 536 U.S. at 316 n.21 (death penalty
9 held unconstitutional for the intellectually disabled); see also Roper v. Simmons, 543 U.S. 551,
10 575 (2005) (in holding death penalty unconstitutional for minors, the Court noted that it has
11 “referred to the laws of other countries and to international authorities as instructive for its
12 interpretation of the Eighth Amendment’s prohibition of ‘cruel and unusual punishments.”).
13

Finally, to the extent Petitioner supports alleged international law violations with the

14 claims stated in this proceeding, those claims all fail for the reasons stated above and below.
15

d.

16

The California Supreme Court was not unreasonable in denying allegations that

Conclusions

17 Petitioner’s death sentence violates international law, treaties and precepts of fundamental
18 human rights, denying his federal rights.
19

Accordingly, the California Supreme Court’s rejection of this claim was not contrary

20 to, or an unreasonable application of, clearly established federal law, or an unreasonable
21 determination of the facts in light of the evidence presented in the state court proceeding. 28
22 U.S.C. § 2254(d).
23

Claim XXV(F) shall be denied.

24

7.

25

Petitioner alleges that California’s death penalty process is unconstitutional on its face

Review of Claims XXV(G, L)

26 because it does not provide for inter-case and intra-case proportionality review (i.e. claim
27 XXV(G)), and unconstitutional as applied to him because his death sentence is not proportional
28
216

1 to his personal responsibility and moral guilt (i.e. claim XXV(L)), violating his rights under the
2 Fifth, Sixth, Eighth and Fourteenth Amendments (Doc. No. 51-1 ¶¶ 952-958, 977-980).
3

a.

4

“Where discretion is afforded a sentencing body on a matter so grave as the

Supplemental Legal Standards

5 determination of whether a human life should be taken or spared, that discretion must be
6 suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious
7 action.” Gregg, 428 U.S. at 189. A death penalty law must narrow the class of death-eligible
8 defendants and provide for individualized penalty determination. McCleskey, 481 U.S. at 308.
9

If the reviewing court finds constitutional error, it must additionally decide whether the

10 error had “[a] substantial and injurious effect or influence in determining [the] jury’s verdict,”
11 under Brecht. Coleman, 525 U.S. at 145-46.
12

b.

13

Petitioner presented claim XXV(G) on direct appeal and it was denied on the merits.

State Court Direct and Collateral Review

14 Dickey, 35 Cal. 4th at 931. This claim also was presented in the second state exhaustion
15 petition as a part of claim XIV(C) (Lod. Doc. No. 30 at 360-64) and denied on the merits.
16 (Lod. Doc. No. 31, Order Denying Cal. Pet., In re Colin Raker Dickey, No. S165302 (May 29,
17 2012)).
18

Petitioner presented claim XXV(L) on direct appeal and it was denied on the merits.

19 Dickey, 35 Cal. 4th at 931.
20

c.

21

Petitioner argues that the failure of California’s death penalty statute to provide for a

Analysis

22 proportionate sentence violates the Constitution on multiple grounds. (Doc. No. 142 at 248.)
23 He argues the lack of proportionality review denies him: (i) equal protection because
24 proportionality review is afforded California’s non-capital defendants (Doc. No. 51-1 ¶ 953;
25 see also Penal Code § 1170(f) [repealed]), (ii) a fair and reliable sentence following the jury’s
26 consideration of all potential mitigating factors and meaningful appellate review (Doc. No. 142
27 at 248), and (iii) a sentence proportionate to his personal responsibility and moral guilt (see
28
217

1 Doc. No. 142 at 255).
2

The California Supreme Court considered and rejected these allegations, stating:

3
4
5
6

Nor is [California’s death penalty statute] defective in failing to require
intercase proportionality review. (Brown, supra, 33 Cal. 4th at p. 402, 15
Cal.Rptr.3d 624, 93 P.3d 244; Prieto, supra, 30 Cal. 4th at p. 276, 133
Cal.Rptr.2d 18, 66 P.3d 1123; People v. Lewis (2001) 26 Cal. 4th 334, 394–395,
110 Cal.Rptr.2d 272, 28 P.3d 34.)

7 Dickey, 35 Cal. 4th at 931.
8

Petitioner supports the claims by pointing to the facts and circumstances of this case

9 including his limited role as an aider and abettor whose intent was only to “aid R.C. to
10 perpetrate a simple robbery/burglary upon the two elderly victims – one who freely dispensed
11 cash to R.C. on a regular basis.” (Doc. No. 142 at 255.) He argues there is no proof that he
12 undertook any act in aid of the killings. (See Doc. No. 51-1 ¶ 978.) He also points to the
13 possibility of third-party liability and suggests that he showed remorse for the crime. (Id.)
14

Based thereon, Petitioner argues his death sentence does not further societal goals of

15 retribution and deterrence and is arbitrary and disproportionate. (Id.; see also Doc. No. 51-1 ¶
16 957; Doc. No. 142 at 250.)
17

However, the California Supreme Court reasonably could find Petitioner’s claims

18 foreclosed by the Supreme Court’s decision in Pulley v. Harris. Therein, the Supreme Court
19 reviewed California’s death penalty procedure and considered the fact that California did not
20 require any sort of comparative proportionality review. The Supreme Court found that the
21 Eighth Amendment did not require a “state appellate court, before it affirms a death sentence,
22 to compare the sentence in the case before it with the penalties imposed in similar cases if
23 requested to do so by the prisoner.” Pulley, 465 U.S. at 43-44.
24

The Supreme Court also held that “on its face, [California’s] system, without any

25 requirement or practice of comparative proportionality review, cannot be successfully
26 challenged under Furman v. Georgia, [408 U.S. 238 (1972)] and our subsequent cases.”
27 Pulley, 465 U.S. at 53. The Supreme Court considered and upheld California’s 1977 scheme
28
218

1 where “a person convicted of first-degree murder is sentenced to life imprisonment unless one
2 or more special circumstances are found, in which case the punishment is either death or life
3 imprisonment without parole”, Pulley, 465 U.S. at 51; “the judge is required to state on the
4 record the reasons for his findings [denying a] motion for modification [of the verdict]”, id. at
5 53; and “there is an automatic appeal [from denial of a motion for modification]”, id. at 53.
6

The California Supreme Court specifically has rejected the intra-case and inter-case

7 proportionality claim in numerous cases. Lewis, 26 Cal. 4th at 394-95; see also Sanchez, 12
8 Cal. 4th at 83-85; Cox, 53 Cal. 3d at 692.
9

As discussed above, California’s 1978 death penalty satisfies constitutional

10 requirements by narrowing the class of death-eligible defendants and providing for an
11 individualized penalty determination. McCleskey, 481 U.S. at 308; Rodriguez, 42 Cal. 3d 730,
12 777-779 (1986).

The Supreme Court and the California Supreme Court have rejected

13 proportionality review.
14

Additionally, Petitioner has not demonstrated constitutional error in his death eligibility

15 (see Doc. No. 135 denying guilt phase claims) or that he was denied an individualized death
16 sentence, for the reasons stated ante and post.
17

d.

18

The California Supreme Court was not unreasonable in denying Petitioner’s allegations

Conclusions

19 that California’s death penalty statute and his death sentence are constitutionally infirm due to
20 alleged lack of proportionality.
21

The state supreme court’s rejection of these claims was not contrary to, or an

22 unreasonable application of, clearly established federal law, as determined by the Supreme
23 Court.

28 U.S.C. § 2254(d).

Nor was that court’s ruling based on an unreasonable

24 determination of the facts in light of the evidence presented in the state court proceeding. Id.
25

Claims XXV(G, L) shall be denied.

26

8.

