Cook v. Kernan et al

Filing 54

ORDER RE SECTION 2254 PETITION by Judge Alsup denying 48 Motion for Hearing; denying 50 Motion for Hearing. (whalc1, COURT STAFF) (Filed on 10/10/2017)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 WALTER JOSEPH COOK, III, 11 For the Northern District of California United States District Court 10 12 Plaintiff, No. C 15-06343 WHA v. 13 SCOTT KERNAN, et al., 14 Defendants. ORDER RE SECTION 2254 PETITION / 15 16 INTRODUCTION 17 Petitioner, who was convicted on three counts of murder in 1994, filed a petition for a 18 writ of habeas corpus under 28 U.S.C. 2254. For the reasons discussed below, his petition is 19 DENIED. 20 21 STATEMENT In June 1994, a jury in San Mateo County Superior Court found petitioner Walter Joseph 22 Cook, III, guilty of three counts of first-degree murder, personal use of a dangerous weapon, 23 personal use of a firearm, personal use of great bodily injury, and a multiple-murder special 24 circumstance. The following month, the jury returned a verdict of death. 25 In August 2006, the California Supreme Court affirmed Cook’s conviction and sentence 26 in full. The following recitation of the factual background of this case is excerpted from the 27 decision of the Supreme Court of California affirming Cook’s conviction on direct appeal. 28 All factual determinations are presumed correct pursuant to Section 2254(e)(1), rebuttable only 1 by clear and convincing evidence. See also Moses v. Payne, 555 F.3d 742, 746 n.1 (9th Cir. 2 2009). 3 I. FACTS AND PROCEEDINGS. 4 A. 5 The murders of Ernest Sadler, Michael Bettancourt and Ronald Morris occurred on separate occasions and were unrelated to one another, except for each victim’s link to defendant, a seller of crack cocaine. 6 Prosecution’s Guilt Phase Case–in–Chief. 7 1. Sadler Murder. 8 9 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Around 4:00 o’clock on the morning of February 9, 1992, police officers found the body of Ernest Sadler lying on the pavement in the 2200 block of Menalto Avenue, East Palo Alto. Sadler’s head was severely battered and three bloodstained, broken pieces of board were found near his body by officers responding to a 911 call. Because Sadler’s distinctive shoe prints were visible on the damp soil in the front yard of the house at 2250 Menalto, San Mateo County Sheriff’s Detective William Osborn interviewed the 11 occupants of the residence, none of whom admitted to having seen Sadler killed. Only months later did several occupants of the house admit that they had known about Sadler’s killing. In June, Shawnte Early gave police a recorded statement in which she reported seeing [Cook] fighting with Sadler and continuing to attack Sadler with a stick after Sadler was on the ground. She described coaxing [Cook] into her car and driving him around the corner only to have him jump out and run back to resume beating Sadler. At trial, Early repudiated her taped interview, testifying that she did not remember having made the detailed statement, and that it was untrue. A tape recording of her June 1992 interview was played for the jury. Ernest Woodard, who lived at 2250 Menalto, testified that he was awakened that night by “someone” who told him there was a fight outside. He saw [Cook], whom he knew by sight, engaged in a fist fight, and told the combatants to move on down the street. Woodard, a convicted felon, feared a police investigation of the fight would bring them to his house. At the time of trial, Woodard was serving a prison term for selling cocaine. Some time after the fight, Velisha Sorooshian, a relative by marriage of Woodard’s, came to 2250 Menalto with Leonard Holt to buy crack cocaine. While the pair sat in their car smoking a pipe of crack cocaine, a car containing [Cook] pulled alongside, and he laughingly asked Velisha to go see if the man lying in the street was all right. She assumed [Cook] was joking until she returned to 2250 Menalto to buy more cocaine and Woodard told her the man was probably dead; Woodard asked her to call 911, which she did. Holt testified that earlier in the evening, about 8:00 or 9:00 o’clock, he had run into Sadler. When Sadler said he 2 1 wanted to buy a $5 dollar rock of cocaine, Holt told him to try the Woodard house. 2 3 4 5 6 7 8 9 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 The day after Sadler’s death, Shannon Senegal, [Cook]’s cousin, ran into [Cook], who reported that he had “beat someone down last night” on Menalto, identifying his victim as Sadler. [Cook] explained that Sadler had taken some of [his] crack and tried to run off with it. When Senegal asked if Sadler had died, [Cook] said he did not know and expressed no concern over that possibility. (At the time of trial, Senegal was in custody, charged with being an accessory after the fact to the murder of Ronald Morris.) According to the pathology report, Sadler’s death was the result of having aspirated blood into his lungs from extensive injuries to his face and head, including ruptured eyeballs and broken facial bones. These injuries were consistent with a severe beating. Sadler had a blood-alcohol level of .09 percent and tested positive for both cocaine and cocaine metabolite. Sadler was 44 at the time of his death. 2. Bettancourt Murder. Between midnight and 1:00 a.m. on February 14, 1992, a group of people was gathered in East Palo Alto on Alberni Street, a site of illegal drug sales. A group of young women, including Shawnte Early, Teresa Beasley, and Tomika Asburry, was in the street drinking to celebrate the birthday of their friend Valerie Gardley. When a gold Thunderbird car stopped in the middle of the street, its driver, Michael Bettancourt, who was apparently trying to buy drugs, was immediately surrounded by potential sellers, including [Cook]. Steven Sims, one of the sellers, stuck his arm in through the open driver’s window but was jostled, causing him to drop his rock of cocaine inside Bettancourt’s car. Sims opened the driver’s door to look for the fallen rock. Sims then heard [Cook], who was holding a 9-millimeter automatic pistol, threaten Bettancourt to return the rock or pay for it. When [Cook] yelled, “Get back, get back,” Sims stepped away and saw [Cook] shoot Bettancourt once in the leg, then pause and unload the “clip in the nine,” shooting Bettancourt repeatedly. Although Asburry identified [Cook] as the shooter in her statement to the police, at trial she recanted, insisting that she had not seen the shooter, and that her earlier statement was false. 22 23 24 25 26 27 28 After the shooting, Nathan Gardner testified that [Cook] jumped into Gardner’s car, rode a few blocks, and got out. During the ride, when Gardner asked why he had shot Bettancourt, [Cook] explained that Bettancourt had tried to “gaffle,” meaning to steal from, him. Steven Sims testified that a day or so after the shooting he encountered [Cook] on the street and referring to the shooting said, “Dude you tripped out.” [Cook] replied, “He should have give[n] me my money or my rock back.” Bettancourt was found dead in his car, with the driver’s door standing open. No one in the neighborhood contacted by the responding officer had any information to impart about the shooting. That officer saw numerous shell casings in the street 3 1 2 next to the open car door; investigators recovered 13 cartridge cases and two bullets from that area. Later forensic examination determined that 11 of the shell casings had come from a single gun. 3 3. Morris Murder. 4 5 6 7 8 9 11 For the Northern District of California United States District Court 10 On the afternoon of May 21, 1992, three women accompanied Sharoon Reed to University Liquors. As the women left the liquor store in their car, they encountered Shannon Senegal, who was driving a tan-topped, burgundy-colored Nova car; Lavert Branner and [Cook] were passengers. The men in the Nova were in a hurry to pull out of the parking lot, and one of them shouted at the women to “hurry up and move.” [Cook] displayed a gun to the women, who slowed their car, but followed the Nova at a distance. The women were headed for a birthday party in honor of Ronald Morris. Morris, who knew and was friendly with Senegal, had just parked his car on East O’Keefe Street where the party was to be held when he hailed the Nova, which made a U-turn and pulled next to him. 12 13 14 15 16 17 18 19 20 Senegal testified that while he was talking with Morris, [Cook], who was in the front passenger seat, suddenly leaned across Senegal and started shooting Morris, announcing, “I told you I will get your punk ass back.” According to Senegal, [Cook] harbored a grudge against Morris for an incident about a week earlier when an armed Morris had encountered [Cook], who was unarmed, and had mocked [Cook]’s vulnerability. [Cook] told Senegal he would “get back” at Morris. Reed testified that, from the women’s car, she overheard Morris as he looked into the Nova from the driver’s side say, “Damn, you all strapped,” indicating that the Nova’s occupants were armed. By Reed’s account of the shooting, Morris suddenly turned away from the Nova just before she heard multiple shots fired. Dr. Parviz Pakdaman, a pathologist, testified that Morris had five bullet wounds in his heart and lungs, any one of which was “potentially fatal.” The victim’s blood tested negative for drugs but showed a .04 percent level of alcohol. 21 4. Murder Weapon. 22 23 24 25 26 27 28 Various 9-millimeter cartridge casings recovered from the pavement where Morris fell were compared to 9-millimeter casings recovered from the Bettancourt murder, but San Mateo County Sheriff’s criminalist Nick Stumbaugh could not determine with certainty whether both sets of casings had come from the same weapon, possibly because those from the earlier killing were aluminum while those from the later killing were brass. [Cook] was arrested on a California warrant in Oklahoma on June 26, 1992; he waived extradition, and he was returned to California to stand trial. While still in Oklahoma he gave a lengthy interview to East Palo Alto Police Sergeant Gregory Eatmon and Inspector Bruce Sabin of the San Mateo District Attorney’s Office. In that interview, [Cook] said he “blanked out” and could not remember 4 1 2 killing Morris, but he admitted that after an evening of drinking he had used his 9-millimeter handgun to shoot Bettancourt and that on the day after the Morris shooting he had thrown the gun off the Dumbarton Bridge. No gun was ever recovered. 3 B. Defense Case at the Guilt Phase. 4 5 6 7 8 9 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 Conceding that [Cook] had shot Bettancourt, the defense focused on the similarity of the witnesses’ statements as evidence they had been coached by the police. Teresa Beasley, who had given a statement in June 1992 identifying defendant as the shooter of Bettancourt, testified that her statement had been coerced and reflected what the police wanted her to say. The defense further sought to establish that Bettancourt’s killing was at most second degree murder. Accordingly, it presented expert testimony by Kenneth Mark, a private criminalist; in Mark’s opinion, a 170-pound person who consumed two 40-ounce beers and a pint and a half to two pints of alcohol over 10 hours without eating would be at best unsteady on his feet and at worst unconscious. Dr. James Missett, a psychiatrist with expertise in the effects of alcohol and drugs, testified that a person angry when drinking would “interpret things in an angry way.” With respect to the killings of Morris and Sadler, the defense portrayed the police investigation as an effort to frame defendant with those unsolved murders by persuading or pressuring witnesses to inculpate defendant, instead of Shannon Senegal, Lavert Branner, or some unknown party. Seeking to cast doubt on defendant’s culpability for Morris’s death, the defense presented evidence that linked Shannon Senegal and Lavert Branner to the killing. It relied on a May 1992 statement by Tasha Bradford identifying Shannon Senegal, the driver of the Nova, as the man who shot Morris, and identifying his passenger as Walter Wright or Walter White, not defendant Walter Cook. It also presented the testimony of Shannon Senegal’s sisters that their brother and [Cook] were together on the day of Morris’s shooting, that Shannon flew to San Diego shortly after the shooting, and that one sister had attempted to mislead both a defense investigator and the police about Shannon’s whereabouts. 21 22 23 Monique Barrett and Lakishain Smith testified that on May 9, 1993, Lavert Branner told them he had shot Morris. Barrett had become friendly with defendant, who was her husband’s cellmate. Smith first met [Cook] when he was in jail, and she then began visiting and corresponding with him. 24 25 26 27 The defense sought to show that Branner also knew murder victim Morris well, having roomed with him at the California Youth Authority. It emphasized that Branner had repeatedly been assured by police that he was not a suspect in the Morris murder. On the eve of trial, Branner conformed his version of events to Senegal’s account that it was Senegal, not [Cook], in the driver’s seat when Morris was shot. 28 5 1 2 3 As for the Sadler killing, the defense emphasized that the police long lacked a suspect in that killing, in part because many of the probable witnesses at 2250 Menalto on the night of the killing were Woodard family members, relatives, or associates, who were apparently reluctant to talk lest they implicate other family members in the case. 4 People v. Cook, 39 Cal. 4th 566, 574–81 (2006) (errors in original) (footnote omitted). 