Chatman v. Evans
Filing
111
ORDER AND SUPERSEDING FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 10/4/2018 ORDERING the Clerk shall terminate the 99 Findings and Recommendations filed on 4/2/2018, as they are superseded by the findings and recom mendations herein; and RECOMMENDING petitioner's 64 second amended habeas corpus application be granted on petitioner's claim his trial attorney was ineffective for failing to investigate and present his mental health history as a defense to the attempted premeditated murder charge. Referred to Judge Kimberly J. Mueller; Objections to F&R due within 21 days. (Yin, K) Modified on 10/4/2018 (Yin, K).
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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LARRY A. CHATMAN,
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No. 2:10-cv-00264 KJM CKD P
Petitioner,
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v.
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ORDER AND SUPERSEDING
RICK HILL,
FINDINGS AND RECOMMENDATIONS
Respondent.1
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Petitioner is a California state inmate proceeding through counsel with a federal habeas
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corpus petition filed pursuant to 28 U.S.C. § 2254 challenging his 2005 convictions for attempted
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premeditated murder, assault with a deadly weapon, and mayhem. Petitioner filed a second
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amended § 2254 petition on July 14, 2015, and respondent filed an answer on October 5, 2016
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after years of litigation concerning the timeliness of petitioner’s claims for relief in his original as
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well as amended federal habeas petitions. Petitioner’s traverse was filed on February 3, 2017,
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rendering this case fully briefed.
On April 2, 2018, the undersigned issued Findings and Recommendations that petitioner
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be granted relief on his first ineffective assistance of counsel claim. ECF No. 99. The briefing
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schedule for objections was stayed and the parties were ordered to attend a settlement conference.
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Rick Hill, the Acting Warden of Folsom State Prison, is hereby substituted as respondent in this
matter on the court’s own motion pursuant to Rule 25(d) of the Federal Rules of Civil Procedure.
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Id. The case was not settled and the parties requested a ruling with respect to the remaining three
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claims in the second amended habeas petition. ECF No. 109.
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For the reasons discussed below, the undersigned recommends granting petitioner habeas
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corpus relief based on trial counsel’s failure to investigate and present evidence of petitioner’s
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mental health history to negate the intent required for attempted first-degree murder. The court
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has reviewed the remaining three claims and finds that they do not warrant relief for the reasons
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outlined below.
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I.
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A.
of Appeal, First Appellate District, summarized the facts as follows:2
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Chatman and Gregory Everetts are cousins by marriage and
have known each other for around forty years. On the afternoon of
December 25, 2003, Chatman, his girlfriend, Betty Owens, and their
son were among the guests who celebrated Christmas at Everetts's
new home in Suisun City. Shortly after Chatman arrived at the
house, he and Everetts went to the store to buy some pasta and a
lottery ticket. After they returned, the two men went to the garage
where they talked and drank brandy.
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Everetts testified at trial that his conversation with Chatman
was friendly at first but then turned ugly. According to Everetts,
Chatman complained that Everetts was bragging about having a new
house. Everetts tried to assure Chatman that he could have a home,
too, but Chatman became angry and started to taunt Everetts, who is
‘illegitimate,’ with rumors about the identity of Everetts's father.
Both men became angry and raised their voices. At one point,
Everetts knocked a hat off Chatman's head, pushed him and told him
to go home. Then Everetts went back inside his house.
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Everetts testified that, when he saw people in his home
having a good time together he did not want to ruin the day by calling
the police or making people go home. So he decided to leave for a
while, got his car keys and returned to the garage. Chatman was
standing with his ‘chest out mad’ just inside the garage near
Everetts's car, which was parked in the driveway. As Everetts
walked toward his car, he came within a few feet of Chatman and
said, ‘Why don't you just be cool, man, you know, and go on.’
Chatman planted his back foot and swung a pair of pruning sheers
[sic] up, over and down toward Everetts's neck. Everetts brought his
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Trial Proceedings
In ruling on petitioner’s direct appeal of his conviction and sentence, the California Court
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Factual and Procedural History
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These factual findings are entitled to a presumption of correctness pursuant to 28 U.S.C. §
2254(e)(1).
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hands up to his neck and the shears struck his right hand. Chatman
grabbed Everetts's legs to flip him over. Everetts came down on top
of Chatman who poked Everetts in the armpit with the shears. The
men spilled out into the street and continued to struggle for a few
minutes until people came from inside the house. Everetts testified
that, as a result of the altercation with Chatman, he lost his right
pinkie finger, part of his right ring finger was severed but later
reattached, and an artery in his wrist was severed necessitating
surgery.
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During his trial testimony, Everetts maintained that all he had
to drink on the Christmas day of his altercation with Chatman was
one sip of an eggnog and brandy drink he had fixed for himself in the
garage and that on Christmas Eve he drank only one 40 ounce bottle
of beer. Everetts admitted to the jury that he had previously been
convicted of petty theft and had a misdemeanor case pending against
him when he testified in this case.
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Everetts's wife Gloria testified that, on the afternoon of the
incident, her husband and Chatman were out in the garage for about
20-30 minutes before any problems arose. Then, she heard yelling
and arguing in the garage and went to investigate. Gloria said that
she and the other guests found Everetts standing in the middle of the
street covered in blood and ‘bleeding to death.’ Chatman was lying
on the ground and the sheers were beside him in the street.3 Gloria
then ran to call the police and an ambulance. Gloria testified that,
after the police arrived, Chatman called and she was so upset that she
just handed the phone to one of the officers. Gloria admitted to the
jury that she had prior convictions for selling or transporting a
controlled substance, prostitution and making a false statement to the
police.
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Officers from the Napa Police Department who arrived at the
Everetts's house shortly after the altercation, found a watch, a set of
keys and a man's hat in the middle of the street outside the Everetts's
home. They did not find a set of pruning sheers [sic] and were unable
to locate Everetts's severed pinkie finger. Officer Jeffrey Hansen
testified that, while he was at the Everetts's house, Gloria handed him
a telephone and said that Chatman was on the line. The person on
the phone was screaming and yelling and making incoherent
statements. At one point the person said, with some profanity thrown
in: ‘I am gonna come back over there and shoot you and kill you.’
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Chatman did not testify at trial but called several witnesses
including Everetts's niece, Nicole Hawkins, who had attended the
holiday gathering. Hawkins testified that she could hear Everetts
and Chatman in the garage arguing from the kitchen where she and
other guests were playing cards. During the course of the argument,
Everetts went back and forth between the garage and house. At one
point when Everetts came into the kitchen, Hawkins expressed a
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However, Gloria later admitted that, after the police arrived, she told them that she did not
know what instrument had caused her husband's injuries. The day after the fight, Gloria contacted
the police and reported she had found a pair of bloody pruning shears.
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desire to go home. Everetts had promised to give her a ride and
Hawkins was concerned because Everetts was intoxicated. She told
him that he better stop drinking because she did not want to drive
with him while he was in that condition. Everetts continued to go
back and forth from garage to kitchen and became increasingly more
agitated and argumentative with people in the house. When the
argument between the men grew louder, Hawkins went outside and
saw Everetts and Chatman fighting in the street.
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Betty Owens, Chatman's girlfriend, testified that Everetts was
intoxicated when she and Chatman arrived at the holiday gathering.
According to Owens, while the men were in the garage, Chatman
came into the house at least three times to fix himself another drink.
Owens testified that, when Hawkins asked for a ride home, Everetts
became angry because he did not want to go out and stormed out of
the house. He returned a short time later and made some ‘ugly
accusations’ about Owens and told her that she better ‘check [her]
husband.’
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According to Owens, when the guests inside the house heard
the argument in the garage, Gloria Everetts went to take a look.
Gloria then told Owens to leave with Chatman because Everetts was
becoming so loud that the neighbors would call the police. Owens
and her son went outside to their car and found that Chatman had
gone down the street. She called him back so they could leave. As
they were attempting to get in the car, Everetts attacked Chatman
causing him serious injuries. Owens testified that the altercation left
both men covered in blood. During her trial testimony, Owens
admitted she had two prior petty theft convictions.
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During her closing argument to the jury, defense counsel
argued that there was a reasonable doubt as to whether Chatman was
guilty of the charged offenses because the evidence showed that he
acted in self-defense. Counsel attacked the credibility of both
Everetts and his wife and highlighted testimony she characterized as
untruthful. She relied on evidence that Everetts was significantly
larger than Chatman and that he was intoxicated and agitated
throughout the holiday event. She pointed out that Betty Owens's
version of the events was consistent with testimony reluctantly given
by Everetts's own niece and was also consistent with physical
evidence including the fact that personal items were found in the
street, where Owens testified that Chatman was attacked, rather than
in the garage, where Everetts testified the fight had occurred.
Defense counsel also suggested that the cuts on Everetts's hand were
consistent with a finding that his injuries were sustained while he
attacked Chatman, who held the shears up defensively.
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The jury found Chatman guilty of willful, deliberate and
premeditated attempted murder (Pen. Code, §§ 187, subd. (a) &
664),4 assault with a deadly weapon (§ 245, subd. (a)(1)), and
mayhem (§ 203). The jury also found true allegations that Chatman
personally inflicted great bodily injury (§ 12022.7, subd. (a)) during
commission of the attempted murder and personally used a deadly
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All further statutory references are to the Penal Code.
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weapon (§ 12022, subd. (b)(1)) during commission of the mayhem
offense. After a bench trial, the trial court found true allegations that
Chatman suffered one prior strike conviction and one prior serious
felony conviction. Chatman was sentenced to a total prison term of
23 years to life in prison.
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ECF No. 64-2 at 3-5.
B.
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Post-Trial Motion on Ineffective Assistance of Counsel
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Following his conviction, but prior to sentencing, petitioner was appointed a new attorney
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who filed a supplemental motion for a new trial based on trial counsel’s failure to investigate and
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present evidence of petitioner’s mental health history to negate the intent required for the charged
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offenses.5 See ECF No. 64-2 at Appendix 29-37. A post-trial hearing was held on September 26,
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2005, in which Dr. Carlton Purviance, a licensed clinical psychologist who had performed a
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comprehensive psychological evaluation of petitioner, testified that he suffered from a psychotic
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disorder not otherwise specified, paranoid schizophrenia, alcohol-induced persisting dementia,
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alcohol abuse disorder, polysubstance abuse disorder, and antisocial personality disorder. ECF
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No. 78-5 at 22. This conclusion was reached by reviewing petitioner’s prior psychiatric records
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and interviewing petitioner’s family members. ECF No. 78-2 at 18-19 (listing all the records
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reviewed and interviews conducted as part of the psychological evaluation).