27

Petitioner alleges that California’s death penalty process is unconstitutional because it

Review of Claims XXV(H-I)

28
219

1 fails to require that the jury’s sentence determination (i.e. claim XXV(H)) and weighing of
2 aggravating and mitigating factors (i.e. claim XXV(I)) be made unanimously and beyond a
3 reasonable doubt. (Doc. No. 51-1 ¶¶ 959-970.)
4

a.

5

“[T]he Due Process Clause protects the accused against conviction except upon proof

Supplemental Legal Standards

6 beyond a reasonable doubt of every fact necessary to constitute the crime with which he is
7 charged.” In re Winship, 397 U.S. 358, 364 (1970).
8

Claims of instructional error will constitute a violation of due process under the

9 Fourteenth Amendment only where the alleged error by itself infects the entire trial to such an
10 extent that the resulting conviction violates due process. Naughten, 414 U.S. at 147; see also
11 DeChristoforo, 416 U.S. at 643.
12

“[T]he proper inquiry . . . is whether there is a reasonable likelihood that the jury has

13 applied the challenged instruction” in an unconstitutional manner. Boyde, 494 U.S. at 380. A
14 reviewing court does not engage in a technical parsing of the instruction’s language, but
15 instead approaches the instructions in the same way that the jury would -- with a
16 “commonsense understanding of the instructions in the light of all that has taken place at the
17 trial.” Johnson, 509 U.S. at 368. In evaluating a claim of instructional error, a single
18 instruction is not viewed in isolation, but rather in the context of the overall charge. Spivey,
19 194 F.3d at 976. Federal courts presume that juries understand and follow instructions. Weeks,
20 528 U.S. at 234; see also Boyde, 494 U.S. at 381-85; Tan, 413 F.3d at 1115.
21

A state capital sentencing system must: “(1) rationally narrow the class of death-

22 eligible defendants; and (2) permit a jury to render a reasoned, individualized sentencing
23 determination based on a death-eligible defendant’s record, personal characteristics, and the
24 circumstances of his crime.” Marsh, 548 U.S. at 173-74. If the “state system satisfies these
25 requirements,” then the “state enjoys a range of discretion in imposing the death penalty,
26 including the manner in which aggravating and mitigating circumstances are to be weighed.”
27 Id., (citing Franklin, 487 U.S. at 179; Stephens, 462 U.S. at 875-876, n.13).
28
220

1

Even if constitutional instructional error has occurred, the federal court must still

2 determine whether petitioner suffered actual prejudice, that is, whether the error “had
3 substantial and injurious effect or influence in determining the jury’s verdict.” Brecht, 507 U.S.
4 at 637. A “substantial and injurious effect” means a “reasonable probability” that the jury
5 would have arrived at a different verdict had the instruction been given. Clark, 450 F.3d at
6 916.
7

b.

8

Petitioner presented claims XXV(H) and XXV(I) on direct appeal and the claims were

State Court Direct and Collateral Review

9 denied on the merits. Dickey, 35 Cal. 4th at 929-31.
10

c.

11

Petitioner argues as he did in claims XII(G-H) and XXV(E), ante, that the failure to

Analysis

12 require sentencing findings be made unanimously and beyond a reasonable doubt denied him
13 federal rights. (Doc. No. 142 at 250-53.)
14

Petitioner supports the argument by pointing to: (i) alleged ambiguity in the weighing

15 instructions (CALJIC 8.85, 8.88), and (ii) Ring v. Arizona and Apprendi v. New Jersey which
16 he contends require the jury make sentencing findings unanimously and beyond a reasonable
17 doubt (i.e. finding beyond a reasonable doubt that at least one aggravating factor exists and that
18 such aggravating factor(s) outweigh any and all mitigating factors and that death is the
19 appropriate punishment).14
20

However, the California Supreme Court was not unreasonable in denying these

21 allegations.
22

i.

23

Petitioner argues CALJIC 8.88: (i) improperly suggested that jurors use a quantitative

Weighing Instructions Were Not Ambiguous

24 weighing process, (ii) confused jurors on the definitions of “aggravating” and “mitigating”; and
25 (iii) used ambiguous terminology preventing the jury from selecting LWOP where a single
26 mitigating factor was found. (Doc. No. 142 at 218-20; see also CT 502-503.) He argues these
27
14

The jury was instructed that an aggravating prior criminal conviction must be proven beyond a reasonable

28 doubt. (See CT 500.)

221

1 errors left the jury impermissible “open-ended discretion” regarding imposition of the death
2 penalty, reducing the prosecution’s burden of proof. (Doc. No. 142 at 218-20); see also
3 Cartwright, 486 U.S. at 361-62 (“Claims of vagueness directed at aggravating circumstances
4 defined in capital punishment statutes are analyzed under the Eighth Amendment and
5 characteristically assert that the challenged provision fails adequately to inform juries what
6 they must find to impose the death penalty and as a result leaves them and appellate courts with
7 the kind of open-ended discretion which was held invalid in Furman.”).
8

Here, the trial court instructed the jury on CALJIC 8.88, in pertinent part as follows:

9
10
11

[[To] “return a judgment of death, each of you must be persuaded that the
aggravating evidence and/or circumstances is so substantial in comparison with
the mitigating circumstances that it warrants death instead of life without
parole.”]

12 (CT 502-503.)
13
14
15

[I]n 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.

16 (CT 502-503; see also Doc. No. 142 at 219.)
17
18
19
20
21

An aggravating factor is any fact, condition or event attending the commission
of a crime which increases its guilt or enormity, or adds to its injurious
consequences which is above and beyond the elements of the crime itself.
A mitigating circumstance is any fact, condition or event which as such, does
not constitute justification or excuse for the crime in question, but may be
considered as an extenuating circumstance in determining the appropriateness of
the death penalty.

22 (CT 502.)
23

The California Supreme Court found CALJIC 8.88 was not impermissibly vague and

24 did not improperly reduced the prosecution’s burden of proof, stating that:
25
26
27
28

Defendant contends giving the standard instruction on the weighing of
aggravating and mitigating factors (CALJIC No. 8.88) violated his rights under
the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States
Constitution. We have repeatedly rejected similar claims, and defendant gives
us no compelling reason to reconsider our decisions.
222

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

“Defendant contends that the standard instruction on the weighing of mitigating
and aggravating factors was impermissibly vague and misleading in that it failed
to inform the jury that unless it found that the factors in aggravation outweighed
the factors in mitigation, it could not impose a sentence of death, and in that it
failed to inform the jury that if factors in mitigation outweighed those in
aggravation, it must impose a sentence of life in prison without the possibility of
parole. He also complains that the instruction's direction that before the jury
may return a verdict of death, it must find that the aggravating circumstances
are ‘so substantial’ as to warrant a sentence of death and not life imprisonment
without possibility of parole, was vague and led to arbitrary decision-making.
He claims violation of his right to due process of law and to a reliable and
nonarbitrary penalty determination under the Eighth Amendment of the United
States Constitution. [¶] We repeatedly have rejected identical claims and decline
defendant's invitation to reconsider our prior rulings. [Citations.]” (People v.
Catlin (2001) 26 Cal. 4th 81, 174, 109 Cal.Rptr.2d 31, 26 P.3d 357 (Catlin ).)
Defendant also contends the standard instruction, in referring to the “totality” of
the aggravating and mitigating circumstances, erroneously implied a single
mitigating circumstance could not outweigh any and all aggravating
circumstances. However, the instruction was not susceptible of this
interpretation. (People v. Berryman (1993) 6 Cal. 4th 1048, 1099–1100, 25
Cal.Rptr.2d 867, 864 P.2d 40.)
Finally, no instruction defining life imprisonment without possibility of parole
was required. (People v. Hughes (2002) 27 Cal. 4th 287, 405, 116 Cal.Rptr.2d
401, 39 P.3d 432 (Hughes ).)