5 While Cook’s direct appeal remained pending, he filed a state habeas petition, which was 6 assigned case number S136687 at the California Supreme Court. In December 2010, the 7 California Supreme Court issued an order to show cause returnable in San Mateo Superior Court 8 why Cook’s death penalty should not be overturned on the grounds that he was mentally retarded 9 pursuant to Atkins v. Virginia, 536 U.S. 304 (2002). An order from San Mateo Superior Court 10 The California Supreme Court summarily denied the balance of Cook’s habeas petition For the Northern District of California United States District Court vacated Cook’s death sentence, and imposed a sentence of life without the possibility of parole. 11 12 on the merits with the same order. The full order of the California Supreme Court, is excerpted 13 below (see Exh. C6): 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The Director of the Department of Corrections and Rehabilitation is ordered to show cause in the San Mateo County Superior Court, when the matter is placed on calendar, why petitioner’s death sentence should not be vacated and petitioner sentenced to life without possibility of parole on the ground that he is mentally retarded within the meaning of Atkins v. Virginia (2002) 536 U.S. 304, as alleged in Claim Eight of the petition for writ of habeas corpus filed August 24, 2005. (See In re Hawthorne (2005) 35 Cal. 4th 40.) The return is to be filed on or before January 14, 2011. All of the remaining claims in the petition are denied on the merits. In addition, Claims Seven and Twelve are procedurally barred because they could have been, but were not, raised on appeal. (In re Dixon (1953) 41 Cal. 2d 756, 759.) Petitioner’s allegations in Claim One that the prosecutor committed acts of misconduct at trial (petn., ¶. 97–115) are procedurally barred because most of the alleged acts of misconduct were not challenged on appeal (Dixon, supra, at p. 759), and the remaining acts were raised and rejected on appeal (In re Waltreus (1965) 62 Cal. 2d 218, 225). Petitioner’s allegations in Claim One that the prosecution engaged in discovery violations (petn., ¶. 115-119) are barred with respect to witnesses Lane, Harrison, Sorooshian, and Young because the allegations were raised and rejected on direct appeal (Waltreus, supra, at p. 225) and in all other respects are barred because they could have been, but were not, raised on appeal (Dixon, supra, at p. 759). Petitioner’s allegation in Claim Two that his statements to the police were obtained in violation of his constitutional rights, his allegation in Claim Eleven that he was denied his right to a tried by a jury drawn from a representative cross-section of the community, and his allegation in Claim Fifteen 6 1 that the prosecution used race, gender, and other unconstitutional considerations in its decision to charge, seek, and impose the death penalty are barred on the ground that he could have, but did not, raise these issues at trial. (In re Seaton (2004) 34 Cal. 4th 193.) Justice Werdegar would not apply this procedural bar. (votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Moreno and Corrigan, JJ.) 2 3 4 5 Cook, who is represented by counsel, filed the instant habeas petition in December 2014. 6 In July 2016, he obtained new counsel, who are representing him pro bono. Cook then moved to 7 strike respondent’s answer for failing to specifically admit or deny his factual contentions. In the 8 alternative, he sought an extension of sixty days to file a traverse. Respondent’s answer included 9 a general denial, but it also incorporated-by-reference the accompanying sixty-seven page memorandum of points and authority that addressed each of the claims in the petition. After a 11 For the Northern District of California United States District Court 10 hearing on the motion, respondent provided a supplemental response addressing whether 12 petitioner’s mental disabilities impacted the validity of his Miranda waiver — an issue central 13 to several claims. An order then denied Cook’s motion to strike, but granted his request for a 14 sixty-day extension for his traverse. 15 Cook timely filed his traverse in December 2016, and in January 2017, he requested an 16 evidentiary hearing, contending he was entitled to present evidence before a determination of the 17 merits of his habeas petition. This order follows full briefing on the petition and the motion for 18 an evidentiary hearing. 19 ANALYSIS STANDARD OF REVIEW. 20 1. 21 Cook filed his federal habeas petition after 1996 (specifically, in 2015), and therefore, 22 the Antiterrorism and Effective Death Penalty Act of 1996 applies to his claims. 28 U.S.C. 23 2254; see Woodford v. Garceau, 538 U.S. 202, 210 (2003). In order to prevail, Cook must show 24 that the state court proceeding “resulted in a decision that was contrary to, or involved an 25 unreasonable application of, clearly established Federal law, as determined by the Supreme 26 Court of the United States,” 28 U.S.C. 2254(d)(1), or “was based on an unreasonable 27 determination of the facts in light of the evidence presented in the State court proceeding.” 28 28 U.S.C. 2254(d)(2). 7 1 This standard mandates substantial deference to the state court’s findings of both law and 2 fact. It is not enough that a district court believes the state court’s findings were merely wrong, 3 rather, they must be objectively unreasonable to grant relief. Harrington v. Richter, 562 U.S. 86, 4 101 (2011); Taylor v. Maddox, 366 F.3d 992, 999 (9th Cir.2004) (citations and quotations 5 omitted). For a factual finding to be unreasonable, the district court must conclude that “an 6 appellate panel, applying the normal standards of appellate review, could not reasonably 7 conclude that the finding is supported by the record.” Taylor, 366 F.3d at 1000. 8 A. 9 Evidentiary Hearing. Cook also seeks an evidentiary hearing. “Because the deferential standards prescribed by § 2254 control whether to grant habeas relief, a federal court must take into account those 11 For the Northern District of California United States District Court 10 standards in deciding whether an evidentiary hearing is appropriate.” Schriro v. Landrigan, 550 12 U.S. 465, 474 (2007). An evidentiary hearing is not required on issues that can be resolved by 13 reference to the state court record. Cullen v. Pinholster, 563 U.S. 170, 183 (2011); see also West 14 v. Ryan, 693 F.3d 1140 (9th Cir. 2012) (If petitioner’s factual allegations would not entitle him 15 to relief under AEDPA’s deferential standards, no evidentiary hearing should be granted). If an 16 issue cannot be resolved based on the record before the district court, however, an evidentiary 17 hearing is appropriate if “(1) [the petitioner] has alleged facts that, if proven, would entitle him 18 to habeas relief, and (2) he did not receive a full and fair opportunity to develop those facts” 19 below. Earp v. Ornoski, 431 F.3d 1158, 1167 (9th Cir. 2005). 20 Here, Cook has not shown a need for an evidentiary hearing. All issues presented by his 21 petition can be resolved on the record, which includes transcripts, exhibits, and declarations from 22 the trial, appeal to the California Supreme Court, and habeas petition to the California Supreme 23 Court. This record spans literally tens of thousands of pages and adequately covers all issues 24 raised in Cook’s petition. Most of the issues raised, were in fact fully before the trial court and 25 resolved by the jury (for example, inconsistencies between witnesses’ taped statements and live 26 testimony). Other allegations would not entitle Cook to relief even if proven true, as set forth 27 below. 28 8 1 2 Accordingly, this order now turns to Cook’s petition, first addressing the procedural bar that respondent contends applies, and next addressing the merits of his claims. DIXON BAR. 3 2. 4 Where a state prisoner has defaulted his federal habeas claims in state court pursuant to 5 an adequate and independent state procedural rule, federal habeas review is barred absent a 6 showing of cause and actual prejudice. See Coleman v. Thompson, 501 U.S. 722, 729 (1991). 7 A state procedural bar is independent unless it appears to rest primarily on federal law or it is 8 interwoven with federal law. Id. at 733–34. It is adequate if it is “firmly established and 9 regularly followed” as of the time of the state petition to which it applies. Ford v. Georgia, 498 U.S. 411, 424 (1991). Here, the procedural bar at issue — a so-called Dixon bar — was (and remains) 11 For the Northern District of California United States District Court 10 12 well-established. The rule is that defendants may not raise arguments for the first time in a 13 habeas petition if those arguments could have been raised on appeal. In re Dixon, 41 Cal. 2d 14 756, 759 (1953). In other words, a habeas petition “cannot serve as a substitute for an appeal.” 15 Ibid. 16 Respondent contends that Cook’s first claim (for prosecutorial misconduct) and seventh 17 claims (for failing to create, preserve, and settle a complete, accurate, and reliable record) are 18 procedurally defaulted pursuant to Dixon, which the California Supreme Court cited as the basis 19 for dismissing some aspects of Cook’s state petition. Therefore, respondent argues, absent a 20 showing of cause and prejudice, these claims are barred. 21 The California Supreme Court, however, did not find the entirety of Cook’s first claim 22 barred by Dixon; rather, it stated that “most of the alleged acts of misconduct were not 23 challenged on appeal” (citing Dixon), and that “the remaining acts were raised and rejected on 24 appeal” (citing a separate decision that would not have barred these claims). The California 25 Supreme Court did not specify which acts of misconduct had not been challenged on appeal, 26 nor does the record clarify this point. “[U]nless the state court makes clear that it is resting its 27 decision denying relief on an independent and adequate state ground . . . the petitioner may seek 28 9 1 relief in federal court.” Siripongs v. Calderon, 35 F.3d 1308, 1317 (9th Cir. 1994). Accordingly, 2 claim one is not procedurally barred. 3 Claim seven (state habeas claim 12), on the other hand, was not raised on appeal, and is 4 therefore barred by Dixon. Accordingly, absent a showing of cause and prejudice or actual 5 innocence, claim seven must be denied. 6 Petitioner argues that claim seven overcomes the procedural bar because it alleges that 7 failure to challenge the deficiencies enumerated in that claim amounted to ineffective assistance 8 of counsel (Traverse at 9). Since ineffective assistance of counsel claims are more appropriately 9 reserved for habeas proceedings, they are not barred for failure to raise them on direct appeal. See United States v. Anderson, 850 F.2d 563, 565 n.1 (9th Cir. 1988), 11 For the Northern District of California United States District Court 10 To the extent that petitioner claims appellate counsel was constitutionally ineffective for 12 failing to raise the allegations in claim seven on direct appeal, which are otherwise procedurally 13 barred, he must show first that counsel’s failure to raise these claims fell below an objective 14 standard of reasonableness, and second that defendant was actually prejudiced by counsel’s 15 failure to make these arguments on direct appeal. Strickland v. Washington, 466 U.S. 668, 687 16 (1984). Appellate counsel need not raise every non-frivolous argument, and indeed, the 17 weeding out of weaker issues is widely recognized as one of the hallmarks of effective appellate 18 advocacy. See Jones v. Barnes, 463 U.S. 745, 751-54 (1983); Gerlaugh v. Stewart, 129 F.3d 19 1027, 1045 (9th Cir. 1997). 20 The cause and prejudice standard required to defeat a procedural bar mirrors the standard 21 for ineffective assistance of counsel, and accordingly both can be evaluated under a single 22 framework. 23 24 A. Cause. To satisfy the first prong of the Strickland test, petitioner must show that counsel’s 25 performance fell “outside the wide range of professionally competent assistance.” Strickland, 26 466 U.S. at 690. There is a “strong presumption” that counsel’s representation falls within this 27 range. Here, the alleged error in claim seven is failure to object to the state court’s failure to 28 create, preserve, and settle a complete, accurate, and reliable record. 10 1 The crux of claim seven is that certain portions of the trial proceedings were conducted 2 off the record, and that court reporters did not transcribe the contents of video and audio tape 3 played in court (Pet. at 181–185). Cook has failed to show how these alleged deficiencies 4 harmed him in any way, or why his defense counsel should have raised these alleged deficiencies 5 on appeal. 