Marks v. Martel

Filing 95

ORDER DENYING CLAIMS 13 and 22. Signed by Judge Lucy H. Koh on 9/18/17. (lhklc3, COURT STAFF) (Filed on 9/18/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

United States District Court
Northern District of California

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DELANEY GERAL MARKS,
Petitioner,

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ORDER DENYING CLAIMS 13 AND 22

v.

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Case No. 11-CV-02458-LHK

Re: Dkt. Nos. 86, 87

KEVIN R. CHAPPEL, et al.,
Respondents.

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In 1994, Petitioner Delaney Geral Marks (“Petitioner”) was convicted of two counts of

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first degree murder with personal use of a firearm, and two counts of attempted premeditated
murder and infliction of great bodily injury, and sentenced to death. On December 14, 2011,
Petitioner filed a petition for a writ of habeas corpus before this Court. ECF No. 3 (“Pet.”).
The Court has ruled on 20 of Petitioner’s 22 claims. See ECF Nos. 52, 74, 75, 76, 77, 81,

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91, 92. This Order addresses the remaining claims of the petition—Claims 13 and 22. Petitioner
requests an evidentiary hearing for Claim 13. For the reasons discussed below, these claims are
DENIED, and Petitioner’s request for an evidentiary hearing is DENIED.
I.

BACKGROUND

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ORDER DENYING CLAIMS 13 AND 22

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A.

Factual Background1
On October 17, 1990, Petitioner entered a Taco Bell restaurant in Oakland, California.

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After ordering, he shot employee Mui Luong (“Luong”) in the head. Luong survived the shooting

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but remained in a persistent vegetative state. Petitioner then entered the Gourmet Market, not far

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from the Taco Bell. There, Petitioner shot John Myers (“Myers”) and Peter Baeza (“Baeza”).

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Baeza died at the scene but Myers survived. Later that evening, Petitioner and his girlfriend,

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Robin Menefee (“Menefee”), took a cab driven by Daniel McDermott (“McDermott”). Petitioner

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shot and killed McDermott. People v. Marks, 31 Cal. 4th 197, 204–06 (Cal. 2003).
Petitioner was arrested shortly after McDermott was shot. Lansing Lee (“Lee”), a

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criminalist, testified at trial with “virtual absolute certainty” that the bullets that shot Baeza and

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Northern District of California

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Myers came from Petitioner’s gun. Id. at 207. Lee also testified that his analysis “indicated” that

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the bullet that shot McDermott came from Petitioner’s gun and “suggested” that the bullet that

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injured Luong also came from the same source. Id. At least four eyewitness identified Petitioner

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as the shooter. Id. at 205. Further, although McDermott carried $1 bills in his taxi in order to

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make change, McDermott had no paper currency on his body or in his taxi after the shooting.

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Defendant, however, was arrested with seven $1 bills on his person. Id. at 206–07. Petitioner was

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also overheard telling another defendant that “he was in for three murders” and that the victims

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had died because “I shot them.” Id. at 208.
At trial, Petitioner testified and denied all of the shootings. Id. at 207. The defense also

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presented evidence that Petitioner’s hands did not test positive for gunshot residue. Id. at 208.
On April 24, 1994, the jury convicted Petitioner of two counts of first degree murder with

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personal use of a firearm, and two counts of attempted premeditated murder with personal use of a

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firearm and infliction of great bodily injury.
During the penalty phase, the prosecutor presented in aggravation evidence of Petitioner’s

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The following facts are taken from the California Supreme Court’s opinion on direct appeal. See
People v. Marks, 31 Cal. 4th 197, 203–14 (2003). “Factual determinations by state courts are
presumed correct absent clear and convincing evidence to the contrary.” Miller-El v. Cockrell,
537 U.S. 322, 340 (2003).
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past violent conduct, including incidents of domestic violence and violent conduct while

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incarcerated. Id. at 208–10. The prosecutor also presented evidence of the effect of Petitioner’s

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capital murders on the families of the victims. Id. at 210–11. In mitigation, Petitioner testified as

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to his family history, his experience in the Navy, the death of his mother, and that he experienced

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seizures. Id. at 212. Other witnesses testified that Petitioner had grown up in a strong family

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environment, and had not engaged in problematic behavior until he was discharged from the Navy

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and began using drugs. Id. at 212–13. Petitioner’s daughter testified that Petitioner had never hit

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her, and that she saw him regularly when he was not incarcerated. Id. at 213. On May 6, 1994,

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the jury set the penalty for the capital crimes at death. Id. at 203.

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B.

On July 24, 2003, the California Supreme Court affirmed the conviction and sentence on

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United States District Court
Northern District of California

Procedural History

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direct appeal. Marks, 31 Cal. 4th 197. The U.S. Supreme Court denied certiorari on May 3, 2004.

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Marks v. California, 541 U.S. 1033 (2004).
Petitioner filed a petition for writ of habeas corpus in the California Supreme Court. On

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March 16, 2005, the California Supreme Court ordered Respondents to show cause in the

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Alameda County Superior Court why the death sentence should not be vacated and Petitioner re-

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sentenced to life without parole on the ground that Petitioner was intellectually disabled within the

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meaning of Atkins v. Virginia, 536 U.S. 304 (2002), which held that intellectually disabled

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individuals may not be executed. AG023690.2 The California Supreme Court denied the

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remaining claims in the petition on the merits without explanation. In addition to the merits

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decision, as separate grounds for denial, the California Supreme Court held that four of

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Petitioner’s claims were procedurally barred.
The Alameda County Superior Court conducted an evidentiary hearing on the issue of

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Petitioner’s alleged intellectual disability. On June 13, 2006, the Superior Court denied the

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petition, and found that Petitioner had failed to prove by a preponderance of the evidence that he

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Citations to “AG” refer to the Bates-stamped page numbers identified in the California Attorney
General’s lodging of the state court record with this Court.
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ORDER DENYING CLAIMS 13 AND 22

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was intellectually disabled within the meaning of Atkins. AG023700–22. On August 14, 2006,

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Petitioner filed a further petition for writ of habeas corpus on the issue of his intellectual disability.