15 Dickey, 35 Cal. 4th at 929.
16

Here, the California Supreme Court reasonably denied the allegations of ambiguity in

17 the weighing process. CALJIC 8.88 is not inherently quantitative and does not implicitly
18 weigh in favor of death because it addresses the weight of the totality of circumstances rather
19 than the weight of any one circumstance. (See Doc. No. 142 at 219; see also CT 502-03.) The
20 jury was instructed against “mere mechanical counting” of factors; they were instructed that
21 they could assign “whatever moral and sympathetic value” they deemed appropriate to any of
22 the factors. (CT 502-503; RT 5154.) The jury was instructed that “[i]n weighing the various
23 circumstances you determine under the relevant evidence which penalty is justified and
24 appropriate by considering the totality of the aggravating circumstances with the totality of the
25 mitigating circumstances.” (Id.)
26

CALJIC 8.88 is not unconstitutionally vague and confusing because it uses the terms

27 “aggravating,” “mitigating,” “mitigating circumstance,” and “extenuating.” (See Doc. No. 142
28
223

1 at 220.) The state supreme court reasonably could find the plain meaning of these terms as
2 argued to the jury made it unlikely vagueness prevented consideration of constitutionally
3 relevant evidence in sentence determination. (See RT 5134-40; Boyde, 494 U.S. at 377, 380;
4 Blystone, 494 U.S. at 307.
5

As noted, a reviewing court approaches the instructions in the same way that the jury

6 would, with a “commonsense understanding of the instructions in the light of all that has taken
7 place at the trial.” Johnson, 509 U.S. at 368. It can be presumed that the jury followed the
8 instructions, including the cautionary instructions. Weeks, 528 U.S. at 234. Notably, the jury
9 did not ask the trial court to clarify the meaning of these terms.
10

There is no clearly established authority from the United States Supreme Court holding

11 that a jury must be instructed in a particular manner. The Eighth Amendment does not require
12 that a jury be instructed on particular statutory mitigating factors. Buchanan, 522 U.S. at 27513 77.
14

For the reasons stated, the California Supreme Court reasonably rejected Petitioner’s

15 allegations relating to ambiguity in the weighing instruction.
16

ii.

17

Petitioner argues CALJIC 8.88 failed to instruct the jury that the prosecution must

No Requirement to Instruct on Burden of Proof

18 prove the relative substantiality of the aggravating circumstances beyond a reasonable doubt.
19 He argues as he did above in claim XII(G) that the presence of an aggravating factor equates to
20 an element of capital murder in California, subject to the protections of Ring. (See Doc. No.
21 51-1 ¶ 960.) Based thereon, he argues the jury should have been instructed that before a death
22 verdict could be returned, the jury was required to find that: (i) any aggravating factors upon
23 which it relied were true beyond a reasonable doubt; and (ii) the aggravating factor or factors
24 outweighed the mitigating factors beyond a reasonable doubt. (Doc. No. 142 at 223.)
25

The California Supreme Court in denying the claim stated that:

26
27
28

Defendant contends failure to instruct the jury that the reasonable doubt
standard governs the penalty determination violated his rights under the Fifth,
Eighth, and Fourteenth Amendments to the United States Constitution. We have
224

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

rejected the identical contention, and defendant gives us no reason to reconsider
our decision.
“Defendant claims that it is unconstitutional to impose a sentence of death
unless the aggravating circumstances outweigh the mitigating circumstances
beyond a reasonable doubt. This claim was first rejected by our court in People
v. Rodriguez [(1986)] 42 Cal. 3d [730,] 777–779 [230 Cal.Rptr. 667, 726 P.2d
113], and has been rejected ever since. (See, e.g., [People v.] Snow [(2003)] 30
Cal. 4th [43,] 125–127 [132 Cal.Rptr.2d 271, 65 P.3d 749]; Burgener, supra, 29
Cal. 4th at p. 884, fn. 7 [129 Cal.Rptr.2d 747, 62 P.3d 1]; People v. Gutierrez
(2002) 28 Cal. 4th 1083, 1150–1151 [124 Cal.Rptr.2d 373, 52 P.3d 572]; Clair,
supra, 2 Cal. 4th at p. 691 [7 Cal.Rptr.2d 564, 828 P.2d 705].) As we recently
stated: ‘The Constitution does not require the jury to find beyond a reasonable
doubt that a particular factor in aggravation exists, that the aggravating factors
outweighed the mitigating factors, or that death was the appropriate penalty.’
(Burgener, supra, 29 Cal. 4th at p. 884 [129 Cal.Rptr.2d 747, 62 P.3d 1].)”
(People v. Cox (2003) 30 Cal. 4th 916, 971, 135 Cal.Rptr.2d 272, 70 P.3d 277.)
Defendant acknowledges this court has previously rejected similar arguments.
However, as did the defendant in Cox, defendant “asks us to reconsider this
position in light of two recent United States Supreme Court cases, Apprendi v.
New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435], and Ring v.
Arizona (2002) 536 U.S. 584 [122 S.Ct. 2428, 153 L.Ed.2d 556]. Specifically,
defendant argues that the two cases read together mandate that the aggravating
circumstances necessary for the jury's imposition of the death penalty be found
beyond a reasonable doubt. We disagree. As this court recently stated in [People
v.] Snow, supra, 30 Cal. 4th at page 126, footnote 32 [132 Cal.Rptr.2d 271, 65
P.3d 749]: ‘We reject that argument for the reason given in People v. Anderson
[, supra,] 25 Cal. 4th [at pp.] 589–590, footnote 14 [106 Cal.Rptr.2d 575, 22
P.3d 347]: “[U]nder the California death penalty scheme, once the defendant
has been convicted of first degree murder and one or more special
circumstances has been found true beyond a reasonable doubt, death is no more
than the prescribed statutory maximum for the offense; the only alternative is
life imprisonment without possibility of parole. (§ 190.2, subd. (a).) Hence,
facts which bear upon, but do not necessarily determine, which of these two
alternative penalties is appropriate do not come within the holding of
Apprendi.” The high court's recent decision in Ring v. Arizona [, supra,] 536
U.S. 584 [122 S.Ct. 2428, 153 L.Ed.2d 556] does not change this analysis.
Under the Arizona capital sentencing scheme invalidated in Ring, a defendant
convicted of first-degree murder could be sentenced to death if, and only if, the
trial court first found at least one of the enumerated aggravating factors true. (Id.
at p. 603 [122 S.Ct. 2428].) Under California's scheme, in contrast, each juror
must believe the circumstances in aggravation substantially outweigh those in
mitigation, but the jury as a whole need not find any one aggravating factor to
exist. The final step in California capital sentencing is a free weighing of all the
factors relating to the defendant's culpability, comparable to a sentencing court's
traditionally discretionary decision to, for example, impose one prison sentence
rather than another. Nothing in Apprendi or Ring suggests the sentencer in such
a system constitutionally must find any aggravating factor true beyond a
reasonable doubt.’ (Accord, People v. Smith (2003) 30 Cal. 4th 581, 642 [134
Cal.Rptr.2d 1, 68 P.3d 302]; People v. Prieto (2003) 30 Cal. 4th 226, 275 [133
Cal.Rptr.2d 18, 66 P.3d 1123] [(Prieto )].)” (People v. Cox, supra, 30 Cal. 4th at
pp. 971–972, 135 Cal.Rptr.2d 272, 70 P.3d 277.)