6 With respect to alleged off-the-record proceedings, Cook argues that certain disputes 7 conducted at sidebar or in chambers led to “biased rulings on defense motions” (Pet. at 184). He 8 gives only one example of an allegedly biased ruling, and it does not support a claim of 9 ineffective assistance of counsel. Cook alleges that the trial judge ruled against defense counsel’s off-the-record request for funds to have tape-recorded statements of witness Lavert 11 For the Northern District of California United States District Court 10 Branner transcribed to assist them in cross-examination. The judge’s ruling, even if erroneous, 12 was not so prejudicial as to possibly warrant reversal. Defense counsel had access to the taped 13 statements, and were able to cross examine Branner using those tapes, or notes that they took 14 from the tapes. It was reasonable for appellate counsel not to raise this collateral issue, and to 15 instead focus on matters of more significance to Cook’s trial. Absent some actual showing of 16 bias, the mere fact that certain disputes occurred off-the-record is inadequate to support a claim 17 for ineffective assistance of appellate counsel. Therefore, his appellate counsel was not deficient 18 for failing to raise this issue. 19 With respect to the failure of court reporters to transcribe video and audio-taped 20 statements (the usual practice), Cook claims that the transcripts provided to appellate counsel, 21 which were produced by the San Mateo County District Attorney, were misleading, inaccurate, 22 and unreliable (id. at 182). He does not, however, elaborate on this allegation though he has had 23 access to both the recordings and the transcripts. It is undisputed that the jury heard the actual 24 recordings at issue, and that the trial court admonished the jury that the evidence they were to 25 rely upon were the tapes themselves, and not transcriptions. Moreover, his appellate counsel did 26 not need to consult a court reporter’s record as they had access to the tapes, and could have as 27 easily listened to or watched the recordings. In short, Cook has failed to show that the “failure” 28 of the court reporter to transcribe certain recorded statements caused him harm, and, in turn that 11 1 his appellate attorney’s failure to raise these alleged errors fell outside the wide range of 2 professionally competent assistance.1 3 Because Cook has not shown that his appellate counsel’s failure to object to the 4 incompleteness of the record amounted to ineffective assistance of counsel, this order does not 5 reach the prejudice prong. 6 3. THE MERITS. 7 As stated, we evaluate the petition for whether the state court’s denial of Cook’s petition 8 resulted in a decision contrary to or involving an unreasonable application of clearly established 9 federal law, or an unreasonable determination of the facts. Where, as here, the state court summarily denied the petition on the merits, the district court “must determine what argument 11 For the Northern District of California United States District Court 10 or theories . . . could have supported the state court’s decision, and then it must ask whether it is 12 possible fairminded jurists could disagree that those arguments or theories are inconsistent with 13 the holding in a prior decision of” the United States Supreme Court. Harrington v. Richter, 14 562 U.S. 86, 98-99 (2011). 15 Cook is “not entitled to habeas relief based on trial error unless [he] can establish that 16 [the error] resulted in actual prejudice.” Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). 17 In evaluating whether relief is warranted with regard to a claim, however, our court of appeals 18 has noted that “prejudice may result from the cumulative impact of multiple deficiencies.” 19 Harris By & Through Ramseyer v. Wood, 64 F.3d 1432, 1438 (9th Cir. 1995) (quoting Cooper v. 20 Fitzharris, 586 F.2d 1325, 1333 (9th Cir.1978) (en banc), cert. denied, 440 U.S. 974, 99 S.Ct. 21 1542, 59 L.Ed.2d 793 (1979)). 22 23 A. Reliance on Cook’s Statements: Miranda Violation. Cook claims that the state improperly relied on statements he made during custodial 24 interrogation in violation of Miranda v. Arizona, 384 U.S. 436 (1966), and its progeny. 25 Cook asserts that he did not knowingly and intelligently waive his rights, and therefore the fruits 26 27 28 1 Even assuming that a failure to fully transcribe recording played in court resulted in a technical violation of post-conviction process, this is insufficient to state a cognizable claim. See Cooper v. Neven, 641 F.3d 322, 331-32 (9th Cir. 2011). 12 1 of the interrogation should have been suppressed. He further argues that the interrogation 2 methods coupled with his mental disabilities overbore his free will and resulted in an involuntary 3 confession (Petn. at 92–112). 4 Miranda requires that a person subjected to custodial interrogation be advised that “he Miranda, 384 U.S. at 471 (emphasis added). This warning is given in order to protect a 7 suspect’s Fifth Amendment right against self-incrimination, and must precede any custodial 8 interrogation. Ibid. To establish that a suspect waived his right, the government must introduce 9 sufficient evidence showing that under the totality of the circumstances, the defendant was aware 10 of “the nature of the right being abandoned and the consequences of the decision to abandon it.” 11 For the Northern District of California has the right to consult with a lawyer and to have the lawyer with him during interrogation.” 6 United States District Court 5 Moran v. Burbine, 475 U.S. 412, 421 (1986). The government's burden to make such a showing 12 “is great,” and the court will “indulge every reasonable presumption against waiver of 13 fundamental constitutional rights.” United States v. Heldt, 745 F.2d 1275, 1277 (9th Cir.1984) 14 (citing Johnson v. Zerbst, 304 U.S. 458, 468 (1938)). 15 The validity of the waiver will depend upon the totality of the circumstances surrounding 16 the interrogation, including . . . the defendant’s maturity, education, physical condition, mental 17 health, and age.” Brown v. Horell, 644 F.3d 969, 979 (9th Cir. 2011). A defendant's mental 18 capacity directly bears upon the question whether he understood the meaning of his Miranda 19 warning and the significance of waiving his constitutional rights. United States v. Garibay, 20 143 F.3d 534, 538 (9th Cir. 1998). If a waiver is determined to be invalid, habeas relief is 21 appropriate where it “‘had a substantial and injurious effect or influence in determining the 22 jury’s verdict.’” Jackson, 364 F.3d at 1010 (quoting Calderon v. Coleman, 525 U.S. 141, 147 23 (1998)). 24 Similarly, a coerced confession is inadmissible and violates a defendant’s right against 25 self-incrimination. Colorado v. Connelly, 479 U.S. 157, 167 (1986). While police must apply 26 some force in order to violate due process, the amount varies depending upon the suggestibility 27 of the suspect being interviewed. Id. at 163; Blackburn v. Alabama, 361 U.S. 199, 206–07 28 (1960). Less force is required to overcome the free will of a highly vulnerable suspect, and thus 13 1 extract an involuntary confession. The reduced mental capacity of a suspect renders him more 2 susceptible to subtle forms of coercion. United States v. Preston, 751 F.3d 1008, 1020 (9th Cir. 3 2014). 4 This order now turns to Cook’s interrogation, first considering whether he was advised 5 of, and knowingly and intelligently waived his Miranda rights, and next considering whether the 6 tactics employed during interrogation were such that they overbore Cook’s free will. 7 (1) 8 No Knowing and Intelligent Waiver. (a) Cook’s Interrogations. SWAT team members of the police department in his mother’s home in Oklahoma, brought to a 11 For the Northern District of California At the time of Cook’s arrest and interrogation, he was eighteen. He was apprehended by 10 United States District Court 9 local jail, and interrogated for approximately six hours beginning just after 7:00 p.m. and 12 continuing until approximately 2:30 a.m., with a break in the middle (Exh. 340; 453). When 13 given Miranda warnings, including the warning that he had the right to “have an attorney present 14 before or during questioning” and asked whether he understood, Cook responded “yeah,” and 15 proceeded to answer questions for the next approximately six hours (Exh. 340 at 6222; Exh. 16 453).2 17 From the outset of the interrogation, there were signs that Cook was either seriously 18 confused, or otherwise mentally incompetent. Cook incorrectly stated his age and the year he 19 was born, and was unsure what day it was (id. at 6223). He appeared distressed throughout the 20 interrogation, and repeatedly expressed his concern that if he told the police anything, it would 21 put his family in danger (see Exhs. 453 and 454). He was often fed answers through leading 22 questions. He also stated that he “must have” done things the officers state that he did, though 23 he could not actually remember having done them (Pet. at 101–110). 24 In the course of the interrogation Cook stated that he “blanked out” during both the 25 Bettancourt and Morris homicides, but admitted to having been on the scene of both, and with 26 respect to the Bettancourt homicide stated that he was holding the gun and “figured [he] did it” 27 2 28 The interrogation, which was tape recorded and later transcribed, concerned only the Bettancourt and Morris homicides. A later separate interrogation concerning the Sadler homicide was unwarned and the prosecution agreed not to try to introduce it at trial. Cook, 39 Cal. 4th at 590. 14 1 (Exh. 6476, 6479, 6512–13). His statement regarding the Morris homicide was more equivocal. 2 He admitted to being in a car with Branner and Senegal when Morris approached, but said that 3 he just “blank[ed] out” when Morris got close (id. at 6366). Cook admitted, however, that he 4 was the only one with a gun that night, and he did not recall either of the other occupants of the 5 vehicle using his gun (id. at 6366–6367, 6375, 6382–83). 6 Questioning ended at approximately 2:30 a.m. and Cook was returned to his cell. 7 The next afternoon, Cook was again brought into the interrogation room by Sergeant Eatmon 8 and Inspector Sabin. This time when read his rights Cook asked, “when you all talk to me, I’m 9 supposed to have an attorney here or something?” The officers clarified that he had the right to have an attorney present. This led to the following exchange (Exh. 340 at 6537–38): 11 For the Northern District of California United States District Court 10 Cook: Is that the only time you could have an attorney to be able, when you go to court? 12 13 Inspector Sabin: You can have an attorney present any time during these [] proceedings. 14 Cook: I didn’t know that. 15 Inspector Sabin: Okay, well, do you remember me reading that off to you yesterday? 16 Cook: Not really, but I remember you was reading something about my rights. 17 18 At this juncture, Cook informed the officers that he would like to speak with his mother 19 and did not want to talk more until he had done so (id. at 6538–40). Before ending the 20 interrogation, however, Inspector Sabin asked Cook a series of questions about what he 21 understood of his Miranda rights when he appeared to waive them the day before. Cook again 22 explained that he “didn’t know that . . . when you guys talked to me that I could have a lawyer 23 here” (id. at 6541). Inspector Sabin continued to probe this issue, asking Cook whether, at the 24 time of any previous arrests (as a minor) he had been read and understood his rights (id. at 25 6541–42). Again, Cook explained that “I didn’t know . . . when [] people come to question you, 26 you can have a lawyer present with you” (id. at 6542). The officers then ended the second 27 interview. 28 15 1 They brought Cook back to the interrogation room again at 6:20 p.m. that same day, after 2 he had had an opportunity to speak to his mother. Inspector Sabin asked whether Cook wanted 3 to talk to them, and Cook responded “No, [my mother] told me I should wait til I get back to 4 California, we got to talk to my lawyer” (id. at 6543). After the officers clarified that Cook no 5 longer want to talk, they ended the interview (ibid.). 6 7 (b) Cook’s Psychological Evaluations. Subsequent to his interrogation, but before trial, Cook submitted to psychological 8 evaluation. According to Dr. William Lynch, the neuropsychologist who evaluated Cook, his 9 level of intelligence was “low average overall . . . with verbal and performance abilities falling at the extreme low end of the average range” (Exh. 449 at 8648). The tests further indicated that 11 For the Northern District of California United States District Court 10 Cook suffered from a developmental learning disability involving reading and writing, and that 12 he had a “narrow, precarious attention span that can be interrupted easily” and as a result “often 13 fails to apprehend complete messages (words, phrases or numbers) due to problems with 14 organizing the information correctly” (id. at 8647–48). The report concluded that Cook “is apt 15 to have difficulty with understanding complex spoken and written speech” (ibid.). It also noted 16 that he had not graduated high school or obtained a GED, and to the extent he attended high 17 school received C’s, D’s and F’s (id. at 8643). 