Dennis v. Ayers
Filing
423
ORDER DENYING CLAIMS 3, 11, & 17 ON THE MERITS AND REQUESTING BRIEFING AS TO WHY PETITIONER'S REMAINING CLAIMS SHOULD NOT BE RESOLVED SUMMARILY. Signed by Judge Jeremy Fogel on 12/19/2017. (blflc1S, COURT STAFF) (Filed on 12/19/2017)
1
2
3
4
UNITED STATES DISTRICT COURT
5
NORTHERN DISTRICT OF CALIFORNIA
6
7
WILLIAM MICHAEL DENNIS,
8
9
10
United States District Court
Northern District of California
11
12
Case No. 98-cv-21027-JF
Petitioner,
ORDER DENYING CLAIMS 3, 11, & 17
ON THE MERITS AND REQUESTING
BRIEFING AS TO WHY
PETITIONER’S REMAINING CLAIMS
SHOULD NOT BE RESOLVED
SUMMARILY
v.
RON DAVIS, Warden of California State
Prison at San Quentin,
Respondent.
DEATH PENALTY CASE
13
14
15
16
17
18
On April 21-23, 2014, the Court held an evidentiary hearing on Claims 3, 11, and 17 in this
capital habeas proceeding. Dkt. Nos. 379-381. The parties then filed post-hearing briefs. Dkt.
Nos. 401 & 403. Based upon the evidence presented at the hearing, the underlying record and all
papers filed to date, the Court finds and orders as follows.
19
I.
20
21
22
BACKGROUND
a. Facts
The facts of this case have been described at length in previous orders (see, e.g. Dkt.
23
No. 117). As relevant here, Petitioner was found guilty by a Santa Clara Superior Court jury of
24
first degree murder of his former wife, Doreen Erbert (“Doreen”), and the second-degree murder
25
of Doreen’s unborn child. At the time of her murder, Doreen was eight months pregnant. The
26
jury found as a special circumstance that Petitioner committed multiple murders. Following a
27
28
1
1
separate penalty phase trial, the jury returned a verdict of death for the killing of Doreen.
Doreen and Petitioner had been married and had a son, Paul, together. The couple
2
3
divorced, and Doreen married Charles Erbert (“Charles”) in 1979. That same year, the Erberts had
4
a daughter, Deanna. In 1980, after Petitioner had returned Paul to the Erberts’ home following a
5
visit, Paul drowned in the family’s swimming pool. Doreen was home with Paul at the time, and
6
Petitioner blamed Doreen for Paul’s death. Petitioner sued Doreen and Charles for the wrongful
7
death of Paul. In March 1982, a civil jury returned a verdict in favor of the Erberts. Charles never
8
9
spoke to Petitioner again and saw him only once, at a public shopping center.
On Halloween night, 1984, Doreen was stabbed and killed in her home. Doreen was
10
United States District Court
Northern District of California
11
visibly pregnant at the time; she was stabbed in the arm, neck, and stomach, and her unborn child
12
was found lying, in parts, on the living room floor. When the paramedics arrived, the fetus was
13
14
already dead. Doreen died in route to the hospital. Charles was held for questioning at the
scene. Petitioner eventually was arrested and tried for the murder of Doreen and the fetus.
15
16
17
18
Although he initially denied that he had killed Doreen, Petitioner did not contest his identity as the
killer at trial. Petitioner’s trial counsel argued that the killings resulted from mental illness and
were not premeditated or deliberate.
19
b. Procedural Posture
20
Following his conviction in the trial court, Petitioner filed an automatic appeal in the
21
California Supreme Court in June 1995. On February 19, 1998, the judgment of the trial court
22
was affirmed. A petition for writ of certiorari to the United States Supreme Court was filed on
23
24
April 15, 1998, and denied on October 5, 1998. On August 8, 1996, Petitioner filed a petition for
25
writ of habeas corpus in the California Supreme Court. That petition was denied on November 4,
26
1998.
27
28
Petitioner’s initial petition for writ of habeas corpus in Court was filed on May 2, 2001.
2
1
The Court found that the petition contained unexhausted claims and ordered Petitioner to file an
2
amended petition alleging only exhausted claims or to dismiss this action. Petitioner filed an
3
amended petition in this Court on August 3, 2001. He also filed an exhaustion petition in state
4
court the same day; that petition was denied on November 27, 2002. A second amended petition
5
was filed in this court on February 11, 2003. Dkt. No. 80 (“Fed. Pet.”). Respondent filed an
6
answer on June 18, 2003, and Petitioner filed his traverse on July 14, 2003. Dkt. Nos. 162 &
7
165.
8
9
On July 27, 2009, this Court granted Petitioner’s motion for an evidentiary hearing on
certain claims of ineffective assistance of counsel: claims 3, 11, 17, 18.B.7, and 25 (including the
11
United States District Court
Northern District of California
10
component of claim 25 described in subclaim 18.B.1). Dkt. No. 250 at 2. The Court later
12
bifurcated the evidentiary hearing, ordering that the first phase of the evidentiary hearing would
13
14
address only the mental-health claims, i.e., claims 3, 11, and 17. Dkt. No. 254. The hearing took
place on April 21-23, 2014. Dkt. Nos. 379-381. Post-hearing briefing was protracted because of
15
16
17
several requests by counsel for additional time, and the matter has been under submission for an
unusually long period of time because of the volume of the record and this Court’s assignment to
18
other duties. On May 15, 2017, the Court denied without prejudice Petitioner’s requests to set the
19
second portion of the evidentiary hearing. Dkt. Nos. 415 & 417.
20
21
c. Evidentiary Hearing
In preparation for the evidentiary hearing, Petitioner filed declarations from several
22
medical and legal professionals. See Dkt. Nos. 299-1 to 299-9; 373-1 to 373-6; & 375. By
23
24
agreement between counsel, the declarations were treated as the expert witnesses’ direct
25
testimony. Petitioner’s counsel also submitted a declaration introducing the draft report of
26
Dr. Alan Garton, who died in March 2010. See Dkt. No. 299-3 & -4. In addition to the expert
27
witness declarations, Petitioner filed the declarations of fifty-one lay witnesses. See Dkt. No. 299-
28
3
1
10 to 299-46 & 299-57 to 299-61. Finally, Petitioner filed 236 exhibits in support of the expert
2
testimony to be presented at the evidentiary hearing. See Dkt. Nos. 300-304. Respondent filed
3
thirty exhibits, including the declaration of Dr. Marc Cohen. See Dkt. Nos. 346 to 349 & 373.
4
Petitioner called several live expert witnesses at the evidentiary hearing. Some of the experts
5
called by Petitioner were consulted pretrial by Petitioner’s trial counsel, including Dr. Alexander
6
Caldwell, Dr. John Stephenson, and Dr. Samuel Benson. Petitioner also called expert witnesses
7
who were hired post-conviction, including Dr. Dale Watson, Dr. George Woods, and attorney
8
9
10
expert Thomas Nolan. Dkt. Nos. 299-5, 299-8 & 299-9; 375-3 & 375-5; 389; & 390. Their
declarations and testimony are summarized below for purposes of this Order.
United States District Court
Northern District of California
11
d. Dr. Garton
12
Dr. Garton was a psychologist hired by Petitioner’s trial counsel in 1988. Dkt. 299-3 at
13
5. He did not testify at trial. Dr. Garton and Petitioner’s trial counsel exchanged several letters
14
back and forth detailing the facts of the case, providing background information about Petitioner,
15
16
17
and directing Dr. Garton to contact Petitioner’s trial counsel or Dr. Benson with any questions. Id.
at 7-12. Although he did not testify at trial, Dr. Garton apparently began drafting a report detailing
18
his evaluation of Petitioner. Id. at 13-21. Dr. Garton said that he met with Petitioner five times
19
between February and May 1988 and ultimately concluded that Petitioner suffered from
20
underlying paranoid trends and a transitory paranoid state, as characterized by delusional thinking,
21
22
affect consistent with the delusional ideas, and preservation of intellectual functions, but in the
absence of hallucinations. Id. at 15-16. Petitioner’s condition was differentiated from paranoia by
23
24
25
its lack of extreme systemization and from schizophrenia by its lack of fragmentation of
associations and the absence of bizarre incongruities.
26
Dr. Garton’s draft report included observations that Petitioner was quiet, soft-spoken, and
27
polite, and that Petitioner had a slight speech impediment. Petitioner’s intellect and judgment fell
28
4
1
within normal limits, his long and short-term memory was intact, and he had a high-average range
2
of IQ functioning. While his affect was inhibited, it was nevertheless appropriate; Petitioner had
3
excellent practical judgment and better-than-average planning ability related to social intelligence.
4
Petitioner also had an excellent sense of social responsibility and ability to anticipate
5
consequences of his initial acts and situations. Dkt. No. 299-3 at 13-14.
6
7
Dr. Garton reported that Petitioner’s Minnesota Multiphasic Personality Inventory
(“MMPI”) scores indicated that he had a moderate tendency to minimize his emotional problems.
8
9
Petitioner’s profile also indicated a pattern of accumulated anger and resentments lacking a direct
outlet or adaptive means of expression. Petitioner was quick to react with apprehension to
11
United States District Court
Northern District of California
10
unexpected threats to his sense of security and could overreact to anger in others with projection of
12
his own feelings, as well as a strong need to avoid blame. Id. at 14. Petitioner’s feelings of being
13
14
unduly burdened and unfairly treated could involve underlying projections of his own feelings.
Dr. Garton noted that Petitioner expressed anger and was prone to rigidly over-controlling his
15
16
17
hostility for long periods of time, resulting in explosive outbursts; however, those outbursts often
were entirely verbal and more likely to come out in situations that were unlikely to lead to
18
Petitioner being immediately punished. Id. Petitioner became tense, nervous, and self-
19
preoccupied when he felt threatened. Id.
20
21
22
Dr. Garton also observed that Petitioner’s anxieties were likely to involve repetitive
worries and his habits may have shaded toward ritualistic behaviors; such rituals, such as
Petitioner’s obsessive fantasies about drowning Doreen and Charles Ebert, would in part serve to
23
24
channel his resentments. Petitioner tended to be self-negative and self-critical and would punish
25
himself excessively for impulsiveness and subsequent guilt within his rigid and punitive personal
26
code. Dr. Garton wondered whether Petitioner punished Doreen to assuage his own guilt. Id.
27
Petitioner’s responses to the Rorschach test indicated that while Petitioner’s reality testing was
28
5
1
basically intact, his reality operations were impaired under conditions of emotional stress. Dkt.
2
No. 299-3 at 15. Petitioner’s emotions had a significant impact on his cognitive operations and
3
could give rise to illogical and even delusional thinking. Petitioner had a tendency toward a fusion
4
of ideas as in delusional thought formation. Dr. Garton also found evidence of unrestrained
5
expression of emotional impulses, especially anger and aggression. While Petitioner appeared
6
over-controlled, conventional, over-conforming, inhibited, and guarded on the surface, beneath the
7
surface, Petitioner felt helpless and out of control of his emotional impulses. Under stress,
8
9
10
Petitioner was likely to resort to fantasy as a defense first; however, as fantasy was not satisfying,
hostility and resentments built up, leading to a loss of control and aggressive acting out.
United States District Court
Northern District of California
11
e. Dr. Caldwell
12
Dr. Caldwell was a psychologist retained by Dr. Garton and Petitioner’s trial counsel in
13
14
1988 to interpret the results of Petitioner’s MMPI (Minnesota Multiphasic Personality Inventory)
examination. Dkt. No. 299-2. He did not testify at Petitioner’s trial. Dr. Caldwell received his
15
16
17
Bachelor of Arts and Master of Arts degrees from the University of Minnesota in 1951 and 1955,
respectively. He also received a Ph.D. in psychology from the University of Minnesota in 1958.
18
Dr. Caldwell had experience as a clinical psychologist, a coordinator of a psychology intern
19
training program, a professor, and as the founder of his own practice, Clinical Psychological
20
Services, Inc. He received several awards for his work, including the Distinguished Scientific
21
22
Contribution Award from the California Psychological Association.
Using Petitioner’s responses to true/false questions on his MMPI, Dr. Caldwell ran
23
24
Petitioner’s answers through a computer program, which then compiled a report making predictive
25
statements about the traits that would be typical for someone who answered the test the same way.
26
Dkt. 388 at 19. Dr. Caldwell performed a blind examination based on the results of the MMPI
27
only and did not evaluate Petitioner directly. In other words, Dr. Caldwell testified, every
28
6
1
sentence in the report was written before the patient ever took the test. Id. at 20. Dr. Caldwell’s
2
report, which was apparently closely tracked by Dr. Garton in his report, concluded that
3
Petitioner’s MMPI pattern “most often has been associated with diagnoses reflecting paranoid
4
trends and transitory paranoid states.” Dkt. No. 300 at 33. Petitioner’s profile also indicated an
5
elevated score on the paranoia scale. Dkt. No. 299-2 at 4. While Dr. Caldwell’s report did not
6
mention delusions, he testified during the evidentiary hearing that Petitioner’s 1988 profile
7
indicated the potential for long-term delusion. Id. at 30. Dr. Caldwell also testified that his
8
9
findings and those made by Dr. Woods are “mutually confirming.” Id. at 5. During his testimony
before the Court, Dr. Caldwell repeatedly emphasized that he did not know anything about
11
United States District Court
Northern District of California
10
Petitioner beyond Petitioner’s MMPI scores and what he read in Dr. Garton’s and Dr. Woods’
12
reports. Dkt. No. 388 at 38-39.
13
14
f. Dr. Stephenson
Dr. Stephenson, who had retired by the time of the evidentiary hearing, was a clinical
15
16
17
counselor licensed in Maine specializing in bereavement and Post-Traumatic Stress Disorder
(“PTSD”). Dr. Stephenson received his Bachelor of Arts degree in psychology from Boston
18
University, his Master of Arts degree in sociology from the University of Denver, and his Ph.D.
19
from the Ohio State University. Petitioner’s trial counsel retained Dr. Stephenson prior to trial in
20
1988. At the time, trial counsel asked him to examine how Petitioner’s unresolved grief affected
21
Petitioner’s mental condition at the time of the homicide. Dkt. No. 299-6 at 1-2.
22
Like Dr. Caldwell, Dr. Stephenson did not meet Petitioner, but instead reviewed several
23
24
documents prior to rendering his conclusion. Dkt. No. 388 at 101. Dr. Stephenson testified at the
25
evidentiary hearing that in June 1988, he informed trial counsel that Petitioner did not suffer from
26
PTSD and, as a result, he (Dr. Stephenson) could not “make a contribution” to the defense.” Dkt.
27
No. 300-33 at 9-10. Dr. Stephenson nevertheless advised trial counsel that explaining Petitioner’s
28
7
1
grief should be an integral part of Petitioner’s guilt and penalty phase defenses. Dkt. No. 299-6 at
2
1. Dr. Stephenson also recommended that trial counsel arrange for a psychological interview of
3
Petitioner to explore his self-report that he went “crazy” after his civil trial. According to
4
Dr. Stephenson, Petitioner felt “tremendous grief” as a result of his belief that he had not done
5
enough to prevent his son’s death. Petitioner’s grief was exacerbated by the civil trial verdict
6
7
absolving Doreen of wrongdoing, which left Petitioner wondering who was responsible for what
happened to his son. Dr. Stephenson opined that the combination of stressors and Petitioner’s
8
9
personality rendered him unable to respond rationally to the events that occurred after the death of
his son and up to the night of the crimes. Id. at 3-4. Dr. Stephenson also agreed with Dr. Woods’
11
United States District Court
Northern District of California
10
finding that Petitioner suffered from a severe delusional disorder at the time of the offense. Id. at
12
5. Finally, while Dr. Stephenson testified in his declaration that counsel did not offer him
13
14
additional information, it appears from the record that trial counsel sent him a letter offering to
provide him with additional materials. Id. at 101.
15
16
17
g. Dr. Watson
Dr. Watson is a California-licensed neuropsychologist who was hired by Petitioner’s
18
federal habeas attorneys in 2013. Dkt. No. 299-7 at 3. Dr. Watson received his Bachelor of Arts
19
degree in psychology from the California State College at Sonoma in 1975, his Master of Arts
20
degree in Clinical Psychology from John F. Kennedy University in 1980, and his Ph.D. in clinical
21
psychology from the California School of Professional Psychology, Berkeley, in 1988.
22
Dr. Watson had experience as a staff psychiatrist, a clinical neuropsychologist, a professor, and
23
24
member of several professional psychology and neuropsychology groups.
25
Dr. Watson testified that in October 2013, he evaluated Petitioner at San Quentin State
26
Prison and performed a neuropsychological battery of tests. Like previous psychologists who
27
evaluated Petitioner, Dr. Watson found that most of Petitioner’s intellectual abilities fell within the
28
8
1
“High Average” range. Dkt. No. 299-7 at 3-4. The Wechsler Adult Intelligence Scale-IV test,
2
which measured Petitioner’s intellectual abilities, also revealed that Petitioner’s processing speed
3
index (“PSI”) score fell within the “Average” range. According to Dr. Watson, the PSI index is
4
the most sensitive to the impact of psychiatric and neurological illness. Id. at 4. Dr. Watson also
5
found that Petitioner’s judgment appeared intact outside the context of a “potentially delusional
6
belief system.” Id. at 5. The Wechsler Memory Scale IV Flexible Battery, administered by Dr.
7
Watson, revealed the possibility of significant auditory memory deficits, with Petitioner scoring in
8
9
the “Superior” range on the Visual Memory Index and in the “Borderline” range on the Auditory
Memory Index. Dkt. No. 299-7 at 5. The discrepancy between the two indexes was “quite
11
United States District Court
Northern District of California
10
unusual, occurring in just 1.4% of the normative sample.” Id. Dr. Watson testified that the
12
finding raised the possibility of dysfunction or a lesion in the left temporal lobe, whose
13
14
dysfunction is closely associated with psychiatric illness. Id. at 7. Dr. Watson explained that the
left temporal lobe is the part of the brain that controls, among other things, language
15
16
17
18
19
20
21
comprehension. Dkt. No. 388 at 64-65. Yet another test revealed the possibility that Petitioner
suffers from a neurologically-based attention disorder such as Attention Deficit Hyperactivity
Disorder. Id. at 51.
On cross-examination, Dr. Watson acknowledged that he administered a tactual
performance test and Trail Making A and B tests, which are generally used to detect brain damage,
and found that the results were not indicative of brain damage. Dkt. No. 388 at 59. Dr. Watson
22
also administered the Wisconsin Card-Sorting Test (frontal lobe and executive function test), the
23
24
Halstead Category Test (effective for detecting brain damage), and the Dellis Kaplan Executive
25
Function System Verbal Fluency Test (a test for mild brain damage). Petitioner’s score on each of
26
the tests was within normal limits or otherwise not remarkable. Id. at 59-63. While Dr. Watson
27
testified that Dr. Woods’ diagnosis of delusional disorder was consistent with his finding that
28
9
1
Petitioner might have a dysfunctional left temporal lobe, Dr. Watson stated that he did not make
2
an independent diagnosis to that effect. Id. at 64. Dr. Watson also admitted that, with the
3
exception of the Auditory Memory Index results, the tests that should have indicated potential
4
brain damage related to the left temporal lobe yielded results that were either normal or not
5
remarkable enough to indicate brain damage. Id. at 66.
6
h. Dr. Benson
7
Dr. Benson is a forensic psychiatrist who was retained by trial counsel. Dkt. No. 299-1 at
8
9
3. He received a Bachelor of Science degree in premedical science from the University of
Arkansas-Pine Bluff in 1956, a Master of Science degree in physiology from Marquette University
11
United States District Court
Northern District of California
10
School of Medicine in 1963, and both a Ph.D.in physiology and pharmacology and an M.D. from
12
the University of Nebraska College of Medicine in 1969. Id. at 1. Dr. Benson had experience as a
13
14
professor and lecturer, medical director of various establishments, president and board member of
various medical and forensic organizations, and had more than thirty years of experience
15
16
17
performing psychiatric evaluations and giving expert testimony in California. Dr. Benson
conducted five psychiatric interviews of Petitioner; the final, and only recorded, interview was
18
conducted while Petitioner was under the influence of sodium amytal, a drug that reduces
19
inhibitions. See Dkt. Nos. 299-1; 388 at 152. Dr. Benson was the only mental health professional
20
who testified on Petitioner’s behalf during trial, which occurred during the guilt phase.