28
225

1 Dickey, 35 Cal. 4th at 929-31.
2

The California Supreme Court reasonably denied the claim because the holdings in

3 Ring and Apprendi are not implicated by California’s death penalty scheme. As that court
4 observed, once a California jury convicts of first-degree murder with a special circumstance
5 “the defendant stands convicted of an offense whose maximum penalty is death.” Ochoa, 26
6 Cal. 4th at 454. It follows that the penalty phase findings regarding aggravating and mitigating
7 circumstances do not increase that maximum statutory penalty. See Navarette 30 Cal. 4th at
8 520-21 (noting California Supreme Court repeatedly has rejected this claim notwithstanding
9 Ring).
10

As discussed in claim XXV(E), ante, in California the determination of the appropriate

11 penalty remains a question for each individual juror, Samayoa, 15 Cal. 4th, at 853, militating
12 against a beyond a reasonable doubt standard. See Walton, 497 U.S. at 649-651, rev’d on other
13 grounds by Ring, 536 U.S. at 589; Carriger, 971 F.2d at 334 (citing Walton in rejecting
14 allegation that beyond a reasonable doubt standard applies in determining appropriateness of
15 death sentence and absence of mitigating circumstances).
16

The penalty phase findings in California are in the nature of moral and normative

17 determinations. The Supreme Court in upholding the constitutionality of California’s death
18 penalty scheme noted that at the penalty phase, the jury merely weighs the aggravating and
19 mitigating factors to determine whether a defendant eligible for the death penalty should be
20 sentenced to death. See Tuilaepa, 512 U.S. at 972. “Once the jury finds that the defendant
21 falls within the legislatively defined category of persons eligible for the death penalty . . . the
22 jury then is free to consider a myriad of factors to determine whether death is the appropriate
23 punishment.” Ramos, 463 U.S. at 1008).
24

For the reasons stated, the California Supreme Court reasonably rejected Petitioner’s

25 allegations relating to the failure to instruct on a burden of proof at the penalty phase.
26

iii.

27

Petitioner argues CALJIC 8.88 failed to instruct the jury that unanimity is required on

No Requirement to Instruct on Unanimity

28
226

1 sentencing findings. (Doc. No. 142 at 251-53.) He again relies upon Ring and Apprendi in
2 arguing that findings in aggravation serve to increase the penalty beyond the statutory
3 maximum and therefore must be confirmed by unanimous vote of all jurors.
4

The California Supreme Court in denying the claim on direct appeal stated that:

5
6
7

Nor is the jury constitutionally required to achieve unanimity as to aggravating
factors. (Brown, supra, 33 Cal. 4th at p. 402, 15 Cal.Rptr.3d 624, 93 P.3d 244;
People v. Jenkins (2000) 22 Cal. 4th 900, 1053, 95 Cal.Rptr.2d 377, 997 P.2d
1044.)

8 Dickey, 35 Cal. 4th at 931.
9

The California Supreme Court reasonably denied the claim because Ring and Apprendi

10 are not implicated by California death penalty process, for the reasons stated. Petitioner was
11 not being tried for the conduct adduced at the penalty phase. Thus, the unanimity safeguard
12 was unnecessary. Aggravating circumstances are not separate penalties but are standards to
13 guide the making of the moral and normative choice between death and life imprisonment. A
14 factor set forth in Penal Code section 190.3 does not require a “yes” or “no” answer to a
15 specific question but points the sentencer to the subject matter guiding the choice between the
16 two punishments. Tuilaepa, 512 U.S. at 975. Again, a jury may exercise unbridled discretion
17 at the sentencing phase. Ramos, 463 U.S. at 1008 n.22 (quoting Stephens, 462 U.S. at 875).
18

The California Supreme Court has repeatedly rejected the contention that unanimity is

19 required as to aggravating circumstances. See, e.g., Prieto, 30 Cal. 4th, at 265 (Ring does not
20 require jury to unanimously make such finding beyond reasonable doubt because Ring does not
21 affect California’s death penalty scheme); Brown, 33 Cal. 4th at 402 (jury unanimity as to
22 aggravating circumstances, including unadjudicated criminal activity involving force or
23 violence, is not constitutionally required, Ring and Apprendi have not altered the California
24 Supreme Court’s conclusions regarding burden of proof or jury unanimity).
25

d.

26

Petitioner has not demonstrated federal constitutional error arising from the failure to

Conclusions

27 require the jury’s death determination and weighing of aggravating and mitigating factors to be
28
227

1 made unanimously and beyond a reasonable doubt.
2

Accordingly, the state court rejection of these claims was not contrary to, or an

3 unreasonable application of, clearly established federal law, as determined by the Supreme
4 Court. 28 U.S.C. § 2254(d). Nor was the state court’s ruling based on an unreasonable
5 determination of the facts in light of the evidence presented in the state court proceeding. Id.
6

Claims XXV(H-I) shall be denied.

7

9.

8

Petitioner alleges the penalty phase jury instructions in their entirety were

Review of Claim XXV(J)

9 unconstitutionally vague, violating his rights under the Fifth, Sixth, Eighth and Fourteenth
10 Amendments. (Doc. No. 51-1 ¶¶ 971-972.)
11

a.

12

A claim of instructional error requires a showing that the error “so infected the entire

Supplemental Legal Standards

13 trial that the resulting conviction violate[d] due process.” Kibbe, 431 U.S. at 154.
14

“[T]he proper inquiry . . . is whether there is a reasonable likelihood that the jury has

15 applied the challenged instruction” in an unconstitutional manner. Boyde, 494 U.S. at 380. A
16 reviewing court does not engage in a technical parsing of the instruction’s language, but
17 instead approaches the instructions in the same way that the jury would -- with a
18 “commonsense understanding of the instructions in the light of all that has taken place at the
19 trial.” Johnson, 509 U.S. at 368.
20

In evaluating a claim of instructional error, a single instruction is not viewed in

21 isolation, but rather in the context of the overall charge. Spivey, 194 F.3d at 976. Federal
22 courts presume that juries understand and follow instructions. Weeks, 528 U.S. at 234; see also
23 Boyde, 494 U.S. at 381-85; Tan, 413 F.3d at 1115.
24

“Where discretion is afforded a sentencing body on a matter so grave as the

25 determination of whether a human life should be taken or spared, that discretion must be
26 suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious
27 action.” Gregg, 428 U.S. at 189.
28
228

1

A state capital sentencing system must: “(1) rationally narrow the class of death-

2 eligible defendants; and (2) permit a jury to render a reasoned, individualized sentencing
3 determination based on a death-eligible defendant’s record, personal characteristics, and the
4 circumstances of his crime.” Marsh, 548 U.S. at 173-74. If the “state system satisfies these
5 requirements,” then the “state enjoys a range of discretion in imposing the death penalty,
6 including the manner in which aggravating and mitigating circumstances are to be weighed.”
7 Id. (citing Franklin, 487 U.S. at 179; Stephens, 462 U.S. at 875-876, n.13).
8

Even if constitutional instructional error has occurred, the federal court must still

9 determine whether petitioner suffered actual prejudice, that is, whether the error “had
10 substantial and injurious effect or influence in determining the jury’s verdict.” Brecht, 507
11 U.S. at 637. A “substantial and injurious effect” means a “reasonable probability” that the jury
12 would have arrived at a different verdict had the instruction been given. Clark, 450 F.3d at 916.
13

b.

14

Petitioner presented this claim on direct appeal and it was denied on the merits. Dickey,

State Court Direct and Collateral Review

15 35 Cal. 4th at 928-32.
16

c.