18 In support of his state habeas petition, Cook underwent further psychological evaluation 19 and presented declarations from three additional mental health experts. Doctor Myla Young, a 20 clinical psychologist, evaluated Cook in 2004 over the course of three days. She submitted a 21 declaration stating that Cook’s overall mental function was “borderline to low average” and that 22 he had a verbal IQ of 85, and a performance IQ of 82. Cook’s performance on the test that 23 predominantly measures his ability to process new information, however, showed an IQ of 78. 24 Doctor Young opined that while individuals with this level of functioning “are often able to 25 function adequately in environments that are reasonably predictable, stable and simple, they are 26 not able to function adequately in situations that are even moderately complex.” Complex 27 situations can overwhelm such individuals and cause them to act erratically (Exh. 504 at 28 ¶¶ 18–20). Doctor Young further declared that the tests she performed in 2004 did “not reflect 16 1 evidence of a significant decline in [Cook’s] functioning from 1992 to 2004” and that it was 2 therefore “reasonable to conclude that the impairments [Cook] demonstrates in 2004 would have 3 been present at the time of the offenses and his trial” (id. ¶ 35). Dr. Young compared the 2004 4 test to the test that Cook underwent in 1994 and determined that the results were “significantly 5 similar” (id. ¶ 36). 6 Doctor George Woods, a psychiatrist, provided a psychodiagnostic assessment of Cook. 7 His report recited Cook’s traumatic childhood in detail, including many episodes of physical 8 violence and neglect, as well as consistent exposure to alcohol, drugs and drug dealing in his 9 home (Exh. 506, e.g., ¶¶ 98-106, 125-167). It also discussed at length Cook’s exposure to death 11 For the Northern District of California United States District Court 10 and violence on the streets of East Palo Alto (id. ¶¶ 261–69). Doctor Woods further observed that Cook engaged in depressive and aberrant behavior 12 shortly after his arrest and interrogation. For instance, in jail, while awaiting trial, Cook stopped 13 exercising or participating in any other activities, spending time curled up in bed with a blanket 14 over him (id. ¶ 271). He had developed strange, psychotic ideas that he wrote about, among 15 them that he “saw a little yellow man in the television,” and thought that people at the jail were 16 “putting something in [his] food” (id. ¶ 273). Cook had also written that he heard voices, which 17 were trying to control him (ibid.). 18 Based on his traumatic childhood and the symptoms he manifested around the time of 19 his arrest and interrogation, Dr. Woods concluded that Cook suffered from an organic brain 20 disorder that caused him to dissociate and to fail to recall information and details (id. at 293–5). 21 He opined that Cook “readily incorporates cues, prompting and direction form others” and is 22 vulnerable to “suggestibility and confabulation” (id. ¶ 290). He further opined that Cook 23 suffered from post traumatic stress disorder. These conditions, he concluded, in combination 24 with Cook’s borderline to low average intellectual functioning satisfied the diagnostic criteria for 25 mental retardation (id. at 295). 26 Finally, Doctor Zakee Matthews, a clinical psychiatrist, reviewed the videotape of 27 Cook’s interrogation, and based upon his review gave the opinion that “it was extremely 28 unlikely Mr. Cook could have meaningfully understood the admonition regarding his legal rights 17 1 as expressed in the language and manner used by the interrogating officers” (Exh. 520 at 9725). 2 Dr. Matthews observed Cook’s apparent confusion at the outset of the interrogation as well as 3 his continuing inability to answer complex questions appropriately (id. at 9726). He concluded 4 that “based on signs of Mr. Cook’s impaired cognition, distractibility, and dissociative 5 tendencies during clinical assessments, and similar signs appearing in the videotape, it is evident 6 that his limited abilities to attend to or comprehend minimally complex language were 7 overwhelmed during the commencement of the interview” (id. at 9726).3 8 9 (c) Cook’s Miranda Waiver Was Not Knowing And Intelligent. The above mental health evidence was all before the state habeas court, which, upon consideration of Cook’s petition, ordered the Director of the Department of Corrections to show 11 For the Northern District of California United States District Court 10 cause as to why Cook’s death sentence should not be overturned based on his mental 12 deficiencies pursuant to Atkins v. Virginia, 536 U.S. 304 (2002). The San Mateo Superior Court 13 found that Cook was mentally retarded within the meaning of Atkins, vacated Cook’s death 14 sentence, and imposed a sentence of life without the possibility of parole (Ex. C7). Despite this 15 finding, the state habeas court summarily denied Cook’s claim that he was entitled to habeas 16 relief on the grounds that he did not knowingly and intelligently waive his Miranda rights. 17 Respondent argues that the state habeas court’s determination was reasonable, and that 18 Cook knowingly and intelligently waived his rights. Its argument, however, hinges entirely 19 upon Cook’s pre-trial psychological evaluation, which Respondent contends showed that Cook 20 was capable of understanding and intelligently waiving his rights. Respondent observes that his 21 pre-trial evaluation showed that Cook scored in the low-average range of intelligence and only 22 had minor disabilities, mostly related to reading and writing (Dkt. No. 39 at 3–4). Respondent’s 23 argument, however, ignores the report’s conclusion that Cook had a “narrow, precarious 24 attention span that can be interrupted easily” and as a result “often fails to apprehend complete 25 messages (words, phrases or numbers) due to problems with organizing the information 26 27 28 3 Dr. Matthews was originally scheduled to testify at Cook’s trial in 1994, but the morning that he was to take the stand, his wife went into labor, and Dr. Lynch (whose report is discussed above) testified in his stead (id. at 9724). In his declaration, Dr. Matthews explains that he was prepared to render an opinion that Cook “suffered from mental disorders, including PTSD” that he was “clinically depressed and that he endorsed symptoms diagnostic of substance abuse” (id. at 9724). 18 1 correctly,” and that he “is apt to have difficulty with understanding complex spoken and written 2 speech” (Exh. 449 at 8647–48). 3 Nor does Respondent grapple with any of the later evaluations, except to note that they The medical professionals that performed these evaluations, however, endeavored to evaluate 6 Cook’s mental condition at the time of his interrogation and trial. They did so by consulting the 7 videotape of his interrogation and other records created before trial as well as evaluating the type 8 of disability Cook suffered from, and whether their present evaluation was consistent with the 9 evaluation performed in 1994 (see Exhs. 520 at 9725; 506 ¶¶ 270–75; 504 ¶¶ 35). Based upon 10 these considerations, the declarants expressed an opinion that Cook suffered from disabilities at 11 For the Northern District of California are “less relevant” because they took place a decade after the interrogation (Dkt. No. 39 at 4). 5 United States District Court 4 the time he was interrogated, which prevented him from intelligently waiving his rights. 12 Respondent has not presented any evidence to contradict any of the expert opinions. 13 Finally, Respondent’s answer ignores what is perhaps the most critical fact: Cook 14 repeatedly told his interrogators that he had not understood he had the right to have an attorney 15 at the interrogation. In short, Respondent’s answer is not persuasive. 16 This order concludes that Cook’s Miranda waiver was not knowing and intelligent. 17 Given substantial evidence of his inability to comprehend his rights, including his youth, low IQ, 18 psychological deficiencies, inability to follow verbal instructions, dissociation, and his 19 statements to interrogators that he did not understand he had the right to have a lawyer present at 20 his interrogation, a contrary conclusion is unreasonable. See Taylor, 366 F.3d at 1000. 21 Accordingly, this order turns to the question of whether Cook’s waiver, when considered in the 22 whole context of his case “had a substantial and injurious effect or influence in determining the 23 jury's verdict.” Jackson v. Giurbino, 364 F.3d 1002, 1010 (9th Cir. 2004) (quoting Calderon v. 24 Coleman, 525 U.S. 141, 147 (1998)). The reviewing federal habeas court must have “‘grave 25 doubt about whether [the Miranda violation] had substantial and injurious effect or influence in 26 determining the jury’s verdict’” to grant relief. Mays v. Clark , 807 F.3d 968, 980 (9th Cir. 27 2015) (quoting Davis v. Ayala, 135 S. Ct. 2187, 2197–98 (2015). 28 19 (2) 1 2 Substantial and Injurious Effect? Respondent argues that even excising Cook’s statements from the trial, there is no doubt 3 that he would have been convicted of both the Bettancourt and Morris homicides due to the 4 presence of other inculpating evidence (Ans. at 31–32). The other evidence from each scene is 5 analyzed in turn. (a) 6 7 Bettancourt. A large group of individuals were present at the Bettancourt homicide, which took place 8 on a street that was used as an open-air drug market, seven of whom gave statements to police 9 indicating that Cook was the perpetrator (see id. at 32 citing RT 3474, 3484, 3492, 3579, 3692, 3698, 3742, 3751, 4029–32, 4035, 4041, 4508, 4552). Many of the statements, however, were in 11 For the Northern District of California United States District Court 10 some way compromised, either because the officer who took the witness’s statement allegedly 12 provided the witness with details of the crime through leading questions, and/or threatened that if 13 the witness did not name Cook as the shooter, she would be charged as an accessory to the 14 homicide (RT 3495–98, 3507-10, 3513 (Tomika Asburry recanting earlier taped statement and 15 claiming she merely adopted Inspector Sabin’s version of the events); RT 5316–18, 5326, 16 5688–90 (Teresa Beasley recanting taped statement saying police coerced her into naming 17 Cook); RT 4431–55 (Darnell Earby recanting taped statement and saying he told police what 18 they wanted to hear so they would stop bothering him); RT 3724–26 (Shawnte Early recanting 19 taped statement)). 20 Steven Sims also named Cook as the shooter and gave a detailed description of the crime. 21 His testimony, however, was also compromised because he was another suspect. By his own 22 admission, Sims was on the scene to make a crack sale, and was kneeling inside the victim’s car 23 (where he allegedly dropped a crack rock) moments before the shooting began (RT 4028–33). 24 Furthermore, ballistics evidence suggests that he may possibly have fired at least one gunshot 25 (RT 5880–81). Sims was ultimately granted leniency for his testimony against Cook (Exh. 465 26 at 8898–904). 27 There was, however, at least one untainted witness. Nathan Gardner, who did not allege 28 any impropriety in his police interview and was not otherwise directly connected with the crime, 20 1 testified that he was approximately twenty feet from Bettancourt’s car and saw someone who he 2 identified as Cook shoot Bettancourt. When he fled from the scene, Cook got into the backseat 3 of his car and told Gardner to drop him off down the road (RT 4507–09, 4512). While Cook was 4 in his car, Gardner testified that he asked Cook “What you do that for, what happened[?]” and 5 Cook responded “I don’t know . . . [Bettancourt] tried to gaffle [i.e. steal from] me” (id. at 6 4552–53).4 7 Moreover, even though many of the witness accounts are suspect because they were 8 allegedly induced through leading questions or coerced, all witnesses gave a highly similar 9 account of the events. Discounting Asburry and Beaseley’s statements, which were allegedly elicited through leading questions, that leaves four witnesses, all of whom corroborate each 11 For the Northern District of California United States District Court 10 others statements. In summary, each witness testified that Sims and Cook approached 12 Bettancourt’s vehicle to make a crack sale, that Sims opened the driver’s side door and knelt 13 down beside it, and that Cook then shouted at him to move and opened fire on Bettancourt. The 14 volume of corroborating testimony coupled with Gardner’s untainted account is strong evidence 15 of guilt. Ballistics evidence is likewise consistent with the witnesses testimony. Thirteen shell 16 17 casing were found a short distance from the driver’s side door of Bettancourt’s vehicle (RT 18 3438–39). All thirteen were the same caliber, type, and brand of ammunition, eleven of which 19 the criminologist was able to determine came from the same gun, two of which “were poorly 20 marked, but appeared consistent with having come from the same gun” (id. at 3439). Under these circumstances, it was not unreasonable for the state habeas court of find that 21 22 the admission of Cook’s confession did not actually prejudice Cook with respect to the 23 Bettencourt homicide. See Mays, 807 F.3d at 980. (b) 24 The Morris homicide likewise presents a close case. Additional evidence was introduced 25 26 Morris. against Cook; however, much of it was in some manner problematic. Two eyewitnesses who 27 4 28 Gardner was granted transactional immunity as a condition to testifying that he drove away with Cook in his car (to protect him from later prosecution as an accessory), though the rest of his testimony was not immunized (RT 4544–50). 