21
Dr. Benson was not recalled to testify during the penalty phase after all guilt phase testimony was
22
admitted at the penalty phase.
23
24
Dr. Benson testified at length at trial about Petitioner’s background, recalling Petitioner’s
25
hearing loss as a youth, his parents’ divorce, his eating disorder, problems keeping a consistent
26
weight, his continued depression from the age of 19 or 20, and his “genuine attempt at suicide” as
27
a young man. Dr. Benson also provided background on Petitioner’s marriage to Doreen, their
28
10
1
divorce, and Paul’s drowning, for which Petitioner initially blamed himself. According to
2
Dr. Benson’s trial testimony, Petitioner came to blame Doreen for Paul’s death because he thought
3
Doreen did not do enough to save Paul. Petitioner began to think Doreen wanted Paul to die.
4
Petitioner said he did not see Doreen suffering from Paul’s death and alleged that he was the only
5
sad person at the funeral. He and Doreen argued over funeral expenses and Petitioner’s last child
6
support payment. Petitioner also felt that he had been mistreated by the Erberts.
7
Dr. Benson testified that Petitioner eventually began to fantasize about killing the Erberts
8
9
in retribution for Paul’s death. Petitioner told Dr. Benson about a plan he had to drown the Erberts
by placing them in body bags, and then in boxes, and dumping them into the sea from his boat.
11
United States District Court
Northern District of California
10
Dr. Benson believed it was strictly a fantasy, although Petitioner owned a boat and had two
12
homemade reinforced, lockable boxes; two apparently hand-stitched body bags; and two anchors
13
14
in his toolshed. According to Dr. Benson, on the night of the murder, Petitioner was struggling
with these fantasies when he became overwhelmed by longing for his son as children trick-or-
15
16
17
treated on Halloween night. Petitioner then decided to do something that night, thinking he could
get away with it.
18
Petitioner admitted to Dr. Benson that he killed Doreen, but insisted that he did not know
19
Doreen was pregnant. Petitioner also told Dr. Benson that he could not see any color during the
20
killings and appeared to have only a spotty memory of the incident, leading Dr. Benson to believe
21
that Petitioner was enraged on the night of the killings. Dr. Benson opined that Petitioner’s
22
“masked rage” made him a ticking time bomb. Dr. Benson also detailed Petitioner’s statements
23
24
25
about realizing that Doreen was pregnant after he already had stabbed her.
Based on the information he had received from trial counsel, as well as the information he
26
learned through the five interviews of Petitioner, Dr. Benson diagnosed Petitioner as suffering
27
from a major depressive disorder and a dependent personality type. Dr. Benson also testified that
28
11
1
Petitioner suffered from delusional thoughts, including that Doreen wanted their son to die and,
2
after losing the civil suit against the Erberts, that Petitioner’s civil attorney would kill him.
3
Dr. Benson characterized Petitioner as extremely distressed at the time of the crimes. In
4
Dr. Benson’s opinion, the major depressive episode had a “tremendous impact” on Petitioner’s
5
acts. Dr. Benson also testified that Petitioner’s state of mind sent him into an “automatic
6
condition” that did not allow him to comprehend his actions fully.
7
At the evidentiary hearing before this Court, Dr. Benson testified that trial counsel did not
8
9
ask him to make an insanity finding and did not provide him with sufficient materials to review in
order to do so. Dkt. No. 299-1 at 2-4. Dr. Benson acknowledged that he was provided with
11
United States District Court
Northern District of California
10
various items, including witness interviews conducted by the Santa Clara Police Department,
12
testing results and draft reports from Dr. Alfred French, Dr. Stephenson, and Dr. Garton, as well
13
as background information about Petitioner’s childhood, hearing loss, speech impediment, battle
14
with childhood obesity, attempted suicide, sexual relationship issues, Petitioner’s work at
15
16
17
Lockheed Martin, and information about the events leading up to Paul’s death and the murder of
Doreen. Id. Dr. Benson also stated that he did not receive a sentencing report compiled by two
18
mitigation specialists, which he described as the “most complete psychosocial history” of
19
Petitioner he had seen, until well after trial. Although it appears that trial counsel had sent
20
Dr. Benson a letter enclosing the psychosocial history prior to trial in 1988. Dkt. No. 388 at 170;
21
RT 3546. Dr. Benson maintained that he did not recall receiving the psychosocial history and did
22
not consider it in evaluating Petitioner in 1988. Id. at 170-172. Dr. Benson also admitted that he
23
24
25
never asked trial counsel for more materials or information. Id. at 171.
Dr. Benson testified that had trial counsel asked him to do so, he would have testified that
26
Petitioner’s mental disorders negated malice and that Petitioner was insane at the time of the
27
crimes. Dkt. No. 299-1 at 3 & 5-6. Dr. Benson believed that trial counsel’s focus in consulting
28
12
1
him was not to determine whether Petitioner was insane or malice could be negated, but rather to
2
determine whether Petitioner was telling the truth when he said that he did not know Doreen was
3
pregnant. Dkt. No. 388 at 130. However, it appears that Dr. Benson’s own inferences about trial
4
counsel’s motivations and goals differed from what trial counsel was communicating to
5
Dr. Benson in various letters. In one letter to Dr. Benson, trial counsel stated that he hoped
6
Dr. Benson was prepared to testify “that because of mental disease or disorder, [Petitioner] could
7
not deliberate killing Doreen.” Id. at 136. Trial counsel attached a copy of jury instructions for
8
9
murder, insanity, and diminished actuality. Trial counsel also went into detail about the
significance of California’s abolition of the diminished capacity defense and outlined the types of
11
United States District Court
Northern District of California
10
testimony that could be given in lieu of diminished capacity testimony, including testifying that
12
Petitioner was suffering from a mental disease or disorder at the time of the killing and how that
13
disease or disorder impacted Petitioner’s mental processes. Id. at 137. In another letter, trial
14
counsel asked Dr. Benson to create a report providing an opinion that Petitioner suffered from a
15
16
17
mental disease or disorder at the time of the homicide and asked him to include documentation to
support the opinion. Id. at 134.
Dr. Benson also testified at length about scheduling and conducting the sodium amytal
18
19
interview. Dr. Benson described trial counsel as being obsessed with finding out whether
20
Petitioner was being truthful when he stated that he did not know Doreen was pregnant, and
21
described the sodium amytal interview as a means to quell trial counsel’s concern. Dkt. No. 388
22
at 139-46. On cross-examination, Dr. Benson admitted that he believed he told Petitioner about
23
24
sodium amytal interviews and that, although he now states he did not think the interview was
25
helpful to Petitioner’s defense, he did not advise trial counsel against holding the interview. Id. at
26
143.
27
28
13
1
2
i. Dr. Woods
Dr. Woods is a physician specializing in psychiatry and neuropsychiatry. Dkt. No. 299-8
3
at 1. He was hired by Petitioner’s state habeas counsel, and his report was submitted to the
4
California Supreme Court in 2001. Dr. Woods received his bachelor’s degree from Westminster
5
College in 1969 and his medical degree from the University of Utah in 1977. Dr. Woods received
6
his board certification in psychiatry and neurology in 1992 and became a diplomate in the
7
American College of Forensic Examiners in 1998. Dr. Woods has extensive experience as a
8
9
10
United States District Court
Northern District of California
11
12
13
14
15
16
17
clinical director, professor, and an expert witness. He also participated in a National Institute of
Mental Health/American Psychiatric Association Fellowship in 1982.
When he was retained, Dr. Woods was asked to answer the following questions:
1. Was [Petitioner] suffering from a mental disease or defect at the time of the
offense for which he was convicted?
2. If [Petitioner] was suffering from a mental disease or disorder at the time of the
offense, what impact did that mental disease or defect have on his mental state
at that time and at subsequent times?
3. Was [Petitioner] not guilty by reason of insanity at the time of his trial? Dkt.
No. 299-8 at 2.
Dr. Woods interviewed Petitioner at San Quentin on March 15, 2001, for two and one-half
18
hours and reviewed various materials given to him by Petitioner’s counsel, including medical
19
records, family history (parents), Petitioner’s autobiography, the reports of Dr. Garton,
20
Dr. Stephenson, and Dr. Benson’s trial testimony. Id. at 3. Dr. Woods concluded that Petitioner
21
was suffering from a delusional disorder, persecutory type, which was now chronic. Dkt. No.
22
299-8 at 4. The delusional disorder was born from the environmental vulnerabilities that defined
23
24
Petitioner’s life as well as specific events, starting with the death of Paul. These factors
25
culminated in Petitioner’s full-blown belief that Doreen had killed Paul. Id. at 4. According to
26
Dr. Woods, Petitioner believed that Doreen had not been found negligent during Petitioner’s civil
27
suit against the Erberts because she had killed Paul on purpose. Dr. Woods opined in his report
28
14
1
2
3
that Petitioner believed that because he was acting in the service of a paranoid delusion, Petitioner
believed that what he was doing to Doreen was the correct thing to do morally.
Dr. Woods also recounted large portions of Petitioner’s personal history, including that
4
Petitioner had one brother, that he began wearing a hearing aid as a young child, and that his
5
hearing loss was mistakenly treated as mental retardation, which led to his being placed in Special
6
7
Education classes. Dkt. No. 299-8 at 4. Dr. Woods noted that one of Petitioner’s friends from
junior high school, David Thorn, stated that Petitioner was “the kind of kid that everyone made
8
9
fun of” and that Petitioner had “an acute sense of alienation.” Id. at 4. In Dr. Woods’ opinion,
that type of sense of isolation and social awkwardness presaged the hyper-vigilance and sense of
11
United States District Court
Northern District of California
10
alienation that often provides a fertile environment for a delusional disorder to develop. Id. at 5.
12
Dr. Woods also noted that Petitioner’s “limited repertoire of skills when it came to expressing his
13
inner life,” that had been observed by Thorn, was mirrored in later objective psychological testing,
14
where Petitioner’s specific ways of responding to the world were expressed through efforts to
15
16
17
18
minimize his pathology despite his manifesting elevated paranoia scales and delusional thinking.
Id. Petitioner’s limited social ability and isolation continued throughout his work history.
Dr. Woods also touched on Petitioner and Doreen’s relationship and Paul’s subsequent
19
death. According to Dr. Woods, “everyone acknowledged that [Petitioner] was a wonderful,
20
involved father.” Dkt. No. 299-8 at 5. Dr. Woods noted that one of Petitioner’s coworkers
21
testified that “Paul was Petitioner’s life” and that Petitioner bragged about Paul, along with his
22
house, all the time. Dr. Woods opined that Paul’s death was the first in a series of tragic events in
23
24
Petitioner’s life that ultimately led to Doreen’s murder. Dkt. No. 299-8 at 5. Petitioner had been
25
concerned about the safety of Doreen’s pool after Doreen’s puppy drowned in it. Petitioner
26
testified in his civil trial that he told Doreen that he would help her pay for a safer fence, but that
27
his offer was rejected. According to Dr. Woods, Petitioner continues to be flabbergasted when
28
15
1
discussing Doreen’s explanation of her trying to find Paul the night that Paul drowned.
2
Specifically, Petitioner could not understand Doreen’s statement that she could not look in the
3
pool because she was afraid of what she would see and instead ran to a neighbor’s house to ask
4
him to look in the pool for her. Id. at 6. Petitioner was with a friend when he received a phone
5
call notifying him of Paul’s death, and his friend noted that Petitioner “let out a loud, terrible
6
7
scream, and started to cry. When Paul died, Mike was left with nobody.” Id. Petitioner had
dropped Paul at Doreen’s home less than an hour before he drowned.
8
9
Dr. Woods opined that Petitioner’s limited adaptive psychological skills, vulnerability to
isolation, and his emotional rigidity were the damaged foundation for the series of profoundly
11
United States District Court
Northern District of California
10
traumatic events making up the five years following Paul’s death. Dkt. No. 299-8 at 6. Petitioner
12
talked about his loss and held up Paul to an extreme degree, often talking about Paul and marking
13
14
the developmental milestones he would have likely had if he was alive. Dr. Woods believes that
Petitioner’s short stint in therapy did not show that Petitioner was able to resolve his grief, but
15
16
17
rather that he was unable to express his emotion.
Petitioner’s grief over Paul’s death was accompanied by confusion over whether Paul’s
18
death was negligence or intentional lack of protection on Doreen’s part. According to Dr. Woods,
19
the idea that Doreen intentionally let Paul drown was “the logical kernel that eventually grew
20
through suspicion, through hyper-vigilance, through over-valued ideas, into a delusion” and drove
21
him to his civil suit. Id. at 7. Petitioner told Dr. Woods that he wanted Doreen to accept
22
responsibility for her negligent acts and depicted himself as a reluctant plaintiff, noting that the
23
24
attorney he consulted about child support payments suggested the negligence lawsuit. Once the
25
suit was filed, Dr. Woods opined that it focused Petitioner’s increasing paranoia. Petitioner told
26
Dr. Woods that the idea that Doreen wanted Paul dead came from a statement by one of his
27
coworkers, which provided him with the missing piece of the puzzle as to why he lost the trial.
28
16
1
2
Petitioner thought that Doreen was not only capable of intentionally killing Paul, but also jealous
of the unconditional love Paul had for Petitioner.
3
Petitioner’s growing cognitive slippage created a transition from questions to judgments
4
and judgments to delusions, which underlined the deterioration of Petitioner’s thought processes
5
and galvanized Petitioner’s delusional thinking. Dkt. No. 299-8 at 7. Petitioner was shocked
6
when the jury found the Erberts not negligent, which led Petitioner to decompensate affectively,
7
emotionally, and overtly. It also led to Petitioner developing an intense hatred toward Doreen.
8
9
Dkt. No. 389 at 305. Dr. Woods interpreted Petitioner’s decision to kill Doreen not as punishment
for her, but as retribution for her failure to accept responsibility for Paul’s death. Id. at 307-08.
11
United States District Court
Northern District of California
10
Following the civil trial, Petitioner described himself, and was described by others, as depressed,
12
not sleeping, not eating, and unable to function. Dr. Woods stated that the reports were consistent
13
14
with a mental state at the onset of delusional thinking, when a person wants to understand
overwhelming circumstances but the only explanation is beyond reality. During his March 2001
15
16
17
18
interview with Dr. Woods, Petitioner described having a “nervous breakdown.” Dkt. No. 299-8 at
7-8.
Dr. Woods also conducted psychological testing of Petitioner and found Petitioner was
19
clinically paranoid in spite of attempting to present himself as less pathological. Dr. Woods
20
opined that Petitioner masked the depth and quality of his fixed, circumscribed, encapsulated
21
delusion that Doreen killed Paul. Dr. Woods cited the DSM-IV in making his diagnosis,
22
explaining that a delusion is defined as:
23
27
[a] false belief based on incorrect inference about external reality that is firmly
sustained despite what everyone else believes and despite what constitutes
incontrovertible and obvious proof of evidence to the contrary. The belief is not
one ordinarily accepted by other members of the person’s culture or subculture. . . .
It is often difficult to distinguish from a delusion and an overvalued idea (in which
case the individual has an unreasonable belief or idea but does not hold it as firmly
as is the case with a delusion).
28
17
24
25
26
1
Id. at 9. Dr. Woods stated that the progression of Petitioner’s thoughts to judgment, or from
2
overvalued idea to delusion, was evident in Petitioner’s understanding of the civil jury’s findings.
3
Petitioner’s pathological paranoia and limited adaptive capabilities were also evident, according to
4
Dr. Woods, in the way Petitioner was described in the days after the trial: flat, expressing no
5
emotion at all, and similar to the look a Vietnam veteran might have in his eyes. Id. at 10.
6
Dr. Woods also opined that Petitioner’s prior psychological examinations, specifically the
7
MMPI tests administered to Petitioner in 1985 and 1988, which showed high paranoia scales
8
9
despite Petitioner’s attempt to minimize his pathological problems, supported his diagnosis of a
delusional disorder. Dkt. No. 299-8 at 10. Dr. Woods noted that Petitioner’s symptoms, including
11
United States District Court
Northern District of California
10
the breakthrough symptom of paranoia, most closely track the diagnostic criteria for a delusional
12
disorder as opposed to the psychotic manifestations of a major depressive disorder. Dr. Woods
13
stated that the Rorschach protocol administered by Dr. Garton also documented Petitioner’s
14
potential for delusional thinking, underlying paranoid trends, and a transitory paranoid state as
15
16
17
categorized by delusional thinking. Id. at 11. Dr. Woods did not find it significant or inconsistent
with his diagnosis that Petitioner took more than one weapon to Doreen’s home on the night of the
18
murder or attach diagnostic significance to Petitioner’s statements attempting to distance himself
19
from the crime after the fact. Dkt. No. 389 at 308-10.
20
21
Dr. Woods stated that paranoid delusions, or persecutory delusions, are one subtype of
delusions found in a delusional disorder, Dkt. No. 299-8 at 11, and that people with that subtype
22
are the most lethal because their delusion is driven by psychotic energy and a loss of contact with
23
24
reality. Although psychotic states can appear similar in different clinical syndromes, the correct
25
diagnosis is extremely important. Petitioner knew that he was killing Doreen as he stabbed her;
26
Petitioner also did not ascribe his conduct to any other being, had no hallucinations, and, at some
27
point, appreciated the legal consequences of his actions. Dkt. No. 389 at 308-11. While
28
18
1
Dr. Garton recognized in his report that Petitioner had a possibility of suffering from delusions,
2
Dr. Woods noted that Dr. Garton’s report appears to “stress how limited his evaluation [of
3
Petitioner] was,” pointing to Dr. Garton’s statement that Petitioner’s statement that he went
4
“crazy” for a few months following the civil trial should be examined more closely in a
5
psychological interview. Id. at 12.
6
7
Finally, Dr. Woods opined that Petitioner suffered from a severe delusional disorder at the
time of the offense. Dkt. No. 299-8 at 12. Petitioner’s inability to express emotions, blocking of
8
9
his affective expression, and forcing his emotions into narrow, but deep, vulnerability to psychosis
indicate that Petitioner suffered from a fixed delusion that overwhelmed him on the date of the
11
United States District Court
Northern District of California
10
crimes, rendering him unable to distinguish moral right from wrong. Dr. Woods also disagreed
12
with Dr. Cohen’s report suggesting that Petitioner did not suffer from a delusional disorder and
13
opined that Petitioner’s statements to Dr. Cohen and initial attempts to conceal his motive and
14
involvement in Doreen’s murder in fact were consistent with a delusional disorder. Dkt. 375-5 at
15
16
2-6.
17
j. Mr. Nolan
18
Thomas Nolan is a California attorney who was retained by Petitioner to testify as a legal
19
expert regarding the competency of Petitioner’s trial counsel. See Dkt. No. 299-5. Mr. Nolan was
20
engaged by Petitioner’s federal habeas counsel in 2013. Mr. Nolan received his Bachelor of Arts
21
degree from Sacramento State College in 1967 and his law degree from the University of
22
California-Davis in 1970. He has been a member of several criminal justice and death penalty
23
24
organizations since 1976 and has lengthy experience as a criminal defense attorney, professor, and
25
expert witness. He also has received professional recognition for his work as a criminal defense
26
attorney.
27
28
Mr. Nolan testified at length about various standards and guidelines for criminal defense
19
1
attorneys and capital case litigators that have been set out, used, or taught by professional
2
organizations, including the California Attorneys for Criminal Justice (CACJ), the California
3
Public Defenders Association, the California Appellate Project, the Office of the State Public
4
Defender, the NAACP Legal Defense Fund, the National Legal Aid and Defender Association
5
(“NLADA”), and the Southern Poverty Law Center. Dkt. No. 299-5 at 4. According to
6
Mr. Nolan, the 1987 NLADA Standards for Counsel in Capital Cases (“NLADA Standards”)
7
codified the prevailing national practice of capital defense attorneys following the Supreme
8
9
Court’s decision in Furman v. Georgia, 408 U.S. 238 (1972). The American Bar Association
followed suit in 1989, publishing the Guidelines for the Appointment and Performance of Counsel
11
United States District Court
Northern District of California
10
in Death Penalty Cases (“1989 ABA Guidelines”). Mr. Nolan opined that California’s guidelines
12
and prevailing standards exceeded those of the NLADA Standards and 1989 ABA Guidelines, but
13
14
when asked, he was unable to rank the various standards and guidelines against each other or
against the standards required by the Sixth Amendment. See Dkt. 299-5 at 6 & Dkt. No. 389 at
15
16
17
206-211.