17

Petitioner revisits allegations in claims III(G), XII(D-H), XXV(E, G, H, I & L) ante,

Analysis

18 and re-argues and relitigates the penalty phase instructional claims. Particularly, he argues
19 CALJIC 8.85 provided impermissibly vague direction and failed to properly guide juror
20 discretion in sentence selection. (Doc. No. 51-1 ¶ 972; see also Doc. No. 142 at 253-54.) He
21 suggests the errant instructions allowed the jury to assign aggravating weight to mitigating
22 evidence, consider less than all the mitigating evidence, and deny him a reliable and
23 individualized sentence.
24

However, the California Supreme Court was not unreasonable in rejecting the claim for

25 the reasons stated above in the discussion of claims III(G), XII(D-H), XXV(E, G, H, I & L).
26 Particularly, the case law-based instructions omitted were not constitutionally required; the
27 instructions given were not unconstitutionally vague, arbitrary and capricious; and the jury’s
28
229

1 sentencing determinations need not have been unanimous and beyond a reasonable doubt.
2

States need not structure their jury instructions in any particular manner provided juries

3 are given the opportunity to consider relevant mitigating evidence. Tuilaepa, 512 U.S. at 9794 80 (“[S]entencer may be given unbridled discretion in determining whether the death penalty
5 should be imposed after it has found that the defendant is a member of the class made eligible
6 for that penalty.”); Buchanan, 522 U.S. at 276 (as long as state does not preclude jury “from
7 giving effect to any relevant mitigating evidence,” it need not “affirmatively structure in a
8 particular way the manner in which juries consider mitigating evidence.”). The state supreme
9 court reasonably could find the penalty instructions in their entirety did not prevent Petitioner’s
10 jury from considering relevant mitigating evidence, for the reasons stated.
11

d.

12

The California Supreme Court was not unreasonable in denying allegations that the

Conclusions

13 penalty phase jury instructions in their entirety were unconstitutionally vague.
14

Accordingly, the state supreme court’s rejection of the claim was not contrary to, or an

15 unreasonable application of, clearly established federal law, as determined by the Supreme
16 Court. 28 U.S.C. § 2254(d). Nor was the state court’s ruling based on an unreasonable
17 determination of the facts in light of the evidence presented in the state court proceeding. Id.
18

Claim XXV(J) shall be denied.

19

10.

20

Petitioner alleges that California’s death penalty statute is unconstitutional because it

Review of Claim XXV(K)

21 does not require written findings of aggravating circumstances, preventing meaningful
22 appellate review, violating his rights under the Fifth, Eighth, and Fourteenth Amendments.
23 (Doc. No. 51-1 ¶¶ 973-976.)
24

a.

25

See section VII, D, 9, a, ante.

26

b.

27

Petitioner presented this claim on direct appeal and it was denied on the merits. Dickey,

Supplemental Legal Standards

State Court Direct and Collateral Review

28
230

1 35 Cal. 4th at 931.
2

c.

3

Petitioner argues that without written findings the reliability of the sentencing verdict

Analysis

4 cannot be meaningfully tested on appeal. (Doc. No. 142 at 254-55.) He argues that “[w]ithout
5 some memorialization of the basis for the jury’s exercise of its discretion, courts cannot
6 “reconstruct the findings of the state trier of fact.” (Doc. No. 142 at 255, citing Townsend, 372
7 U.S. at 315 (1963).) He argues the error was more than harmless. (Doc. No. 142 at 255.)
8

The California Supreme Court in denying the claim on direct appeal stated that:

9
10
11
12

The absence of a requirement that the jury make written findings does not
render the law unconstitutional. (Brown, supra, 33 Cal. 4th at p. 402, 15
Cal.Rptr.3d 624, 93 P.3d 244; Prieto, supra, 30 Cal. 4th at p. 275, 133
Cal.Rptr.2d 18, 66 P.3d 1123; People v. Ochoa (2001) 26 Cal. 4th 398, 462, 110
Cal.Rptr.2d 324, 28 P.3d 78.)

13 Dickey, 35 Cal. 4th at 931.
14

The California Supreme Court was not unreasonable in denying the claim. Written

15 findings by the jury regarding the death penalty are not required by the United States
16 Constitution. Walton, 497 U.S. at 647-48, overruled on other grounds in Ring, 536 U.S. 584;
17 see also Williams, 52 F.3d, at 1484-85. Especially so as “the United States Supreme Court has
18 never stated that a beyond-a-reasonable-doubt standard is required when determining whether a
19 death penalty should be imposed.” Harris, 692 F.2d at 1195. The California Supreme Court
20 “has repeatedly held that [written findings on aggravating factors] are not required.” Sanchez,
21 12 Cal. 4th, at 82; accord Harris, 692 F.2d at 1195-96.
22

Rather, all that is federally required is an “adequate basis for appellate review.” Harris,

23 692 F.2d 1196. As discussed above in claim XI, in California the trial court’s express reasons
24 for its findings in ruling on the automatic motion for modification provide the “adequate basis”
25 for appellate review. Id.; see also Diaz, 3 Cal. 4th at 571-573; claim XI, ante. That was the
26 case here. The California Supreme Court noted the adequacy of the sentencing findings in the
27 record on the motion for modification, stating that:
28
231

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

And contrary to defendant's claims, the court carefully reviewed the evidence
bearing on each of the aggravating and mitigating factors and clearly explained
why it found the aggravating factors substantially outweighed the mitigating
factors. Defense counsel urged defendant's culpability was only that of an aider
and abettor. The court agreed Cullumber was the “major culprit,” but noted the
evidence showed defendant's role was “not minor.” Defense counsel brought up
defendant's “drug use.” However, there was no evidence, the court observed,
defendant was under the influence of drugs at the time of the offenses. Defense
counsel noted the remorse defendant had shown when confessing to Gail
Goldman. However, the court observed that defendant's expression of remorse
on that occasion was triggered by the television story concerning the crime, and
that he had shown no remorse immediately after the murders, but rather had
grandly purchased drugs for all of his housemates with the money he had stolen.
The circumstances of the crime—that defendant participated in the brutal
murders of his elderly victims to obtain money to buy drugs—was, the court
stated, the most significant aggravating factor.
Apparently, the court did neglect to direct the clerk to enter the reasons for its
ruling on the application in the minutes. However, the reporter's transcript
provides an entirely adequate basis for review, and so it is not reasonably
possible that this failure to comply with a statutory directive prejudiced
defendant.

13 Dickey, 35 Cal. 4th at 933.
14

Thus, the California procedure provides a sufficient record for appellate review by

15 requiring the judge to provide a written statement upholding or overturning the jury’s verdict
16 without requiring written findings by the jury on the aggravating circumstances.

The

17 California procedure was approved by the Supreme Court in Pulley v. Harris, where it was
18 stated:
19
20
21
22
23
24
25
26
27
28

If the jury finds the defendant guilty of first-degree murder and finds at least
one special circumstance, the trial proceeds to a second phase to determine the
appropriate penalty. Additional evidence may be offered and the jury is given a
list of relevant factors. § 190.3. “After having heard all the evidence, the trier of
fact shall consider, take into account and be guided by the aggravating and
mitigating circumstances referred to in this section, and shall determine whether
the penalty shall be death or life imprisonment without the possibility of
parole.” Ibid. If the jury returns a verdict of death, the defendant is deemed to
move to modify the verdict. § 190.4(e). The trial judge then reviews the
evidence and, in light of the statutory factors, makes an “independent
determination as to whether the weight of the evidence supports the jury’s
findings and verdicts.” Ibid. The judge is required to state on the record the
reasons for his findings. Ibid. If the trial judge denies the motion for
modification, there is an automatic appeal. §§ 190.4(e), 1239(b). The statute
does not require comparative proportionality review or otherwise describe the
nature of the appeal. [Footnote omitted.] It does state that the trial judge’s
refusal to modify the sentence “shall be reviewed.” § 190.4(e). This would seem
232

1
2
3
4
5
6
7

to include review of the evidence relied on by the judge. As the California
Supreme Court has said, “the statutory requirements that the jury specify the
special circumstances which permit imposition of the death penalty, and that the
trial judge specify his reasons for denying modification of the death penalty,
serve to assure thoughtful and effective appellate review, focusing upon the
circumstances present in each particular case.” People v. Frierson, 25 Cal. 3d
142, 179, 158 Cal. Rptr. 281, 302, 599 P.2d 587, 609 (1979)….
The jury’s “discretion is suitably directed and limited so as to minimize the risk
of wholly arbitrary and capricious action.” Gregg, 428 U.S. at 189, 96 S.Ct., at
2932. Its decision is reviewed by the trial judge and the California Supreme
Court. On its face, this system, without any requirement or practice of
comparative proportionality review, cannot be successfully challenged under
Furman and our subsequent cases.