21 1 testified that they saw Cook shoot Morris, Lavert Branner and Shannon Senegal, were in the car 2 with Cook at the time of the shooting and were themselves suspects. Through their cooperation, 3 they were granted leniency and were not pursued as murder suspects (see RT 4197, 4213–16 4 (Branner); RT 4583 (Senegal)). At trial, Branner admitted that he first came forward as a 5 witness against Cook when he allegedly discovered that Cook was trying to pin the Morris 6 homicide on him, and two of Branner’s friends, Monique Barrett and Lakishain Smith, testified 7 that Branner had told them on one occasion that he, not Cook, had killed Morris (id. at 4229, 8 4240–41; RT at 5442–44). 9 Senegal, who was driving the car, was also initially identified as a suspect. At trial, the defense relied upon a taped statement given by Tasha Bradford, a bystander, identifying Senegal 11 For the Northern District of California United States District Court 10 as the man who she thought shot Morris, though in her live testimony she clarified that she had 12 not seen the shooter and just assumed it was Senegal based upon his position in driver’s seat of 13 the car (RT 4831–32, 5955; Cook, 39 Cal. 4th at 581). Senegal was eventually charged as an 14 accessory after the fact to the homicide, but was promised that his charges would be reduced to a 15 misdemeanor if he testified, which they were (id. at 4610; Exh. 416–18). 16 Were these the only two witnesses, Cook’s wrongfully admitted confession would 17 possibly be prejudicial. A third eyewitness, however, who was merely a bystander, testified that 18 she saw Cook shoot Morris, and her account corroborates the accounts given by Branner and 19 Senegal (RT at 4746–4747). Sharoon Reed, who knew Cook from the neighborhood, happened 20 to run into Cook, Branner, and Senegal in a liquor store the night of the Morris homicide (id. 21 4737–38). It so happened that Reed and two of her girlfriends were going to see Morris that 22 night, so when Cook drove away from the liquor store in the direction of Morris’ apartment, 23 Reed followed. Reed testified that she saw Cook hold a gun out the window of the car and 24 wave it around as they followed (she suspected to show off to the women) (id. 4739). When 25 they arrived at Morris’ apartment building, Morris, who was standing by the side of the road, 26 flagged down Cook’s car (id. at 4741). Cook’s car pulled up next to Morris, and Reed’s car 27 stopped close behind it (id. at 4742–43). From that distance, Reed testified, she heard Morris, 28 22 1 who approached Cook’s car, say “damn, you all strapped?” and immediately thereafter saw Cook 2 lean across the driver’s seat and open fire on Morris (id. at 4744–47). 3 Given this corroborated eyewitness account of the Morris homicide, it was not 4 objectively unreasonable for the state habeas court to conclude that, on the basis of the testimony 5 presented against Cook at trial, the erroneously admitted confession did not have an “injurious 6 effect or influence in determining the jury’s verdict.” See Coleman, 525 U.S. at 148. (3) 7 Voluntariness. error analysis as failure to knowingly and intelligently waive Miranda rights, this order does not 10 reach the voluntariness inquiry. See Fulminante v. Arizona, 499 U.S. 279, 306–12 (1991). Just 11 For the Northern District of California Because the erroneous admission of a coerced confession is subject to the same harmless 9 United States District Court 8 as above, it was reasonable for the state habeas court to conclude that playing Cook’s 12 interrogation tape to the jury did not unreasonably prejudice him. B. 13 14 Investigative and Prosecutorial Misconduct. Cook next alleges that the Palo Alto Police Department and the San Mateo County 15 District Attorney’s Office engaged in a pattern of prosecutorial misconduct that violated his 16 constitutional rights. The California Supreme Court denied this claim on the merits but without 17 explanation. 18 The standard of review for claims of prosecutorial misconduct is the narrow one of due 19 process and not the broad exercise of supervisory power. See Darden v. Wainwright, 477 U.S. 20 168, 181 (1986). A defendant’s due process rights are violated when a prosecutor’s misconduct 21 renders a trial “fundamentally unfair.” Ibid. 22 Cook contends that several errors and improprieties committed by the investigators and 23 prosecutors, including falsifying reports and evidence, coercing statements from witnesses, and 24 failing to disclose exculpatory and impeachment information, conspired to deprive him of due 25 process. This order addresses each in turn, and then addresses the cumulative effect of any 26 alleged prejudice. 27 28 23 (1) 1 Corrupt Investigation. Cook contends that his case was investigated in a manner “consistent with the corrupt 2 3 culture and practices of law enforcement in East Palo Alto and San Mateo County” (Petn. at 25). 4 He identifies various incidents of East Palo Alto Police misconduct in the late 1980's and early 5 1990's purporting to demonstrate this culture, though these incidents have no relationship to 6 Cook, and are instead drawn largely from media accounts of the state of affairs in East Palo Alto 7 at that time (id. at 25-36). While such incidents have some bearing on the plausibility of 8 allegations that Cook was subjected to unfair and corrupt treatment, they cannot, standing alone, 9 be said to have infected his trial with unfairness, or rendered its result fundamentally unfair. The state court’s determination that allegations of corruption in a police department, generally, 11 For the Northern District of California United States District Court 10 was not grounds for habeas relief was a reasonable application of established federal law. (2) 12 Failure to Preserve. Cook further contends that the law enforcement agencies involved in the investigation 13 14 and prosecution of his case “failed to collect, preserve, and/or disclose” certain evidence relating 15 to the murders, which Cook’s attorney could not “examine, test, or otherwise obtain” 16 exculpatory results from (Petn. at 36–38). He contends that this amounted to a violation under 17 Brady v. Maryland, 373 U.S. 83 (1963), and constituted reversible error. A Brady violation occurs when the prosecution fails to disclose material exculpatory 18 19 evidence to the defense “irrespective of the good faith or bad faith of the prosecution.” Id. at 87. 20 Exculpatory evidence is material if there is a “reasonable probability” that the result at trial 21 would have been different had such evidence been disclosed. Cone v. Bell, 556 U.S. 449, 22 469–70 (2009). The mere possibility that undisclosed information might have been helpful to 23 the defense or might have affected the outcome of the trial, however, does not establish 24 materiality under Brady. United States v. Olsen, 704 F.3d 1172, 1184 (9th Cir. 2013). The 25 failure to preserve evidence which merely “might have exonerated the defendant” only rises to 26 the level of a constitutional violation if the evidence was destroyed in bad faith. Arizona v. 27 Youngblood, 488 U.S. 51, 57–58 (1988); see also California v. Trombetta, 467 U.S. 479, 488–89 28 (1984). 24 1 The state habeas court’s determination that the physical evidence did not rise to the level of a 2 Brady violation was reasonable. None of the evidence Cook points to has material exculpatory 3 value. Rather, it falls into the speculative category of scenarios that only possibly affected the 4 outcome of the trial. See Youngblood, 488 U.S. at 56. Because Cook has failed to show bad 5 faith in connection with the failure to collect this evidence, the state habeas court’s determination 6 that no constitutional violation occurred was reasonable. 7 8 9 (a) Sadler Evidence. The most compelling evidence Cook describes in connection with the Sadler homicide consists of blood droplets observed near the murder scene, Sadler’s shoeprints leading from the Menalto property to the street, and a wooden post similar to the one used to kill Sadler found 11 For the Northern District of California United States District Court 10 inside of the Menalto Street house (Petn. at 37). The alleged failure to preserve this evidence, 12 however, does not give rise to any constitutional violation. 13 The blood droplets observed near the murder scene could have had exculpatory value, but 14 they could have as easily inculpated Cook if determined to belong to him, or had no value at all, 15 if, for instance, the blood matched the victim. Accordingly, the blood droplets do not fall into 16 the category of material exculpatory evidence required to show a Brady violation. Rather, they 17 are the sort of “evidentiary material of which no more can be said than that it could have been 18 subjected to tests, the results of which might have exonerated the defendant.” Youngblood, 19 488 U.S. at 57. Since Cook has not shown that police acted in bad faith in failing to collect this 20 evidence, it was reasonable for the state habeas court to find no constitutional violation. 21 Nor does the presence of a wooden post “similar to the one used in the assault of Mr. Sadler” 22 inside the Menalto house constitute Brady evidence. As an initial matter, the post was 23 photographed, and the photograph was included in the investigatory case file, which was turned 24 over in discovery (Exh. 515 at 9697). Moreover, the presence of a similar looking post in the 25 Menalto house is at best tangential evidence that could have had some value to Cook, but could 26 have as easily proved irrelevant. As above, the failure to actually collect the post and turn it over 27 to the defense was not a constitutional error. 28 25 Like the wooden post, the defense was made aware of Sadler’s shoeprints and, in fact, 2 raised the matter before the jury in support of its theory that someone residing at the Menalto 3 house had committed the murder (RT 3326). The prosecution did not contest that Sadler’s 4 footprints were found on the front lawn of the Menalto property. The mere fact that detectives 5 did not take molds of the footprints has little or no bearing on the outcome of Cook’s trial. 6 Other evidence Cook describes at the Sadler murder scene that officers allegedly failed to collect 7 consists mostly of detritus — e.g., a discarded hat, a gin bottle, a metal crack pipe (Petn. at 37). 8 These items could have been connected to Sadler’s murder, but could just as well have been 9 completely unconnected. Police do not have a constitutional duty to collect every item they find 10 in proximity of a crime scene, irrespective of its apparent relevance. Kyles, 514 U.S. at 436–37. 11 For the Northern District of California United States District Court 1 Finally, Cook argues that the investigators committed a Brady violation by taping over an 12 interview they conducted with a potential witness, Alphonse Grimes. Cook alleges that, in order 13 to curry favor with police to obtain lenient treatment following his own arrest, Grimes “falsely 14 informed the police he had allegedly seen Mr. Cook and [Shannon] Senegal running from the 15 Sadler crime scene” (Petn. at 50). Subsequently, however, police were unable to corroborate 16 Grimes’ story and abandoned him as a witness (id. at 56). 17 Alphonse Grimes interview, which inculpated Cook, could have prejudiced him, especially in 18 light of the fact that the police deemed Grimes’ story not credible and did not attempt to 19 introduce his statements at trial or call him as a witness. The alleged destruction of this 20 interview had little or no effect on Cook’s trial or conviction. It is not clear how taping over the 21 The state habeas court’s conclusion that the alleged failure to preserve evidence 22 connected with the Sadler homicide did not violate Cook’s constitutional rights was reasonable. 23 24 (b) Bettancourt and Morris Evidence. The state habeas court also reasonably concluded that the failure to collect certain items 25 of evidence at the Bettancourt and Morris scenes did not rise to the level of a constitutional 26 violation. Like the Sadler items, Cook points to a large array that the government allegedly 27 failed to preserve, including items found in Morris’ pockets, such as shopping receipts, rolling 28 papers and a plastic baggie of marijuana, as well as clothing and other sundry items in Morris’ 26 1 car. For the same reasons as above, it was reasonable to conclude that the failure to collect these 2 items did not violate Cook’s constitutional rights. 3 Cook also describes other physical evidence which is more closely connected to the 4 Morris homicide, and which investigators failed to preserve. Investigators did, however, 5 preserve comparable evidence that the defense could have examined and tested, undercutting 6 claims that this alleged failure to preserve prejudiced Cook. See Trombetta, 467 U.S. at 489 7 (government’s duty to preserve evidence extends only to evidence of such a nature that the 8 defendant cannot obtain comparable evidence by other reasonably available means). 