Mr. Nolan opined that at the time of Petitioner’s trial, reasonably effective counsel should
18
have understood that capital litigation was complex and time-consuming, and that trial counsel
19
was obligated concurrently to investigate and prepare for both the guilt and the penalty phase.
20
Dkt. No. 299-5 at 6-7. He said that competent trial counsel was required to understand and
21
analyze sanity and penalty issues before counsel could fully develop and formulate an effective
22
strategy for either phase of trial. Reasonably effective counsel would have introduced a variety of
23
24
witnesses, both lay and expert, to discuss a defendant’s background and mental state at and around
25
the time of the crimes. Id. at 8. Reasonably effective counsel would have had expert witnesses
26
evaluate the defendant and presented a not guilty plea in conjunction with a plea of not guilty by
27
reason of insanity. Id. at 9. At the time of Petitioner’s trial, it was already standard practice for
28
20
1
defense counsel to provide experts with all relevant records of the defendant and his family, and
2
with other persons who possessed potentially relevant information. Id. at 19. Counsel also had an
3
obligation to control the selection and preparation of experts and ensure that they possessed
4
relevant background and social history information about the defendant, and to educate them on
5
the role and scope of mitigation, which was not a well-known concept in the early 1990s.
6
7
Mr. Nolan also testified that reasonably effective counsel would have made an opening
statement at the outset of trial detailing Petitioner’s mental illness as a way of suggesting to the
8
9
jury the absence of the required mental state for murder, Dkt. No. 299 at 10, and that counsel
should have known that he had to portray Petitioner as a human being with positive qualities that
11
United States District Court
Northern District of California
10
would outweigh the selective evidence of criminality presented by the prosecution. According to
12
Mr. Nolan, counsel likewise should have known that he had to attempt to show that Petitioner’s
13
14
capital crimes were humanly understandable in light of his past history and the unique
circumstances affecting his formative development. Id. at 12. Mr. Nolan testified that attorneys
15
16
17
representing capital defendants in 1988 were required to conduct an exhaustive multi-generational
investigation of a defendant’s background and social history, including investigation of the
18
environmental factors affecting the defendant’s behavior, personality and mental functioning and
19
the developmental, medical, mental health, educational, military, employment, training, prior
20
criminal and correctional histories, and religious, cultural, and social histories of himself and his
21
22
family. Id. at 14.
At the time of Petitioner’s trial, the prevailing standard of care required capital defense
23
24
attorneys systematically to interview persons regarding all potential mitigation themes without
25
limiting the inquiry to a small set of witnesses or a short time period. Dkt. No. 299-5 at 16.
26
Capital counsel also were required to employ and lead trained guilt and sentencing investigators to
27
assist in the development and presentation of evidence at trial. Once that information was
28
21
1
received, capital defense attorneys were required to reformulate mitigation themes and incorporate
2
those themes into the guilt and penalty phase cases. During the penalty phase, counsel was
3
required to investigate, develop, and present evidence—if available—that the defendant would not
4
pose a danger and would adjust well to life in prison if he was sentenced to life without the
5
possibility of parole. Id. at 21. Counsel had the responsibility of organizing and structuring the
6
penalty phase into a forceful, unified presentation corroborated with fully prepared witnesses and
7
documentary evidence, erring on the side of inclusion. Id. at 21-22.
8
9
Mr. Nolan concluded that Petitioner’s trial counsel should have called lay witnesses to
testify live instead of using their statements for purposes of informing an expert’s testimony. Dkt.
11
United States District Court
Northern District of California
10
No. 299-5 at 22. Counsel also should have called mental health witnesses to testify during the
12
penalty phase, including Dr. Benson, as opposed to relying only on the testimony provided by
13
14
Dr. Benson during the guilt phase. Mr. Nolan opined that counsel should have introduced
evidence of Petitioner’s background, including that Petitioner had severe hearing loss and was
15
16
17
viewed as intellectually disabled throughout his adolescence and adulthood, and should have
presented evidence that Petitioner’s development was stunted by his parents’ divorce when he was
18
nine years old and was traumatized and consumed by Paul’s death, which caused Petitioner to
19
suffer delusional beliefs. Id. at 24-25. Mr. Nolan also testified that counsel should have
20
introduced evidence that Petitioner had attempted suicide in the past, had no criminal record, and
21
22
was a positive person and good father. He opined further that counsel should have asked each lay
witness whether Petitioner’s life should be spared. Id. at 25. Each of trial counsel’s perceived
23
24
25
failures, according to Mr. Nolan, had no strategic basis.
On cross-examination, Mr. Nolan admitted that he had not read any part of Dr. Benson’s
26
guilt phase testimony. Dkt. No. 389 at 191. He also admitted that the guidelines and standards
27
from various legal organizations given at training programs and seminars do not have the force of
28
22
1
the Sixth Amendment. Moreover, though he opined that trial counsel’s decision to receive his
2
opening statement to the beginning of the defenses was a mistake because of the strength of the
3
evidence showing Petitioner’s guilt, he recognized that reserving an opening statement sometimes
4
might be considered a good strategy. Id. at 219. Mr. Nolan also acknowledged that indicia of an
5
adequate capital case investigation include evidence that counsel: carried out investigations of the
6
defendant’s coworkers, friends, and classmates; reviewed the defendant’s and his family’s
7
medical, school, and prison records; sought information regarding any prior offenses and all
8
9
documentation related to them, including juvenile files and records; followed up on suggestions
made by experts; performed legal research on the legal issues presented by the case; counsel
11
United States District Court
Northern District of California
10
obtained and reviewed the autopsy report and to the extent necessary, had the autopsy report,
12
reviewed independently; considered the defendant’s psychiatric trail; checklists or other
13
14
documents showing what has been done and what needs to be done; and demonstrated considered
judgment in terms of strategy, including notes, billing records, and correspondence. Id. at 265-75.
15
16
17
18
Mr. Nolan agreed that trial counsel’s file in this case contained many of these items. Id. at 27580.
Mr. Nolan took issue with trial counsel’s decision not to find an expert “like Dr. George
19
Woods,” who not only would have been capable of discerning a diagnosis of delusional disorder,
20
but also would have been “comfortable” doing so at trial. Dkt. Nos. 299-5 at 24 & 389 at 285.
21
22
Mr. Nolan testified that while Dr. Benson was a psychiatrist who often testified in criminal cases
at the time of Petitioner’s trial and was certainly capable of discerning delusional disorder, he
23
24
would not have taken Dr. Benson’s opinion for what it was because it did not include an opinion
25
that Petitioner was insane. Dkt. No. 389 at 285-93. Mr. Nolan admitted that the Sixth
26
Amendment does not require counsel to move through experts until he finds the one who gives
27
him the answer he wants. Id. at 396.
28
23
1
k. Dr. Cohen
2
Dr. Cohen is a psychiatrist contracted by Respondent to conduct a psychiatric evaluation of
3
Petitioner. See Dkt. No. 347-9 at 1. Dr. Cohen received his medical degree from the University of
4
Southern California School of Medicine in 2003 and is board certified in psychiatry and forensic
5
psychiatry by the American Board of Psychiatry and Neurology. Dr. Cohen has experience as a
6
professor, a practicing psychiatrist, consultant to the Mental Health Courthouse in Los Angeles
7
County, and as an expert. Id. at 1-2.
8
9
10
United States District Court
Northern District of California
11
12
13
14
Dr. Cohen conducted a psychiatric examination of Petitioner, including two evaluations in
February 2014, at San Quentin State Prison. Dr. Cohen was instructed to answer three questions:
1. Does the petitioner suffer from a mental disorder? [¶]
2. Did the petitioner have the ability to understand the nature and quality of the
criminal acts, or the ability to distinguish right from wrong at the time the
criminal acts were committed? [¶]
3. Does the psychiatric evidence help inform the questions that will be put to the
trier of fact regarding whether the petitioner premeditated, or whether he acted
with malice aforethought at the time of the murders?
15
16
17
Dkt. No. 347-9 at 3.
Dr. Cohen’s report provided a brief background of the crime and what Dr. Cohen refers to
18
as Petitioner’s twenty-three “versions” of the crimes, i.e., the differing accounts Petitioner has
19
provided of the killings which, according to Dr. Cohen, “have evolved over time to increasingly
20
portray himself as a righteous avenger of his son’s death.” Id. at 3. Dr. Cohen summarized the
21
accounts as follows:
22
Petitioner gave a recorded statement to the San Jose Police Department on November 1,
23
24
1984 (“Version One”). Petitioner stated that on the night of the murder, he drove home from work
25
and arrived to an empty home. Petitioner had dinner with his mother in her living quarters and
26
consumed one glass of wine. He and his mother passed out candy until approximately 8:30 p.m.
27
At some point, Petitioner began playing with the “skinny” knife in his butcher block, tossing the
28
24
1
knife into the air and intending to catch it by the handle, but instead caught the knife by the blade.
2
Dkt. No. 347-9 at 4. As a result, Petitioner cut his index, little, and ring fingers of his right hand.
3
Petitioner described his cuts as “substantial” injuries, but as they did not really hurt, he stated that
4
he did not go to the hospital. Instead, Petitioner cleaned up the blood from the kitchen floor with
5
paper towels as best as he could and went upstairs to wrap the fingers, disposing of the paper
6
7
towels in the toilet. Petitioner went to bed at approximately 9:00 p.m. Petitioner denied being at
Doreen’s house, stating he was last there four years prior, and denied killing her. He also denied
8
9
10
walking on an overpass walkway a half mile from his home on the night of the murder.
Petitioner continued giving a similar account of what happened on the night of Doreen’s
United States District Court
Northern District of California
11
murder for some time. When he gave a second statement on November 1, 1984, after he was
12
taken into custody (“Version Two”), Petitioner denied knowing what crime he allegedly had
13
14
committed. Petitioner told police that he wanted to speak to an attorney and mentioned that he
had been at his mother’s living quarters playing with some knives. The author of the report noted
15
16
17
18
that Petitioner did not exhibit any remorse, anxiety, depression, or guilt. Petitioner requested
something to eat.
Petitioner again recounted the knife story and denied involvement in Doreen’s murder on
19
November 2, 1984, during a psychiatric evaluation (“Version Three”); in a November 6, 1984
20
statement to the San Jose Mercury News (“Version Five”); a November 7, 1984, telephone call to
21
the San Jose Mercury News (“Version Seven”); and a November 7, 1984, interview with the
22
Peninsula Times Tribune (“Version Nine”). On November 5, 1984, Petitioner was released from
23
24
custody and made statements to television news reporters (“Version Four”). Petitioner was asked
25
to make a statement to Doreen’s family and replied that he was sorry that “it did happen to [th]em”
26
and that he hoped they caught the person who did it. Dkt. No. 347-9 at 5. Responding to
27
questions, Petitioner stated that he did not consider himself a free man until the other person was
28
25
1
caught and that he believed police released him because he was “not the one who did it.” Id.
2
Petitioner repeated these statements on November 6, 1984, during an interview with the Peninsula
3
Times Tribune (“Version Six”).
4
5
6
7
In his “Version Five” statement to the San Jose Mercury News, Petitioner said that he
thought of his son every day but not to the extent of revenge. Dkt. No. 347-9 at 5. Petitioner also
said that investigators told him only briefly that Doreen had died, that he had been isolated in jail,
and that police took his glasses from him. Petitioner stated that he did not know Doreen’s murder
8
9
was “real brutal” until some inmates told him. Petitioner stated that he had no idea who did it, but
was sure that he was considered the prime suspect because of Paul, the fact that he was Doreen’s
11
United States District Court
Northern District of California
10
ex-husband, and the fact that police had no other suspects. Petitioner made similar statements
12
about the police to the Peninsula Times Tribune in his “Version Six” statement and to the San Jose
13
Mercury News in his “Version Seven” statement.
14
On November 6, 1984, Petitioner made statements to police officers while being
15
16
17
transported to police headquarters (“Version Eight”). Petitioner told the officers that he had
adjusted to jail after he was taken into custody on November 1, 1984, and mentioned that he had
18
been receiving threatening telephone calls. Dkt. No. 347-9 at 6-7. Petitioner asked twice what
19
new evidence police had to arrest him. When told by police officers that he had been arrested
20
because they thought Petitioner killed Doreen, Petitioner responded, “Yeah, that’s one reason why
21
. . . well, one of many reasons why I’d never do it. ‘Cause I always know that I, you know . . .
22
Doreen ever to get killed, I’d be a suspect. I didn’t want to go to jail.” Id. at 7. Petitioner then
23
24
suggested that perhaps Doreen’s killing was related to drugs because one of Doreen’s friends had
25
told Petitioner that Charles was “heavy into cocaine” when he first started dating Doreen.
26
Petitioner mentioned that he wanted to find an attorney. While walking from the police car to an
27
interview room, Petitioner told police that he wrote two letters to Doreen after his wrongful death
28
26
1
suit and that he was considering sending the letters to newspapers. Petitioner suggested that police
2
wanted to “pin it [the murder]” on him because the killings must have been done by someone
3
insane, like a serial killer, who is hard to locate. Id. Petitioner also told police that it was possible
4
that they took hair from his head during an examination and planted evidence against him.
5
6
7
On March 18, 1985, Petitioner told his attorney that he had killed Doreen (“Version Ten”).
Dkt. No. 347-9 at 8. Petitioner told his attorney that he thought Paul’s death was accidental until
he heard Doreen’s story during the wrongful death suit. To Petitioner, Doreen’s story made him
8
9
think that Doreen had murdered Paul. Petitioner said the jury verdict compounded his anger and
that he felt his personality change after the jury voted against having Doreen pay half of the
11
United States District Court
Northern District of California
10
expenses. Petitioner purchased the machete he used approximately six weeks or two months prior
12
to the murder. He paid cash for the machete along with some other items, including fertilizer and
13
14
some gardening books. Petitioner kept the machete in his bedroom closet and did not tell anyone
about it. On Halloween 1984, Petitioner watched a program on television until approximately
15
16
17
8:30 p.m. and then left his home wearing two masks: a Frankenstein mask under a wolf mask. Id.
at 8. Petitioner carried a bag containing the machete, a small knife, and his .357 magnum and
18
walked to Doreen’s house. Dkt. No. 347-9 at 9. He took the wolf mask off when he reached the
19
bridge that crosses the highway and placed it in his bag because he was having trouble aligning the
20
eyeholes for both masks. Petitioner stated that after crossing the bridge, he “went into automatic
21
and only vaguely remembers cutting Doreen up.” Id. Petitioner recalled stabbing her once and the
22
machete slipping up, cutting his hand, and dropping the machete. Petitioner was wearing rubber
23
24
gloves that he wore at a party along with his wolf mask; he had forgotten that photos of him
25
wearing the items were taken at the party. After cutting himself, Petitioner thought he cut off his
26
fingers because he was unable to move them. At that point, Doreen was still alive, but lying
27
down. Petitioner picked up the machete and cut her a few more times. Petitioner remembered
28
27
1
2
loudly saying “you killed my son.” Id. at 10.
Petitioner told his attorney that he did not know Doreen was pregnant and that he had not
3
seen her since the court case. Petitioner stated that he held the machete with one finger. The baby
4
came out of Doreen and Petitioner was shocked; he had not noticed she was pregnant when he
5
entered the house. Petitioner remembered saying “my God, you’re pregnant” when the baby came
6
7
out. Id. at 9-10. Petitioner stated that his stepmother, who was close to Doreen, had not told him
about Doreen’s pregnancy. Petitioner denied striking the baby after it was outside the womb and
8
9
did not recall seeing the baby cut when it came out. He stated he was positive he did not cut the
baby afterwards because he did not want to leave footprints in Doreen’s blood. Petitioner stated
11
United States District Court
Northern District of California
10
that he made a final cut to Doreen’s head and took off out the door. He estimated that he was in
12
the home for approximately one minute.
13
14
Petitioner recalled holding the bag in his left hand and said he believed that the mask must
have fallen out. Dkt. No. 347-9 at 10. He did not notice the mask was missing as he left.
15
16
17
Petitioner recalled breathing very heavily and that there was a man on the other side of the street
when he got over the foot bridge. Petitioner arrived at home, wrapped his hand, and began getting
18
rid of evidence, including the machete and the clothing he wore. Petitioner also cut and threw out
19
a piece of carpet and some rags that had been saturated in blood. He did not notice whether the
20
mask was still in the bag when he got rid of it. He did not throw away his gun because it had no
21
22
blood on it. Petitioner went to bed at around 10:00 p.m. Id. at 10.
Petitioner stated that he remembered seeing one vehicle outside Doreen’s house. Dkt.
23
24
No. 347-9 at 10. Petitioner thought Charles still had two cars, although he no longer did.
25
Petitioner recalled that the house appeared to have the lights out. Machete in hand, he rang the
26
doorbell twice and did not hear anything for a while. Petitioner stated that he honestly believed
27
Doreen killed Paul and that it was not an accident. Petitioner said he felt that way because of the
28
28
1
way she treated Paul’s death. He believed Doreen lied and protected the insurance company. He
2
said he was confused by the jury verdict. Petitioner stated that Doreen easily could have killed
3
Paul because she was jealous that he and Paul were very close; Paul would cry when Petitioner
4
dropped him off at Doreen’s house. Petitioner stated that he believed Doreen thought Paul could
5
take care of himself. Petitioner also blamed Doreen for not jumping into the pool after Paul.
6
Referring to some of the items found at his residence, Petitioner told his attorney that the boxes
7
found in his garage were not coffins, but rather boxes in which he intended to place body bags
8
9
containing Doreen and Charles in order to transfer them onto his boat, sail out to sea, and throw
the weighted body bags into the sea. Dkt. No. 347-9 at 10. However, Petitioner abandoned the
11
United States District Court
Northern District of California
10
idea after realizing his method would not work.
12
On May 3, 1985, Petitioner told a polygraph operator (“Version Eleven”) that he was
13
thinking about killing Doreen when he purchased the machete “a long time” prior to her murder on
14
Halloween 1984. Dkt. No. 347-9 at 10-11. Petitioner said that he did not know Doreen was
15
16
17
pregnant until the fetus “popped out and bounced like a rubber doll three or four feet away from
Doreen.” Petitioner was shocked. Petitioner said Doreen looked up at him while he was stabbing
18
her and saying “you killed my boy,” to which Doreen replied “I didn’t mean to.” Id. at 11.
19
Petitioner said Doreen’s statement had haunted him ever since. Petitioner repeated the exchange
20
of words between him and Doreen to his investigator on April 4, 1988 (“Version Fourteen”) and to
21
Dr. Garton (“Version Fifteen”) and throughout various interviews Dr. Benson (Versions
22
“Sixteen,” “Seventeen,” “Eighteen,” “Nineteen,” and “Twenty”). See Dkt. No. 347-9 at 13-19.
23
24
On June 12, 1986, Petitioner told his investigator (“Version Twelve”) that he felt he had a
25
ninety percent chance of conviction, but thought that evidence regarding Paul’s death might help
26
him get a second degree murder conviction. Dkt. No. 347-9 at 11. The investigator told Petitioner
27
that he would need to see a psychiatrist in order to develop that sort of mental defense. Petitioner
28
29
1
noted concern that he failed his polygraph test in which he said that he did not know Doreen was
2
pregnant. Petitioner also mentioned a then-recent case in which a father had killed the convicted
3
killer of his daughter in a courtroom and received a lesser conviction, but the investigator told
4
Petitioner that the factual situation in Petitioner’s case was different because no one felt Doreen
5
was responsible for a murder when Paul died. On July 26, 1987, Petitioner again told his
6
investigator (“Version Thirteen”) that he felt Doreen murdered Paul and that his attorney must
7
visualize his crime in light of his pain, anguish, and anger. Petitioner also reiterated that the boxes
8
9
described as coffins were for his boat for storage purposes. Id. at 12.
During the “Version Fourteen” statement to his investigator, Petitioner was asked why the
11
United States District Court
Northern District of California
10
murder happened on Halloween 1984. Petitioner stated that he was very depressed at the time; he
12
had been unfairly demoted at work, he was having financial problems, he thought he had
13
14
contracted herpes from a long-time girlfriend, and he had recently broken up with that girlfriend.