8 465 U.S. at 51-53.
9

The state supreme court reasonably could find that nothing further is constitutionally

10 required, and Petitioner does not point to any clearly established Supreme Court precedent
11 stating otherwise.

Williams, 52 F.3d, at 1484 (California’s statute “ensures meaningful

12 appellate review”); see also Brown, 479 U.S. at 543; Bonin, 794 F. Supp. at 987-88.
13

To the extent Petitioner relies upon Townsend in surmising that absent written findings

14 the jury could have rested its decision to impose death on improper considerations, he fails to
15 demonstrate that case holds a jury is required to make written findings regarding aggravating
16 circumstances. 372 U.S. 293.
17

d.

18

The California Supreme Court was not unreasonable in denying allegations California’s

Conclusions

19 death penalty statute is unconstitutional because it does not require written findings of
20 aggravating circumstances.
21

Accordingly, the state court rejection of the claim was not contrary to, or an

22 unreasonable application of, clearly established federal law, as determined by the Supreme
23 Court. 28 U.S.C. § 2254(d). Nor was the state court’s ruling based on an unreasonable
24 determination of the facts in light of the evidence presented in the state court proceeding. Id.
25

Claim XXV(K) shall be denied.

26

E.

Claims Relating to Sufficiency of the Evidence

27

1.

Legal Standards

28
233

1

A federal habeas court reviews challenges to the sufficiency of the evidence by

2 determining whether in “viewing the evidence in a light most favorable to the prosecution, any
3 rational trier of fact could have found the essential elements of the crime beyond a reasonable
4 doubt.” Lewis v. Jeffers, 497 U.S. 764, 781 (1990); see also Payne v. Borg, 982 F.2d 335, 338
5 (9th Cir. 1992).
6

“A reviewing court must consider all of the evidence admitted by the trial court,

7 regardless whether that evidence was admitted erroneously.” McDaniel v. Brown, 558 U.S.
8 120, 131 (2010).
9

Sufficiency of the evidence claims raised in § 2254 proceedings must be measured with

10 reference to substantive requirements as defined by state law. Jackson v. Virginia, 443 U.S.
11 307, 324 n.16 (1979); see also Richey, 546 U.S. at 76 (federal court is bound by “a state court’s
12 interpretation of state law[.]”).
13

In cases where the evidence is unclear or would support conflicting inferences, the

14 federal court “must presume -- even if it does not affirmatively appear in the record -- that the
15 trier of fact resolved any such conflict in favor of the prosecution and must defer to that
16 resolution.” Jackson, 443 U.S. at 326.
17

AEDPA adds another layer of deference over the already deferential Jackson standard.

18 Under AEDPA, the federal court may not grant a habeas petition unless it finds that the state
19 court unreasonably applied the principles underlying the Jackson standard when reviewing the
20 Petitioner’s claim. See, e.g., Juan H. v. Allen, 408 F.3d 1262, 1275 n.12 (9th Cir. 2005); Jones
21 v. Wood, 114 F.3d 1002, 1013 (9th Cir. 1997) (recognizing that “unreasonable application”
22 standard applies to insufficient evidence claim). “Expressed more fully, this means a
23 reviewing court faced with a record of historical facts that supports conflicting inferences must
24 presume -- even if it does not affirmatively appear in the record -- that the trier of fact resolved
25 any such conflicts in favor of the prosecution and must defer to that resolution.” McDaniel,
26 558 U.S. at 133.
27

2.

Review of Claim XXVII

28
234

1

Petitioner argues that his death sentence is unconstitutional because it is based on

2 inaccurate, unreliable and insufficient evidence presented at both the guilt phase and the
3 penalty phase. (Doc. No. 51-1 ¶¶ 990-994; Doc. No. 142 at 256-58.)
4

a.

5

Petitioner raised this claim in his second state exhaustion petition (Lod. Doc. No. 30 at

State Court Direct and Collateral Review

6 364-66) which was summarily denied on the merits and on procedural grounds (Lod. Doc. No.
7 31, Order Denying Cal. Pet., In re Colin Raker Dickey, No. S165302 (May 29, 2012)).
8

b.

Analysis

9

i.

Insufficient Evidence at the Guilt Phase

10

Petitioner argues his conviction and special circumstance findings were supported by

11 insufficient evidence. Particularly, he points to alleged “false testimony of two drug-addicted
12 witnesses and an incomplete presentation of the exculpatory physical evidence” (Doc. No. 51-1
13 ¶ 993), and “scientifically suspect expert testimony [and] self-serving testimony by police
14 officers.” (Doc. No. 142 at 257.)
15

However, this Court previously considered and denied guilt phase claims alleging: (i)

16 ineffectiveness of Schultz and Hart; (ii) inadequate guilt phase defense; (iii) insufficient
17 evidence supporting the prosecution’s guilt phase case; and (iv) actual innocence. (See e.g.,
18 Doc. No. 135 discussing guilt claims II(A), II(B), II(C)], XII, XVIII, XIX, XXII, XXVI, and
19 XXVIII.) The Court, in its prior order stated that:
20
21
22
23
24
25
26

[T]he state supreme court could reasonably have concluded that the crimes
resulted from the joint motive of R.C. and petitioner to obtain money and
property from victims Caton and Freiri (RT 4325, 4352, 4360-62); that R.C. and
petitioner armed themselves (RT 4343-50) with the intent to kill victims who
were frail and aged, (RT 4239-41); that the victims knew the perpetrators and
could have identified them to authorities (RT 4311-13); and that the jury was
properly instructed on the charges. (See claims XII and XXVI, post.)
Accordingly, the state supreme court was not unreasonable in finding a rational
trier of fact could have found the essential elements of the crimes charged
beyond a reasonable doubt.

27 (Doc. No. 135 at 40.)
28
235

1

The Court went on to state that:

2
3
4
5
6
7
8
9
10
11

[I]t is not likely any reasonable juror would have reasonable doubt that the
essential elements of the criminal counts could have been found beyond a
reasonable doubt, for reasons stated in claims XXVI and XXVIII. Petitioner’s
allegations that false evidence was presented, evidence was suppressed and
destroyed and third parties were involved in the crimes appear insufficiently
supported in the evidentiary record at a level greater than harmless error. (See
claims II(B), II(C), II(S), XIII.) Moreover, no facts or discrepancies in the
testimony and physical evidence establish or compel the conclusion that
Buchanan was motivated to and did testify falsely or inaccurately (see claims
II(E), XIII and XVII), or that Goldman, by virtue of her alleged substance
addiction, was motivated to and did testify falsely or inaccurately (see claims
II(L), XXI).
Significantly, petitioner’s confession to Buchanan and Goldman and the
uncontroverted testimony of Buchanan and Goldman inculpating petitioner is
consistent with the noted physical evidence (see claims II(B), II(C), II(L), II(S),
XIII, XIV, XXI, XXVI and XXVIII).

12 (Doc. No. 135 at 40-41.)
13

For the reasons previously stated, Petitioner allegations of insufficient evidence at the

14 guilt phase lack merit.
15

ii.