9 For example, investigators lost the shirt that Morris had been wearing at the time of the shooting before the defense could examine it. They did, however, preserve gunshot residue 11 For the Northern District of California United States District Court 10 samples from Morris’ shirt (the evidence that Cook argues could have been potentially 12 exonerating), which the defense had an opportunity to independently test (Exh. 505 at 9525). 13 Cook also alleges that investigators failed to take photographs of the placement of some of the 14 bullet casings near the Morris vehicle. To the extent that this failure could have prejudiced 15 Cook, any such prejudice was mitigated by the fact that the bullet casing and the bullets were 16 collected and preserved. This evidence was examined by ballistics experts and presented at trial 17 (see Exh. 370 at 6781). 18 Moreover, it is not reasonably probable that the evidence Cook points to would have 19 changed the result at trial. The physical evidence is, instead, inconclusive, or only provides a 20 remote chance that, had it been preserved, it would have altered the course of the trial. “[T]he 21 Constitution is not violated every time the government fails or chooses not to disclose evidence 22 that might prove helpful to the defense.” Kyles, 514 U.S. at 436-37. It was not apparent that the 23 items Cook describes were exculpatory. See Trombetta, 467 U.S. at 488–89. They could, just 24 as likely, have inculpated Cook. This is the sort of evidence, which, at the very least, requires a 25 showing that it was destroyed in bad faith in order to rise to the level of constitutional violation, 26 and no such showing has been made. See Youngblood, 488 U.S. at 57–58. 27 28 27 1 2 (3) Falsifying Reports, Testimony, and Evidence. Cook next contends that law enforcement falsified or omitted key exculpatory 3 information from official reports in order to deflect suspicion from third-party suspects and 4 underscore Cook’s suspiciousness (Petn. at 39–51). 5 Cook raises numerous alleged deficiencies and irregularities in law enforcement reports. 6 The most notable is a set of field notes created by Detective Osborn, one of the lead detectives 7 investigating Cook’s case, which indicate that a confidential informant (later revealed to be 8 Steven Sims) told Detective William Osborn that he had heard three others committed the Sadler 9 homicide: Earnest Woodard, Thomas Young, and Edward Branner, Jr. (Petn. at 39; Exhs. 8501–02). This information was later omitted from Detective Osborn’s official report, which, 11 For the Northern District of California United States District Court 10 aside from this omission, reproduce his field notes almost verbatim (compare Exh. 428 at 12 8454–63 to id. at 8501–02). 13 Despite leaving this information out of his official report, however, his handwritten 14 notes were produced to the defense in discovery along with the official typed report (RT 3970). 15 Because the prosecution did not withhold this information, it cannot form the basis of a Brady 16 violation. Moreover, the defense used this information to cross-examine Detective Osborn about 17 the inconsistency between his field notes and report and in doing so was able to place this 18 information in front of the jury, and to note that all three of the suspects named by the 19 confidential informant were in the Menalto house at the time of the murder (id. at 3970–75). 20 Accordingly, the inconsistency between Detective Osborn’s official report and field notes did 21 not prejudice Cook. See Cone, 556 U.S. at 469–70 (petitioner must show that “there is a 22 reasonable probability that, had the evidence been disclosed to the defense, the result of the 23 proceeding would have been different”). 24 Cook points to other alleged falsifications, which he argues entitle him to relief. Only 25 one is of possible relevance here. A series of microscope photographs used in a side-by-side 26 comparison of bullets from the Morris and Bettancourt autopsies contained an irregularity that 27 could have been the result of evidence tampering. In the ballistics report, a case number is 28 written next to each photograph, one on the right and one on the left, to denote which autopsy the 28 1 bullet was recovered from. The photographs on the right side of the comparison, allegedly from 2 the Bettancourt autopsy, each have part of the case number crossed out, and a new number 3 written in its place (see Exh. 370 at 6765–6778). Based upon this alteration, Cook concludes 4 that the photographs ostensibly comparing bullets from the Morris autopsy to bullets from the 5 Bettancourt autopsy may have actually both been from the Morris autopsy (Petn. at 40–41; 6 see Exh. 505 at 9520–21). 7 It is not clear from viewing the alterations that this is the case. The numbers are 8 somewhat obscured and this could as easily have been an innocent mistake, although it raises 9 some suspicion that there is no note clarifying why the numbers were crossed out and re-written. Nevertheless, given the volume of other evidence supporting the jury’s findings, this alleged 11 For the Northern District of California United States District Court 10 labeling error does not render the state habeas court’s conclusion unreasonable. 12 13 14 15 (4) Witness Tampering and Suborning Perjury. Cook further contends that the prosecution manipulated witness testimony and suborned perjury (Petn. at 45–56). A conviction obtained by the knowing use of perjured testimony violates due process. 16 Napue v. Illinois, 360 U.S. 264, 269 (1959). To prevail on a Napue claim Cook must show that 17 “(1) the witness’s testimony (or evidence) was actually false; (2) the prosecution knew or should 18 have known of the falsity; and (3) the false testimony (or evidence) was material, i.e., there is a 19 reasonable likelihood that it affected the jury’s decision.” Hein v. Sullivan, 601 F.3d 907, 908 20 (9th Cir. 2010). 21 Cook’s allegations of witness tampering, however, do not bear out. Cook argues, for 22 instance, that an interview with Earnest Woodard, a resident of 2250 Menalto, shows that law 23 enforcement used overbearing tactics to manipulate testimony (id. at 46). Woodard submitted a 24 sworn declaration, which states that an officer “became extremely agitated” during a taped 25 interrogation, turned off the tape and “rais[ed] his voice” and “c[ame] at [Woodard]” (Exh. 501 26 at 9448–49). The declaration, however, indicates that, at least initially, Woodard believed he 27 and his housemates were being targeted in the investigation, and police were using these heavy- 28 handed tactics to coerce Woodard into admitting his own guilt (ibid.). Later, the police “made it 29 1 clear” to Woodard that he either had to cooperate with the Sadler investigation, or they would 2 continue to raid his house (ibid.). None of this shows that the prosecution or investigators forced 3 him to testify in a particular way, nor was their decision to interview residents of the house in 4 front of which Sadler was murdered unusual or unfair. See Hein, 601 F.3d at 908. Cook also points to interviews in which Ella Thompson was allegedly coerced to testify 5 6 against Cook and threatened that if she did not the police would take away her children (Petn. at 7 51–52; Exh. 499). Thompson, however, would not admit to seeing Cook at the scene of the 8 Sadler murder, and did not testify at trial. Any alleged misconduct, therefore could not have 9 resulted in prejudice to Cook. Cook further argues that in many interviews police turned off the tape recorder and 11 For the Northern District of California United States District Court 10 intimidated or coached witnesses (Petn. at 47). He does not point to evidence to support these 12 claims; however, a review of the record shows that several witnesses claimed to have been 13 coerced into making statement, by threats that they could be charged as accessories (e.g. RT 14 3513 (Tomika Asburry); RT 5315 (Teresa Beasley); RT 5078–79 (Earnest Woodard)). These 15 witnesses, however, gave testimony at trial where they were given an opportunity to contest the 16 officers’ techniques (and did), and were subject to cross examination (ibid.; Petn. at 48). The 17 jury had an opportunity to weigh their testimony and decide whether it was credible. Cook 18 further characterizes law enforcement’s seeking out and interviewing certain witnesses as 19 harassment, but this can as easily be described as persistence in investigating a serious crime 20 (see Petn. at 49–50). In further support of his contention that the prosecution suborned perjury, Cook cites 21 22 Shannon Senegal’s testimony that, in order to receive his deal, he would “Tell them what they 23 want to hear” (id.; RT 4669). This is misleading. Senegal’s entire statement was as follows 24 (ibid.): 25 26 27 28 Q: Now, what condition has there been that you testify? What do you have to do? A: What do I have to do? Q: Yes. A: Tell them what they want to hear. 30 1 2 3 4 5 6 7 8 9 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 23 24 Q: Tell them what they want to hear, or tell them the truth? A: Tell them the truth. To the extent that Senegal’s initial answer cast doubt upon his credibility, it was in front of the jury. The answer standing alone does not show that he perjured himself, less so that the prosecution suborned perjury. Finally, Cook points to the favorable treatment of several witnesses in exchange for their testimony. In exchange for the cooperation of Steven Sims, a percipient witness to the Bettancourt murder, the government requested that Sims be released early from a prison term, and not be placed in custody in connection with a parole violation (Petn. at 52; Exh. 465 at 8898–904). Nathan Gardner, Earnest Woodard, Velisha Sorooshian, Shannon Senegal, Sharoon Reed and others were similarly granted leniency in pending prosecutions (Petn. at 53). A grant of leniency, however, is a commonly used prosecutorial tool to induce individuals to come forward who otherwise might not. Reduced sentences or favorable plea bargains in exchange for testimony do not, in themselves, form the basis of a constitutional violation. Lisenba v. People of State of California, 314 U.S. 219, 227 (1941).5 The state court did not err in denying Cook the extraordinary relief he sought on this basis, nor did it unreasonably apply federal law in reaching its determination. (5) Other Trial Conduct. Cook also argues that the prosecution engaged in misconduct throughout the course of the trial (Petn. at 80–88). Whether the prosecution is guilty of actionable misconduct is a two-part analysis, which asks first whether the prosecutors remarks were improper, and if so whether they infected the trial with unfairness such that it violated the defendant’s due process rights. Tan v. Runnells, 413 F.3d 1101, 1112 (9th Cir. 2005); see also Darden, 477 U.S. at 181. A habeas petitioner is 25 26 27 28 5 Cook argues that the prosecution failed to disclose that Sims was given favorable treatment for his testimony, but this argument is clearly undermined by the trial record, in which Sims admits to having received a lighter sentence and other favorable treatment for having come forward (see RT 4052–4055; Exh. 465 at 8898–904). 31 1 entitled to relief if he can show that the misconduct resulted in “actual” prejudice. Brecht v. 2 Abrahamson, 507 U.S. 619, 637 (1993). 3 Most, if not all of Cook’s allegations fail to show that the prosecutor’s conduct was 4 improper. For example, he argues that the certain lines of questioning had been ruled irrelevant, 5 and that the prosecution pursued them anyway (Petn. at 81). This overstates his case. On two 6 occasions Cook points to, the prosecutor arguably strays into a line of questioning that the judge 7 deemed irrelevant in a sidebar, but the questions do not produce any answers that were 8 particularly damaging to Cook, nor did they draw any objections from defense counsel (see RT 9 5452–5457, 5534). Cook also objects to comments made in the prosecution’s opening and closing 11 For the Northern District of California United States District Court 10 statements. Again, these statements were neither misconduct, nor prejudicial. For example, 12 Cook objects that the prosecution raised an issue in its closing argument that had earlier been 13 the subject of a motion for sanctions (Petn. at 81). The motion, however, was not granted, and 14 the parties agreed that the evidence at issue in the motion was peripheral (RT 4952). The 15 prosecution’s reference to this evidence in closing was neither improper nor prejudicial. 16 17 Other prosecution statements Cook objects to include: • The prosecution’s comments in its opening statement that Sadler lay defenseless for “a good long time,” which was allegedly unsupported by the evidence (RT 3321); • Argument that “every single shot went into Mr. Bettancourt” (RT 3312); • A statement that Cook and Anthony Allen (an ancillary witness) were “good friends” (RT 5853); and, • The prosecution’s statements in closing that Cook “admitted killing [Mr. Sadler]” (RT 5847). 