The relevant records dated back to 1990 and described petitioner as “so paranoid and
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suspicious that he could not attend to a comprehensive psychometric examination.” ECF No. 78-
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2 at 19. This led to petitioner’s involuntary commitment to the psychiatric ward at Contra Costa
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County Hospital. Id. at 20. He was treated for “questionable auditory hallucinations… [and] the
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possibility of visual hallucinosis.” Id. In a 1996 evaluation, petitioner “appeared to be both
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The court notes that the California Court of Appeal decision makes no reference to this hearing
in the “Statement of Facts” section. Accordingly, there are no explicit state court factual findings
that are entitled to a presumption of correctness. See 28 U.S.C. § 2254(e)(1). The Ninth Circuit
has questioned whether AEDPA deference extends to implicit factual findings noting that “the
state could always point to some ‘implicit’ finding by the state court to fill in a whole variety of
constitutional defects.” Goldyn v. Hayes, 444 F.3d 1062, 1065, n. 5 (9th Cir. 2006). Ultimately,
the Court of Appeal left the issue an open question. Id. To the extent that the California Court of
Appeal made an “implicit” factual finding that petitioner failed to present “affirmative evidence”
of trial counsel’s failure to conduct any investigation into his mental health history, the court
finds any presumption of correctness that attaches to this finding to be rebutted by a close
inspection of the post-trial hearing transcript. See ECF No. 64-2 at 7.
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delusional and psychotic” and “reported auditory hallucinations.” Id. Formal psychometric
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testing was conducted and revealed that petitioner had “a subnormal intellectual function
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(IQ=69).” Id.
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While in custody in 2004 for the offenses that are the subject of these proceedings,
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petitioner was evaluated by Dr. Minn based on reports that petitioner was experiencing auditory
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hallucinations and that he did not remember “going through a jury trial.” ECF No. 78-2 at 19, 20.
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Petitioner indicated that he was “hearing demons and the devil” and that “[t]hey say I kill[ed] my
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cousin.” Id. at 20. He was placed on anti-psychotic medications as a result, but they were
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discontinued in August 2004 at petitioner’s request. Id.
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Petitioner’s family members who were interviewed by Dr. Purviance provided additional
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details of petitioner’s mental health history. ECF No. 78-2 at 22. When he was around 19 years
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old, petitioner “cut off his hair, grabbed a Bible, and began wandering the streets claiming he was
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Jesus Christ.” Id. This prompted his first psychiatric evaluation. Id. Petitioner’s cousin, who
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was also his designated payee for Social Security disability payments, described the relationship
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between petitioner’s long history of alcohol use and his mental state. Id. “[A]s time went on even
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small amounts of alcohol would have highly exaggerated effects on [petitioner.] Now alcohol
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makes him crazy….” Id.
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At the post-trial hearing, Dr. Purviance testified that petitioner had used alcohol for such a
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long period of time that he sustained “brain damage and loss of cognitive function” as a result.
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ECF No. 78-5 at 24. When interviewed by Dr. Purviance in August 2005, petitioner once again
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reported experiencing auditory hallucinations. ECF No. 78-2 at 22. “I hear a bunch of
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conversations. It’s most of the time because of the Bible. It’s mostly God. It’s because there are
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demons and devils around, and I know that.” Id.
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A respected criminal defense attorney, Dennis Healy, also testified at the post-trial hearing
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after having reviewed petitioner’s psychological history, the police reports in the case, the
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preliminary hearing and trial transcripts, as well as trial counsel’s file which consisted of about 26
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or 27 pages of notes. ECF No. 78-5 at 45-47. Based on his review of the file, “[t]here’s no
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discussion of any sort of background… or clinical history at all in terms of the witnesses” who
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were interviewed by trial counsel. ECF No. 78-5 at 50, 59. Mr. Healy explained that petitioner’s
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psychiatric and psychological history could easily have been discovered by trial counsel “within
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20 minutes and a couple of phone calls.” ECF No. 78-5 at 48. If this information had been
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properly investigated, Mr. Healy opined that it would have supported a secondary defense based
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on lack of specific intent to establish attempted premeditated murder. ECF No. 78-5 at 49-50.
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This secondary defense strategy was not inconsistent with the self-defense strategy ultimately
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presented at trial which Mr. Healy conceded was also a viable and reasonable defense. ECF No.
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78-5 at 61. Ultimately, the trial court denied petitioner’s motion for a new trial and proceeded to
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sentencing. See ECF No. 78-5 at 89-91 (Transcript of September 30, 2005).
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C.
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California Court of Appeal
With a fully developed factual record in hand, appellate counsel raised the ineffective
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assistance of trial counsel claim on direct appeal before the California Court of Appeal. See ECF
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No. 78-5 at 101-133 (Appellant’s Opening Brief); see also People v. Lucas, 12 Cal.4th 415, 437
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(1995) (stating that “[r]eviewing courts will reverse convictions (on direct appeal) on the ground
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of inadequate counsel only if the record on appeal affirmatively discloses that counsel had no
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rational tactical purpose for (his or her) act or omission.”) (quoting People v. Zapien, 4 Cal.4th
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929, 980 (1993)). Appellate counsel also raised a second claim based on juror misconduct. The
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state court of appeal affirmed petitioner’s convictions on January 23, 2007. With respect to the
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ineffective assistance of counsel claim, the state court denied relief finding that trial counsel’s
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performance was not deficient. See ECF No. 64-2 at 3-8.
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Absent from this direct appeal was petitioner’s Batson challenge to the prosecutor’s use of
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peremptory challenges to excuse three African Americans from the jury venire. Petitioner asserts
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that this error by his appellate counsel amounts to ineffective assistance which would allow the
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court to bypass the procedural default of this claim and review it on the merits.6 See ECF No. 64-
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According to Respondent, this claim is procedurally defaulted based on an independent and state
law ground because the California Supreme Court denied it as untimely when it was raised for the
first time in state habeas proceedings. See ECF No. 77-1 at 31-32.
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D.
California Supreme Court
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Petitioner’s appellate counsel did not file a petition for review in the California Supreme
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Court resulting in the subsequent procedural default of petitioner’s ineffective assistance of trial
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counsel claim in the current federal habeas proceedings. Petitioner eventually did manage to
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send a pro se petition for review raising unknown claims for relief, but it was returned unfiled by
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the California Supreme Court since it was untimely. See ECF No. 78-5 at 242.
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E.
By the time petitioner’s current counsel was able to properly exhaust the ineffective
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State Habeas Petition
assistance of trial counsel claim by filing a state habeas corpus petition it was deemed untimely
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by the California Supreme Court. See ECF No. 78-5 at 242 (citing In re Robbins, 18 Cal. 4th 770
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(1998), and In re Clark, 5 Cal. 4th 750 (1993)).
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F.
Federal Habeas Petition
The instant federal proceedings were initiated on January 21, 2010 based on petitioner’s
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pro se filing of a habeas corpus petition pursuant to 28 U.S.C. § 2254.7 See ECF No. 1. This
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petition alleged that petitioner’s trial counsel was ineffective for pursuing a self-defense strategy
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at trial while not allowing petitioner to testify, which is currently claim two. ECF No. 1 at 9.
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Petitioner also contended that appellate counsel was ineffective for failing to raise this issue on
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direct appeal. Id. Respondent filed a motion to dismiss the petition arguing that it was barred by
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the one year statute of limitations. ECF No. 12.
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While the motion to dismiss was pending, petitioner filed a motion seeking to: 1) delete
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his unexhausted IAC of appellate counsel claim; 2) stay his entirely exhausted federal habeas
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petition; and, 3) file an amended § 2254 petition once his IAC of appellate counsel claim was
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properly exhausted in state court. ECF Nos. 21, 22. Petitioner filed a proposed first amended
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§ 2254 petition in which he alleged for the first time that his trial counsel was ineffective for
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failing to investigate and present his mental health history to negate the mental state required “for
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The petition was constructively filed on January 5, 2010 by applying the prison mailbox rule.
See ECF No. 39 at 4; see also Houston v. Lack, 487 U.S. 266, 276 (1988) (establishing the prison
mailbox rule).
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his crimes.” ECF No. 22 at 4.
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On January 12, 2011, the magistrate judge who was temporarily assigned to this case
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issued Findings and Recommendations that respondent’s motion to dismiss be granted. ECF No.
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25. The same magistrate judge denied the motion to amend subject to renewal. See ECF No. 29.
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On April 4, 2011, the district judge declined to adopt the findings and recommendations and
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referred the case back to the magistrate judge for consideration of additional medical records that
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were submitted on the issue of equitably tolling the statute of limitations. ECF No. 34. On May
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12, 2011, petitioner renewed his requests to amend his federal habeas petition and to stay
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proceedings pending state court exhaustion. ECF No. 35.
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The undersigned was assigned the instant case on August 2, 2011 and recommended
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granting respondent’s motion to dismiss on September 14, 2011.8 ECF Nos. 36, 39. In these
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Findings and Recommendations, the undersigned concluded “that while petitioner suffered from
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mental health problems during the relevant period, he has not carried his burden under the first
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part of the Bills test to show that his mental illness was so severe that he was unable either to
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understand the need to file or to personally prepare and file a habeas petition.” ECF No. 39 at 5
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(applying Bills v. Clark, 628 F.3d 1092 (9th Cir. 2010)). The court addressed petitioner’s low
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I.Q. separate and apart from his mental health issues and concluded that it did not justify
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equitably tolling the statute of limitations. ECF No. 39 at 5-6 (applying Hughes v. Idaho State
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Bd. of Corrections, 800 F.2d 905, 909 (9th Cir. 1986)). The undersigned viewed the evidence
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from the 2005 post-trial hearing as “bear[ing] only indirectly on his mental condition during the
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relevant [statute of limitations] period, which began on March 6, 2007.” ECF No. 39 at 7
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(applying Laws v. Lamarque, 351 F.3d 919, 932 (9th Cir. 2009). Ultimately, these
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recommendations were adopted by the district court judge on January 19, 2012, the case was
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closed and judgment was entered.9 ECF No. 45.
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It was also recommended that petitioner’s renewed motions to amend and to stay and abey the
federal habeas proceedings be denied since the original habeas petition was determined to be
untimely filed. See ECF No. 39 at 8.
After conducting a de novo review of the case, the district court judge declined to adopt “those
portions of the findings that rely on petitioner’s own reporting of his mental status during the
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G.
Ninth Circuit Appeal and Remand
Petitioner filed a timely notice of appeal of this court’s judgment on February 10, 2012.