16

Petitioner argues insufficient evidence at the penalty phase. He argues mitigating value

Insufficient Evidence at the Penalty Phase

17 of lingering doubt arising from insufficiently supported aggravating circumstances of the
18 crime, rendering his death sentence constitutionally unreliable. (See Doc. No. 142 at 257.)
19 However, the state supreme court reasonably could reject Petitioner’s claimed insufficiency of
20 the guilt phase evidence recast as a penalty phase claim, for the reasons stated.
21

Petitioner goes on to argue the balance of aggravating circumstances presented by the

22 prosecution, i.e. evidence of five autopsy photos and the stipulated 1983 burglary conviction,
23 was insufficiency supported in the trial record. (Doc. No. 51-1 ¶ 993). Petitioner supports the
24 argument by pointing to: (i) the mitigation proffer evidence that was not presented to the jury,
25 (ii) the jury’s alleged improper consideration of Lavelle Garratt’s outburst, (iii) the prejudicial
26 nature of the autopsy photographs, and (iv) the breakdown in communication between
27 Petitioner and Schultz allegedly resulting in a lack of representation at the penalty phase. (See
28
236

1 Doc. No. 142 at 257, citing Johnson v. Mississippi, 486 U.S. 578, 585-86 (1988) (vacated
2 conviction found insufficient as aggravating evidence).) Petitioner argues the jury’s failure to
3 reach immediate agreement on a sentence as suggesting prejudice. (CT 477-482.)
4

However, Petitioner does not point to clearly established federal law that the

5 prosecution bears a burden of proof at the sentencing phase subject to review for sufficiency of
6 evidence. For the reasons stated, the prosecution bears no burden of proof at the sentencing
7 phase. Williams, 52 F.3d, at 1485; Cudjo, 6 Cal. 4th at 634. The jury’s sentencing
8 determination was wholly moral and normative. See Prieto, 30 Cal. 4th at 275 (“[T]he penalty
9 phase determination in California is normative, not factual. It is therefore analogous to a
10 sentencing court's traditionally discretionary decision to impose one prison sentence rather than
11 another.”).
12

As discussed more fully in claim XXV(E, H, I) above, a capital murder defendant in

13 California does not have the right to proof beyond reasonable doubt of sufficient facts to
14 support the selected sentence. The facts supporting death eligibility were determined,
15 constitutionally, at the guilt phase. (See Doc. No. 135 denying guilt phase claims.)
16 Petitioner’s disagreement with the jury’s sentencing determination and the trial court’s denial
17 of his motion for new trial and modification of the verdict is not alone a basis for relief.
18

Furthermore, Petitioner has failed to demonstrate constitutional error in the state

19 supreme court’s rejection of his predicate penalty phase claims relating to Lavelle Garratt’s
20 outburst, the autopsy photographs, and the breakdown in communication with Schultz and
21 related Marsden allegations. (See discussion of claims II(I, U), IX, X, ante.) Reargument
22 alone is not persuasive.
23

Additionally, the claim fails as a cumulative error claim for the reasons stated in the

24 discussion of claims III(H) and XXIX , post.
25

c.

26

A fair-minded jurist could find that Petitioner failed to establish his death sentence is

Conclusions

27 unconstitutional because it rests upon inaccurate, unreliable and insufficient evidence.
28
237

1

The state supreme court rejection of the claim was not contrary to, or an unreasonable

2 application of, clearly established federal law, as determined by the Supreme Court. 28 U.S.C.
3 § 2254(d). Nor was the state court’s ruling based on an unreasonable determination of the facts
4 in light of the evidence presented in the state court proceeding. Id.
5

Claim XXVII shall be denied.

6

F.

Claims Relating to Cumulative Error

7

1.

Legal Standards

8

The Ninth Circuit has stated “the Supreme Court has clearly established that the

9 combined effect of multiple trial errors may give rise to a due process violation if it renders a
10 trial fundamentally unfair, even where each error considered individually would not require
11 reversal.” Parle v. Runnels, 505 F.3d 922, 928 (9th Cir. 2007) (citing DeChristoforo, 416 U.S.
12 at 643). In the Ninth Circuit, the cumulative effect of trial errors can be a basis for habeas
13 relief in certain circumstances.
14

Although individual errors looked at separately may not rise to the level of reversible

15 error, their cumulative effect may nevertheless be so prejudicial as to require reversal. U.S. v.
16 Necoechea, 986 F.2d 1273, 1282 (1993); see also Alcala v. Woodford, 334 F.3d 862, 883 (9th
17 Cir. 2003) (“[E]rrors that might not be so prejudicial as to amount to a deprivation of due
18 process when considered alone, may cumulatively produce a trial setting that is fundamentally
19 unfair.”).
20

However, the fact that errors have been committed during a trial does not mean that

21 reversal is required. “While a defendant is entitled to a fair trial, [she] is not entitled to a
22 perfect trial, for there are no perfect trials.” United States v. Payne, 944 F.2d 1458, 1477 (9th
23 Cir. 1991).
24

Errors of state law, such as whether instructions were correct under state law, are not

25 cognizable in federal habeas, McGuire, 502 U.S. at 71-72, and therefore should play no part in
26 cumulative error analysis. See Parle, 387 F.3d, at 1045 (citing Jeffers, 497 U.S. at 780) (no
27 habeas relief for state law errors whose combined effect does not violate the federal
28
238

1 constitution).
2

2.

3

Petitioner alleges the cumulative effect of errors by counsel at the penalty phase (i.e.

Review of Claims III(H) and XXIX

4 claim III(H)) and at the guilt and penalty phases together (i.e. claim XXIX), violated his rights
5 under the Fifth, Sixth, Eight and Fourteenth Amendments. (Doc. No. 51-1, ¶¶ 615-16, 10066 1017; Doc. No. 142 at 258, citing Ceja v. Stewart, 97 F.3d 1246, 1254 (9th Cir. 1996; see also
7 Harris v. Wood, 64 F.3d 1432, 1438 (9th Cir. 1995) (finding cumulative prejudice under
8 Strickland); Mak v. Blodgett, 970 F.2d 614, 622 (9th Cir. 1992) (same).15
9

a.

10

State Court Direct and Collateral Review

Claim III(H) was raised in the second state exhaustion petition alleging cumulative

11 penalty phase ineffective assistance (Lod. Doc. No. 30 at 302) and denied on the merits and on
12 procedural grounds (Lod. Doc. No. 31, Order Denying Cal. Pet., In re Colin Raker Dickey, No.
13 S165302 (May 29, 2012)).
14

Claim XXIX was raised in the second state exhaustion petition alleging cumulative

15 error in trial proceedings (Lod. Doc. No. 30 at 368-73) and denied on the merits and on
16 procedural grounds (Lod. Doc. No. 31, Order Denying Cal. Pet., In re Colin Raker Dickey, No.
17 S165302 (May 29, 2012)).
18

Petitioner also alleged in his direct appeal the cumulative impact of penalty phase errors

19 which the California Supreme Court denied on the merits. Dickey, 35 Cal. 4th at 933.
20

b.

21

Petitioner argues the cumulative effect of trial errors and prosecutorial misconduct

Analysis

22 acknowledged by the California Supreme Court and found not to be prejudicial by that court;
23 and the cumulative effect of the balance of errors alleged in the federal petition.
24

As to the former, Petitioner points to the following errors acknowledged in the record:

25 (i) the trial court’s self-admitted failure to issue sua sponte an instruction that Petitioner’s
26 alleged oral confession should be viewed with caution, (ii) the trial court’s acceptance of
27
28

15

Petitioner argues in favor of claim III(H) only in his reply brief. (See Doc. No. 144 at 39.)