18 19 20 21 22 23 24 25 26 27 28 These statements are at most slight embellishments, and are not demonstrably false or improper. They cannot form the basis of a prosecutorial misconduct claim. Finally, accusations that the prosecution improperly characterized witnesses’ testimony as truthful or not truthful in closing argument is not evidence of misconduct (see Petn. at 84–85). The jury was instructed that closing argument was just that, argument, and that the case was to be decided solely on the evidence (RT 5999). “Prosecutors must have reasonable latitude to 32 1 fashion closing argument, and thus can argue reasonable inferences based on the evidence.” 2 United States v. Necoechea, 986 F.2d 1273, 1276 (9th Cir. 1993). The state court’s determination that the prosecutions conduct at trial did not give rise to a 3 4 constitutional violation was not unreasonable. (6) 5 Cumulative Effect. In some cases, although no single trial error is sufficiently prejudicial to warrant reversal, 6 7 the cumulative effect of several errors may still prejudice a defendant so much that his 8 conviction must be overturned. See Alcala v. Woodford, 334 F.3d 862, 893–95 (9th Cir. 2003). The arguments raised by Cook, and analyzed above, for the most part do not state claims 9 for prosecutorial misconduct. Those that even arguably show misconduct, however, were not 11 For the Northern District of California United States District Court 10 prejudicial. The Bettancourt homicide was corroborated by many eyewitnesses, all of whom 12 gave similar accounts of the events. This evidence was so overwhelming that the defense 13 reasonably chose not to contest it, but instead to focus on the other two homicides. As discussed 14 above, the Morris homicide was corroborated by three eyewitness accounts and ballistic 15 evidence, which taken together overcome the effect of any other errors that Cook alleges 16 occurred. Finally, Cook has failed to show that prosecutors engaged in misconduct that in any 17 way altered the result of the jury’s verdict on the Sadler homicide. As noted above, much of the 18 evidence that Cook argues was not preserved, such as Sadler’s shoeprints and the similar-looking 19 board, was photographed, and the photographs were turned over to the defense. There is no 20 reason to believe that the physical items, as opposed to the photographs, could have helped 21 Cook’s case. Moreover, the Sadler homicide, like the other two, relied upon live witness 22 testimony, which was not the subject of error. 23 To the extent that there was any prosecutorial, or investigative misconduct in Cook’s 24 proceedings, it was reasonable for the state habeas court to conclude that it did not prejudice 25 Cook. 26 27 28 C. Ineffective Assistance of Counsel at Guilt Phase. Cook alleges he was deprived of constitutionally effective counsel during the guilt phase of his trial (Petn. at 112-58). As described above, claims for ineffective assistance of counsel are 33 1 governed by the two-pronged analysis set forth in Strickland v. Washington, 466 U.S. 668 2 (1984), which requires a showing (1) that counsel’s performance fell “outside the wide range of 3 professionally competent assistance,” and (2) “a reasonable probability that, but for counsel’s 4 unprofessional errors, the result of the [trial] would have been different.” Review under 5 Strickland is “highly deferential” and “doubly deferential when it is conducted through the lens 6 of federal habeas.” Yarborough v. Gentry, 540 U.S. 1, 6 (2003). Rational tactical decisions of 7 trial counsel are entitled to substantial deference, Sanders v. Ratelle, 21 F.3d 1446, 1456 (9th 8 Cir. 1994), and will not give rise to an ineffective assistance claim simply because in retrospect 9 better tactics are known to have been available, Bashor v. Risley, 730 F.2d 1228, 1241 (9th Cir. 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 1984), cert. denied, 469 U.S. 838 (1984). Cook first argues that trial counsel’s failure to adequately pursue suppression of his taped confession to the Bettancourt homicide fell outside the wide range of professionally competent assistance (Petn. at 111). Counsel’s decision not to pursue suppression, however, was part of a tactical decision, which, under the circumstances, was not unreasonable. Given the many witnesses to the Bettancourt murder, all of whom identified Cook as the shooter, counsel decided to concede guilt and focus their energies on contesting the other two homicides. As part of that strategy, it was reasonable to permit jurors to hear Cook’s confession to the shooting because, as his attorney Charles Robinson stated in a declaration attached to Cook’s state habeas petition, “there was intuitive appeal to the argument that it did not make 20 sense for [Cook] to confess to one shooting, but not the other, if he in fact committed both 21 offenses” (Exh. 503 at 9485). Attorney Robinson further noted that “Cook’s emotional state 22 depicted in the videotape constituted potential mitigating evidence, and would be helpful if the 23 24 25 26 27 28 case proceeded to a penalty phase” (ibid.). Moreover, the record shows that his attorneys’ decision to withdraw the motion to suppress was made in response to the prosecution’s commitment not to introduce a taped statement Cook gave in connection with the Sadler homicide (ibid.; RT 31–32). The in limine hearing at which this deal was reached is somewhat hard to follow; however, it appears that 34 1 Cook’s counsel withdrew its motion as a concession to the prosecution’s commitment not to 2 introduce the Sadler statement .6 This exchange would certainly have been reasonable in light of 3 the fact that it assured the Sadler statement would not be introduced, whereas absent such a deal 4 it is possible that both confessions could have been deemed admissible. 5 6 7 8 9 11 For the Northern District of California United States District Court 10 Cook further argues that trial counsel was incompetent for failing to hire a medical expert to challenge certain evidence at the Bettancourt scene (Petn. at 118–119). Specifically, Cook observes that Bettancourt was shot in the thigh at an angle not compatible with a shooter standing above him (Cook’s position), but rather with a shooter kneeling beside him (the position that Steven Sims occupied at the time of the shooting). Not hiring an expert to develop this theory was a reasonable tactical decision, however. As noted above, substantial evidence showed that Cook shot Bettancourt. Multiple witnesses testified that Cook was the shooter, he 12 confessed to the shooting (which confession counsel had tactical reasons not to suppress, and 13 which, even if they had pursued their motion may not have been suppressed), and the entry 14 angles of Bettancourt’s other bullet wounds were consistent with Cook’s position as described 15 16 17 18 19 20 by eyewitnesses. Moreover, even without calling their own medical expert, trial counsel was able to argue that the bullet wound to Bettancourt’s thigh was consistent with Sim’s position based upon the evidence presented by the testimony of the prosecution’s medical expert (see RT 5880–81). In light of these facts, trial counsel was reasonable in deciding not to expend resources hiring a medical expert. Cook further argues that trial counsel failed to adequately pursue a theory that either 21 22 23 Tommy Young, Earnest Woodard, or Edward Branner were the real perpetrators of the Sadler murder (Petn. at 116). This is a mischaracterization of what actually occurred. Cook’s counsel 24 25 26 27 28 6 At an in limine hearing, Attorney Robinson stated as follows: “I want to inform the Court about one more item. The longest portion of the Miranda voluntariness issue, Mr. Foiles, [the district attorney], would be dealing with the last of the statements taken from my client. Mr. Foiles informed me this morning that they would not be contesting that portion of it. They would not. So Mr. Pomeroy [co defense counsel] and I are now discussing if the court — whether we even will go after the two other statements. So that whole motion would be moot at this time” (RT 31). The district attorney then clarifies that he will not seek to introduce the Sadler statement (id at 32). The motion to suppress the Bettancourt and Morris interview, which Attorney Robinson declared moot was not raised thereafter. 35 1 raised this theory throughout trial, and made it one of their central themes. They repeatedly 2 argued that the Sadler investigation had narrowly focused on Cook because of his involvement 3 in the other murders, and unreasonably overlooked the real perpetrators, who they argued were 4 5 6 7 8 9 11 For the Northern District of California United States District Court 10 residents of the Menalto property, and most likely Young, Woodard, and Branner (see, e.g., RT 3973, 3795–98, 3956, 5345–47, 5955, 5960–64). Nor was counsel’s choice not to present the alternate theory that if Cook had committed the Sadler killing, he would have been too intoxicated to have the requisite mens rea for first-degree murder prejudicial error (see Petn. at 116). Though counsel was permitted to put forth such a theory, it was a reasonable tactical choice to decide to pursue a complete defense, as trial counsel chose to do, rather than a diminished-capacity defense. See Williams v. Woodford, 384 F.3d 567, 611 (9th Cir. 2004) (“Having reasonably selected an alibi defense as the primary 12 defense theory, [counsel] no longer had a duty to investigate a conflicting mental-state defense”); 13 Bean v. Calderon, 163 F.3d 1073, 1082 (9th Cir. 1998) (no ineffective assistance for failing to 14 present diminished-capacity defense where it would have conflicted with alibi defense presented 15 16 17 18 19 20 21 22 23 at trial). Additionally, the available evidence does not bear out a theory that Cook was too intoxicated to have committed the homicide, consisting solely of one witness, Leonard Holt’s, statement that at some unidentified time in the evening he encountered Cook who was “slurring his words and could barely stand” (Exh. 353 at 6646). Sadler’s murder did not occur until early the next morning, and moreover, Holt’s statement puts Cook at the scene of the murder on the night of the murder. It would have been reasonable for counsel to decided that this could do more harm than good. Many of the other allegations upon which Cook predicates his ineffective assistance of 24 counsel claims are addressed above, and need not be repeated here. These include claims that 25 counsel should have contested the general practices of the East Palo Alto Police Department 26 (Petn. 114–16), as well as various alleged acts of prosecutorial misconduct in Cook’s 27 investigation and at trial (ibid.). 28 36 1 Cook also argues that trial counsel failed to investigate various leads, or develop certain 2 alternate theories (Petn. at 113–117). Counsel, however, need only “make reasonable 3 investigations or [] make a reasonable decision that makes particular investigations 4 5 6 7 8 9 11 For the Northern District of California United States District Court 10 unnecessary.” Avila v. Galaza, 297 F.3d 911, 919 (9th Cir. 2002) (quoting Strickland, 466 U.S. at 691). Cook’s counsel did so here. Cook’s counsel developed a theme based upon its review of the evidence, and took reasonable steps to advocate for their client, including by hiring a defense investigator, conducting interviews of numerous witnesses and potential suspects, securing mental health professionals to testify as to Cook’s diminished capacity, reviewing voluminous discovery, reviewing the backgrounds and records of witnesses to prepare for crossexamination, and seeking to exclude potentially prejudicial evidence through motion practice. Cook attempts to impose a standard of competency that would require counsel to pursue 12 every possible theory that could potentially exonerate their client. The standard Cook urges 13 would place an untenable burden on attorneys, and is quite simply not the law. 14 It was reasonable for the state habeas court to conclude that Cook’s trial counsel did not 15 16 17 18 19 20 21 22 23 provide constitutionally unacceptable representation. D. Trial Counsel’s Conflicts-of-Interest. Cook further alleges that trial counsel had impermissible conflicts of interest that prejudiced him (Petn. 158–172). Criminal defendants have the right, under the Sixth Amendment, to representation free from conflicts of interest. Wood v. Georgia, 450 U.S. 261, 271 (1981). This right is violated if an attorney has an actual conflict and the conflict “adversely affected” his performance. Cuyler v. Sullivan, 446 U.S. 335, 348 (1980). An adverse effect in the Cuyler sense “must be 24 one that significantly worsens counsel's representation of the client before the court or in 25 negotiations with the government.” United States v. Mett, 65 F.3d 1531, 1535 (9th Cir. 1995). 26 A petitioner must prove an actual conflict through a factual showing in the record. Bragg v. 27 Galaza, 242 F.3d 1082, 1087 (9th Cir.), opinion amended on denial of reh'g, 253 F.3d 1150 28 (9th Cir. 2001). 