Petitioner stated that he was extremely lonely and the hurt from losing his court case, as well as
15
16
17
from Paul’s death, was “hammering away” at him. Dkt. No. 347-9 at 12. He felt unjustly treated.
Petitioner said that he thought about Paul after seeing the kids trick-or-treating, stating that he
18
missed Paul greatly. Petitioner mentioned that he had to fill out a top secret security form for his
19
job and it gave him the opportunity to go check to see if Doreen still lived at her house.
20
21
22
Petitioner’s hatred of Doreen grew; according to Petitioner, she had treated him badly and
took his son’s life. Petitioner thought Paul’s death was not an act of God, not negligence, but
murder. The civil jury concluded that Paul’s death was an accident, but they did not know
23
24
whether he loved his son or just wanted money. Petitioner expressed sorrow for his actions
25
because they hurt people other than Doreen and Charles; he also blamed the civil jury for not
26
returning any award to make him feel better, although no amount of money could replace Paul.
27
Petitioner stated that he held Doreen responsible for Paul’s death and began having fantasies of
28
30
1
killing her and Charles by kidnapping and drowning them so they would know how Paul suffered
2
and died. Indeed, Petitioner told the investigator that he asked Doreen how it felt to drown on the
3
night of the murder. Petitioner told the investigator that he wanted to testify to let the jury know
4
that he went into a rage that night and did not recall everything that occurred when he hit her with
5
the machete; he again stated that he did not intend to kill the fetus and did not hit the fetus after it
6
was expelled from Doreen, a statement he reinforced many times. See Dkt. No. 347-9 at 12, 13,
7
15, 16, 19, 20, 24, 25, & 26.
8
9
Petitioner’s “Version Fifteen” statement to Dr. Garton included language similar to the
“Version Fourteen“ statement to his investigator, but it added more details. Dkt. No. 347-9 at 13.
11
United States District Court
Northern District of California
10
Petitioner stated that he asked Doreen why she did not go into the pool and she responded “get the
12
hell out of here.” Id. Petitioner stated that he thought he was able to carry out the murder by
13
projecting himself into an “other” who was doing everything as he watched. Petitioner then said
14
that it was a release of pent up emotion. According to Petitioner, he stopped attacking when the
15
16
17
fetus was expelled, then resumed the attack and left shortly after. Petitioner stated that he felt bad
for Doreen at times, but said that there was no doubt in his mind that Paul’s death was her fault.
18
Petitioner believed Doreen should have looked in the pool sooner and that she knew the pool was
19
dangerous. In his “Version Sixteen” statement to Dr. Garton, Petitioner again stated that he chose
20
Halloween because he thought he could get away with it. In addition, Petitioner stated that he did
21
not know Charles was not home. Petitioner knew Charles could have possibly killed him, but he
22
was happy to kill Doreen first.
23
24
In his undated “Version Seventeen” statement to Dr. Benson, Petitioner said that he had
25
occasional fantasies of Charles and Doreen’s death. Dkt. No. 347-9 at 14. He could not be happy
26
with Paul dead and Doreen responsible, so he decided to go see if she was home. Petitioner stated
27
that he did not know if he would kill her. He stopped stabbing her after she vomited blood. In
28
31
1
another interview with Dr. Benson, Version Eighteen, Petitioner additionally stated that Petitioner
2
wanted to find out why “they” killed Paul and wanted them dead, but did not think he could kill
3
anyone. Petitioner got paranoid and purchased a gun because he thought he would be their next
4
target; he also believed his attorney wanted to kill him. Petitioner told Dr. Benson that Doreen
5
had night clothes on during the attack. Petitioner also claimed that Charles appeared happy at
6
7
Paul’s funeral. Petitioner stated that he saw water before the fetus came out of Doreen.
During his sodium amytal interview, memorialized by Dr. Cohen as “Versions Nineteen
8
9
and Twenty,” Petitioner again stated that he chose Halloween because it was the best time to
commit the murder and get away with his plan. Dkt. No. 347-9 at 14. Petitioner dressed in his
11
United States District Court
Northern District of California
10
wolf mask and went to Doreen’s home. He was not 100% sure she would be there, but he was
12
hoping that she would be. Petitioner repeated details about Doreen opening the door, his words to
13
her (“you killed my boy”) and her response to him (“I didn’t mean to”), his surprise at seeing that
14
she was pregnant, and his denial of hurting the fetus after it was expelled from Doreen. This time,
15
16
17
Petitioner stated that he thought Doreen was lying to him when she said that she did not mean to
kill Paul. Petitioner stated that he hated Doreen very much and told Dr. Benson that he did not
18
remember jumping into the home. Petitioner said that he was not able to see color throughout the
19
attack, but described that Doreen was wearing a pink nightgown. He repeated his story that he
20
saw Doreen and Charles once after the trial while they were in a truck and reiterated that he
21
wanted to kill Charles, too. According to Petitioner, Charles was “possibly responsible” for Paul’s
22
death. Id. at 22.
23
24
Petitioner told Dr. Benson that he thought about being killed while he was attacking
25
Doreen, but did not think about his own life. Dkt. No. 247-9 at 15. He did not know that Charles
26
was not home. For all he knew, Charles was in the back and “could have gotten a gun and shot
27
[him].” Id. at 21. Petitioner, however, was just happy to attack Doreen first. He also said that he
28
32
1
did not think about what effect Doreen’s death would have on her daughter, Deanna. Petitioner
2
did not think Deanna’s life was in good hands. Petitioner denied seeing Deanna, but said that he
3
would not have hurt her. Petitioner stated that he thought that no one was home. Petitioner also
4
told Dr. Benson that he blamed the justice system. Dkt. No. 247-9 at 16. He stated that Doreen
5
was at fault and that, had the system put her behind bars, “nothing further would have happened.”
6
Id. Paul was the most important thing in his life. Despite his statement that Doreen was at fault,
7
Petitioner stated that he felt he failed Paul by not making Doreen put in a barrier for the fence.
8
9
10
United States District Court
Northern District of California
11
Petitioner also stated that he would not have killed Doreen if he had known then what he knew
“today.” He insisted that he would not want to hurt someone who was pregnant.
During a September 6, 1988, interview with a probation officer, Petitioner provided
12
another account of the crimes and what he believed led to Doreen’s killing (“Version Twenty-
13
One”). Dkt. No. 247-9 at 23. Petitioner told the probation officer that he fantasized about putting
14
weights on Doreen’s legs and forcing her to jump in the pool at gunpoint. He also fantasized
15
16
17
about drowning Doreen in the toilet bowl. Petitioner reiterated his fantasy of dropping Doreen
and Charles in the sea, telling the probation officer that sewing the body bags and building the
18
“coffins” were all part of that fantasy and a way of letting off pressure. Id. Petitioner believed
19
that Doreen and Charles were laughing at him behind his back, that even though Petitioner had
20
lost a child, they were starting a new family. They did not care about him—they never sent
21
Petitioner anything although he bought them Christmas gifts and sent Doreen cards for her
22
birthday.
23
24
Petitioner again blamed the justice system for his position. Dkt. No. 247-9 at 23. He told
25
the probation officer that he thought that he would have been able to get through his grieving
26
process had the justice system helped him, i.e., helped him win the civil suit against Doreen and
27
Charles. Petitioner thought the win would have allowed him to get on with his life and put Paul’s
28
33
1
death in perspective. He felt that his case should be a lesson to judges that they should not accept
2
a jury’s decision when they know it is wrong. Petitioner thought that he was a good person if the
3
probation officer did not consider October 31, 1984. He did not think that locking him up did any
4
good for society, as he did not see himself as dangerous or violent and the crime was one “of
5
passion.” Id. Petitioner told the probation officer that his case should not be a death penalty case
6
7
because he was hurt first, and at best felt that both matters should be Second Degree Murder; in
truth, he saw his case as a Manslaughter case. Petitioner said that Doreen “deserved it.”
8
9
Petitioner also told the probation officer that he did not torture Doreen and that she was not
yelling in pain. Dkt. No. 247-9 at 24. Petitioner said that Doreen was not conscious for more than
11
United States District Court
Northern District of California
10
one minute. When asked about the blood sprayed through the entry way, walls, and ceiling,
12
Petitioner stated that Doreen might have laid there for ten minutes or more with her heart pumping
13
14
blood and spraying the room after he left. He again described getting rid of incriminating
evidence, telling the officer that he was “amazed” he had carried out the killing when he got home.
15
16
17
Id. Petitioner was surprised that police showed up so quickly and when they arrested him.
Petitioner said that he wished he had not killed Doreen mainly because he hurt his parents by
18
doing so. Dkt. No. 247-9 at 24. Petitioner also felt badly for Deanna and Doreen’s parents.
19
Petitioner believed that the killing did not do any good for anyone, even himself, because he cried
20
more than he used to after Paul died. Petitioner stated that the gas chamber might be a relief
21
22
because the pain would be over.
Dr. Cohen described his own February 12, 2014, interview with Petitioner as “Version
23
24
Twenty-Two.” Dkt. No. 247-9 at 24. Petitioner told Dr. Cohen that he knew he was not going to
25
drown Doreen, but that he did not have much of a plan when he showed up at Doreen’s door on
26
the date of the murder. Petitioner had a hatred for Doreen. He had been thinking about the crimes
27
for approximately one or two weeks. Petitioner described taking the machete, gun, and small
28
34
1
knife to Doreen’s house. Petitioner told Dr. Cohen that he took two masks and that, after crossing
2
the bridge, he planned to take one mask off so that he would have a different mask on. Petitioner
3
described attacking Doreen in substantially similar fashion as he had before. Petitioner said that,
4
after he cut his fingers, he tried to prevent blood from dripping. After he arrived back home on the
5
night of the killing, Petitioner put his gun back to where he normally kept it and put away the
6
small knife. He disposed of the machete and his shoes in case he had left any footprints. He then
7
tried to fall asleep, but police arrived at his home and asked if they could look around. Petitioner
8
9
10
United States District Court
Northern District of California
11
allowed them to walk into his home. When police found blood and saw that Petitioner had
bandaged his hand, they arrested him.
Finally, Dr. Cohen described what he called “Version Twenty-Three” of Petitioner’s
12
accounts of the crimes. Dkt. No. 247-9 at 26. This account was given to him by Petitioner on the
13
same date as “Version Twenty-Two.” Petitioner described arriving at Doreen’s home and ringing
14
the doorbell. He did not see the truck there and noticed that the lights were out. When Doreen
15
16
17
opened the door, she stuck out her face and saw Petitioner with the machete, so she turned and
started running. Petitioner described running after her and swinging at her, then Doreen falling.
18
Petitioner stated that he was not swinging at any particular place, but was just swinging as hard as
19
he could. Petitioner said that there was an explosion when the fetus popped out. Petitioner again
20
described being shocked, telling Doreen that she “killed [his] boy,” and Doreen telling him that
21
she did not mean to. Petitioner believed Doreen was lying and he began attacking her again.
22
Petitioner then cut himself with the machete, which caused him to drop it. When he tried to pick
23
24
the machete up, he could barely hold it. Nevertheless, Petitioner continued trying to kill Doreen
25
because he hated her. Once Petitioner saw Doreen throw up blood, he thought that Doreen was
26
dead or just about there, so he grabbed his bag and walked out, closing the door behind him.
27
28
According to Dr. Cohen, Petitioner’s actions and statements showed he was conscious of
35
1
his guilt. Petitioner wore rubber gloves and actively tried to avoid leaving footprints in Doreen’s
2
blood, destroyed or disposed of incriminating evidence, denied committing the crime to police,
3
gave police alternate theories of who could have killed Doreen, and explicitly acknowledged that
4
he was trying to get away with the killing by carrying it out on Halloween and concealing
5
evidence. Dkt. No. 347-9 at 27-28. Petitioner’s allocution, in which Petitioner apologized for
6
committing the killings, also supported Dr. Cohen’s theory. Dr. Cohen noted that Petitioner also
7
acknowledged that he should be punished for committing two murders and stated that killing was
8
9
a very serious crime.
Based on statements by individuals other than Petitioner, Dr. Cohen disputed Petitioner’s
11
United States District Court
Northern District of California
10
statements that he did not know Doreen was pregnant and that he did not cut up the fetus after it
12
was expelled from Doreen. Dkt. No. 347-9 at 29. Dr. Cohen also questioned Petitioner’s
13
statements that his crime was one of passion with no premeditation and Petitioner’s theory that he
14
killed Doreen because he believed that his killing of Doreen was an act of retribution for her
15
16
17
18
killing his son. Id. at 29-30. Instead, Dr. Cohen believed that Petitioner’s decision to kill Doreen
and her fetus was “premeditated, deliberate, and motivated by revenge, anger, and hate.”
Dr. Cohen went on to list various facts and statements to support his theory, including
19
Doreen’s affairs while they were married; that Petitioner and Doreen fought constantly over
20
money; that Petitioner described his hatred for Doreen because he “gave, gave, gave, [and she]
21
took, took, took,” treated him badly, and took his son’s life (see id. at 31); Petitioner’s and other
22
witnesses’ descriptions of Doreen not reciprocating Petitioner’s affection for her during and after
23
24
their marriage; Petitioner and Doreen’s squabbles over child support payments and funeral
25
expenses after Paul died; Petitioner’s statements to Doreen in a letter he sent after Paul’s death,
26
telling her that he felt cheated by her in their marriage and that Paul’s death meant they had no
27
more ties; Petitioner’s threatening statements, such as “I’ll get them,” and “they’re going to pay
28
36
1
for it,” as he was being thrown out of the Erberts’ home on the day of Paul’s funeral (see id. at
2
32); witness’ descriptions of Petitioner’s hatred toward Doreen as “strong,” “overwhelming,”
3
“deep,” and “mortal” (see id.); Petitioner’s statement that Doreen had taken advantage of him over
4
the years and that he was planning to take a stand; Petitioner’s remark that Doreen had not
5
“suffered enough” when a coworker remarked that she probably suffered from Paul’s death, too
6
7
(see id. at 33); Petitioner’s statement that he wanted to get back at Doreen; Petitioner’s various
plans to kill Doreen and Charles; Petitioner’s advance purchase of the machete; evidence found in
8
9
Petitioner’s residence, including two anchors, two body bags, two homemade coffins, a nautical
chart with depths of the San Francisco Bay and the central California coast, and a 1982 Penthouse
11
United States District Court
Northern District of California
10
magazine featuring an article entitled “The Farce of Courtroom Psychiatry: Murder by Insanity”
12
placed on top of a stack of 1984 issues (id.); reports that Doreen was receiving threatening
13
telephone messages from a disguised male voice stating “I’m going to kill you” and “I’m going to
14
close your business down,” for which Doreen assumed Petitioner was responsible (id. at 34);
15
16
17
Petitioner’s statements to Twila Hendrickson Mejia that Doreen had gotten pregnant again; the
nature of the injuries to Doreen and her fetus; and Petitioner’s various statements about the series
18
of bad or unfair events happening prior to his killing of Doreen, i.e., that he had been demoted at
19
work, suspected that he had herpes, and that he had broken up with his girlfriend. Id.
20
21
22
Dr. Cohen diagnosed Petitioner with Adjustment Disorder with mixed anxiety and
depressed mood. Dkt. No. 247-9 at 38. The Diagnostic and Statistical Manual of Mental
Disorders (DSM-5) defines Adjustment Disorder as “the presence of emotional or behavioral
23
24
symptoms in response to an identifiable stressor . . . [which] may be a single event (e.g., a
25
termination of a romantic relationship), or there may be multiple stressors (e.g., marked business
26
difficulties and marital problems).” Id. at 38-39. Dr. Cohen believed that Petitioner manifested
27
some depressive and anxiety symptoms as a consequence of the legal proceedings and his
28
37
1
2
incarceration.
Dr. Cohen also diagnosed Petitioner with an Other Specified Personality Disorder with
3
mixed antisocial and borderline features. “Personality disorders involve a pattern of inflexible and
4
recurrent maladaptive behavior that is not a mental disease.” Dkt. No. 247-9 at 39. According to
5
Dr. Cohen, the DSM-5 defines antisocial personality disorder as a “pattern of disregard for, and
6
violation of, the rights of others.” Id. Dr. Cohen stated that Petitioner’s antisocial personality
7
features include deceitfulness, impulsivity, and a failure to conform to social norms with respect to
8
9
lawful behaviors, and provides a list of Petitioner’s actions supporting his diagnosis, including the
fact that he murdered Doreen and her fetus, that Petitioner tried to use force to have sex at least
11
United States District Court
Northern District of California
10
once, and that Petitioner frequented prostitutes and used cocaine and methamphetamine.
12
Dr. Cohen also provided a list of Petitioner’s actions that support his diagnosis of borderline
13
personality disorder, which the DSM-5 defines as a “pervasive pattern of instability of
14
interpersonal relationships, self-image, and affects, and marked impulsivity.” Id. at 40.
15
16
17
According to the DSM-5, “[t]hese individuals may suddenly change from the role of a
needy supplicant for help to that of a righteous avenger of past mistreatment.” Id. Petitioner’s
18
borderline personality features include paranoid ideation, sudden and dramatic shifts in his view of
19
others, inappropriate and intense anger, and dysphoria. As examples, Dr. Cohen listed that
20
Petitioner was obsessed with being in a relationship with women, that Petitioner was known to be
21
sensitive to criticism and was rumored to lose control, and listed several instances in which
22
Petitioner lost his temper or otherwise threw loud or violent fits in anger over not being able to get
23
24
25
what he wanted. Id. at 40-42.
Dr. Cohen disagreed with Dr. Benson and Dr. Woods’ diagnoses of delusional disorder
26
and major depressive disorder, giving various examples of Petitioner’s behavior or statements that
27
he felt contradicted those diagnoses. Dkt. No. 247-9 at 35-38. As to Major Depressive Disorder,
28
38
1
Dr. Cohen noted that Petitioner’s contemporary diagnosis after Paul’s death was not of depression,
2
but “bereavement” and “grief,” and that Petitioner had consistently reported improvement of his
3
mental health after his first visit to Kaiser. Id. at 35. As to Delusional Disorder, Dr. Cohen noted
4
that Petitioner’s “fixed” delusion was not fixed, as shown by Petitioner’s statements to police that
5
Paul’s death was accidental, Petitioner’s statements to his investigator that he was no longer sure
6
that Doreen killed Paul, and his statements to Dr. Cohen that he could accept that Doreen was
7
negligent if the civil jury had so found. Id. at 35-36. Dr. Cohen additionally cited psychiatric
8
9
evaluations that Petitioner underwent in November 1984, which diagnosed Petitioner with
“probable mixed character disorder with narcissistic and sociopathic components, over-controlled
11
United States District Court
Northern District of California
10
personality style’ and which did not indicate any signs of a formal thought disorder or reveal any
12
paranoid ideas, as well as various psychiatric evaluations of Petitioner from: July 1985 (no
13
14
symptoms of psychotic disorder, diagnosis of adjustment disorder with depressed mood and mixed
character disorder); September 1988 (no signs or symptoms of psychotic or any other mental
15
16
17
disorder): December 1988 (finding Petitioner “presently sane within the meaning of California
statute”); January, April, and August 1989 (no signs of symptoms of psychotic or mental
18
disorder); November 1989 (diagnosis of adjustment disorder with depressed mood and personality
19
disorder with borderline narcissistic and avoidant features); and Dr. Cohen’s February 2014
20
examination (no clinical psychopathology or psychotic symptoms). Id. at 37-38.
21
Dr. Cohen concluded that Petitioner did not suffer from a mental disease, that Petitioner
22
was not insane at the time of the murders, and that Petitioner indeed premeditated the crimes and
23
24
acted with malice aforethought. Dkt. No. 247-9 at 42-43.
25
l. Lay Witnesses
26
Petitioner submitted the declarations of forty-six lay witnesses. See Dkt. No. 299-10 to
27
299-56. Some of the lay witnesses were called as witnesses by both parties during Petitioner’s
28
39
1
trial, including Gerald Ceglio, Ronald Christian, Enoch Cole, John Golden, Ted Grish, James Hall,
2
Kenneth Marquardt, Elizabeth Ross, Eric Steinhauff, Barbara Thorn, and Robert Webb. Two
3
declarations were from jurors. Dkt. No. 299-42 & 299-49. The declarations also included one
4
declaration from Petitioner’s civil attorney and one from Petitioner’s trial attorney. See Dkt.