239

1 petitioner’s waiver of personal presence at the penalty phase in violation of state law, (iii) the
2 prosecutor’s failure to correct the false impression that the state had not done any favors for its
3 witness Gene Buchanan, and (iv) the prosecutor’s likely vouching for Gene Buchanan’s
4 credibility. (See Doc. No. 142 at 259.)
5

As to the balance of constitutional errors alleged in the federal petition, Petitioner

6 emphasizes the alleged weakness of the aggravating circumstances of the crime and that his
7 prior felony conviction for burglary was not a violent crime. (See e.g. Doc. No. 142 at 259-60,
8 citing United States v. Frederick, 78 F.3d 1370, 1381 (9th Cir. 1996) (“In those cases where
9 the government's case is weak, a defendant is more likely to be prejudiced by the effect of
10 cumulative errors.”); see also RT 5134-38.)
11

Petitioner also argues the cumulative impact of all these alleged errors is apparent in the

12 jury’s failure to reach an immediate penalty verdict. (CT 477-479); see also Frederick, 78
13 F.3d at 1381.
14

The California Supreme Court on direct appeal denied alleged cumulative guilt phase

15 error, stating simply:
16
17

Defendant contends “the cumulative effect of numerous errors occurring during
the guilt phase compels reversal.” The contention has no merit.

18 Dickey, 35 Cal. 4th at 915.
19

That court also denied on direct appeal the allegation of cumulative penalty phase error,

20 stating that:
21
22

Defendant contends the cumulative impact of errors in the penalty phase
compels reversal of the death penalty. We disagree.

23
24 Dickey, 35 Cal. 4th at 933.
25

The California Supreme Court reasonably denied these cumulative error claims.

26 Petitioner fails to show the cumulative effect of alleged errors at the guilt and penalty phases
27 deprived him of due process. Petitioner’s guilt phase claims fail for the reasons stated in the
28
240

1 Court’s prior order denying those claims. (Doc. No. 135.) Petitioner’s penalty phase claims
2 fail for the reasons stated, ante.
3

Particularly, the state supreme court reasonably could find errors allegedly

4 acknowledged by the state court to be harmless and otherwise unsupported in the record. (Doc.
5 No. 135 at 33-54, 57-61, 96-99, 98-101, 178-82; see the discussion of claims VI and VII
6 above); see also Dickey, 35 Cal. 4th at 905-11, 913-14, 922-24.
7

To the extent errors may be discerned, Petitioner has failed to demonstrate their

8 combined effect was prejudicial by rendering his defense “far less persuasive” so as to exert a
9 “substantial and injurious effect or influence” on the verdict. Parle, 505 F.3d, at 928 (citing
10 Chambers, 410 U.S. at 294, and Brecht, 507 U.S. at 637); see also Thompson v. Calderon, 86
11 F.3d 1509, 1521 (9th Cir. 1996) (reversed on other grounds by Calderon v. Thompson, 523
12 U.S. 538 (1998) (“finding no prejudice from the errors considered separately, we also find no
13 cumulative prejudice.”).
14

Cumulative error warrants habeas relief only where the errors have “so infected the trial

15 with unfairness as to make the resulting conviction a denial of due process.” Parle, 505 F.3d,
16 at 927-28; see also United States v. Karterman, 60 F.3d 576, 580 (9th Cir. 1995) (“Because
17 each error is, at best, marginal, we cannot conclude that their cumulative effect was ‘so
18 prejudicial’ to [defendant] that reversal is warranted.”).
19

Here, for the reasons stated, there is nothing to accumulate to a level of reversible error.

20 Petitioner was “entitled to a fair trial but not a perfect one, “for there are no perfect trials.”
21 McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 553 (1984) (quoting Brown
22 v. United States, 411 U.S. 223, 231-232 (1973)).
23

Moreover, apart from arguing Strickland error, Petitioner has not demonstrated and

24 does not appear to argue clearly established Supreme Court precedent that cumulative error is a
25 basis upon which habeas relief may be granted.
26

c.

27

A fair-minded jurist could find that Petitioner failed to establish his death sentence is

Conclusions

28
241

1 unconstitutional due to the cumulative effect of errors by counsel at both phases of this trial.
2

The state supreme court rejection of these claims was not contrary to, or an

3 unreasonable application of, clearly established federal law, as determined by the Supreme
4 Court. 28 U.S.C. § 2254(d). Nor was the state court’s ruling based on an unreasonable
5 determination of the facts in light of the evidence presented in the state court proceeding. Id.
6

Claims III(H) and XXIX shall be denied.

7
8

VIII. CERTIFICATE OF APPEALABILITY
Because this is a final order adverse to the Petitioner, Rule 11 of the Rules Governing

9 Section 2254 Cases (“Rule 11”) requires this Court to issue or deny a Certificate of
10 Appealability (“COA”). Accordingly, the Court has sua sponte evaluated the claims within the
11 petition for suitability for the issuance of a COA. 28 U.S.C. § 2253(c); Turner, 281 F.3d at
12 864-65.
13

A state prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a

14 district court’s denial of his petition, and an appeal is only allowed in certain circumstances.
15 Miller-El, 537 U.S. at 335–36 (2003). The controlling statute in determining whether to issue a
16 COA is 28 U.S.C. § 2253, which provides that:
17
18
19
20
21
22
23
24
25
26
27
28

(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—
(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
(B) the final order in a proceeding under section 2255.
(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).
242

1

The Court may issue a COA only “if jurists of reason could disagree with the district

2 court’s resolution of his constitutional claims or that jurists could conclude the issues presented
3 are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327; Slack
4 v. McDaniel, 529 U.S. 473, 484 (2000). While the petitioner is not required to prove the merits
5 of his case, he must demonstrate “something more than the absence of frivolity or the existence
6 of mere good faith on his . . . part.” Miller-El, 537 U.S. at 338.
7

In the present case, the Court finds that, with respect to the following claims,

8 reasonable jurists could disagree with the Court’s resolution or conclude that the issues
9 presented are adequate to deserve encouragement to proceed further:
10

1)

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Therefore, a COA is granted as to these five claims.

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As to the remaining claims, the Court concludes that reasonable jurists would not find

Claims I, II(E), II(I), V, and XIII.

13 the Court’s determination that Petitioner is not entitled to relief debatable, wrong, or deserving
14 of encouragement to proceed further. The Court hereby declines to issue a COA as to the
15 remaining claims.
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IX. ORDER

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Accordingly, for the reasons stated:

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1.

The petition for writ of habeas corpus (Doc. Nos. 51, 51-1) is DENIED, guilt

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phase claims I, II (portions), IV, VIII, XII (portions), XIII, XIV, XV, XVI,

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XVII, XVIII, XIX, XXI, XXII, XXIII, XXIV, XXVI, and XXVIII were denied

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on the merits by order issued January 13, 2017 (Doc. No. 135), penalty phase

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claims herein II(I), II(U), III(A), III(B), III(C), III(D), III(E), III(F), III(G),

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III(H), V, VI, VII, IX, X, XI, XII(D), XII(E), XII(F), XII(G), XII(H), XX,

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XXV(A), XXV(B), XXV(C), XXV(D), XXV(E), XXV(F), XXV(G), XXV(H),

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XXV(I), XXV(J), XXV(K), XXV(L), XXVII, XXIX are denied on the merits,

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2.

A Certificate of Appealability is ISSUED as to the Court’s resolution of claims
I, II(E), II(I), V, and XIII, and DECLINED as to the remaining claims,

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1

3.

2

Petitioner’s motion for stay, partial judgment and certificates of appealability
(Doc. No. 145) is DENIED as moot,

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4.

Any and all scheduled dates are VACATED, and

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5.

The Clerk of the Court is directed to substitute RON DAVIS, Warden of San

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Quentin State Prison, as the Respondent warden in this action, and to enter

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judgment accordingly.

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8

IT IS SO ORDERED.

9 Dated: September 12, 2019

SENIOR DISTRICT JUDGE

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