37 1 Cook was appointed two defense attorneys through San Mateo’s Private Defender 2 Program, Charles M. Robinson and Edward Pomeroy, who represented him through the entirety 3 of pre-trial and trial proceedings (see Exhs. 503 at ¶ 2; 509 at ¶ 1). These attorneys, Cook 4 5 6 7 8 contends, had several conflicts which prejudiced his case, including that they had excessively large caseloads, which prevented them from devoting adequate time to Cook’s defense, and that they had previously represented individuals who were prospective witnesses or suspects in the homicides that Cook was accused of committing (Petn. at 158-72). This order addresses each in turn. 9 11 For the Northern District of California United States District Court 10 (1) Excessive Caseloads Allegations. Cook first argues that his attorneys were so over-extended that they were unable to adequately investigate his case or prepare an acceptable defense (Petn. at 159–160). In the 12 first instance, Cook points to no authority, nor does any appear to exist that an excessively large 13 caseload can be the predicate for a conflict-of-interest claim. Even assuming it could be, Cook 14 does not point to specific deficiencies arising from his attorneys’ caseloads. Instead he generally 15 16 17 18 19 20 notes that both of his appointed attorneys undertook a large number of representation around the time of his trial, and prepared for other trials at the same time they were preparing for Cook’s. These general allegations that his attorneys were overworked are not enough to show that Cook was denied his constitutional right to conflict free counsel. It was not unreasonable for the state habeas court to deny this claim. (2) 21 22 23 Conflicting Clients Allegations. Cook further argues that Attorney Robinson, in his capacity as an appointed private defender, previously had represented several of the witnesses that were called against Cook, 24 which allegedly resulted in a prejudicial conflict of interest. For the reasons below, these past 25 representations did not create an actual conflict of interest, and Cook has not shown that they 26 prejudiced his case. 27 28 38 1 Cook first argues that Attorney Robinson’s past representation of Steven Sims, a witness 2 who testified against Cook, created an actual and prejudicial conflict of interest. The record does 3 not bear this out. 4 5 6 7 8 9 11 For the Northern District of California United States District Court 10 Attorney Robinson represented Sims in an unrelated felony case six years prior to the start of Cook’s trial (RT 5/11/93 at 5–7). Accordingly, Attorney Robinson sought and obtained a waiver from both Cook and Sims, and disclosed the potential conflict and the waiver to the trial court (ibid.). To further protect Cook, however, Attorney Pomeroy, who had no history with Sims, performed all of the cross-examination of Sims at trial. The record shows that his cross-examinations were vigorous and in no way betrayed any conflict (see, e.g., RT 4020, 4055, 4066–72, 4093). Though Cook now argues that his attorneys could have further investigated and impeached Sims, pointing to additional past crimes that Pomeroy could have cross-examined 12 him about (Petn. at 163–66), this hindsight analysis does not show that Attorney Pomeroy failed, 13 as a result of conflict, to adequately represent Cook’s interests. Moreover, defense counsel is not 14 required to cross-examine a witness about every point that could raise an issue of credibility 15 16 17 18 19 20 21 22 23 so long as it raises sufficient credibility issues before the jury, as Attorney Pomeroy did here. See Matylinsky v. Budge, 577 F.3d 1083, 1093 (9th Cir. 2009). Cook next points to several other witnesses that Attorney Robinson had previously represented, but as with Sims, Cook has not shown that these past representations resulted in an actual conflict that adversely affected his attorneys’ performances. For example, Attorney Robinson represented Nathan Gardner in a drunk driving case two years before Cook’s trial. Gardner claimed to have witnessed the Bettancourt homicide and testified at Cook’s trial. As with Sims, Attorney Pomeroy, not Attorney Robinson, cross-examined Gardner, and was able 24 to elicit testimony that impeached Gardner and showed that he was an unreliable witness (see RT 25 4523–32). As with Sims, Attorney Pomeroy’s cross-examination failed to impeach Gardner with 26 every possible piece of impeachment evidence Attorney Pomeroy had at his disposal, but there is 27 no showing that this had anything to do with a conflict of interest, or that the additional the 28 39 1 additional impeachment evidence would have made a difference in the outcome of Cook’s case 2 (see Petn. at 169–70). 3 4 5 6 7 8 9 11 For the Northern District of California United States District Court 10 Attorney Robinson had also represented Earnest Woodard, who testified against Cook regarding the Sadler homicide, at an arraignment on a theft charge ten years before the start of Cook’s trial, though it appears that he was merely standing in for a colleague (Exh. 297 at 5704). Cook has failed to show how this past representation in any way influenced the quality of Robinson’s representation at trial. It was not unreasonable for the state habeas court to conclude that Cook failed to show that these representations created actual conflicts that adversely affected his attorneys’ performances. E. Competence to Stand Trial. 12 Cook contends the trial court failed to conduct an appropriate inquiry into his 13 competence to stand trial (Petn. at 172–78). The California Supreme Court summarily rejected 14 this claim on the merits. 15 16 17 18 19 20 21 22 23 Cook had “a due process right not to be tried while incompetent.” Stanley v. Cullen, 633 F.3d 852, 860 (9th Cir. 2011) (quoting Drope v. Missouri, 420 U.S. 162, 172 (1975)). The test for competence is whether the defendant demonstrates the ability “to consult with his lawyer with a reasonable degree of rational understanding” and a “rational as well as factual understanding of the proceedings against him.” Godinez v. Moran, 509 U.S. 389, 396 (1993). This standard requires a defendant to have “the mental acuity to see, hear and digest the evidence, and the ability to communicate with counsel in helping prepare an effective defense.” Odle v. Woodford, 238 F.3d 1084, 1089 (9th Cir. 2001). This requires only minimal 24 competency, and as the Supreme Court has observed, “Mentally retarded persons frequently . . . 25 are competent to stand trial.” Atkins, 536 U.S. at 305; see also Hoffman v. Arave, 455 F.3d 926, 26 938 (9th Cir. 2006), vacated in part on other grounds, 552 U.S. 117 (2008). 27 28 A trial judge is required to sua sponte order a competency hearing if he has a good faith doubt as to the defendant’s competence. Maxwell v. Roe, 606 F.3d 561, 568 (9th Cir. 2010) 40 1 (quoting de Kaplany v. Enomoto, 540 F.2d 975, 983 (9th Cir.1976) (en banc)). Several factors 2 are relevant to this determination, including evidence of a defendant's irrational behavior, his 3 demeanor at trial, and any prior medical opinion on competence to stand trial. Drope, 420 U.S. 4 5 6 7 8 9 11 For the Northern District of California United States District Court 10 at 180. “In reviewing whether a state trial judge should have conducted a competency hearing, we may consider only the evidence that was before the trial judge.” McMurtrey v. Ryan, 539 F.3d 1112, 1119 (9th Cir. 2008). Habeas relief is appropriate if the state court’s decision not to conduct a hearing was objectively unreasonable. Maxwell v. Roe, 606 F.3d 561, 567–68 (9th Cir. 2010). Here, it was not unreasonable for the trial judge to have foregone a competency hearing. True, there was some evidence that Cook suffered from mental deficiencies at the time of trial. Dr. Lynch’s psychological evaluation showed that defendant fell in the low-average range of 12 intelligence, had a poor attention span, was easily distracted, and had trouble following complex 13 language (Exh. 449 at 8646–47). Additionally, Dr. Lynch testified at the penalty phase that 14 Cook had a dissociative disorder that cause him to experiences lapses in memory and to “blank 15 16 17 18 19 20 21 22 23 out” as well as suffering from PTSD (RT at 6667, 6704). Moreover, in the videotape of Cook’s confession, he appears to be confused and distressed, and toward the end of his interrogation he breaks down in tears and cannot regain his composure (see Exh. 454; e.g. 340 at 6223–26). At times, he was flooded with emotion, and free-associated about traumatic experiences of his childhood (Exh. 506 at 9624). Nevertheless, given the low standard for competency to stand trial, a reasonable trial judge could have concluded that Cook was competent. Indeed, he sat calmly and took notes during trial and did not exhibit any aberrant behavior in the courtroom (see RT 32; Exh. 491 at 24 9350). Despite his low-level functioning, it was not unreasonable to believe that he was able “to 25 consult with his lawyer with a reasonable degree of rational understanding” and understand the 26 proceedings against him. See Godinez, 509 U.S. at 396. The state habeas court’s decision was 27 therefore not unreasonable. 28 41 1 F. No Ineffective Assistance of Appellate Counsel. 2 Cook next contends he received ineffective assistance of counsel on appeal (Petn. at 3 178–81). As with Cook’s ineffective trial counsel claim, this claim is governed by the two- 4 5 6 7 8 9 is not ineffective when he fails to raise some but not all arguable issues on appeal. The elimination of weaker claims and focus on those most likely to prevail is the “hallmark of effective appellate advocacy.” Burger v. Kemp, 483 U.S. 776, 784 (1987); Smith v. Murray, 477 U.S. 527, 536 (1986) (“This process of ‘winnowing out weaker arguments on appeal and focusing on’ those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy”). 11 For the Northern District of California United States District Court 10 prong test under Strickland. Smith v. Robbins, 528 U.S. 259, 285-89 (2000). Appellate counsel Cook has failed to show that his appellate counsel’s representation was so deficient as to 12 fall outside of the wide range of professionally acceptable conduct, and moreover has failed to 13 show that any of the alleged errors prejudiced him. The record, instead, indicates that Cook’s 14 appellate counsel competently raised the most compelling and potentially viable claims. 15 Cook’s allegations here grasp at theories that have little significance with respect to his 16 17 18 19 20 21 22 23 conviction. A good representative example is Cook’s argument that failure to challenge the admission of photographs taken at the Menalto residence two days after the Sadler murder, as opposed to photographs taken on the same day as the murder, amounted to reversible error (see Petn. at 179; RT 5700). Even if improperly admitted, it is clear that these photographs had little value or effect on the trial. So too appellate counsel’s failure to challenge the exclusion of evidence of witness Sims’ repeated failures to appear in court. Apparently, Cook’s trial counsel wanted to use this fact to impeach Sims (RT at 4061–62). It was, however, able to impeach Sims 24 with evidence of numerous drug and robbery convictions (RT 4020, 4093, 4055). Evidence of 25 several missed court dates was simply not material and would not have strengthened Cook’s 26 case. 27 28 Cook raises a slew of other collateral issues that he claims his appellate attorney should have argued. None of them would have in any way changed the result of his direct appeal. 42 1 They were, instead, issues better left out of an appeal in order to focus on those points that were 2 arguably material. None of the alleged errors Cook points to state viable ineffective assistance 3 claims, and therefore it was reasonable for the state habeas court to deny this claim. 4 5 6 7 8 9 11 For the Northern District of California United States District Court 10 G. Cumulative Effect. Cook contends that even if he errors alleged above failed to support any standalone claim, their cumulative effect constituted prejudice. In some cases, although no single trial error examined in isolation is sufficiently prejudicial to warrant reversal, the cumulative effect of multiple errors may still prejudice a defendant. See United States v. Green, 648 F.2d 587 (9th Cir.1981). Here, there is substantial evidence upon which the finding of guilt is predicated, and few errors. With the exception of Cook’s erroneously admitted confession, the prejudicial value of any other errors is low. Even when the errors are aggregated it cannot be said that they 12 “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” 13 Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). It was reasonable for the state habeas 14 court to conclude that there was no prejudice even taking into account the cumulative effect of 15 16 all trial errors. CONCLUSION 17 18 19 20 21 22 In light of the foregoing, the petition for a writ of habeas corpus, and petitioner’s request for and evidentiary hearing are DENIED. Petitioner has, however, made a substantial showing that a reasonable jurist could find this court’s denial of his claim debatable or wrong. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). Therefore, a certificate of appealability is GRANTED. 23 24 25 26 27 28 43 1 The Court recognizes the superb work of pro bono counsel for Cook, namely the law firm 2 of Jones Day, and particularly lawyers Caroline Mitchell, Gary Sowards, Kelsey Israel- 3 Trummel, Paul Hines, and Sarah Pomeroy. Their contribution to our system of justice in most 4 appreciated. 5 6 IT IS SO ORDERED. 7 8 Dated: September 30, 2017. 9 WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 44

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