5
No. 299-28 & 299-47.
6
Petitioner’s lay witnesses described aspects of Petitioner’s background throughout various
7
stages in his life, including his childhood, adolescence, and adulthood, and were largely consistent
8
9
with previous witnesses’ reports of Petitioner’s background and characteristics. Most of the
witnesses noted that Petitioner had a hearing problem and a stutter or speech impediment, that
11
United States District Court
Northern District of California
10
Petitioner was chubby or fat as a child, that Petitioner was viewed as “slow” by many of his peers,
12
and was bullied by others. Many also noted that Petitioner was a loner, shy, introverted, socially
13
awkward or inept, and often “sad.” See, e.g., Dkt. No. 299-10 to 299-14; 299-18 to 299-23; 299-
14
45 to 299-46; 299-51 to 299-55. The witnesses also agreed that Petitioner was a good father who
15
16
17
appeared to love Paul and, while they were married, Doreen. Several of the lay witnesses declared
that Petitioner was nice, honest, trustworthy, kind, responsible, docile, a good friend, and “not
18
violent.” Dkt. No. 299-10; 299-13 to 299-17; 299-19; 299-22 to 299-25; 299-31 to 299-32; 299-
19
40; 299-50; 299-52 to 299-53; & 299-55. Petitioner’s coworkers appeared to agree that Petitioner
20
was a good worker and a perfectionist.
21
Some of Petitioner’s lay witnesses also stated, however, that Petitioner had a bad temper
22
and listed several occasions during which Petitioner overreacted at minor incidents either by
23
24
yelling, ranting, and “raving”; by throwing or hitting items; “hacking” at a tree with a golf club;
25
or, in one instance, by physically assaulting his brother John. Petitioner’s overreactions happened
26
after he dropped a sandwich, hit a bad shot during a golf game, had trouble with a craft project, got
27
into a minor fender bender, gave a parking attendant the wrong amount of cash, lost a woman’s
28
40
1
phone number, could not find a date while he was skiing with a friend, and got an answer wrong
2
during class. The tantrums also occurred after one of Petitioner’s friends continued kicking
3
Petitioner’s desk after Petitioner asked him to stop, when a coworker asked Petitioner how he was
4
doing on what happened to be the anniversary of Paul’s death, and when Petitioner’s brother,
5
John, bit one of their cousins. See Dkt. No. 299-13 to 299-14; 299-17 to 299-18; 299-22; 299-26;
6
7
299-35; 299-38 to 299-39; 299-43; 299-45; & 299-56. Finally, most of the witnesses who spent
time with Petitioner during his adulthood stated that Petitioner was devastated by Paul’s death,
8
9
upset about losing his civil trial, and absolutely blamed Doreen for Paul’s death. They also
described a transformation in Petitioner’s affect after Paul’s death, often describing him as
11
United States District Court
Northern District of California
10
depressed. One of the lay witnesses, John McDowell, noted that Petitioner’s family, on the
12
maternal side, had a history of mental illness. Dkt. No. 299-43.
13
14
II.
DISCUSSION
a. Standard of Review
15
16
17
A district court may not grant a writ of habeas corpus with respect to any claim that was
adjudicated on the merits in state court unless the state court’s adjudication of the claim:
18
“(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly
19
established Federal law, as determined by the Supreme Court of the United States; or (2) resulted
20
in a decision that was based on an unreasonable determination of the facts in light of the evidence
21
presented in the State court proceeding.” 28 U.S.C. § 2254(d). In determining whether a
22
petitioner is entitled to relief under this provision, a federal court’s review “is [generally] limited
23
24
25
to the record that was before the state court that adjudicated the claim on the merits.” Cullen v.
Pinholster, 563 U.S. 170 (2011).
26
The “contrary to” and “unreasonable application” prongs of section 2254(d)(1) have
27
separate and distinct meanings. See Williams v. Taylor, 529 U.S. 362, 404 (2000). A state court’s
28
41
1
decision is “contrary to” clearly established U.S. Supreme Court law if that decision fails to apply
2
the correct controlling authority or if it applies the controlling authority to a case involving facts
3
materially indistinguishable from those in a controlling case, but nonetheless reaches a different
4
result. Id. at 412–13. A decision is an “unreasonable application” of U.S. Supreme Court law if
5
“the state court identifies the correct governing legal principle . . . but unreasonably applies that
6
7
principle to the facts of the prisoner’s case.” Id. at 413. Importantly, “ ‘an unreasonable
application of federal law is different from an incorrect application of federal law.’ ” Harrington
8
9
v. Richter, 562 U.S. 86, 101 (2011) (quoting Williams, 529 U.S. at 410). A state court’s
determination that a claim lacks merit is not unreasonable “so long as ‘fairminded jurists could
11
United States District Court
Northern District of California
10
disagree’ on [its] correctness.” Id. (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).
12
Holdings of the U.S. Supreme Court at the time of the state court decision are the only definitive
13
14
source of clearly established federal law under section 2254(d)(1). See Williams, 529 U.S. at 412;
see also Lopez v. Smith, ––– U.S. ––––, 135 S.Ct. 1, 4 (2014) (per curiam) (“AEDPA permits
15
16
17
habeas relief only if a state court’s decision is ‘contrary to, or involved an unreasonable
application of, clearly established Federal law’ as determined by this Court, not by the courts of
18
appeals”). While a federal court may “look to circuit precedent to ascertain whether [the circuit]
19
has already held that the particular point in issue is clearly established by Supreme Court
20
precedent.” Marshall v. Rodgers, 569 U.S. 58, 64 (2013) (per curiam), “[c]ircuit precedent cannot
21
22
refine or sharpen a general principle of Supreme Court jurisprudence into a specific legal rule that
[the Supreme] Court has not announced.” Lopez, 135 S.Ct. at 4 (internal quotation marks
23
24
omitted).
25
To find under section 2254(d)(2) that a state court’s decision was based on “an
26
unreasonable determination of the facts,” a federal court “must be convinced that an appellate
27
panel, applying the normal standards of appellate review, could not reasonably conclude that the
28
42
1
finding is supported by the record before the state court.” Hurles v. Ryan, 752 F.3d 768, 778 (9th
2
Cir. 2014) (internal quotation marks omitted), cert. denied, ––– U.S. ––––, 135 S.Ct. 710 (2014).
3
In other words, “a state-court factual determination is not unreasonable merely because the federal
4
habeas court would have reached a different conclusion in the first instance.” Burt v. Titlow, –––
5
U.S. ––––, 134 S.Ct. 10, 15 (2013) (internal quotation marks omitted). That said, “where the state
6
7
courts plainly misapprehend or misstate the record in making their findings, and the
misapprehension goes to a material factual issue that is central to petitioner’s claim, that
8
9
misapprehension can fatally undermine the fact-finding process, rendering the resulting factual
finding unreasonable.” Taylor v. Maddox, 366 F.3d 992, 1001 (9th Cir. 2004), abrogated on other
11
United States District Court
Northern District of California
10
grounds in Murray v. Schriro, 745 F.3d 984, 1000 (9th Cir. 2014). .
12
13
14
Under AEDPA, a federal court reviews “the last reasoned state-court decision.”
Castellanos v. Small, 766 F.3d 1137, 1145 (9th Cir. 2014). In a case where “no state-court
decision furnishes a basis for the state court’s underlying reasoning,” a federal court’s “duty under
15
16
17
AEDPA is not absolved.” Murray v. Schriro, 745 F.3d at 996. Rather, “the habeas petitioner’s
burden still must be met by showing there was no reasonable basis for the state court to deny
18
relief.” Richter, 562 U.S. at 98. To determine whether a petitioner has met this burden, a federal
19
court must ask “what arguments or theories supported or, . . . could have supported, the state
20
court’s decision” and decide “whether it is possible fairminded jurists could disagree that those
21
22
arguments or theories are inconsistent with the holding in a prior decision of [the U.S. Supreme
Court].” Id. at 102. Thus, when a state court does not supply reasoning for its decision, a federal
23
24
court “must engage in an independent review of the record and ascertain whether the state court’s
25
decision was objectively unreasonable.” Castellanos, 766 F.3d at 1145 (internal quotation marks
26
omitted). Critically, independent review of the record “is not a de novo review of the
27
constitutional question,” but rather the only way a federal court can determine whether a silent
28
43
1
2
state court decision is objectively unreasonable. Murray, 745 F.3d at 997.
In the event that a federal court “determine[s], considering only the evidence before the
3
state court, that the adjudication of a claim on the merits resulted in a decision contrary to or
4
involving an unreasonable application of clearly established federal law, or that the state court’s
5
decision was based on an unreasonable determination of the facts,” the federal court evaluates the
6
7
petitioner’s constitutional claim “de novo.” Hurles, 752 F.3d at 778. If constitutional error is
found, however, habeas relief is warranted only if that error “had substantial and injurious effect
8
9
or influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 638 (1993).
Under this standard, petitioners “may obtain plenary review of their constitutional claims, but they
11
United States District Court
Northern District of California
10
are not entitled to habeas relief based on trial error unless they can establish that it resulted in
12
‘actual prejudice.’ ” Brecht, 507 U.S. at 637.
13
14
b. § 2254(d) and Pinholster
As a threshold matter, Petitioner argues that the Court should consider his claims de novo
15
16
17
because the California Supreme Court wrongfully prevented him from developing the “new”
evidence in support of his claims and, as a result, issued a decision based on an unreasonable
18
determination of the facts in light of Petitioner’s pleadings. See Pet. Br. at 28-35. Respondent
19
argues that relitigation of the merits is precluded by 28 U.S.C. § 2254(d) and that consideration of
20
new evidence is barred by Pinholster, 563 U.S. 170. See Resp. Br. at 51-63.
21
This Court first notes that Petitioner cannot establish a violation of § 2254(d)(2) based on a
22
general grievance that the state court must have resolved factual disputes without a hearing.
23
24
Rather, Petitioner must establish that the state court unreasonably determined the facts because no
25
other reasonable explanation can account for the state court’s decision regarding a particular
26
claim. Richter, 562 U.S. at 101; see Hibbler v. Benedetti, 693 F.3d 1140, 1146-47 (9th Cir. 2012)
27
(stating that there is no per se rule that § 2254(d)(2) requires that a state court conduct an
28
44
1
evidentiary hearing to resolve every disputed factual question). Here, as will be explained, the
2
Court concludes that Petitioner has not shown that the California Supreme Court’s factual
3
determinations were unreasonable under § 2254(d)(2) and, further, that Petitioner’s claims would
4
be unmeritorious even if this Court were to consider Petitioner’s “new” evidence de novo. While
5
Respondent is correct that that § 2254(d) generally bars the Court from granting Petitioner relief
6
7
based on his new evidence, section 2254(b)(2) allows the Court to consider such evidence when
the Court finds that a claim has no merit. See § 2254(b)(2) (“An application for a writ of habeas
8
9
10
United States District Court
Northern District of California
11
corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the
remedies available . . .”).
While the Court recognizes that exhaustion generally serves principles of comity between
12
state and federal courts, here, where the “new” evidence is cumulative in nature to the evidence
13
provided to the state court, and Court has determined that Petitioner’s claims are unmeritorious,
14
federal-state comity is less consequential. See Picard v. Connor, 404 U.S. 270, 277-78 (1971)
15
16
17
18
(claims exhausted if petitioner fairly presents legal theories and operative facts to state court). The
Court therefore consider the evidence produced by the parties during, and in preparation for, the
2014 evidentiary hearing.
19
c. Ineffective Assistance of Counsel
20
Petitioner asserts in Claims 3, 11, and 17 that trial counsel was ineffective at the guilt and
21
penalty phases of trial. See Fed. Pet. at 25, 93, 135. The clearly established federal law applicable
22
to these claims is set out in Strickland v. Washington, 466 U.S. 668 (1984). In Strickland, the U.S.
23
24
Supreme Court held that ineffective assistance of counsel is cognizable as a denial of the Sixth
25
Amendment right to counsel, which guarantees not only assistance, but effective assistance, of
26
counsel. Strickland, 466 U.S. at 686. To prevail on an ineffective assistance of counsel claim, a
27
petitioner must establish that: (1) his counsel’s performance was deficient, i.e., that it fell below an
28
45
1
“objective standard of reasonableness” under prevailing professional norms; and (2) he was
2
prejudiced by counsel’s deficient performance, i.e., that “there is a reasonable probability that, but
3
for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at
4
688-94. “A reasonable probability is a probability sufficient to undermine confidence in the
5
outcome.” Id. at 694. Ultimately, a petitioner must overcome the “strong presumption that
6
7
counsel’s conduct falls within the wide range of reasonable professional assistance” and “might be
considered sound trial strategy” under the circumstances. Id. at 689 (internal quotation marks
8
9
omitted). “In assessing adequacy of representation, ‘[the Court] is required not simply to give the
attorneys the benefit of the doubt, but to affirmatively entertain the range of possible reasons
11
United States District Court
Northern District of California
10
[defense] counsel may have had for proceeding as he did.’ ” Gallegos v. Ryan, 820 F.3d 1013,
12
1030 (9th Cir. 2016) (citing Pinholster, 563 U.S. 170).
13
14
A “doubly” deferential standard of review is appropriate in analyzing ineffective assistance
of counsel claims under AEDPA because “[t]he standards created by Strickland and § 2254(d) are
15
16
17
both highly deferential.” Richter, 562 U.S. at 105 (internal quotation marks omitted). When
section 2254(d) applies, “the question is not whether counsel’s actions were reasonable. The
18
question is whether there is any reasonable argument that counsel satisfied Strickland’s deferential
19
standard.” Id.
20
21
22
d. Guilt Phase: Claim 3
Petitioner claims that trial counsel was constitutionally ineffective by failing to enter a plea
of not guilty by reasons of insanity, violating Petitioner’s Fifth, Sixth, Eighth, and Fourteenth
23
24
Amendment rights. See Fed. Pet. at 25. Petitioner contends that he was prejudiced by counsel’s
25
ineffectiveness because the jury would have found him insane had counsel pursued that defense.
26
Respondent asserts that trial counsel was not ineffective because he made a reasonable strategic
27
choice and because, even with the benefit of the new evidence submitted by Petitioner, Petitioner
28
46
1
has not established that he was insane at the time of the crimes. Resp. Br. at 47. This claim was
2
denied by the California Supreme Court as untimely, successive, and on the merits. Dennis
3
(William Michael) on H.C. (S099587, November 27, 2002). Petitioner’s claim must be evaluated
4
in light of California’s adoption of the M’Naghten standard—“that every man is to be presumed to
5
be sane, and . . . that to establish a defense on the ground of insanity, it must be clearly proved
6
that, at the time of the committing of the act, the party accused was laboring under such a defect of
7
reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or
8
9
if he did know it, that he did not know he was doing what was wrong”—in criminal cases.
M’Naghten’s Case, 10 Clark & Fin. 200, 210 (1843); see Knowles v. Mirzayance, 556 U.S. 111,
11
United States District Court
Northern District of California
10
125 (2009).
12
13
14
Petitioner makes several arguments in support of this claim. First, Petitioner contends that
counsel was ineffective because he did not investigate the possibility of entering an insanity plea.
Fed. Pet. at 27. Petitioner also argues that counsel’s choice of defense was not a trial strategy
15
16
17
because trial counsel made only a cursory and uninformed judgment call in deciding not to pursue
an insanity defense, likening counsel’s conduct to the attorney’s conduct in United States v.
18
Kauffman, 109 F.3d 186 (3rd Cir. 1997). Fed. Pet. at 28. In Kauffman, the defendant, Kauffman,
19
asked the court to vacate his guilty plea based on ineffective assistance of counsel. Kauffman was
20
arrested for selling guns two days after he was released, against the advice of two treating
21
22
psychiatrists, from an involuntary psychiatric hold. Immediately after his arrest, Kauffman was
examined by a psychiatrist who prepared a report stating that he was “undoubtedly psychotic.” Id.
23
24
at 187. Sometime later, but before Kauffman pleaded guilty, the psychiatrist wrote a letter
25
informing Kauffman’s attorney that he believed Kauffman was “manic and psychotic ‘at the time
26
of the committing of the crime.’ ” Id. at 188. Kauffman’s attorney ignored the letter and advised
27
the defendant to plead guilty. The Third Circuit Court of Appeals reversed the district court’s
28
47
1
order denying the defendant’s request to withdraw his plea after learning that Kauffman’s
2
attorney, despite admitting that he received the letter from the psychiatrist, did not conduct any
3
pretrial investigation into the facts and law of an insanity defense. Id. at 190. Such a failure to
4
investigate, the court reasoned, deprived Kauffman of meaningful representation as required under
5
the Sixth Amendment.
6
7
Petitioner’s reliance on Kauffman is misplaced. The attorney in Kauffman admitted that he
did not bother looking into an insanity defense despite being presented with an expert’s opinion
8
9
that his client was insane at the time of the crimes. Kauffman, 109 F.3d at 191. Here, the
California Supreme Court had access to evidence reasonably showing that Petitioner’s trial
11
United States District Court
Northern District of California
10
counsel did conduct such an investigation. Petitioner’s state habeas record included Dr. Benson’s
12
trial testimony that counsel asked him to evaluate Petitioner with a special focus on the night of
13
14
the crimes and that counsel provided Dr. Benson numerous items to review, which Dr. Benson
listed in his testimony. Dkt. No. 300-40 at 3536 & 3550-51. Dr. Benson’s testimony also made
15
16
17
reference to the fact that at least three other mental health experts had evaluated Petitioner,
including Dr. French, Dr. Stephenson, and Dr. Garton. Finally, the state habeas record appended
18
Dr. Garton’s report, which included a statement that counsel engaged him to conduct a
19
psychological evaluation pursuant to California Evidence Code §1017 (allowing court-appointed
20
psychiatrists to retain privilege when they have been hired to advise the defense on mental
21
22
defenses and whether a defendant should enter an insanity plea) (Dkt. No. 300-30, Exh. 28 at 2);
trial counsel’s letter to Dr. Garton indicating that he wanted Dr. Garton to “evaluate [Petitioner’s]
23
24
present condition and his condition at the time of the alleged homicide to determine whether or not
25
there are any mental defenses, which [counsel] should raise and assert at trial” (id. at 7); and
26
Dr. French’s letter to the Santa Clara Public Defender stating that while it was possible that
27
Petitioner could have multiple personalities disorder, Petitioner’s current psychiatric status was
28
48
1
“essentially within normal limits” (Dkt. No. 300-29, Exh. 27 at 479). Moreover, Petitioner has
2
introduced no evidence indicating that Petitioner’s experts sought more information from counsel,
3
that counsel ignored their requests for information, or that counsel failed to discuss his theory of
4
the case with his experts. Petitioner’s case thus differs from Kauffman in virtually every
5
significant respect. Based on the record showing that trial counsel sought out mental health
6
7
diagnoses, gave his experts substantial materials to review, and the evidence showing that none of
Petitioner’s pretrial experts made a finding of insanity, the California Supreme Court reasonably
8
9
10
United States District Court
Northern District of California
11
could have concluded that Petitioner failed to show that counsel was ineffective in failing to
investigate entering an insanity plea. Richter, 562 U.S. at 101.