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ECF No. 47. The Ninth Circuit Court of Appeal reversed and remanded this case with
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instructions to allow petitioner to proceed with his habeas corpus petition despite its untimely
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filing in light of “his severe mental illness, combined with his mental retardation, [that] rendered
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him unable to timely file a petition.” ECF No. 53 at 3-4. It reached this conclusion by reviewing
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the “long history of mental illness” in the record including petitioner’s diagnosis of “psychotic
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disorder, paranoid schizophrenia, alcohol-induced persisting dementia, alcohol abuse disorder,
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and antisocial personality disorder.” Id. at 2. The Ninth Circuit found that further proceedings
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concerning petitioner’s diligence were also unnecessary in light of the undisputed underlying
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medical record in this case. Id. at 3-4. Petitioner “repeatedly attempted to secure the assistance
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of other inmates, and was able to file only after securing such assistance….” Id. at 4. The Ninth
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Circuit mandate issued on January 27, 2015. ECF No. 57.
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H.
Post-Remand District Court Proceedings
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This court appointed counsel to represent petitioner following the Ninth Circuit remand.
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ECF No. 62. On July 14, 2015, petitioner’s counsel filed a motion to amend, a proposed second
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amended § 2254 petition, and a motion to stay proceedings pending the exhaustion of state court
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remedies. ECF Nos. 64-66. The second amended petition, which is the operative habeas petition
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being reviewed, raises four claims for relief. ECF No. 64-1 (Memorandum in Support of Second
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Amended 28 U.S.C. § 2254 petition). In his first claim for relief, petitioner asserts that his Sixth
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and Fourteenth Amendment rights were violated when his trial counsel rendered ineffective
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assistance by failing to properly investigate and present evidence of petitioner’s mental health
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history and conditions to negate the intent element for attempted first-degree murder. ECF No.
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64-1 at 14-19. Claim two alleges that trial counsel was also ineffective for using a self-defense
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strategy at trial without having petitioner testify. ECF No. 64-1 at 20-23. Next, petitioner raises a
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relevant time periods as support for the conclusion that petitioner’s mental health was not so
severe that petitioner was unable to understand the need to file or personally to prepare and file a
habeas petition.” ECF No. 45 (citing ECF No. 39 at 4: 19-21).
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Batson challenge to the prosecutor’s use of three peremptory challenges to remove African-
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American jurors. ECF No. 64-1 at 23-26. Lastly, petitioner contends that cumulative prejudicial
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error resulting from his other three claims for relief warrant granting him a new trial. Id. at 26-27.
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On October 15, 2015, the undersigned issued Findings and Recommendations that
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petitioner’s motions to amend and to stay federal proceedings pending state court exhaustion
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should be granted. ECF No. 69. In reaching this conclusion, the undersigned extended the period
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of equitable tolling granted by the Ninth Circuit to include the December 2010 first amended
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§ 2254 petition which presented claim number one for the first time. ECF No. 69 at 7-8. “[T]he
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Ninth Circuit’s order of remand indicates that the panel found petitioner “unable personally to
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prepare a habeas petition and effectuate its filing” largely due to factors that were not specific to
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the period between November 2007 and January 2010, but were longstanding conditions: an
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extensive history of mental illness, multiple psychological disorders, substance abuse issues, low
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IQ, and poor language skills.” ECF No. 69 at 8. These same factors were sufficient to find good
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cause for a stay under Rhines v. Weber, 544 U.S. 269 (2005). ECF No. 69 at 8-10. The district
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court adopted the Findings and Recommendations with respect to the motion to amend, but
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denied the motion to stay as moot since the new claims had been exhausted in the interim. ECF
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No. 72 at 2. All four claims for relief were then briefed on the merits by the parties. See ECF
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Nos. 77 (Answer), 93 (Traverse).
In light of the allegations in petitioner’s pro se filings10 and the lengthy litigation history
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in this case, the undersigned ordered petitioner to supplement the record with an affidavit
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addressing: 1) whether he had any access to legal assistance from January 24, 2007, the day after
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the California Court of Appeal denied relief on his IAC of trial counsel claim, until March 5,
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2007, the deadline for filing a petition for review in the California Supreme Court; and, 2)
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whether petitioner received sufficient notice of the denial of his direct appeal by the California
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Court of Appeal from his appellate counsel in order to timely file a pro se petition for review.
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See Haines v. Kerner, 404 U.S. 519 (1972) (pro se pleadings should be liberally construed); see
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See ECF No. 64-2 at 12-13, 141-42 (Declarations of Larry Chatman).
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also ECF No. 96 (Order of March 1, 2018); Cal. R. Court, Rule 8.366(b)(1); Cal. R. Court,
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Rule8.500(e)(1).11
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Petitioner filed the requested declaration indicating that he did not receive the letter from
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his direct appeal counsel notifying him of the denial of his IAC of trial counsel claim until
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“March 2007” even though it was dated February 23, 2007. ECF No. 98 at 2. This delay was
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attributed to petitioner’s transfer from the California State Prison in Sacramento (“CSP-Sac”) to
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Solano State Prison in Vacaville. Id. Remarkably, petitioner attached the 2007 letter from direct
8
appeal counsel as well as a copy of the envelope it was sent in which indicates that it was
9
received by the CSP-Sac mailroom on February 26, 2007. ECF No. 98 at 5. The envelope also
10
contains a mailing label for the California Medical Facility in Vacaville (“CMF-Vacaville”) and a
11
notation of “CMF” that is scratched out. ECF No. 98 at 5. Petitioner indicates in his declaration
12
that the letter was forwarded to CMF-Vacaville before finally reaching him at Solano State
13
Prison. ECF No. 98 at 2. The envelope appears to support petitioner’s assertion as it also
14
contains a handwritten notation “Sol” in the addressee field. ECF No. 98 at 5. Based on this
15
evidence, petitioner declared that he did not receive notice of the California Court of Appeal’s
16
decision in time to file a timely petition for review in the California Supreme Court. ECF No. 98
17
at 2; see also ECF No. 64-2 at 19 (Letter from California Supreme Court returning untimely
18
petition for review). He further declared that he did not have access to any legal assistance during
19
the time period from January 24, 2007 to March 5, 2007. Id.
20
II.
Law of the Case
21
The Ninth Circuit Court of Appeals’ remand order was clear. Petitioner “produced
22
uncontroverted evidence demonstrating a long history of mental illness, including a report by a
23
psychiatric expert, Social Security Administration disability records, and prison medical records.”
24
ECF No. 53 at 2. No additional fact-finding by this court was necessary in order to conclude that
25
26
27
See also Murray v. Carrier, 477 U.S. 478, 487 (1986) (noting that “the rule applied by the
[Fourth] Circuit Court of Appeals would significantly increase the costs associated with a
procedural default in many cases,” and approving of the use of affidavits “or other simplifying
procedures” by federal district courts in order to minimize the burdens to all parties).
11
28
12
1
equitable tolling was warranted. Id. at 3-4 (finding that the record was also adequately developed
2
to demonstrate that petitioner was diligent in pursuing his claims for relief). These findings by
3
the Ninth Circuit are now law of the case. See Thomas v. Bible, 983 F.2d 152, 154 (9th Cir.)
4
(reversing an award of attorneys’ fees to defendants where a prior appeal decision, by
5
implication, had concluded that plaintiff’s action was not frivolous), cert. denied, 508 U.S. 951
6
(1993).
7
This court is precluded from reconsidering an issue that has already been decided by a
8
higher court in the identical case. See Milgard Tempering, Inc. v. Selas Corp. of America, 902
9
F.2d 703, 715 (9th Cir. 1990). Here, law of the case doctrine applies because the severity and
10
duration of petitioner’s combined mental illness and intellectual disabilities were expressly before
11
the Ninth Circuit in determining the availability of equitable tolling. See Milgard, 902 F.2d at
12
715 (quoting Liberty Mut. Ins. Co. v. E.E.O.C., 691 F.2d 438, 441 (9th Cir. 1982)). Petitioner is
13
now relying on this same combination of mental illness and intellectual disabilities to argue that
14
the procedural default of claim one should be excused. See Schneider v. McDaniel, 674 F.3d
15
1144 (9th Cir. 2012).
16
III.
Standards Governing Habeas Relief Under the AEDPA
17
To be entitled to federal habeas corpus relief, petitioner must affirmatively establish that
18
the state court decision resolving the claim on the merits “was contrary to, or involved an
19
unreasonable application of, clearly established Federal law, as determined by the Supreme Court
20
of the United States; or … resulted in a decision that was based on an unreasonable determination
21
of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d).
22
The “contrary to” and “unreasonable application” clauses of § 2254(d)(1) are different, as the
23
Supreme Court has explained:
24
25
26
27
28
A federal habeas court may issue the writ under the “contrary to”
clause if the state court applies a rule different from the governing
law set forth in our cases, or if it decides a case differently than we
have done on a set of materially indistinguishable facts. The court
may grant relief under the “unreasonable application” clause if the
state court correctly identifies the governing legal principle from our
decisions but unreasonably applies it to the facts of the particular
case. The focus of the latter inquiry is on whether the state court's
application of clearly established federal law is objectively
13
1
2
unreasonable, and we stressed in Williams [v. Taylor, 529 U.S. 362
(2000)] that an unreasonable application is different from an
incorrect one.
3
Bell v. Cone, 535 U.S. 685, 694 (2002). “A state court’s determination that a claim lacks merit
4
precludes federal habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of
5
the state court’s decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough
6
v. Alvarado, 541 U.S. 652, 664 (2004)). Accordingly, “[a]s a condition for obtaining habeas
7
corpus from a federal court, a state prisoner must show that the state court’s ruling on the claim
8
being presented in federal court was so lacking in justification that there was an error well
9
understood and comprehended in existing law beyond any possibility for fairminded
10
11
disagreement.” Richter, 562 U.S. at 103.
The phrase “clearly established Federal law” in § 2254(d)(1) refers to the “governing legal
12
principle or principles” previously articulated by the Supreme Court. Lockyer v. Andrade, 538
13
U.S. 63, 71-72 (2003). Clearly established federal law also includes “the legal principles and
14
standards flowing from precedent.” Bradley v. Duncan, 315 F.3d 1091, 1101 (9th Cir. 2002)
15
(quoting Taylor v. Withrow, 288 F.3d 846, 852 (6th Cir. 2002)). Only Supreme Court precedent
16
may constitute “clearly established Federal law,” but circuit law has persuasive value regarding
17
what law is “clearly established” and what constitutes “unreasonable application” of that law.