Petitioner’s claim also fails under de novo review. The supplemented record shows that
12
Petitioner’s trial counsel not only considered insanity jury instructions and law related to
13
California’s use of the M’Naghten test for insanity but also sought guidance as to this point from
14
Dr. Benson, Dr. Stephenson, Dr. Garton, and at least one additional expert as to whether an
15
16
17
insanity plea would be appropriate. See Dkt. No. 388 at 134-36 (describing trial counsel’s letters
to Dr. Benson seeking opinion that Petitioner suffered from mental disease or disorder at time of
18
murder and seeking that Dr. Benson testify that Petitioner could not deliberate killing Doreen);
19
Dkt. No. 139, Exh. 5 at 10 (memorandum indicating that trial counsel sent Dr. Benson jury
20
instructions for murder, insanity, and diminished actuality); Dkt. No. 139, Exh. 4 at p. 6 (letter
21
from trial counsel to Dr. Stephenson asking him to consider how Petitioner’s “unresolved grief
22
affected his mental condition and sanity at the time of the homicide,” and attaching insanity
23
24
instruction); Dkt. No. 300, Exh. 28 at 1 (Dr. Garton’s report for psychological evaluation to aid
25
defense counsel “pursuant to Section 1017” of the California Evidence Code); Dkt. No. 139,
26
Exh. 5 (trial counsel’s letters to Dr. James Missett seeking a psychological evaluation of
27
Petitioner). The record also contains evidence that in addition to reaching out to various mental
28
49
1
health experts, trial counsel reviewed several articles about insanity and mental health diagnoses,
2
including an article on the use of a PTSD diagnosis in an insanity defense and an article about the
3
role of grief in affecting state of mind. See Dkt. No. 139, Exh. 4 at 27-43. Trial counsel’s
4
research into the law surrounding an insanity defense, as well as his consultations with various
5
mental health experts seeking diagnoses of Petitioner at the time of the crimes, do not show the
6
lack of investigation that Petitioner alleges. Taking into account counsel’s active consideration of
7
an insanity defense, consultation with several experts, and ultimate inability to obtain any findings
8
9
of insanity from his experts, the record shows that counsel reasonably could have chosen not to
pursue an insanity defense. See Hendricks v. Calderon, 70 F.3d 1032, 1037-38 (9th Cir. 1995)
11
United States District Court
Northern District of California
10
(the court could “not condemn as incompetent an attorney’s decision not to pursue a mental
12
defense where two experts concluded that the defendant was sane and a third expert could not
13
reach a conclusion”).
14
In a further attempt to paint trial counsel’s investigation as limited or incomplete,
15
16
17
Petitioner’s witnesses imply in their declarations, which they wrote in collaboration with
Petitioner’s federal habeas attorneys, that even if trial counsel did investigate, he failed to provide
18
his experts with enough information to enable them to make findings of insanity. By the experts’
19
own testimony, however, it does not appear that counsel sent only “cursory” or “incomplete”
20
materials to the experts. Compare Dkt. No. 299-1 at 4-6 (Dr. Benson’s declaration stating that
21
interviews and other materials sent by trial counsel were “brief,” “narrow,” and did not include
22
“complete” social history) with Dkt. No. 388 at 173-74 (Dr. Benson’s testimony that he did not
23
24
recall complaining about the quality or quantity of materials provided to him and admitting that he
25
testified at guilt phase that he was provided adequate history, information, and records) & id. at
26
170 (Dr. Benson calling mitigation specialists’ report, which counsel apparently sent to him prior
27
to trial, the “most complete psychosocial history” of Petitioner he had seen); compare Dkt. No.
28
50
1
299-6 (Dr. Stephenson’s declaration stating that he received “limited” materials from trial counsel)
2
with Dkt. No. 388 at 101 (Dr. Stephenson’s testimony admitting that materials sent by trial
3
counsel were “extensive” in scope and that trial counsel sent a letter offering to provide more
4
information); see also Dkt. No. 299-3 at 9 (letter from trial counsel to Dr. Garton stating that he
5
and his investigator would “do whatever [Dr. Garton] need[ed] to complete [his] review” of
6
Petitioner’s case). The Court also notes that several of the lay witnesses who supplied new
7
declarations either gave interviews to the defense prior to trial or simply confirmed descriptions of
8
9
Petitioner supplied by other witnesses. In fact, during the hearing before this Court, Dr. Benson
admitted that such interviews, albeit not given under the penalty of perjury, were given to him to
11
United States District Court
Northern District of California
10
review prior to his evaluation. See Dkt. No. 388 at 164-166. Some of the witnesses’ statements
12
were also described by mitigation specialists in their sentencing report—another document
13
14
reviewed by Dr. Benson and Dr. Stephenson. See Dkt. No. 139, Exh. 16.
In addition, none of the experts appear to have asked trial counsel for more
15
16
17
materials. Absent a request for information from an expert, counsel does not have a duty “to
acquire sufficient background material on which an expert can base reliable psychiatric
18
conclusions. . . .” Bloom v. Calderon, 132 F.3d 1267, 1277 (9th Cir. 1997); see Turner v.
19
Calderon, 281 F.3d 851, 876-77 (9th Cir. 2002) (“Failure to provide a psychologist with facts
20
about a defendant’s family history ordinarily cannot support a claim of constitutionally ineffective
21
assistance”). Trial counsel cannot be faulted for failing to track down every record that might
22
possibly relate to the defendant’s mental health. Bloom, 132 F.3d at 1278. As trial counsel
23
24
appears to have (1) provided his experts with various documents, including interviews, medical
25
records, police reports, and a sentencing report by two mitigation specialists, which report detailed
26
significant events in Petitioner’s life and summarized statements from various witnesses who
27
knew petitioner; (2) corresponded with the experts about strategy and direction of their reports;
28
51
1
and (3) offered to send more materials should the experts require them, the Court cannot find that
2
trial counsel’s conduct fell below “an objective standard of reasonableness” under these
3
circumstances. Strickland, 466 U.S. at 688.
4
5
6
Petitioner argues alternatively that trial counsel was ineffective because there already was
evidence that Petitioner was insane and that, because trial counsel sought a lesser conviction based
upon mental disease, an insanity plea would have been consistent with trial counsel’s defense.
7
Fed. Pet. at 27-28; Pet. Reply Br. at 9. Petitioner also argues that his obvious signs of insanity
8
9
should have led counsel to investigate whether he was indeed insane. However, while the various
reports submitted by Petitioner several years after his trial purport to show a loud and consistent
11
United States District Court
Northern District of California
10
message that Petitioner was pathologically delusional at the time of the crimes, which may in turn
12
show that Petitioner might have pleaded insanity (see People v. Skinner, 39 Cal.3d 765 (1985)
13
14
(insanity may be proven if the record contains evidence showing that defendant was incapable of
understanding that an act was morally wrong even if he knows the act was unlawful)), the Court
15
16
17
must consider whether counsel’s actions were reasonable under the circumstances at the time of
trial. See Premo v. Moore, 562 U.S. 115, 125 (2011) (“habeas courts must respect their limited
18
role in determining whether there was manifest deficiency in light of information then available to
19
counsel”).
20
21
22
As already noted here, none of the reports or correspondence submitted to trial counsel by
his experts, including Dr. French, Dr. Stevenson, Dr. Garton, and Dr. Benson, made a finding that
Petitioner was insane at the time of the crimes despite trial counsel’s correspondence suggesting a
23
24
potential insanity defense based upon their opinions and reports. Moreover, as noted in
25
Dr. Cohen’s report, various mental health professionals who evaluated Petitioner prior to trial
26
reported that Petitioner was not insane. See RT 3606 (admission by Dr. Benson that Petitioner’s
27
therapist, who saw Petitioner several times immediately after Paul’s death, found that Petitioner’s
28
52
1
grieving, bereavement, and hostility toward Doreen fell within normal levels); Dkt. No. 247-9 at
2
37-38 (July 1985 evaluation finding no symptoms of psychotic disorder; September 1988
3
evaluation finding no signs or symptoms of psychotic or any other mental disorder; December
4
1988 evaluation finding Petitioner “presently sane within the meaning of California statute”;
5
January, April, and August 1989 evaluations finding no signs of symptoms of psychotic or mental
6
disorder; November 1989 evaluation tendering diagnosis of adjustment disorder with depressed
7
mood and personality disorder with borderline narcissistic and avoidant features). Given the
8
9
various reports stating that Petitioner was not insane, as well as counsel’s well-rounded
investigation of Petitioner’s mental health issues and circumstances, Petitioner’s counsel did not
11
United States District Court
Northern District of California
10
have a duty to shop around for experts until he found one to testify that Petitioner was insane. See
12
Hendricks v. Calderon, 70 F.3d at 1037-38 (attorney not incompetent for failing to pursue more
13
14
psychological opinions after consulting with three others who disagreed on whether petitioner was
insane).
15
16
17
As to Petitioner’s second contention, that an insanity plea would have been consistent with
trial counsel’s defense seeking a lesser conviction based upon mental disease, the Court notes that
18
Petitioner’s argument is essentially that counsel was ineffective because he had nothing to lose by
19
entering an insanity plea. The Supreme Court has held that a failure to enter an insanity plea
20
merely because the defense has nothing to lose is not a rule “clearly established [under] Federal
21
law.” Knowles v. Mirzayance, 556 U.S. at 121-22; see Dkt. No. 389 at 396 (Mr. Nolan’s
22
concession that the Sixth Amendment does not require counsel to move through experts until he
23
24
25
finds the one who gives him the answer he wants).
However, even if the Court were to reviewed Petitioner’s argument de novo and assume
26
that counsel had supporting evidence of insanity before the trial, the notion that counsel had
27
nothing to lose is simply not true. As evidenced by Dr. Cohen’s declaration and by trial counsel’s
28
53
1
notations in his file, Petitioner’s evidence tending to show insanity would open the door to a
2
plethora of impeachment and the construction of a different picture of Petitioner not as a grieving
3
father, but as a narcissist with a history of loud and violent outbursts far before Paul’s death. See
4
Dkt. No. 247-9 at 31-40 (Dr. Cohen’s report & declaration describing evidence inconsistent with
5
Petitioner’s insanity theory). The danger in presenting such a defense while in possession of a
6
multitude of conflicting reports is also evident in the fact that Dr. Benson was extensively cross-
7
examined during trial regarding apparent inconsistencies between his opinion and those of his
8
9
colleagues, as well as Petitioner’s own words and actions, which ultimately damaged the overall
impact of Dr. Benson’s testimony. See RT 3594-3677. These items, which arguably showed that
11
United States District Court
Northern District of California
10
Petitioner had “ ‘clearly goal-directed behavior;’ ” such as the various fantasies and partial
12
preparations for some of Petitioner’s plans to kill Doreen and Charles, undoubtedly would have
13
14
been used against any potential experts testifying that Petitioner was insane at the time of the
killings. Knowles v. Mirzayance, 556 U.S. at 125 (trial counsel not ineffective in rescinding
15
16
17
insanity plea when his experts could be severely impeached for overlooking or minimizing facts
inconsistent with their diagnoses); see Dkt. No. 347-9 at 29-33 (listing Petitioner’s statements to
18
others about his feelings toward Doreen and detailing Petitioner’s various conceptualized methods
19
of killing Doreen and Charles).
20
21
22
Accordingly, the record suggests that trial counsel’s strategy choice, while unsuccessful,
was reasonable in light of the information available to counsel at the time of trial. See Richter,
562 U.S. at 89 (court cannot “rely[] on ‘the harsh light of hindsight’ ” in finding ineffective
23
24
assistance of counsel). Petitioner has therefore failed to show that trial counsel’s conduct fell
25
below “an objective standard of reasonableness” on this ground as well. Strickland, 466 U.S. at
26
688. As the Court has not found that counsel’s performance was deficient, there is no need to
27
move on to the prejudice prong. Strickland, 466 U.S. 688-94. The Court concludes that Claim 3
28
54
1
is unmeritorious and should be DENIED.
2
e. Guilt Phase: Claim 11
3
Claim 11 alleges that trial counsel was constitutionally ineffective during the guilt phase
4
by failing to present compelling mental disease evidence that would have negated malice and
5
reduced Petitioner’s culpability from murder to manslaughter. See Fed. Pet. at 93 (citing Fifth,
6
Sixth, Eighth, and Fourteenth Amendments). This claim was denied by the California Supreme
7
Court as untimely, successive, and on the merits. Dennis (William Michael) on H.C. (S099587,
8
9
10
United States District Court
Northern District of California
11
12
13
14
15
16
17
18
19
20
21
22
23
November 27, 2002).
Under California law at the time of Petitioner’s trial, a defendant’s use of mental health
evidence during the guilt phase was limited by statute:
Evidence of mental disease, mental defect, or mental disorder shall not be admitted
to show or negate the capacity to form any mental state, including but not limited
to, purpose, intent, knowledge, premeditation, deliberation, or malice aforethought,
with which the accused committed the act. Evidence of mental disease, mental
defect, or mental disorder is admissible solely on the issue of whether or not the
accused actually formed a required specific intent, premeditated, deliberated, or
harbored malice aforethought, when a specific intent crime is charged. [¶] Cal.
Pen. Code § 28(a). California law’s definition of malice requires that a person
manifest a deliberate intention unlawfully to take away the life of a fellow creature.
It is implied, when no considerable provocation appears. . . When it is shown that
the killing resulted from the intentional doing of an act with express or implied
malice as defined above, no other mental state need be shown to establish the
mental state of malice aforethought Neither an awareness of the obligation to act
within the general body of laws regulating society nor acting despite such
awareness is included within the definition of malice.
Cal. Pen. Code § 188.
Here, Petitioner argues that trial counsel was ineffective in failing to present adequate
evidence of his mental disease or defect during the guilt phase of trial so that he would have been
24
25
26
27
28
entitled to an instruction on manslaughter. Fed. Pet. at 93. In support of his claim, Petitioner
points to various actions, or purported inactions, by trial counsel. The underlying theme of
Petitioner’s list of trial counsel errors is that trial counsel did not adequately investigate, prepare
55
1
his experts, or present his experts at trial. See Fed. Pet. at 93-98.
2
As a threshold matter, Petitioner has failed to explain how any of the expert testimony he
3
has elicited and submitted to this Court, or to the California Supreme Court, would negate malice
4
such that Petitioner would have been entitled to a conviction of voluntary manslaughter. See Fed.
5
Pet. at 105. Petitioner’s diagnosis of Paranoid Delusional Disorder, Persecutory Type, even when
6
7
taken at face value, would not appear to have precluded Petitioner from being able to form an
intent to kill Doreen. As Respondent notes in his post-hearing brief, Petitioner’s current mental
8
9
health defense theory, i.e., that Petitioner operated under a delusion that Doreen had purposefully
killed Paul at the time of the murders and that Petitioner therefore felt morally entitled to kill her
11
United States District Court
Northern District of California
10
four years later, appears to establish rather than negate deliberation and malice aforethought under
12
California law because it assumes that Petitioner planned and intended to kill Doreen. See Resp.
13
14
Br. at 48; see also Cal. Pen. Code §§ 28 &188.
The record also contains ample other evidence tending to show that Petitioner possessed
15
16
17
the requisite intent. For example, Petitioner told Dr. Benson that he purchased the machete
because he thought it would be a good weapon to use on Doreen and, on the night of the crimes,
18
Petitioner knowingly packed several weapons into a bag, obscured his face under a mask, and
19
headed to Doreen’s home “hoping” that she would be there. Dennis, 17 Cal.4th at 498. Petitioner
20
also told various individuals, including Dr. Garton and Dr. Benson, that he chose to kill Doreen on
21
Halloween night because he thought he would have a better chance of getting away with it. Dkt.
22
347-9 at 13-14. Petitioner does not point the Court to any evidence challenging the weight of the
23
24
testimony and materials establishing Petitioner’s intent except insofar as he appears to be claiming
25
diminished capacity, which was impermissible at the time of trial under California law. See
26
People v. Elmore, 59 Cal.4th 121 (2014) (evidence of mental health disease or disorders is limited
27
by rule that “ ‘the defendant’s sanity is irrelevant at the guilt phase and evidence tending to prove
28
56
1
insanity, as opposed to the absence of a particular mental element of the offense, is
2
inadmissible’ ”) (emphasis in original). Under these circumstances, the California Supreme Court
3
reasonably could have concluded that even assuming counsel was ineffective in failing to present
4
Petitioner’s new evidence at trial, Petitioner has failed to show that “there is a reasonable
5
probability that, but for counsel’s unprofessional errors, the result of the proceeding would have
6
7
been different.” Strickland, 466 U.S. at 694; see Richter, 562 U.S. at 101.
Petitioner’s claim also fails on de novo review. Petitioner argues that trial counsel was
8
9
ineffective in evaluating and preparing his experts, citing Bloom v. Calderon, 132 F.3d 1267, 1275
(9th Cir. 1997). Bloom involved an essentially absentee attorney. Defendant Bloom was accused
11
United States District Court
Northern District of California
10
of killing his father, stepmother, and stepsister. Bloom’s attorney failed to consult with his first
12
expert, a neurologist, and simply had Bloom transported to the neurologist’s office with no context
13
14
as to the crimes of which Bloom had been accused or the purpose of the neurological exam. The
neurologist produced an unfavorable report after assuming the purpose of the examination was to
15
16
17
establish whether Bloom suffered from a seizure disorder. Id. at 1271.
Bloom’s attorney also failed to consult with a second mental health expert until
18
approximately three weeks before the trial and then failed to send the expert several documents he
19
requested, including psychiatric, social, and family history information about Bloom. Id. at 1271-
20
72. Instead, Bloom’s attorney sent the expert a few documents, including the preliminary hearing
21
transcript, the unfavorable neurological report, some of Bloom’s school assignments, a letter from
22
Bloom’s mother complaining about the attorney’s performance at the preliminary hearing, and
23
24
some other documents noting some incidents in which Bloom got in trouble, listing some of his
25
mother’s mental health issues, and accusing Bloom’s father of being abusive. Id. at 1272. Again,
26
the attorney never provided the second mental health expert with any guidance as to the purpose of
27
the evaluation or the theory of the case. As a result, the second mental health expert produced an
28
57
1
extremely damaging report speculating that Bloom had most likely lied about his reason for killing
2
his victims and noting that Bloom had a remarkable lack of remorse regarding his act. Although
3
the second mental health expert later produced a more favorable report, the prosecution impeached
4
him using his initial unfavorable report at trial. Id. at 1273.
5
6
Bloom’s attorney continued ignoring other experts’ requests for information and ignored
numerous frantic calls from a social worker who believed that Bloom desperately needed
7
psychiatric help. Id. at 1274-77. Bloom was convicted and sentenced to death. Based on the
8
9
attorney’s conduct, the Ninth Circuit held that Bloom received ineffective assistance of counsel.
The court emphasized that the attorney had failed to prepare his experts, had provided only a
11
United States District Court
Northern District of California
10
cursory amount of information to each of them, had provided the experts no context or direction as
12
to his theory of the case or the purpose of each evaluation, and, most egregious, ignored the
13
experts’ repeated requests for information about Bloom despite the availability of the information
14
the experts sought. Id. at 1278. The appellate court was unable to ascribe any strategic value to
15
16
17
the attorney’s complete lack of action.
Petitioner’s case is readily distinguishable from Bloom. As discussed previously, the
18
record here contains substantial evidence showing that trial counsel conferred or corresponded
19
with each of his potential experts and, when appropriate, explained the facts, his theory of the
20
case, and even California law as to diminished capacity and diminished actuality. See Dkt. No.
21
388 at 134-36 (noting that counsel asked Dr. Benson to testify that Petitioner suffered from mental
22
disease or disorder at time of murder and seeking that Dr. Benson testify that Petitioner could not
23
24
deliberate killing Doreen); Dkt. No. 139, Exh. 5 at 10 (memorandum indicating that trial counsel
25
sent Dr. Benson and Dr. Stephenson jury instructions for murder, insanity, and diminished
26
actuality); id. at 6 (letter from trial counsel to Dr. Stephenson asking him to consider how
27
Petitioner’s “unresolved grief affected his mental condition and sanity at the time of the
28
58
1
homicide”); id. at 20 (letter from trial counsel to Dr. Garton seeking that he evaluate Petitioner’s
2
present mental condition and at time of crimes and identify whether he could present any mental
3
defenses); id. at 8-9 (letter from trial counsel to Dr. Stephenson explaining diminished actuality
4
defense); id. at 2 (letter to Dr. Missett requesting short analysis and report as to whether
5
petitioner’s mental disease or disorder “affected him severely enough to negate ‘deliberation’ ”);
6
id. at 72-73 (letters indicating trial counsel sent Dr. Garton and Dr. Benson a psychosocial history
7
prepared by two mitigation specialists); see ante, at 46-48.
8
9
The record also contains evidence that trial counsel repeatedly sent letters to his experts
emphasizing his strategy and hopes for their evaluations. Finally, unlike the defendant in Bloom,
11
United States District Court
Northern District of California
10
Petitioner has not presented any credible evidence showing that any of his experts sought more
12
information before making their diagnoses. See Bloom, 132 F.3d at 1277-78. Bloom simply is not
13
14
controlling here.