18
Duchaime v. Ducharme, 200 F.3d 597, 600 (9th Cir. 2000); Robinson v. Ignacio, 360 F.3d 1044,
19
1057 (9th Cir. 2004).
20
Relief is also available under the AEDPA where the state court predicates its adjudication
21
of a claim on an unreasonable factual determination. 28 U.S.C. § 2254(d)(2). The statute
22
explicitly limits this inquiry to the evidence that was before the state court. See also Cullen v.
23
Pinholster, 563 U.S. 170 (2011). Under § 2254(d)(2), factual findings of a state court are
24
presumed to be correct subject only to a review of the record which demonstrates that the factual
25
finding(s) “resulted in a decision that was based on an unreasonable determination of the facts in
26
light of the evidence presented in the state court proceeding.” It makes no sense to interpret
27
“unreasonable” in § 2254(d)(2) in a manner different from that same word as it appears in
28
§ 2254(d)(1) – i.e., the factual error must be so apparent that “fairminded jurists” examining the
14
1
same record could not abide by the state court factual determination. A petitioner must show
2
clearly and convincingly that the factual determination is unreasonable. See Rice v. Collins, 546
3
U.S. 333, 338 (2006).
4
To prevail in federal habeas proceedings, a petitioner must establish the applicability of
5
one of the § 2254(d) exceptions and also must also affirmatively establish the constitutional
6
invalidity of his custody under pre-AEDPA standards. Frantz v. Hazey, 533 F.3d 724 (9th Cir.
7
2008) (en banc). There is no single prescribed order in which these two inquiries must be
8
conducted. Id. at 736-37. The AEDPA does not require a federal habeas court to adopt any one
9
methodology. Lockyer v. Andrade, 538 U.S. 63, 71 (2003).
10
IV.
Standards Governing IAC Claims
11
The two prong Strickland standard governing ineffective assistance of counsel claims is
12
well known and oft-cited. Strickland v. Washington, 466 U.S. 668 (1984). It requires petitioner
13
to establish (1) that counsel’s representation fell below an objective standard of reasonableness;
14
and, (2) that counsel’s deficient performance prejudiced the defense. Strickland, 466 U.S. at 692,
15
694. “The question is whether an attorney's representation amounted to deficient performance
16
under ‘prevailing professional norms,’ not whether it deviated from best practices or most
17
common custom.” Harrington v. Richter, 562 U.S. 86, 105 (2011) (citing Strickland, 466 U.S. at
18
690). Prejudice is found where “there is a reasonable probability that, but for counsel's
19
unprofessional errors, the result of the proceeding would have been different. A reasonable
20
probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466
21
U.S. at 693. “That requires a ‘substantial,’ not just ‘conceivable,’ likelihood of a different result.”
22
Cullen v. Pinholster, 563 U.S. 170, 189 (2011) (quoting Richter, 562 U.S. 86, 111-12 (2011)).
23
In reviewing a Strickland claim under the AEDPA, the federal court is “doubly
24
deferential” in determining whether counsel’s challenged conduct was deficient. “When §
25
2254(d) applies, the question is not whether counsel's actions were reasonable. The question is
26
whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.”
27
Richter, 562 U.S. 86, 105 (2011).
28
/////
15
1
V.
2
Claim One – Ineffective Assistance of Counsel
A.
3
Procedural Default
Respondent contends that claim one is procedurally defaulted based on the California
4
Supreme Court’s determination that it was not timely presented to the state court. See ECF No.
5
78-5 at 242. Petitioner filed a traverse on February 3, 2017 asserting that the procedural default
6
doctrine does not bar relief in this case. Petitioner concedes that California’s timeliness bar has
7
generally been found independent and adequate to bar federal review on the merits, but asserts
8
that there is adequate cause and prejudice to excuse the default in this case based on the
9
combination of petitioner’s severe mental illness and intellectual disabilities. ECF No. 93 at 7-8
10
(Traverse).
11
The procedural default doctrine is based on concerns of comity and federalism and is
12
therefore not a jurisdictional bar to a federal court’s consideration of the merits of a claim that
13
was not reviewed by a state court due to an independent and adequate state law ground. See
14
Coleman, 501 U.S. 722, 730 (1991); Reed v. Ross, 468 U.S. 1, 9 (1984). In light of petitioner’s
15
concession that California’s timeliness bar is independent and adequate to bar federal review, this
16
court will proceed to determine whether petitioner has demonstrated adequate cause and prejudice
17
to excuse the default of claim one.12 See ECF No. 93 at 7 (citing Martin v. Walker, 562 U.S. 307
18
(2011) and Bennett v. Mueller, 322 F.3d 573, 582-83 (9th Cir. 2003)). Generally, a federal court
19
will not review the merits of a procedurally defaulted claim unless a petitioner demonstrates
20
“cause” for the failure to properly exhaust the claim in state court as well as “prejudice” resulting
21
from the alleged constitutional violation. Coleman v. Thompson, 501 U.S. 722, 750 (1991).
22
1.
23
Cause
The general cause standard for excusing procedural default requires petitioner to show
24
that “some objective factor external to the defense impeded counsel's efforts to construct or raise
25
the claim.” McCleskey v. Zant, 499 U.S. 467, 493 (1991) (internal quotations omitted). The
26
cause standard will be met, for example, where the claim rests upon a new legal or factual basis
27
28
12
Petitioner does not raise the fundamental miscarriage of justice exception as an alternative basis
to excuse petitioner’s procedural default of claim one. See Schlup v. Delo, 513 U.S. 298 (1995).
16
1
that was unavailable at the time of direct appeal, or where “interference by officials” may have
2
prevented the claim from being brought earlier. Murray v. Carrier, 477 U.S. 478, 488 (1986). A
3
petitioner may also show cause by establishing constitutionally ineffective assistance of counsel,
4
but attorney error short of constitutionally ineffective assistance of counsel does not constitute
5
cause and will not excuse a procedural default. McCleskey, 499 U.S. at 494.
6
a.
7
Mental Condition13
In this case, petitioner is relying on an additional carve-out to the procedural default rule
8
articulated by the Ninth Circuit Court of Appeal in Schneider v. McDaniel, 674 F.3d 1144 (9th
9
Cir. 2012). See also Dickens v. Ryan, 740 F.3d 1302 (9th Cir. 2014) (en banc) (remanding for
10
consideration of whether habeas petitioner can establish cause and prejudice to excuse the
11
procedural default of an IAC at sentencing claim for failing to investigate and obtain evidence
12
that petitioner suffered from organic brain damage and Fetal Alcohol Syndrome under Martinez
13
v. Ryan, 132 S. Ct. 1309 (2012)); Holt v. Bowersox, 191 F.3d 970, 974 (8th Cir. 1999) (holding
14
that a petitioner’s mental illness may constitute cause to excuse procedural default where there is
15
“a conclusive showing that mental illness interfered with a petitioner’s ability to appreciate his or
16
her position and make rational decisions regarding his or her case at the time during which he or
17
she should have pursued post-conviction relief”). In Schneider, the Court of Appeal recognized
18
that “Hughes [v. Idaho State Board of Corrections, 800 F.2d 905, 908 (9th Cir. 1986),] and Tacho
19
[v. Martinez, 862 F.2d 1376 (9th Cir. 1988),] do not necessarily foreclose the possibility that a
20
pro se petitioner might demonstrate cause in a situation where a mental condition rendered the
21
petitioner completely unable to comply with a state’s procedures and he had no assistance.” Id. at
22
1154. Petitioner’s March 16, 2018 declaration, in conjunction with the law of the case, leads the
23
24
25
26
27
28
This court recognizes that the legal standard for equitable tolling based on a petitioner’s mental
illness is not the same as the standard for cause to excuse petitioner’s procedural default. If it
were, the court would have been able to bypass petitioner’s procedural default without the
necessity of supplementing the record with petitioner’s affidavit. The bar is higher for excusing
petitioner’s procedural default due to state court comity concerns. See Schneider v. McDaniel,
674 F.3d 1144, 1154-55 (9th Cir. 2012) (discussing the rather “strange” result that petitioner’s
mental condition impeded his ability to timely file so as to warrant equitable tolling, but the same
condition was not sufficient to excuse his procedural default).
17
13
1
court to conclude that petitioner has met his burden of demonstrating that his mental illness and
2
intellectual disabilities, in combination with one another, rendered him completely unable to
3
comply with California’s procedure for filing a petition for review within 40 days from the
4
California Court of Appeal’s denial of relief.14 See ECF No. 1-1 at 2-3 (Petitioner’s affidavit
5
describing his mental health diagnoses and medication regimen during and after his state court
6
direct appeal). It is this unique combination of a documented IQ of 69, the language skills of a
7
third-grader, a psychotic disorder, as well as paranoid schizophrenia that allows petitioner to pass
8
through the narrowest of exceptions to procedural default.15 See ECF No. 78-2 at 18-23 (Report
9
of Dr. Carlton Purviance). It simply cannot be said that this combination of conditions imposes
10
less of a restriction on petitioner’s ability to seek state court review than an inmate who is merely
11
illiterate but retains the rest of his mental and verbal faculties.16 Compare Hughes, 800 F.2d at
12
908. The record also demonstrates that petitioner did not have any access to legal assistance,
13
jailhouse or otherwise, during this 40-day time period. See ECF No. 98 at 2 (emphasis added).
14
Petitioner’s lack of access to any legal assistance is due in part to his disordered mental state. As
15
16
17
18
19
20
21
22
23
24
25
26
27
28
This court’s analysis of cause to excuse the procedural default must look at the time period
when the actual default occurred. See Calderon v. Bean, 96 F.3d 1126, 1130 (9th Cir. 1996)
(holding that the proper time for determining whether a procedural rule was firmly established
and regularly followed is “the time of [the] purported procedural default”), cert. denied, 520 U.S.
1204 (1997); Fields v. Calderon, 125 F.3d 757, 760 (9th Cir. 1997) (discussing the proper date on
which a state court’s procedural rule is to be measured in determining its adequacy so as to bar
subsequent review of the claim on the merits based on the procedural default doctrine and
adopting the view that the correct “trigger date” is the time when the defaulted claims should
have been raised). In this particular case, the procedural default of petitioner’s IAC claim
occurred when he failed to file a petition for review in the California Supreme Court. That
timeframe was extremely short, i.e. 40 days, and ran from January 24, 2007, the day after the
California Court of Appeal denied relief on his first ineffective assistance of trial counsel claim,
until March 5, 2007, the deadline for filing a petition for review in the California Supreme Court.
14
15
This court has previously found the same combination of circumstances sufficient to constitute
“cause” to excuse petitioner’s failure to exhaust claims one, three, and four of the second
amended § 2254 petition. See ECF Nos. 69 at 10 (Findings and Recommendation); 72 (Order
adopting Findings and Recommendations).
The description of petitioner’s mental faculties by other inmates demonstrates this point. “I
became aware, after talking to Inmate Chatman, that he was not all there in his mind: he would
repeat the same words over, talk in a loud tone, dart his tongue in and out of his mouth, and laugh
for no reason.” Declaration of Jamal Easterling, at 2.
18
16
1
petitioner colorfully described: “I attempted to find someone to prepare a habeas petition for me,
2
but because of my mental disorder and excursive mannerism from the effects of the anti-
3
psychotic medication, I was considered an abomination and treated as an outcast.” ECF No. 19 at
4
22. In light of all of this evidence, petitioner has established cause under Schneider to excuse the
5
procedural default of claim one.17
6
b.
7
IAC of Appellate Counsel for Failing to File a Petition for Review
As an additional basis for cause to excuse his procedural default of his first IAC claim,
8
petitioner submitted evidence establishing that he did not receive notice of the California Court of
9
Appeal’s denial of his direct appeal in sufficient time to file a petition for review in the California
10
Supreme Court. See ECF No. 98. “[A]ttorney’s errors during an appeal on direct review may
11
provide cause to excuse a procedural default; for if the attorney appointed by the State to pursue
12
the direct appeal is ineffective, the prisoner has been denied fair process and the opportunity to
13
comply with the State’s procedures and obtain an adjudication on the merits of his claims.”
14
Martinez, 132 S. Ct. at 1317. While the parties’ briefing in this matter focuses on whether direct
15
appeal counsel was ineffective for failing to file a petition for review, the undersigned finds that
16
the actual issue before the court is whether appellate counsel’s failure to communicate the
17
California Court of Appeal’s denial to petitioner in a timely fashion constitutes ineffective
18
assistance under Strickland.
The Sixth Amendment right to the “guiding hand of counsel” applies at trial proceedings
19
20
as well as to a first appeal as of right. See Evitts v. Lucey, 469 U.S. 387, 396 (1985) (holding that
21
due process requires the effective assistance of counsel during the first appeal as of right); Gideon
22
v. Wainwright, 372 U.S. 335 (1963) (extending the right to counsel to indigent criminal
23
defendants); Douglas v. California, 372 U.S. 353, 357 (1963) (extending the Sixth Amendment
24
17
25
26
27
28
While petitioner argues that the procedural default of claims one, three, and four should all be
excused on the basis of his mental health conditions and intellectual disabilities, the court finds
that this was only the cause of his procedural default of claim one. See ECF No. 93 at 7. This
was not the cause of his default of the Batson and cumulative error claims which occurred when
appellate counsel initially failed to include them in petitioner’s direct appeal to the California
Court of Appeal. Accordingly, the procedural default of the Batson and cumulative error claims
will be discussed separately.
19
1
right to counsel to indigent criminal defendants on direct appeal); Powell v. Alabama, 287 U.S.
2
45, 69 (1932) (emphasizing the constitutional importance of defense counsel) . As the Ninth
3
Circuit recognized, “[t]here is nothing in our jurisprudence to suggest that the Sixth Amendment
4
right to effective counsel is weaker or less important for appellate counsel than for trial counsel.”
5
Ha Van Nguyen v. Curry, 736 F.3d 1287 (9th Cir. 2013). Here, appellate counsel had an ethical
6
duty to communicate the California Court of Appeal decision to petitioner. See Cal. Rules of
7
Professional Conduct, Rule 3-500 (stating that “[a] member shall keep a client reasonably
8
informed about significant developments relating to the employment or representation, including
9
promptly complying with reasonable requests for information and copies of significant documents
10
when necessary to keep the client so informed.”). The court incorporates this standard in
11
evaluating whether appellate counsel was ineffective in accordance with Strickland. See United
12
States v. Nickerson, 556 F.3d 1014 (9th Cir. 2009) (“readily acknowledge[ing] that a violation of
13
professional or ethical rules could lead to a deficient attorney performance that prejudices the
14
defendant, as contemplated by Strickland,” but declining to adopt such a per se rule).
15
Petitioner’s appellate counsel delayed sending notification of the direct appeal result since
16
the only correspondence from counsel in the record is dated a month after the decision of the
17
California Court of Appeal. ECF No. 98 at 4. Although appellate counsel’s correspondence
18
indicates that this was the second copy of the opinion provided to petitioner, this is not supported
19
by any other evidence in the record and is directly contradicted by petitioner’s declaration.
20
Compare ECF No. 98 at 4 with ECF No. 98 at 1-2. According to his affidavit, petitioner did not
21
receive any copy of the opinion from appellate counsel other than that dated February 23, 2007.
22
ECF No. 98 at 2. Ultimately, petitioner did not receive it until after the March 5, 2007 deadline
23
had passed. Id. Therefore, appellate counsel did not notify petitioner of the Court of Appeal
24
decision for a period of 30 days, absent any consideration of the additional time necessary for
25
petitioner to actually receive it through the United States Postal Service as well as the prison
26
mailroom. Id. at 4.
27
28
To constitute cause sufficient to excuse petitioner’s procedural default, appellate counsel’s
failure to notify petitioner must rise to the level of an independent violation of a defendant’s
20
1
constitutional right to the assistance of counsel.18 See Coleman, 501 U.S. at 753. In this case
2
appellate counsel’s performance was deficient under prevailing professional norms because the
3
California Rules of Professional Conduct required “promptly” notifying petitioner of the
4
significant development in his case and providing him with a copy of the Court of Appeal
5
decision. See Strickland, 466 U.S. at 686; Cal. Rules of Professional Conduct, Rule 3-500. To
6
constitute prejudice, petitioner must demonstrate a reasonable probability of a different outcome
7
absent counsel’s error. See Strickland, 466 U.S. at 693. Had appellate counsel timely informed
8
petitioner of the California Court of Appeal denial, petitioner may have been able to timely file a
9
petition for review in the California Supreme Court and thus not procedurally defaulted his first
10
IAC claim. However, this court is not a soothsayer and cannot say with any degree of reasonable
11
probability, what the California Supreme Court would have done had it reviewed the first IAC
12
claim on the merits. See Moormann v. Ryan, 628 F.3d 1102, 1106 (9th Cir. 2010) (explaining
13
that Strickland’s prejudice prong in the appellate context requires a petitioner to “demonstrate a
14
reasonable probability that, but for appellate counsel’s failure to raise the issue, the petitioner
15
would have prevailed in his appeal”). Accordingly, petitioner has not demonstrated prejudice
16
under Strickland and is not entitled to have his procedural default excused based solely on the
17
ineffectiveness of appellate counsel in failing to notify petitioner of the direct appeal decision.
18
c.
Objective Factors External to Petitioner
Petitioner further asserts that his appellate counsel’s delay, even if not rising to the level
19
20
of ineffectiveness, constitutes “an objective external factor beyond Chatman’s control that
21
prevented him from filing a pro se petition for review” in the California Supreme Court. ECF No.
22
93 at 10. The delay in receiving the notification was also due in part to delays attributable to the
23
CDCR mailroom. ECF No. 98 at 5. The mailing envelope provided by petitioner demonstrates
24
that the letter traveled to three different prisons before it finally was delivered to petitioner
25
18
26
27
28
This court recognizes that there is a circuit split with respect to whether AEDPA deference or
de novo review is used in reviewing an ineffective assistance of counsel claim that may constitute
cause to excuse a procedural default. See Visciotti v. Martel, 862 F.3d 749, 769 & N. 13 (9th Cir.
2016), cert. denied, 138 S. Ct. 1546 (2018). However, the law in this circuit is that AEDPA
deference does not apply when reviewing the cause and prejudice necessary to excuse a
procedural default. Id.
21
1
sometime after March 5, 2007. ECF No. 98 at 2, 5. On this factual record, petitioner has
2
demonstrated that the delay in delivering his legal mail by CDCR officials constituted
3
interference preventing his IAC claim from being timely presented to the California Supreme
4
Court. Murray v. Carrier, 477 U.S. at 488. The undersigned finds that the delay in petitioner’s
5
receipt of notice of the direct appeal denial was attributable to a combination of his direct appeal
6
attorney’s failure to timely communicate the result as well as CDCR’s mailroom delay which
7
were both factors beyond petitioner’s control. See ECF No. 98 at 4 (Letter from Christopher
8
Blake dated February 23, 2007), 5 (Legal mail envelope from Christopher Blake, Esq. to Mr.
9
Larry Chatman); see also Coleman, 501 U.S. at 753. While this is an unusual circumstance, the
10
Ninth Circuit Court of Appeal has emphasized that courts are not “limited to considering only
11
those actions that fit within previously recognized fact patterns as cause for a procedural default.”
12
Manning v. Foster, 224 F.3d 1129, 1134 (9th Cir. 2000). Accordingly, the court finds that
13
petitioner has demonstrated additional cause sufficient to excuse the procedural default of his IAC
14
of trial counsel claim based on the combination of mail delays caused by his direct appeal
15
attorney and the CDCR’s mailroom.
16
17
2.
Prejudice
Since petitioner has succeeded in establishing two separate grounds for cause, the court
18
now considers whether prejudice on the underlying IAC claim has been established which would
19
not only allow the court to bypass procedural default, but would also allow the court to review the
20
merits of this same IAC claim. Before conducting such prejudice analysis, however, the court
21
first addresses the standard to be utilized in doing so. Petitioner asserts in his traverse that the
22
more equitable cause and prejudice standard announced in Martinez v. Ryan, 566 U.S. 1 (2012),
23
applies to this case. See ECF No. 93 at 9. In Martinez, the Supreme Court held that:
24
25
26
27
28
“when a State requires a prisoner to raise an ineffective-assistanceof-trial-counsel claim in a collateral proceeding, a prisoner may
establish cause for a default of an ineffective-assistance claim…
where the state courts did not appoint counsel in the initial-review
collateral proceeding for a claim of ineffective assistance at trial…
[or] where appointed counsel in the initial-review collateral
proceeding… was ineffective….
[A] prisoner must also
demonstrate that the underlying ineffective-assistance-of-trialcounsel claim is a substantial one, which is to say that the prisoner
22
1
must demonstrate that the claim has some merit.”