Petitioner also argues that counsel was ineffective in failing to recognize Dr. Benson’s
15
16
17
“weak” testimony. Fed. Pet. at 97. Petitioner contends that the inadequacies of Dr. Benson’s
evaluation were “patent” and either the result of (1) counsel’s failure to provide adequate materials
18
for Dr. Benson to consider during his evaluation, or (2) counsel’s failure to guide Dr. Benson
19
toward a legally cognizable defense. The Court already has determined that counsel did not fail to
20
provide an adequate evidentiary basis for Dr. Benson’s evaluation. See ante, at 45-48. Moreover,
21
trial counsel’s letters to Dr. Benson show that counsel repeatedly did seek to prepare Dr. Benson
22
to testify to a legally cognizable defense prior to trial. Trial counsel also ultimately extracted
23
24
information from Dr. Benson that could have supported a legally cognizable defense, albeit not
25
voluntary manslaughter, when he had Dr. Benson testify that Petitioner’s delusional thinking made
26
Petitioner a “ticking time bomb” and that his subsequent state of rage rendered Petitioner “out of
27
control” and that Petitioner entered an “automatic condition” which did not allow Petitioner to
28
59
1
fully comprehend his actions. RT 3549-50, 3556-58, 3569, 3582-84, 3616, 3654 (Dr. Benson’s
2
trial testimony as to Petitioner’s delusions and state of rage); RT 3693-94 (automatic condition did
3
not allow Petitioner to fully comprehend his actions).
4
5
6
If accepted, Dr. Benson’s testimony arguably could have allowed the jury to conclude that
Petitioner did not actually deliberate killing Doreen and was therefore guilty of second degree
murder. See People v. Carasi, 44 Cal.4th 1263, 1306 (2008) (inquiry of whether a defendant
7
actually deliberated is relevant in determining whether a murder falls under the first or second
8
9
degree category); see People v. Saille, 54 Cal.3d 1103, 1107 (1992) (California no longer “permits
a reduction of what would otherwise be murder to nonstatutory voluntary manslaughter due to
11
United States District Court
Northern District of California
10
voluntary intoxication and/or mental disorder”). Accordingly, there is ample evidence of
12
counsel’s effort to guide Dr. Benson’s testimony at trial to a cognizable defense. Moreover, given
13
14
that Petitioner does not appear entitled to a voluntary manslaughter conviction based on the
evidence adduced at trial or presented during his evidentiary hearing before this Court, the Court
15
16
17
18
concludes that even if Petitioner’s conduct did fall below “an objective standard of
reasonableness,” Petitioner has failed to show prejudice. Strickland, 466 U.S. at 688.
Insofar as Petitioner faults trial counsel for failing to call Dr. Garton, Dr. French, or
19
Dr. Stephenson to testify instead of Dr. Benson because their reports were more “helpful” to him
20
(Fed. Pet. at 98), Petitioner minimizes or ignores the portions of those experts’ reports that could
21
22
have been used against him. For example, Dr. Stephenson explicitly told trial counsel that he did
not believe that Petitioner’s grief was pathological in nature and that he therefore was not
23
24
comfortable making any further contribution to Petitioner’s case beyond his report. Dkt. No. 300-
25
30 at 9-10. Dr. French’s report similarly stated that Petitioner’s psychiatric status was “essentially
26
within normal limits,” evidence that was used by the prosecutor to impeach Dr. Benson’s
27
testimony at trial. Dkt. No. 300-29 at 479. Dr. Garton’s report also contained potentially
28
60
1
damaging assessments, including Dr. Garton’s opinion that Petitioner’s anger and resentments
2
tended to lead to explosive outbursts in situations in which Petitioner was unlikely to be punished
3
immediately.
4
Moreover, Petitioner fails to account for the fact that, while the other mental health experts
5
did not testify, counsel used Dr. Benson, who had reviewed the other experts’ reports, to introduce
6
7
some of their more favorable impressions into evidence, including Dr. Stephenson’s “masked
rage” theory and Dr. Garton’s general theory that Petitioner suffered from delusions related to
8
9
Paul’s death. See RT 3686-3687 (Dr. Benson reading portions of Dr. Stephenson’s report into the
record). Counsel could have reasonably concluded, and there is some evidence in the record to
11
United States District Court
Northern District of California
10
suggest, that having Dr. Benson testify as to the favorable conclusions of each expert, as opposed
12
to calling each expert to the stand, would shield their opinions from any further cross-examination.
13
14
See United States v. Mayo, 646 F.2d 369, 375 (9th Cir. 1981) (noting that a difference in opinion
as to trial tactics does not constitute denial of effective assistance); see also Bashor v. Risley, 730
15
16
17
F.2d 1228, 1241 (9th Cir. 1984) (noting that tactical decisions do not constitute ineffective
assistance simply because, in retrospect, better tactics would have been available); Dkt. No. 139,
18
Exh. 5 (letter to Dr. Garton noting that counsel did not want to call him to testify at guilt phase to
19
avoid further cross-examination). Petitioner’s argument that he was denied effective assistance of
20
competent mental health experts in violation of the principle stated in Ake v. Oklahoma, 470 U.S.
21
68 (1985), see Fed. Pet. at 101, also fails, as the record contains no evidence suggesting that
22
Petitioner did not have funding or access to competent mental health experts.
23
24
The Court concludes that Claim 11 also is unmeritorious and should be DENIED.
25
f. Penalty Phase: Claim 17
26
Claim 17 asserts that trial counsel rendered ineffective assistance in the penalty phase of
27
28
Petitioner’s trial by failing to present compelling evidence of mental disease in mitigation. See
61
1
2
Fed. Pet. at 135. This claim was denied by the California Supreme Court as untimely, successive,
and on the merits. Dennis (William Michael) on H.C. (S099587, November 27, 2002).
1. Penalty Phase Evidence
3
4
5
The California Supreme Court summarized the evidence presented during the penalty
phase of Petitioner’s trial as follows:
6
By stipulation, the trial evidence was deemed included in the penalty phase. The
prosecution introduced as additional evidence the materials found in [Petitioner]’s
toolshed, which the prosecutor connected to [Petitioner]’s plan to drown the
Erberts. [¶] [Petitioner] offered evidence from his friends and associates as to his
childhood difficulties, his shyness and loneliness due to his hearing problem, his
friendly and easygoing nature, his pride and love for his son and his devastation at
Paul’s death, his honesty, thoughtfulness, and sensitivity, his good record at
Lockheed, and his compassion for others. [Petitioner]’s mother presented a
pictorial biography of [Petitioner]’s life and their relationship and spoke of awards
he won. The jury also heard a tape recording of [Petitioner] and his son.
7
8
9
10
United States District Court
Northern District of California
11
12
13
14
People v. Dennis, 17 Cal. 4th at 499. This Court will summarize the evidence in somewhat greater
detail.
15
In his opening statement, trial counsel told the jury that he believed that the jury had,
16
during the guilt phase of trial, an opportunity to understand and examine why the crimes happened
17
18
and that providing them with that opportunity had been his intention during the guilt phase. RT
4088. Counsel stated that he intended to present additional witnesses on Petitioner’s behalf to
19
20
give the jury a better understanding of the kind of life Petitioner led, the values in which he
21
believed, and what had led him to the night of the crimes. Counsel also stated that he thought that
22
showing the jury how much Petitioner’s fatherhood meant to him and how Paul’s death affected
23
him was “really one of the critical issues in this case.” RT 4090.
24
25
26
In aggravation, the prosecution called only Bert Caro, a homicide investigator who
testified during the guilt phase of trial. RT 4092. Caro testified in more depth regarding items
found on Petitioner’s property, including two trapezoidal boxes, two anchors, two hand-sewn
27
28
62
1
bags, and a navigational chart of Northern California. RT 4095-96. According to Caro, the boxes,
2
anchors, and bags were found in a tool shed on Petitioner’s property. The navigational chart was
3
pinned up like a poster over Petitioner’s desk inside his home. Caro also noted that Petitioner
4
owned a boat.
5
6
7
Trial counsel proceeded to call sixteen witnesses on Petitioner’s behalf. One was Lila
Vest, an insurance agent. RT 4098. Vest testified that she participated in an escrow closing for
Petitioner’s home and handled other insurance matters for Petitioner. She and Petitioner bonded
8
9
over their children, and she stated that she admired Petitioner for being so diligent about seeing his
child and paying child support. RT 4101. Vest liked Petitioner. During Petitioner’s civil trial,
11
United States District Court
Northern District of California
10
Vest saw Petitioner in one of the courthouse corridors. Petitioner did not seem upset but seemed
12
sad about his son’s death and had tears in his eyes. She stated that Petitioner saw the lawsuit as a
13
14
way to let Doreen know that what had happened to Paul was not okay. Vest saw Petitioner as an
honest person, described Petitioner as mellow and quiet, and stated that it said a lot to her about
15
16
17
18
Petitioner’s character that he was there for his child financially and maintaining visitation with his
child. Vest also stated that Petitioner was decent and fair. RT 4104.
Janet Withers, one of Petitioner’s former supervisors during the month of October 1984,
19
also testified on Petitioner’s behalf. RT 4105. She testified that Petitioner was a good worker
20
who listened a lot and tried hard. Petitioner had been “surplused” by Lockheed after his contract
21
on a project ended. Withers testified about an incident in which Petitioner spoke to her and a
22
coworker about Paul. Withers stated that she, a coworker, and Petitioner conversed about the
23
24
coworker’s photo of his son, which was displayed in his workstation. Petitioner began talking
25
about Paul, mentioning his visitation schedule, and pulled out a photo of him. When asked Paul’s
26
age, Petitioner said that Paul “would have been” a certain age. RT 4106. When Withers asked
27
Petitioner what he meant by “would have been” and Petitioner told her about Paul’s death, it upset
28
63
1
2
3
her. According to Withers, the conversation struck her as “funny” because Petitioner spoke about
Paul as if he was still alive.
Trial counsel also called Kenneth Marquardt, who participated in a bowling team with
4
Petitioner for three years. RT 4107-08. Marquardt testified that Petitioner was a good bowler and
5
that he did not get upset when he did not do too well. He and Petitioner got along pretty well, and
6
7
Marquardt thought Petitioner was a “real good person.” He and Petitioner worked on an addition
to Petitioner’s home together; Marquardt stated that Petitioner was a good worker who gave him
8
9
full responsibility and authority to do his job and caused no problems. RT 4108-09. The addition
they built was for Petitioner’s mother; Petitioner and his mother got along very well. According to
11
United States District Court
Northern District of California
10
Marquardt, he was “in awe” and “totally shocked” when he heard about what happened. RT 4110.
12
He believed for some time that Petitioner had not killed Doreen.
13
14
Eric Steinhauff, Petitioner’s tenant, roommate, and coworker, also testified on Petitioner’s
behalf. RT 4110. Petitioner treated him “very well.” RT 4112. Petitioner made him feel very
15
16
17
welcome and made clear that anything in the house was there for his use as long as he took care of
it. Steinhauff went out with Petitioner on several occasions; they went to bars, jogged together,
18
and went skiing together. They established a friendship. Steinhauff described Petitioner as a very
19
thoughtful, considerate person. Steinhauff thought that Petitioner was honest with him about
20
records and expenses and thought that Petitioner and his mother had a very good relationship.
21
Steinhauff and Petitioner discussed Paul once after Steinhauff asked Petitioner about a small
22
picture Petitioner kept in the living room. Steinhauff stated that Petitioner was uncomfortable
23
24
talking about the subject, but went into great detail about what happened. Steinhauff stated that
25
the conversation was very painful for Petitioner and that Petitioner had a “great sorrow in his
26
voice” when he spoke about Paul. RT 4114. Steinhauff testified that, during the course of the
27
civil trial, Petitioner once “flipped out.” RT 4115. Steinhauff stated that the period during the
28
64
1
civil trial was an uncomfortable time for him because Petitioner started to drink. Steinhauff said
2
he believed the trial was not going well for Petitioner and, on several occasions, Steinhauff would
3
come downstairs to find nearly-empty bottles of alcohol. RT 4116. Petitioner went through a lot
4
of personality changes at that time. In one incident, Petitioner was working on a stained glass
5
window in his living room. Petitioner was having trouble with the window and “just blew up, . . .
6
screamed out some obscenities[,] and threw some of his tools around.” Id. Steinhauff described
7
Petitioner as unpredictable during that time.
8
9
Enoch Cole, Petitioner’s former Lockheed coworker, also testified on Petitioner’s behalf.
RT 4117. Cole testified about the tile work he and Petitioner did for the space shuttle, which
11
United States District Court
Northern District of California
10
contained 35,000 of the types of tiles Petitioner worked on for Lockheed. RT 4119. He also told
12
the jury about Petitioner’s spraying duties for each unique tile. Sprayers were in charge of
13
spraying each tile with a thin layer of coating, which required a “precise technique.” RT 4120.
14
Petitioner was good at spraying. While working together at Lockheed, Cole and Petitioner became
15
16
17
good friends and looked out for each other. RT 4121. Cole knew Petitioner fairly well; Petitioner
lent him lunch money. Cole described Petitioner as thrifty with his money and a source of
18
investment or saving advice. He also stated that at some point, Petitioner wanted Cole to live with
19
him, but Cole was living with a woman at the time, so he declined. RT 4123. When Cole met
20
Petitioner, Petitioner was going through a divorce. Cole did not think that Petitioner wanted to get
21
22
a divorce and thought it was unpleasant for him. RT 4124. When Cole met Paul, he thought that
Petitioner’s relationship with Paul “had a good aura.” He stated that Petitioner never did anything
23
24
25
26
or said anything bad about anyone on a personal level, although he had high expectations from
people on his work team. RT 4125.
Ted Grish, one of Petitioner’s friends from high school, testified that he and Petitioner
27
were, and still were at the time of trial, good friends. RT 4131. Grish stated that he and Petitioner
28
65
1
bowled together and spent time together at Petitioner’s house. Grish believed Petitioner’s
2
relationship with his family was good and did not recall any fights between Petitioner and his
3
brother, John, or his mother. RT 4133. Grish knew that Petitioner suffered from a hearing
4
problem, but stated that he did not think it affected Petitioner much. Grish met Doreen at her and
5
Petitioner’s wedding. Petitioner seemed happy. According to Grish, Petitioner was easy going,
6
easy to get along with, never seemed to get mad or have outbursts of anger, and was an all-around
7
good friend. RT 4135. Petitioner was loyal and reliable. Grish stated that Petitioner was a proud
8
9
father and that, when Paul died, Petitioner came by Grish’s house, “devastated.” Id. During the
time before the crimes took place, Grish stated that he could tell that Petitioner enjoyed being
11
United States District Court
Northern District of California
10
around children. RT 4136. Grish could not believe that Petitioner could be the person who killed
12
Doreen when he first heard about the incident. Grish visited Petitioner in jail. Grish told the jury
13
that he still considered Petitioner a friend and that he would love to “go out there and shoot
14
another six [bowling] games with him.” Id.
15
16
17
Trial counsel also called Harry Strum to testify on Petitioner’s behalf. Strum was a friend
of Petitioner’s and of Doreen’s. RT 4137. Strum met Petitioner in the early 1970’s, while
18
Petitioner was still married to Doreen, either in the park or through bowling. Strum and his wife
19
got together with Petitioner and Doreen often; they would visit each other’s homes or go out
20
together. They were all friends. RT 4140. Petitioner and Strum celebrated their birthdays
21
together. RT 4141. Strum stated that he “felt really good” about Petitioner, enjoyed being with
22
him, and that Petitioner was funny and easy to talk to. He stated that both Petitioner and Doreen
23
24
were fun to be with and, at that time, they appeared to be a happy couple. Strum met Paul when
25
Petitioner and his family went to Vallejo to visit the Strums after Paul’s birth. RT 4140. Doreen
26
was still breastfeeding Paul at the time. RT 4144. Petitioner was excited about Paul, treated him
27
well, played with him, and thought the world of him; Strum stated that he knew Petitioner loved
28
66
1
children. RT 4142. Strum stated that he thought Petitioner was a doting spouse to Doreen, noting
2
that Petitioner really went out of his way to please her. Strum testified that he visited Petitioner in
3
San Jose around 1982 or 1983. Strum joined Petitioner and his girlfriend on a day out. RT 4143.
4
Strum stated that they discussed Paul’s death and that Petitioner was visibly agitated by it and
5
upset. Strum also testified that he thought Petitioner was an honest, truthful, fun-loving person.
6
7
Strum stated that Petitioner enriched his life.
Arlene Arken, Petitioner’s stepmother, also testified on Petitioner’s behalf. RT 4146.
8
9
Arken had known Petitioner since he was eleven years old. Arken testified that she saw Petitioner
and his brother regularly while they visited their father and that she was usually responsible for
11
United States District Court
Northern District of California
10
taking the children to their medical appointments. RT 4147. She stated that she had a good
12
relationship with Petitioner and his mother and that Petitioner and his brother were very important
13
14
to their father. RT 4148. Arken stated that she always felt bad that Petitioner had a hearing
problem and that he did not get to go to school with the neighborhood children. She thought the
15
16
17
18
19
20
21
22
circumstances made Petitioner a lonely child. RT 4149. She also noted that Petitioner had a slight
speech impediment, which his father also had, and she believed that it bothered Petitioner. She
never got a chance to meet Paul.
Arken recalled teaching Petitioner and his brother how to bowl when they were younger,
and noted that Petitioner had become an excellent bowler. Petitioner was an average student, but
he did reasonably well. RT 4152. Arken helped Petitioner with his school work. She and
Petitioner’s father were very proud of him. RT 4149. She also stated that she never had any
23
24
issues with Petitioner accepting her as a step-parent. She stated that they got along very well and
25
that Petitioner was always a good boy who did not cause them any problems. Not having any
26
children of her own, she cared about Petitioner a lot. RT 4150. Petitioner was a picky eater when
27
he was young, but would eat what Arken made for him. To Arken, Petitioner and his family were
28
67
1
close. They all made a point of spending the holidays together. RT 4153. Arken testified that she
2
met Doreen while she and Petitioner were newlyweds; they seemed to be very much in love. RT
3
4153.
4
5
6
7
Arken’s overall impression of Petitioner was that he was a bit of a loner and that his
parents’ divorce may have affected him because he was at an age when it was hard to lose a fulltime father. RT 4151. Arken also stated that she always liked Petitioner and thought he was a
very responsible young man; when Arken and Petitioner’s father lent him some money to
8
9
purchase a car, Petitioner was meticulous about paying them back with interest. She also noted
that Petitioner was a good worker and would fix things around the home. She had not seen
11
United States District Court
Northern District of California
10
Petitioner since his wedding, as she and Petitioner’s father got a divorce.
12
13
14
James Hall was another defense witness. RT 4155. Hall was one of Petitioner’s good
friends. Hall met Petitioner in the early 1970’s through a mutual friend. He and Petitioner would
stop by each other’s homes to see each other, they talked and told each other stories, and they
15
16
17
would see each other at parties and other similar functions. He considered Petitioner a “pretty
good friend.” RT 4158. Hall thought that he and Petitioner were very similar in that they were
18
both divorced and had similar interests in improving their houses; Hall admired the work
19
Petitioner did on his home. Hall met Doreen a few times and thought her relationship with
20
Petitioner was fine. Hall saw Petitioner a few days before Doreen’s murder. RT 4159. He and
21
22
Petitioner watched a 49ers game on television and drank beers. He repeatedly described Petitioner
as a “regular guy.” RT 4159. Hall and Petitioner went on a ski trip together. RT 4161. Hall also
23
24
testified that Petitioner was not too wild and did not drink too much. While Petitioner was not
25
verbose, he did not mind talking. Hall also testified that Petitioner was quiet and somewhat of a
26
loner. RT 4160-61.
27
28
Robert Webb, one of Petitioner’s former tenants and roommates, also testified on
68
1
Petitioner’s behalf. RT 4164. Webb met Petitioner in 1980 while Webb was going through a
2
divorce. Webb described the period of time as a very difficult time in his life. He and Petitioner
3
got along very well. Petitioner was very understanding of Webb’s situation. There were times
4
when Webb could not make the full rent payments on time and Petitioner was always flexible to
5
fit Webb’s needs as long as he followed through. RT 4166. Petitioner treated Webb very well.
6
Webb also recalled that Petitioner never had a problem with Webb taking his daughters to the
7
home and letting them stay there. His daughters got along with Petitioner as well and they would
8
9
all tease each other. Webb testified that, at the time he lived with Petitioner, Petitioner would take
care of his brother John, who was developmentally slow. RT 4171. Petitioner helped John with
11
United States District Court
Northern District of California
10
relationship problems and other normal issues.