2
566 U.S. at 14 (internal citations omitted). Respondent contests this assertion by pointing out that
3
the IAC claim at issue here was in fact raised and rejected on direct appeal. See ECF No. 77-1 at
4
17. Furthermore, the Supreme Court explicitly explained in Martinez that the Coleman standard
5
for cause and prejudice still applied to “petitions for discretionary review in a State’s appellate
6
courts.” Martinez, 566 U.S. at 16. Since petitioner is arguing that his direct appeal attorney was
7
ineffective for failing to raise the IAC claim in a petition for discretionary review in the
8
California Supreme Court, the Martinez standard does not apply.
With that understanding, petitioner must demonstrate “not merely” that his trial counsel’s
9
10
ineffectiveness “created a possibility of prejudice, but that they worked to his actual and
11
substantial disadvantage, infecting his entire trial with error of constitutional dimensions.”
12
United States v. Frady, 456 U.S. 152, 170 (1982) (emphasis in original). For the reasons
13
discussed more fully in subsection D infra, the undersigned finds that trial counsel’s failure to
14
investigate petitioner’s mental health background meets this standard because it related to the
15
intent necessary to commit the crime of attempted premeditated first-degree murder.
B.
16
Last Reasoned State Court Decision
Having determined that the California Supreme Court’s application of a timeliness bar to
17
18
the IAC claim does not preclude federal review on the merits, this court looks to the last reasoned
19
state court decision in applying the 28 U.S.C. § 2254(d) standard. Wilson v. Sellers, ___ U.S.
20
____, 138 S. Ct. 1188 (2018) (adopting the Ylst look through presumption post-Richter);
21
Harrington v. Richter, 131 S. Ct. 770, 785 (2011); Ylst v. Nunnemaker, 501 U.S. 797 (1991)
22
(establishing the “look through” doctrine in federal habeas cases). In denying relief on direct
23
appeal, the California Court of Appeal reasoned as follows:19
24
Chatman contends that [trial counsel] performed deficiently
because she ‘never really explored the possibility of a mental
defense.’ Chatman cites nothing in this record to support his factual
25
26
27
28
19
The state court opinion refers to trial counsel by name. This court finds that information
irrelevant in determining the reasonableness of the state court decision. Therefore, the court has
substituted “trial counsel” for counsel’s specific name throughout the California Court of Appeal
opinion. The substitution appears in brackets.
23
1
2
3
4
contentions that [trial counsel] did not investigate Chatman’s mental
history or consider presenting a mental defense. Instead, he offers
this very wrong argument: ‘[trial counsel] never testified at the
hearing below despite the fact that respondent could have called her
as a witness; she never offered a declaration to show that she
consulted with mental health experts or with appellant’s family
regarding his mental health … issues. From this can only come the
conclusion that she did absolutely nothing
5
6
7
Chatman, not [trial counsel], carries the burden of
overcoming a presumption that [trial counsel] rendered adequate
assistance. Therefore, absent affirmative evidence to the contrary,
we presume that [trial counsel] did conduct an adequate investigation
in connection with the preparation of Chatman’s defense.
8
9
10
11
12
13
14
15
16
17
18
19
20
21
Furthermore, [trial counsel] was not required to conduct an
exhaustive investigation into Chatman’s mental health history in
order to render effective assistance. ‘[S]trategic choices made after
less than complete investigation are reasonable precisely to the extent
that reasonable professional judgments support the limitations on
investigation. In other words, counsel has a duty to make reasonable
investigations or to make a reasonable decision that makes particular
investigations unnecessary. In an ineffectiveness case, a particular
decision not to investigate must be directly assessed for
reasonableness in all the circumstances, applying a heavy measure of
deference to counsel’s judgments.’” In re Andrews (2002) 28 Cal.
4th 1234, 1254, quoting Strickland v. Washington (1984) 466 U.S.
668, 690-91, 80 L. Ed. 2d 674). Thus, to the extent [trial counsel]
made a reasonable tactical decision to rely exclusively on selfdefense, a decision not to investigate a mental defense would also
have been reasonable.
‘Reviewing courts defer to counsel’s reasonable tactical
decisions in examining a claim of ineffective assistance of counsel,
and there is a ‘strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance.’ Defendant’s
burden is difficult to carry on direct appeal, as [our Supreme Court
has] observed: ‘Reviewing courts will reverse convictions [on direct
appeal] on the ground of inadequate counsel only if the record on
appeal affirmatively discloses that counsel had no rational tactical
purpose for [his or her]act or omission.’ (People v. Lucas, supra, 12
Cal. 4th at pp. 436-37.)
22
23
24
25
26
27
28
Here, the record before us does not affirmatively show that
[trial counsel] had no rational tactical purpose for relying solely on a
claim of self-defense. Rather, the circumstances support the
conclusion that [trial counsel] made a reasonable tactical decision.
Undeniably, there was evidence to support a self-defense theory.
Indeed, Chatman’s own expert conceded that defense was viable and
reasonable. Had that defense persuaded the jury, Chatman would
have been acquitted and would not have served any prison time.
Chatman’s expert testified that he would have pursued a
second line of defense, and used evidence of Chatman’s mental
health problems to argue for a lesser crime than attempted murder.
24
1
2
3
4
But that expert did not testify that failing to present such a theory was
objectively unreasonable. In our view, a defense attorney could
reasonably have concluded that pursuing such a theory would offer
the jury an alternative too tempting to resist and that the best chance
of obtaining an acquittal was to focus exclusively on reasonable
doubt evidence. Furthermore, presenting evidence of Chatman’s
mental health problems could have undermined efforts to portray
Chatman as the real victim of the holiday altercation.
5
6
7
8
9
10
11
12
Another circumstance bearing on the reasonableness of a
defense attorney’s tactical decision is the wishes of the client. Here,
as the trial court observed, Chatman rejected two plea offers prior to
trial both of which would have resulted in a significantly lower
sentence than he could have expected to receive if convicted of a
lesser included offense to attempted murder. This circumstance
reinforces that the decision to maximize the chances of an acquittal
was a reasoned one.
Chatman has failed to carry his burden of proving that [trial
counsel] performed deficiently by relying solely on a defense which
was supported by the evidence and which, if accepted, would have
resulted in acquittal. Therefore we reject the claim that Chatman was
denied the effective assistance of counsel.
13
ECF No. 64-2 at 7-8. The state court opinion only addressed Strickland’s deficient performance
14
prong. It never reached the issue of whether petitioner could establish prejudice resulting from
15
trial counsel’s omission because it concluded that counsel’s performance was not deficient. Id.
16
17
C.
AEDPA Analysis
In the answer, respondent argues that this IAC claim lacks merit because the state court’s
18
finding that trial counsel’s decision was tactical is presumed correct and because trial counsel
19
“could have reasonably decided not to investigate a mental health defense because it would have
20
conflicted with petitioner’s description of the incident and the self-defense theory she presented at
21
trial.” ECF No. 77-1 at 25, 26. Petitioner requests relief even under the deferential AEDPA
22
standard of review because the California Court of Appeal’s decision was objectively
23
unreasonable in light of the record evidence establishing that trial counsel “did not conduct an
24
appropriate investigation to explore other potential, more viable defense options” than self-
25
defense. ECF No. 93 at 11-12.
26
1.
27
28
28 U.S.C. § 2254(d)(2)
While the California Court of Appeal found the record silent with respect to whether trial
counsel investigated petitioner’s mental health history, this court has reviewed the underlying
25
1
state court proceedings and believes that the record speaks volumes. See ECF No. 64-2 at 7
2
(direct appeal opinion stating that petitioner “cites nothing in this record to support his factual
3
contentions that [trial counsel] did not investigate Chatman’s mental history or consider
4
presenting a mental defense.”). Two specific examples from the post-trial hearing prove this
5
point. First, Mr. Healy reviewed trial counsel’s file prior to testifying and found petitioner’s
6
clinical history completely absent from any of the 26 pages of file notes that trial counsel made.
7
ECF No 78-5 at 50 (emphasizing that “99 percent of it is a recitation of different witness’
8
views...” of the offense). Additionally, and most importantly, there was no indication “[i]n all of
9
the interviews of all of the witnesses” that trial counsel made “any inquiry whatsoever regarding
10
petitioner’s psychological history.” ECF No. 64-2 at Appendix 92. Considering all of the
11
witnesses in this case were related to petitioner and provided ample detail of petitioner’s
12
psychological history when asked by Dr. Purviance, the psychologist who testified at the post-
13
trial hearing, there is no basis upon which to describe this record as silent.
14
The state court decision presumed that trial counsel conducted an adequate investigation
15
notwithstanding evidence in the record to the contrary. “[A]bsent affirmative evidence to the
16
contrary, we presume that… [trial counsel] did conduct an adequate investigation in connection
17
with the preparation of Chatman’s defense.” ECF No. 64-2 at 7. However, since trial counsel’s
18
decision concerning which defense to present at trial was not informed by any investigation of
19
petitioner’s mental health history, the state court unreasonably determined that it was a reasonable
20
tactical decision. 28 U.S.C. § 2254(d)(2); see also Strickland, 466 U.S. 668, 690-91
21
(1984)(finding that a strategic tactical decision must be made after an investigation of the relevant
22
facts) (emphasis added); Evans v. Lewis, 855 F.2d 631 (9th Cir. 1988) (finding deficient
23
performance where counsel failed to review available documents); Jennings v. Woodford, 290
24
F.3d 1006 (9th Cir. 2002) (finding deficient performance where counsel failed to investigate
25
mental state issues), cert. denied, 539 U.S. 958 (2003). As Mr. Healy explained to the trial court,
26
“[y]ou can’t know if it’s reasonable if you didn’t explore the other options, and… whether or not
27
it was reasonable or not, I think, depends on whether or not it was more or less viable than the
28
other possible defenses.” ECF No. 78-5 at 52. Simply put, an omission by trial counsel cannot
26
1
be labeled as a “reasonable tactical choice” under Strickland unless it was ruled out as a possible
2
alternative after a sufficient investigation of the facts and the law. See Rios v. Rocha, 299 F.3d
3
796, 807, n. 18 (9th Cir. 2002) (emphasizing that “there is no possible justification for failing to at
4
least conduct a preliminary investigation of both defenses before choosing one or both.”).
5
In this case, the record of post-trial proceedings does not support the state court’s
6
conclusion that trial counsel’s chosen defense at trial was a reasonable tactical decision. While
7
“[t]here is a ‘strong presumption’ that counsel’s attention to certain issues to the exclusion of
8
others reflects trial tactics rather than “sheer neglect.’” Harrington, 562 U.S. at 109 (quoting
9
Yarborough v. Gentry, 540 U.S. 1, 8 (2003) (per curiam)), here the state court unreasonably relied
10
on this presumption even when the record established a complete lack of investigation concerning
11
petitioner’s mental health history. The lack of a tactical basis for counsel’s decision was detailed
12
by Mr. Healy in the post-trial motion. “[I]t’s only as tactical as the quality of the information in
13
front of you….[T]hat’s kind of the point in this case. I don’t know if you can say a tactical
14
decision was made… when you say that one of the options was not even considered because no
15
one was aware of it.” ECF No. 78-5 at 71. The court finds Mr. Healy’s logic sound and
16
supported by the evidence in this case.