12
13
14
Webb testified that Petitioner helped him by being there as a friend and listening to him.
RT 4167. Webb could tell that Petitioner was hurting over the loss of his son, too. Webb stated
that he was not able to reach out to Petitioner to help him through Paul’s death due to his own
15
16
17
emotional problems at the time, and he wished he had. RT 4168. Webb wanted to take Petitioner
to church with him to talk about forgiveness, but was never able to because he was too
18
preoccupied by his situation when he was living with Petitioner. RT 4172. Webb told the jury
19
that Petitioner treated people with kindness and was very tolerant. Webb described how Petitioner
20
used to be kind to strangers who stopped by his home to talk about religion by talking to them for
21
fifteen or twenty minutes rather than just telling them that he did not want to talk to them. Webb
22
also described Petitioner as very considerate toward others. RT 4168. Petitioner occasionally got
23
24
upset when his tenants did not clean the kitchen after using it, but Webb thought that Petitioner’s
25
upset was nothing out of the ordinary even though each of his tenants was an adult who should
26
have known better. Petitioner was not, in Webb’s opinion, happy-go-lucky. Petitioner tended to
27
be a bit lonely and was hurting inside over the loss of his son. RT 4169-70. Petitioner
28
69
1
occasionally spoke about his son and indicated that he blamed Doreen for Paul’s death. He also
2
mentioned that Paul was in the pool for too long. Webb and Petitioner had different schedules but
3
would see each other during week mornings and on the weekends. RT 4175. When Webb moved
4
out of the home to have more space for his daughters, he and Petitioner spoke a few times about
5
bills and mail.
6
7
Another defense witness, Faye Del Pino (“Faye”), had known Petitioner since he was
infant. RT 4180. She and her husband, Mario Del Pino (“Mario”), took care of Petitioner when
8
9
his mother was in the hospital giving birth to Petitioner’s brother John. They continued to see
each other frequently over the years until he reached adulthood, when their visits dwindled to once
11
United States District Court
Northern District of California
10
or twice a year. She testified that Petitioner was a cute likable boy when he was young and that he
12
was somewhat shy; Petitioner related a lot to her husband and they would fish together. RT 4181.
13
Faye was aware of Petitioner’s hearing problem and thought that it made him a bit shyer than he
14
would have been otherwise. She thought Petitioner would sometimes miss part of the
15
16
17
conversation. Faye met Doreen a few times while she and Petitioner were still married and
thought they got along well. RT 4182. Doreen was a good hostess and appeared to be a good
18
mom. Petitioner appeared to care for her and for his son very much. She recalled that Petitioner
19
once took Paul over to her home and they arrived dressed in matching suede jackets. She thought
20
Paul was the most well-behaved child she ever saw. She did not see Petitioner around too often.
21
22
Mario testified that he was close friends with Petitioner’s father. Mario agreed with his
wife’s description of Petitioner, but added that he thought Petitioner had a hard time hearing
23
24
sometimes, which Mario believed frustrated Petitioner. RT 4187. Mario stated that they saw
25
Petitioner at different stages of his life and he could see that it was still a problem for him.
26
According to Mario, Petitioner was a well-behaved child, but had somewhat of a temper when he
27
was frustrated, although he thought all children, including Mario’s own children, had a similar
28
70
1
temper. RT 4188. Mario stated that Petitioner’s brother John also had a hearing problem, but
2
appeared to cope with it better than Petitioner. RT 4188. Mario thought Petitioner might be “a
3
little slow,” but he could not be sure. He also thought that Petitioner had a hard time expressing
4
himself. When Mario met Doreen, things between Doreen and Petitioner appeared to be well. He
5
recalled meeting Doreen when she and Petitioner announced their engagement and compared them
6
7
as a world-wise woman and an innocent lamb, respectively. RT 4190. He thought he had good
reason to believe that they were “two different kinds of fishes.” Id.
8
9
Barbara Thorn (“Barbara”) knew Petitioner during high school, but they met again after
she began dating her ex-husband, David Thorn. RT 4192. When Barbara and Petitioner were in
11
United States District Court
Northern District of California
10
high school, Barbara was fairly popular, but Petitioner was not very popular, had a small group of
12
friends, no girlfriend, and was on the outward fringe of things, including the main factions at their
13
high school, the “Ra-ra crowd” and the hippie crowd. RT 4194. She had previously described
14
Petitioner as a non-person. RT 4195. Petitioner wore grease in his hair and went bowling, both of
15
16
17
which were not common among their classmates at the time. RT 4193. Barbara described her
perception of Petitioner as socially inept; she thought that Petitioner’s speech impediment and
18
hearing problems made him seem like a jerk to people who did not know him during high school
19
and described him as treading water with his medical issues. RT 4194. Petitioner seemed lonely.
20
RT 4196. After actually meeting Petitioner, Barbara thought that Petitioner was a nice and
21
22
intelligent person. RT 4195. She believed that Petitioner was very sensitive because of the way
he had been treated as a result of his “handicaps.” According to Barbara, Petitioner blossomed a
23
24
25
bit after high school and began dressing a bit better, meeting women, and adjusting his life.
Petitioner was also able to be more open about his hearing problem. RT 4197.
26
Like the other lay witnesses, Barbara described Petitioner as very considerate and a nice
27
person. When Paul was born, it was the greatest thing that ever happened to Petitioner; Barbara
28
71
1
stated that she believed Petitioner really loved Doreen. Petitioner would constantly talk about
2
Paul and tell Barbara and her husband about new things happening with Paul. They fell out of
3
touch for some time until Petitioner called her, distraught, after Paul died. RT 4198. Petitioner
4
was very upset with Doreen. Petitioner told Barbara that the only thing he had asked Doreen to do
5
after giving her his apartment was that she put up a fence for Paul in order to keep him safe.
6
Barbara stated that Petitioner was also upset that Doreen had been on the phone while Paul
7
drowned. Barbara tried to console Petitioner, but he seemed inconsolable. Petitioner was grief8
9
stricken over his son. Petitioner had a very close bond with Paul and, according to Barbara, when
Paul died, it was the worst thing that ever happened to Petitioner. RT 4199. Barbara still
11
United States District Court
Northern District of California
10
considered Petitioner a friend although she had read reports of what happened to Doreen’s fetus in
12
the newspaper.
13
14
Lee (“Smethurst”) and Pearl Smethurst, Petitioner’s neighbors at the time of the crimes,
also testified on Petitioner’s behalf. RT 4200 & 4203. Smethurst testified that Petitioner was an
15
16
17
ordinary and caring person, and recalled that Petitioner once saw Smethurst throwing out some
mattresses and asked to keep one for a lodger who did not have a bed. Smethurst thought
18
Petitioner was a good neighbor. Pearl Smethurst stated that she and Petitioner bonded over the
19
fact that she was English, and Petitioner’s mother was from Great Britain as well. RT 4104.
20
Petitioner was very friendly and a very nice, respectful neighbor and seemed to love his son.
21
Petitioner’s final witness was his mother, Elizabeth Ross. She worked at Lockheed with
22
Petitioner and, at some point, moved into the addition Petitioner constructed for her in his home.
23
24
Ross was asked by counsel to create a pictorial biography of Petitioner and she did so using thirty-
25
nine photographs of Petitioner. The photo album contained photographs of Paul at varying ages,
26
as well as photographs of Petitioner and Paul together, Paul and Petitioner’s father together,
27
Petitioner and his brother together, Petitioner and his mother together, Petitioner by himself,
28
72
1
Petitioner and his grandmother, Petitioner and his cousin, a family photo including Doreen, and
2
Petitioner’s home. Ross also included photographs of Petitioner throughout his life, including
3
some of him as a little boy and others from his high school days. As she went through the photos,
4
Ross testified that Petitioner looked sweet and happy.
5
6
Ross additionally testified about some of Petitioner’s achievements. She introduced a
letter written by Lockheed’s president commending Petitioner for giving two gallons of blood to
7
the blood bank at Lockheed, an achievement award Petitioner received for working with the space
8
9
shuttle program, a photo of Petitioner’s bowling trophies, and Petitioner’s associate degree
certificate. Ross also took in a letter from Petitioner, written while he was in high school,
11
United States District Court
Northern District of California
10
thanking her for a radio she gifted him. Ross testified that Petitioner was very close with his
12
father and his grandmother. RT 4217. She also testified that Petitioner recorded a tape for Paul
13
14
on February 13, 1979—one year before Paul died. The tape was played and admitted into
evidence.
15
16
17
2. Analysis
Petitioner first argues that the evidence presented by counsel at the penalty phase was not
18
meaningful mitigation evidence. Fed. Pet. at 135. The record belies Petitioner’s contention. As is
19
apparent from the summary above, many of Petitioner’s witnesses testified about Petitioner’s good
20
character, good deeds, love for his son and good parenting skills, Petitioner’s pain at losing Paul,
21
and his marked deterioration following the loss of his civil case against the Erberts. Under
22
California Penal Code section 190.3, all of these sympathetic circumstances could be considered
23
24
by the jury in mitigation. See Cal. Pen. Code §190; see also People v. Dennis, 17 Cal. 4th at 547-
25
48. Accordingly, the California Supreme Court reasonably could have rejected this argument.
26
Richter, 562 U.S. at 101.
27
28
Petitioner also argues that trial counsel was ineffective in failing to present evidence at the
73
1
penalty phase regarding Petitioner’s mental disease. Fed. Pet. 137. While it is true that counsel
2
did not recall Dr. Benson or any other mental health professionals to testify during the penalty
3
phase, the parties stipulated that all guilt phase evidence would be admitted at the penalty phase,
4
including Dr. Benson’s testimony regarding Petitioner’s background and mental health. Indeed,
5
during the penalty phase closing argument, the prosecution referred to Dr. Benson’s testimony as
6
an attempt by the defense to persuade the jury that Petitioner committed the crimes under the
7
influence of extreme emotional or mental disturbance, a mitigating factor under California Penal
8
9
10
Code § 190(d). People v. Dennis, 17 Cal. 4th at 499; RT 4249.
Given that trial counsel repeatedly referred to Dr. Benson’s testimony throughout his guilt
United States District Court
Northern District of California
11
phase closing argument mere days before the penalty phase began, the fact that Dr. Benson’s
12
testimony was admitted as evidence during the penalty phase, and the fact that the trial court
13
instructed the jury that it “shall consider all of the evidence which has been received during any
14
part of the trial of [Petitioner’s] case,” including “whether or not the offense was committed while
15
16
17
the defendant was under the influence of extreme mental or emotional disturbance,” (RT 4289-90)
the California Supreme Court reasonably could have rejected Petitioner’s argument that counsel
18
was ineffective because he failed to present any mental health evidence at the penalty
19
phase. Richter, 562 U.S. at 101.
20
21
22
To the extent that Petitioner argues, without accounting for Dr. Benson’s testimony, that
trial counsel’s failure to present mental health testimony was not a strategy choice because counsel
failed to adequately investigate Petitioner’s mental health issues (Fed. Pet. at 142), this Court
23
24
again finds and concludes that the record shows otherwise. Petitioner’s trial counsel had prepared
25
a detailed social history report about Petitioner, had engaged several experts to examine Petitioner,
26
and had received a multitude of reports from various mental health professionals who had
27
evaluated Petitioner. This is therefore “not a case in which trial counsel failed to conduct any
28
74
1
mental health investigation.” See Carter v. Chappell, 2013 WL 1120657 (S.D. Cal. Mar. 18,
2
2013). Nevertheless, Petitioner appears to argue that counsel was ineffective for simply failing to
3
continue consulting experts until one of them made the diagnosis that ultimately was made by
4
Dr. Woods years later. As previously noted, this is not what the Sixth Amendment requires. See
5
Hendricks v. Calderon, 70 F.3d at 1039 (counsel entitled to rely on experts’ conclusions in order
6
to make strategic choices).
7
Petitioner also faults counsel for failing to call Dr. Garton to testify during the penalty
8
9
phase. Fed. Pet. at 138 & 140. Petitioner analogizes this case to Deutscher v. Whitley, 884 F.2d
1152, 1159-60 (9th Cir. 1989), vacated on other grounds, 500 U.S. 901 (1991). In Deutscher, the
11
United States District Court
Northern District of California
10
defendant was convicted of first degree murder and robbery. During the penalty phase of trial,
12
Deutscher’s attorney put on a mitigation case that consisted of a theory that the defendant must
13
14
have had mental health issues, but the attorney did not investigate or introduce any mental health
evidence on the defendant’s behalf. Id. at 1159. The Ninth Circuit held that the attorney was
15
16
17
ineffective, noting that in choosing to present a mental health defense, the attorney had a duty to
make a reasonable investigation of Deutscher’s mental health history.
18
Again, the authority cited by Petitioner is distinguishable. Here, as discussed previously,
19
trial counsel not only investigated Petitioner’s mental health issues but also presented substantial
20
mental health evidence during the guilt phase that was admitted into evidence at the penalty phase.
21
After the jury apparently rejected his mental health evidence in the guilt phase, Petitioner’s trial
22
counsel told the jury that he intended to give the jury a better understanding of the kind of life
23
24
Petitioner led, what values he believed in, and what led him to the night of the crimes (RT 4090).
25
As summarized above, counsel then presented a series of lay witnesses who testified about
26
Petitioner’s good character, his childhood, his devastation after Paul’s death, and his
27
transformation following the loss at his civil trial, arguing during closing that the circumstances of
28
75
1
the case were a tragedy. RT 4269, 4273, 4281-82. For matters of trial strategy, the Court must
2
“indulge a strong presumption that counsel’s conduct [fell] within the wide range of reasonable
3
professional assistance.” Strickland, 466 U.S. at 689.
4
5
6
7
Here, Petitioner already had presented mental health evidence during the guilt phase and,
even if the jury ultimately not persuaded by that evidence as to guilt, the evidence should have still
been relatively fresh in their minds. Under these circumstances, trial counsel reasonably could
have concluded that Dr. Garton’s testimony, which counsel apparently believed would have been
8
9
largely cumulative to Dr. Benson’s testimony, would not have been helpful to Petitioner at the
penalty phase. See Bell v. Cone, 535 U.S. 685, 699-700 (trial counsel not ineffective by failing to
11
United States District Court
Northern District of California
10
recall expert during penalty phase given mental health defense at guilt phase); see also Pinholster,
12
563 U.S. at 196 (court must affirmatively entertain the range of possible reasons trial counsel may
13
14
have had for proceeding as they did as long as they are reasonable). The California Supreme
Court reasonably could have rejected Petitioner’s argument that counsel was ineffective in calling
15
16
17
Dr. Garton to testify at the penalty phase of his trial. Richter, 562 U.S. at 101.
Petitioner also contends that counsel failed to present evidence that would tend to reduce
18
Petitioner moral culpability, such as evidence regarding Petitioner’s delusions and the aspects of
19
Petitioner’s life that resulted in the formulation of those delusions. Fed. Pet. at 143. Petitioner
20
cites no Supreme Court precedent requiring counsel to present such evidence in mitigation and,
21
indeed, there is Supreme Court precedent stating that counsel need not always present mitigating
22
evidence. See Darden v. Wainwright, 477 U.S. 168, 186 (1986) (counsel not ineffective in failing
23
24
to present mitigation evidence in lieu of plea for mercy). In any event, the trial record shows that
25
counsel did present evidence on this point—Dr. Benson’s testimony was admitted at the penalty
26
phase, and the jury was entitled to consider it for purposes of mitigation.
27
28
To the extent that Petitioner argues that the jury was unable to consider the background
76
1
evidence relied upon by Dr. Benson for the truth of the matter, Petitioner does not account for the
2
testimony from a number of Petitioner’s penalty phase witnesses, which reinforced large portions
3
of the information at issue, including Petitioner’s hearing issues, his use of a hearing aid, his
4
parents’ divorce, his life at the fringes of groups at his high school, his difficulty with women and
5
relationships, his deterioration after Paul’s death, his further deterioration after the loss at the civil
6
trial, his continuous blaming of Doreen for Paul’s death, his loneliness as a child, his social
7
awkwardness, and his perceived social ineptitude during his younger years. RT 4112-16, 4135-36,
8
9
& 4167-72 & 4148-51 & 4181-99. As this Court already has noted, many of Petitioner’s penalty
phase witnesses also testified about Petitioner’s good character, his “mellow and calm” nature, his
11
United States District Court
Northern District of California
10
good deeds, his love for his son and good parenting skills, and his pain at losing Paul. Finally, at
12
least one penalty phase witness, Withers, testified about an instance showing that Petitioner, as
13
14
Dr. Benson noted in his guilt phase testimony, held up Paul to an extreme degree even after his
death. RT 4105-06. All of the preceding evidence could be considered in reducing Petitioner’s
15
16
17
moral culpability under California Penal Code section 190.3. See Cal. Pen. Code §190; see also
People v. Dennis, 17 Cal. 4th at 547-48. The California Supreme Court reasonably could have
18
concluded that Petitioner failed to show that counsel was ineffective in these circumstances.
19
Richter, 562 U.S. at 101
20
21
Petitioner also claims that trial counsel unreasonably failed to present expert or lay
evidence that Petitioner had displayed good behavior and the ability to adjust to prison life if
22
sentenced to life without the possibility of parole. Fed. Pet. at 143. Petitioner cites no Supreme
23
24
Court authority holding that counsel had a duty to introduce such evidence to be considered
25
effective and cites no evidence to support his contention. Moreover, while such experts are fairly
26
common in death penalty cases (see Skipper v. South Carolina, 476 U.S. 1 (1986) (capital
27
defendants are entitled to present evidence of good behavior and lack of future dangerousness)),
28
77
1
here, the prosecution did not present any evidence at the penalty phase of future dangerousness
2
and instead based its argument for a death sentence solely on the facts of the crime and
3
Petitioner’s meticulous planning of Doreen and Charles’ deaths. RT 4092. Counsel reasonably
4
could have made a strategic decision not to open the door for the prosecution to introduce
5
evidence to rebut any “future dangerousness” evidence presented by the defense. See Pinholster,
6
7
563 U.S. at 195 (beyond the requirement of reasonableness, “ ‘specific guidelines [as to counsel’s
actions] are not appropriate’ ”) (citing Strickland, 466 U.S. at 688), and the California Supreme
8
9
10
United States District Court
Northern District of California
11
12
13
14
Court reasonably could have rejected Petitioner’s argument that counsel was ineffective in failing
to present evidence of no future dangerousness. Richter, 562 U.S. at 101.
Finally, Petitioner states that his death sentence violates the constitution because the jury
was not able to consider his mental health evidence as mitigation. Fed. Pet. at 144. In support, he
cites California v. Brown, 479 U.S. 538, 554 (1987) and Skipper v. South Carolina, 476 U.S. 1.
As Petitioner does not argue that California’s statutory scheme or a jury instruction prevented him
15
16
17
18
19
20
21
from presenting mitigating evidence, neither case is on point. Moreover, for the reasons already
discussed above, Petitioner’s contention that the jury was unable to consider mitigating evidence,
including mental health evidence, is meritless.
The Court concludes that Claim 17 is unmeritorious and should be DENIED.
III. DISPOSITION
Good cause therefor appearing, Claims 3, 11, and 17 will be DENIED on the
22
merits. Claims 18.B.7, 23, and 25 remain undecided, and Petitioner has filed a renewed request
23
24
for an evidentiary hearing on the remaining claims. Before ruling on that request, the Court
25
requests the views of the parties as to whether in light of this Order the remaining claims are
26
appropriate for summary disposition and the Court should reconsider its previous decision to hold
27
an evidentiary hearing as to those claims. Accordingly,
28
78
1
1. On or before January 30, 2018, Petitioner shall file a brief explaining why one or more
2
of the remaining claims should not be disposed of summarily and, if not, whether any
3
of the claims requires an evidentiary hearing.
4
2. On or before February 16, 2018, Respondent shall file an opposition brief.
5
3. On or before March 16, 2018, Petitioner may file a reply brief. The matter thereafter
6
shall be submitted pending further direction from the Court.
7
8
9
IT IS SO ORDERED.
10
United States District Court
Northern District of California
11
12
13
DATED: December 19, 2017
________________________________
JEREMY FOGEL
UNITED STATES DISTRICT JUDGE
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
79
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?