17
The California Court of Appeal unreasonably determined the facts supporting its
18
conclusion that trial counsel’s decision was tactical in light of the evidence presented during the
19
post-trial motion. This was the only basis for the California Court of Appeal’s rejection of the
20
IAC claim. It did not even reach the prejudice prong of Strickland because it concluded that trial
21
counsel’s performance was not deficient. Accordingly, petitioner has established that the state
22
court’s decision on the performance prong of Strickland was “an unreasonable determination of
23
the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. §
24
2254(d)(2). However, that by itself does not entitle petitioner to relief. See Frantz v. Hazey, 533
25
F.3d 724 (9th Cir. 2008). Petitioner’s IAC claim is still subject to de novo review by this court.
26
See Panetti v. Quarterman, 551 U.S. 930, 925 (2007) (when § 2254(d) is satisfied, the federal
27
habeas court resolves the claim “without the deference AEDPA otherwise requires”); Frantz v.
28
Hazey, 533 F.3d at 737 (when § 2254(d) (1) is satisfied, the federal habeas court conducts de
27
1
2
3
novo review of constitutional claim).
2.
28 U.S.C. § 2254(d)(1)
Additionally, this court finds that the California Court of Appeal unreasonably applied
4
Strickland when it utilized petitioner’s decision to reject two separate plea offers of a determinate
5
sentence in its evaluation of the reasonableness of trial counsel’s failure to investigate. See 28
6
U.S.C. § 2254(d)(1); ECF No. 64-2 at 8. The California Court of Appeal’s reference to rejected
7
plea offers was legally irrelevant in assessing whether counsel’s performance was deficient. ECF
8
No. 64-2 at 8. The state court explained that it was relying on these rejected plea offers as
9
“another circumstance bearing on the reasonableness” of trial counsel’s tactical decision of failing
10
to investigate petitioner’s mental health history. ECF No. 64-2 at 8. However, in so doing, it
11
misapprehended the role of defense counsel and conflated the decisions that trial counsel was
12
responsible for making with those of the defendant. In Strickland, the Supreme Court utilized the
13
ABA Standards on Criminal Justice in explaining the Sixth Amendment standard for determining
14
whether counsel’s performance was deficient. 466 U.S. at 688-89. While the ABA Standards
15
note that “counsel should give great weight to strongly held views of a competent client regarding
16
decisions of all kinds,” it does not leave the decision as to which defense to present at trial up to
17
the client. See ABA Standards for Criminal Justice, Standard 4-5.2 “Control and Direction of the
18
Case” (4th ed. 2015). More importantly, trial counsel’s duty to investigate is not tied to a
19
defendant’s decision to plead guilty. The ABA Guidelines emphasize that “[d]efense counsel has
20
a duty to investigate in all cases, and…[t]he duty to investigate is not terminated by… a client’s
21
expressed desire to plead guilty or that there should be no investigation, or statements to defense
22
counsel supporting guilt.” ABA Standards for Criminal Justice, Standard 4-4.1(a)-(b) (4th ed.
23
2015). More simply put, the client’s wishes cannot abrogate defense counsel’s duty under
24
Strickland to conduct an adequate investigation. The state court’s utilization of petitioner’s
25
decision to reject two plea offers was an unreasonable application of Strickland.
26
“[T]he state court's ruling on the claim… was so lacking in justification that there was an
27
error well understood and comprehended in existing law beyond any possibility for fairminded
28
disagreement.” Harrington v. Richter, 562 U.S. 86, 102 (2011). The lack of a fairminded
28
1
disagreement is evident from the absence of legal citations in the California Court of Appeal’s
2
analysis concerning petitioner’s rejected plea offers. See ECF No. 64-2 at 8 (direct appeal
3
opinion). Thus, the undersigned finds that petitioner also has met his burden under 28 U.S.C. §
4
2254(d)(1) entitling him to de novo review of the IAC claim.
5
D.
6
De Novo Review of IAC Claim
Having already determined that the evidence in the record established that trial counsel
7
failed to conduct any investigation into petitioner’s mental health history, the undersigned
8
concludes that defense counsel’s performance was deficient under Strickland because that
9
information was necessary to make an informed choice about which avenues of defense to pursue
10
at trial. See Strickland, 466 U.S. at 690-91 (counsel’s strategic decision only reasonable to
11
the extent it is supported by reasonable investigation); Riley v. Payne, 352 F.3d 1313, 1318-19
12
(9th Cir. 2003) (failure to interview potential witness defeats argument that failure to present his
13
testimony was reasonable strategic choice), cert. denied 543 U.S. 917 (2004). Such conduct was
14
entirely unreasonable because petitioner was facing a life sentence and because petitioner’s
15
mental health history was easily accessible through the percipient witnesses to the crime who trial
16
counsel interviewed or had a defense investigator interview. See ECF No. 78-4 at 281-292
17
(rebuttal testimony of defense investigator Anna Bandettini). All trial counsel had to do was
18
simply start the conversation about petitioner’s mental health condition, and these witnesses
19
would have voluntarily provided a detailed and historical recitation of petitioner’s severe mental
20
illness as demonstrated by Dr. Purviance’s testimony at the post-trial hearing. In this case, the
21
Sixth Amendment standard of competency is not an onerous one. It literally required only “20
22
minutes and a couple of phone calls.” ECF No. 78-5 at 48.
23
Prejudice due to counsel’s deficient performance is established in this case because the
24
jury struggled with the issue of specific intent and premeditation as demonstrated by their first
25
question to the trial judge during deliberations.20 See ECF No. 78-4 at 357-358 (jury question
26
20
27
28
The jury was instructed that: If you find that the attempted murder was preceded and
accompanied by a clear, deliberate intent to kill, which was the result of deliberation and
premeditation, so that it must have been formed upon pre-existing reflection and not under a
sudden heat of passion or other condition precluding the idea of deliberation, it is an attempt to
29
1
and judge’s response). The jury asked whether “intent to kill require[s] knowledge that act would
2
cause death?” ECF No. 78-4 at 357. The potential defense which trial counsel failed to
3
investigate addressed the mental state required for attempted premeditated murder and would
4
have provided the jury with a legal path to acquit petitioner of the life crime. Petitioner was
5
facing a potential life term if convicted of attempted premeditated murder, but was only facing a
6
maximum determinate term of 22 years if convicted of the lesser-included offense of attempted
7
voluntary manslaughter. See ECF No. 78-5 at 67-69. The test for prejudice is whether there is a
8
reasonable probability of a different outcome which is defined as a probability sufficient to
9
undermine the court’s confidence in the verdict. Strickland, 466 U.S. at 693.
10
When all of the post-trial mental health evidence is considered in light of the testimony at
11
trial, the undersigned concludes that there is a reasonable likelihood that at least one juror, at a
12
minimum, would have harbored a reasonable doubt about the premeditation element required to
13
establish attempted first degree murder. For these reasons, the undersigned finds that petitioner’s
14
mental health background would have raised a reasonable doubt for the jury about whether
15
petitioner acted with premeditation and deliberation. Accordingly, petitioner has demonstrated
16
the reasonable probability of a different outcome at trial based on counsel’s deficient performance
17
in failing to investigate petitioner’s mental health background to negate the intent required for
18
attempted premeditated murder.
19
However, that is not the end of the story. The question still remains as to the appropriate
20
remedy for the Sixth Amendment violation that occurred in this case that only affected one of the
21
counts for which petitioner was convicted, albeit the most serious one. The Supreme Court has
22
emphasized that “Sixth Amendment remedies should be ‘tailored to the injury suffered from the
23
constitutional violation and should not unnecessarily infringe on competing interests.’” Lafler v.
24
Cooper, 566 U.S. 156, 170 (2012) (quoting United States v. Morrison, 449 U.S. 361, 364 (1981)).
25
commit willful, deliberate and premeditated murder…. To constitute willful, deliberate, and
premeditated attempted murder, the would-be-slayer must weigh and consider the question of
killing and the reasons for and against such a choice and, having in mind the consequences,
decides to kill and makes a direct but ineffectual act to kill another human being.” ECF No. 78-1
at 109-110.
26
27
28
30
1
Since the constitutional violation precluded petitioner’s mental health defense from being
2
presented at trial, the conviction itself and not just the sentence for attempted premeditated
3
murder is tainted by constitutional error. Accordingly, the appropriate remedy would require
4
vacating petitioner’s conviction for premeditated attempted murder.
Claim Two – Ineffective Assistance of Counsel
5
VI.
6
In his second claim for relief, petitioner contends that his trial counsel was ineffective for
7
relying on a self-defense theory without ever calling petitioner to testify. See ECF No. 64-1 at
8
20-23. He argues that the self-defense theory stood “no chance of success” without such
9
testimony from Chatman. Id. at 21. Counsel for petitioner points to Chatman’s recorded
10
statement to the police following his arrest presumably to establish the purported content of
11
petitioner’s testimony had counsel called him to testify at trial. Id. at 22. Chatman told the police
12
that Everetts attacked him twice and the third time he defended himself. Id. (citing ECF No. 64-2
13
at 137). The “[f]irst time he jumped up and pushed me down so hard my whole hip, tailbone
14
swolled up when I got home…. The second time he attacked me from the back and scratched me
15
in the face and the third time, I defended myself.” ECF No. 64-2 at 137. Petitioner then stated
16
that he had “something” and then Everetts “grabbed it.” Id. When asked what that something
17
was, petitioner stated that he couldn’t remember because “[e]verything went blank.” Id.
18
Petitioner provided no further details about the incident to the police. He did relay this same
19
information to his trial attorney during their first meeting. ECF No. 64-2 at 140. (Declaration of
20
Larry Chatman). “I informed [her] that Everetts (the victim) had attached [sic] me earlier that day
21
and that it did appear to me that he was going to attack me again; so I attacked him first to defend
22
myself from attack. I told counsel [] that I wanted to testify, so I could tell the jury my side of the
23
story and why I feared he would attack me again.” Id. Petitioner’s common-law wife submitted
24
an affidavit indicating that trial counsel told her that “Mr. Chatman is not testifying as long as I
25
am representing him. He has serious prior convictions I do not want the jury to know about.”
26
ECF No. 64-2 at 144.
27
28
Respondent argues that this claim fails on the merits because trial counsel’s decision not
to call petitioner to testify was a reasonable tactical decision because he would have been
31
1
impeached with his prior assault conviction. See ECF No. 77-1 at 29-30; see also ECF No. 78-3
2
at 22 (trial court’s preliminary ruling on motion in limine).
The last reasoned state court opinion on this claim is the Solano County Superior Court’s
3
4
habeas denial dated May 20, 2009. See ECF No. 64-2 at 9-10. The trial court denied relief
5
finding that counsel’s performance was not deficient under Strickland v. Washington, 466 U.S.
6
668, 687-88 (1984). Id. at 10. “Trial counsel advised Petitioner not to testify because he had a
7
2001 prior felony conviction for violating Penal Code § 245(a)(1), assault…. Only two years had
8
passed between the prior conviction and the incident that lead to the charges…, so trial counsel
9
was reasonable in assuming that the prior conviction would negatively impact the defense case.”
10
11
Id.
The state court opinion rejecting this claim was not contrary to nor an unreasonable
12
application of Strickland. Trial counsel’s advice to petitioner was reasonable in light of the type
13
of prior conviction that petitioner had sustained as well as the fact that it occurred only two years
14
prior to the events on trial. See also Dows v. Wood, 211 F.3d 480 (9th Cir. 2000) (finding neither
15
deficient performance nor prejudice based on trial counsel’s advice that defendant not testify at
16
his trial in light of his three prior convictions for robbery and assault). The reasonableness of that
17
advice is highlighted by the fact that petitioner does not cite to a single case where trial counsel
18
has been found ineffective in such circumstances. For all these reasons, the undersigned
19
recommends denying relief on this ineffective assistance of counsel claim.
20
Even assuming arguendo that the state court unreasonably concluded that trial counsel’s
21
performance was not deficient, there is absolutely no way that petitioner could establish prejudice
22
from trial counsel’s advice that petitioner not testify at trial. Following petitioner’s argument to
23
its logical conclusion, the trial would have boiled down to a credibility contest between Everetts
24
and Chatman since there were no other eyewitnesses to the actual altercation. In such a
25
credibility contest, the court is not persuaded that there is a reasonable probability of a different
26
outcome based on the absence of any critical details in petitioner’s purported testimony.
27
Petitioner could not even remember what type of weapon was used in the attack. His purported
28
testimony would have consisted of nothing more than self-serving and conclusory statements that
32
1
he acted in self-defense. Especially when considered in conjunction with his recent conviction
2
for assault, it is not reasonably probable that the jury would have returned a not-guilty verdict
3
based on petitioner’s testimony that he acted in self-defense. Accordingly, petitioner fails to
4
demonstrate that there is any prejudice due to trial counsel’s failure to call him as a witness.
5
To the extent that petitioner also claims that sentencing and appellate counsel were
6
ineffective for failing to raise this issue in a motion for a new trial and on direct appeal, the court
7
recommends denying relief. See ECF No. 64-1 at 20; ECF No. 93 at 15.21 Since there is no merit
8
to the underlying claim, there is no prejudice from sentencing and appellate counsels’ decision
9
not to raise this claim.
Claim Three – Batson Error
10
VII.
11
In his third claim for relief, petitioner contends that the prosecutor violated Batson v.
12
Kentucky, 476 U.S. 79 (1986), by removing three African Americans from the jury venire with
13
peremptory challenges. Before contesting the merits of this claim, respondent argues that it is
14
procedurally defaulted because the California Supreme Court denied it as untimely when it was
15
raised for the first time in a counseled state habeas petition. See ECF No. 77-1 at 31. To excuse
16
the procedural default, petitioner alleges that his appellate lawyer was ineffective for not raising
17
the Batson claim in his direct appeal to the California Court of Appeal.22 See ECF No. 93 at 10-
18
11.
Applying the two-part Strickland standard, the court finds that appellate counsel’s
19
20
performance was not deficient for failing to present the Batson claim to the California Court of
21
Appeal. As has oft been repeated, the “hallmark of effective appellate advocacy” is the
22
21
24
Petitioner raises these claims in the heading to his second claim for relief, but then provides
absolutely no briefing in support of them in his second amended habeas petition. Accordingly,
the court gives them the same amount of attention.
25
22
23
26
27
28
It should be pointed out that no other basis for cause exists to excuse this procedural default
because petitioner was represented by counsel when the Batson claim was presented to the
California Supreme Court. See ECF No. 78-5 at 197-234 (counseled California Supreme Court
habeas petition). Thus, petitioner’s mental condition did not play any role in his failure to comply
with the state court’s procedural rules that led to the default. The only potential cause is appellate
counsel’s ineffectiveness for not raising the Batson claim on direct appeal.
33
1
winnowing down of claims. See Smith v. Murray, 477 U.S. 527, 536 (1986) (“Th[e] process of
2
winnowing out weaker arguments on appeal and focusing on those more likely to prevail, far
3
from being evidence of incompetence, is the hallmark of effective appellate advocacy.”) (internal
4
quotation marks omitted). Here, appellate counsel not only chose to present an IAC of trial
5
counsel claim which this court finds meritorious, but also presented a second claim based on juror
6
misconduct. Presenting a third claim based on Batson would not have broadened the remedies
7
available to the court of appeal had relief been granted. The IAC of trial counsel and the juror
8
misconduct claim would both require vacating petitioner’s convictions and granting him a new
9
trial, just as a Batson claim would have. See ECF No. 78-5 at 131 (“Appellant therefore
10
respectfully submits that he is entitled to a new trial because of juror misconduct… and because
11
his trial counsel failed to explore his most viable defense….”). So there was no strategic or
12
tactical advantage to adding the Batson claim to the direct appeal. See Strickland, 466 U.S. at
13
668. In the absence of any strategic advantage for adding this claim to the direct appeal brief, the
14
court cannot find that appellate counsel’s performance was deficient under Strickland much less
15
that it was prejudicial.23 Accordingly, it does not constitute cause to excuse petitioner’s
16
procedural default of his Batson claim and federal review on the merits is foreclosed. See
17
Coleman v. Thompson, 501 U.S. 722, 748 (1991) (emphasizing that “a state procedural default of
18
any federal claim will bar federal habeas unless the petitioner demonstrates cause and actual
19
prejudice.”) (citing Engle v. Isaac, 456 U.S. 107, 135 (1982)).
20
VIII. Claim Four – Cumulative Error
21
Petitioner only raises this free-standing claim for relief in the event that “claims one
22
through three were not independently sufficiently prejudicial to warrant habeas relief” on their
23
own.24 ECF No. 93 at 18. However, the court has concluded that claim one warrants habeas
24
23
25
26
27
28
Thus, the court finds it unnecessary to determine what prejudice standard would apply if
adequate cause was found to excuse the procedural default of the Batson claim. Compare ECF
No. 77-1 at 32 (Answer) with ECF No. 93 at 18 n. 4 (Traverse) (arguing that the Martinez
standard applies).
24
The undersigned finds it unnecessary to resolve the issue of the procedural default of the
cumulative error claim, choosing instead to address the merits.
34
1
relief based on trial counsel’s failure to investigate and present petitioner’s mental health history.
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The undersigned finds that there is no other constitutional violation presented in this federal
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habeas petition. Therefore, the court recommends denying relief on this claim on the merits
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because there is no cumulative error in this case.
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IX.
Summary
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In light of the lengthy and complicated procedural posture of this case, the court will
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summarize its findings with respect to each of the four claims raised by petitioner. The
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undersigned found cause and prejudice to excuse the procedural default of petitioner’s first claim
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that his trial attorney was ineffective for failing to investigate and present evidence of his mental
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health history to negate the intent required for attempted premeditated murder. When reviewing
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the merits of this claim, the court found that AEDPA deference did not apply because the state
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court unreasonably determined the facts and unreasonably applied the Strickland standard of
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review. Therefore, the claim was reviewed on the merits de novo. In so doing, the court found
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that trial counsel’s performance was not only deficient, but also was prejudicial under Strickland
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thereby entitling petitioner to relief on this claim.
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In his second claim for relief, petitioner asserted that his trial attorney was ineffective for
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relying on self-defense without calling petitioner to testify. The court found that the last reasoned
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state court decision denying relief on this claim was not unreasonable under the AEDPA.
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Therefore, the undersigned recommends denying relief on the merits of this claim.
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With respect to petitioner’s Batson challenge raised in claim three, the court found that it
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was procedurally defaulted based on the independent and adequate state law ground of
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untimeliness. This default was not excused by appellate counsel’s failure to raise the claim on
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direct appeal or on any other basis. Accordingly, the court concluded that review on the merits of
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this claim is foreclosed.
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Lastly, the court determined that the cumulative error claim was easier to resolve on the
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merits. It therefore declined to address whether this claim was procedurally defaulted. Even on
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the merits, this claim failed because the court only found a single constitutional violation.
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Therefore, in this case, there is no cumulative error.
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1
X.
Recommendation
2
This case, more than most, demonstrates the long and complicated path that a state
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prisoner must travel in order to obtain federal habeas relief under the AEDPA. While the United
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States Supreme Court has emphasized time and time again that the standard for obtaining relief is
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designed to be difficult, it is not insurmountable. See e.g., Harrington v. Richter, 562 U.S. 86,
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786 (2011). Petitioner has demonstrated that he is entitled to relief even under the AEDPA’s
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onerous standard.
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Accordingly, IT IS HEREBY ORDERED that the Clerk of Court terminate the April 2,
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2018 Findings and Recommendations (ECF No. 99) as they are superseded by the findings and
10
recommendations herein.
IT IS FURTHER RECOMMENDED that petitioner’s second amended habeas corpus
11
12
application be granted on petitioner’s claim his trial attorney was ineffective for failing to
13
investigate and present his mental health history as a defense to the attempted premeditated
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murder charge.
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These findings and recommendations are submitted to the United States District Judge
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assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days
17
after being served with these findings and recommendations, any party may file written
18
objections with the court and serve a copy on all parties. Such a document should be captioned
19
“Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the
20
objections shall be served and filed within fourteen days after service of the objections. The
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parties are advised that failure to file objections within the specified time may waive the right to
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1
appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). In light of the
2
recommendation that petitioner be granted relief, briefing on a request for a certificate of
3
appealability is unnecessary. See Rule 11, Federal Rules Governing Section 2254 Cases (stating
4
that the district court must issue or deny a certificate of appealability when it enters a final order
5
adverse to the applicant).
6
Dated: October 4, 2018
_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE
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12/Chat0264.supersedingf&r.docx
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