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The petition was denied by the California Supreme Court on December 15, 2010. AG028382.
On December 14, 2011, Petitioner filed his federal petition for writ of habeas corpus in this

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Court. ECF No. 3. Respondent filed a motion for summary judgment on Claims 2, 3, and 5 on

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March 26, 2013. ECF No. 37. Petitioner cross-moved for summary judgment on Claims 2, 3, and

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5 on March 28, 2013. ECF No. 38. Both Petitioner and Respondent filed opposition briefs on

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June 10, 2013. ECF Nos. 44, 45. On August 8, 2013, Petitioner and Respondent filed reply

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briefs. ECF Nos. 48, 49. The claims were denied, and summary judgment in favor of Respondent

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granted on June 25, 2015. ECF No. 52.
On December 15, 2015, Petitioner and Respondent filed opening briefs on the merits as to

United States District Court
Northern District of California

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Claims 1, 4, 6, 7, 8, 9, 10, and 11. ECF No. 62; 63. Petitioner filed a response on February 11,

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2016. ECF No. 63. Respondent filed a response on February 12, 2016. ECF No. 65.
The Court denied Claims 1, 6, and 7 on September 15, 2016. ECF No. 74. The Court

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denied Claims 9 and 11 on September 20, 2016. ECF No. 75. The Court denied Claims 4 and 8

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on September 27, 2016. ECF Nos. 76, 77. The Court denied Claim 10 on November 15, 2016.

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ECF No. 81.
On February 3, 2017, Petitioner and Respondent filed opening briefs on the merits of

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Claims 12 through 22. ECF Nos. 86 (“Pet’r Br.”), 87 (“Resp. Br.”). On March 29, 2017,

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Petitioner and Respondent filed responses. ECF Nos. 89 (“Pet’r Opp.”), 90 (“Resp. Opp.”).
On June 1, 2017, this Court issued an order denying Claim 12. ECF No. 91. On June 27,

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2017, this Court issued an order denying Claims 14 through 21. ECF No. 92.

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II.

LEGAL STANDARD

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A.

Antiterrorism and Effective Death Penalty Act (28 U.S.C. § 2254(d))

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Because Petitioner filed his original federal habeas petition in 2011, the Anti-Terrorism

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and Effective Death Penalty Act of 1996 (“AEDPA”) applies to the instant action. See Woodford

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v. Garceau, 538 U.S. 202, 210 (2003) (holding that AEDPA applies whenever a federal habeas

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petition is filed after April 24, 1996). Pursuant to AEDPA, a federal court may grant habeas relief

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on a claim adjudicated on the merits in state court only if the state court’s adjudication “(1)

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resulted in a decision that was contrary to, or involved an unreasonable application of, clearly

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established Federal law, as determined by the Supreme Court of the United States; or (2) resulted

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in a decision that was based on an unreasonable determination of the facts in light of the evidence

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presented in the State court proceeding.” 28 U.S.C. § 2254(d).

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1. Contrary To or Unreasonable Application of Clearly Established Federal Law

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As to 28 U.S.C. § 2254(d)(1), the “contrary to” and “unreasonable application” prongs
have separate and distinct meanings. Williams v. Taylor, 529 U.S. 362, 404 (2000) (“Section

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2254(d)(1) defines two categories of cases in which a state prisoner may obtain federal habeas

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relief with respect to a claim adjudicated on the merits in state court.”). A state court’s decision is

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“contrary to” clearly established federal law “if the state court arrives at a conclusion opposite to

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that reached by [the U.S. Supreme Court] on a question of law or if the state court decides a case

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differently than [the U.S. Supreme Court] has on a set of materially indistinguishable facts.” Id.

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at 412–13.

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A state court’s decision is an “unreasonable application” of clearly established federal law

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if “the state court identifies the correct governing legal principle . . . but unreasonably applies that

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principle to the facts of the prisoner’s case.” Id. at 413. “[A]n unreasonable application of federal

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law is different from an incorrect application of federal law.” Harrington v. Richter, 562 U.S. 86,

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101 (2011). A state court’s determination that a claim lacks merit is not unreasonable “so long as

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‘fairminded jurists could disagree’ on [its] correctness.” Id. (quoting Yarborough v. Alvarado, 541

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U.S. 652, 664 (2004)).

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Holdings of the U.S. Supreme Court at the time of the state court decision are the sole

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determinant of clearly established federal law. Williams, 529 U.S. at 412. Although a district

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court may “look to circuit precedent to ascertain whether [the circuit] has already held that the

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particular point in issue is clearly established by Supreme Court precedent,” Marshall v. Rodgers,

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133 S. Ct. 1446, 1450 (2013) (per curium), “[c]ircuit precedent cannot refine or sharpen a general

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principle of [U.S.] Supreme Court jurisprudence into a specific legal rule,” Lopez v. Smith, 135 S.

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Ct. 1, 4, (2014) (per curium) (internal quotation marks omitted).

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2. Unreasonable Determination of the Facts

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In order to find that a state court’s decision was based on “an unreasonable determination

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of the facts,” 28 U.S.C. § 2254(d)(2), a federal court “must be convinced that an appellate panel,

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applying the normal standards of appellate review, could not reasonably conclude that the finding

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is supported by the record before the state court,” Hurles v. Ryan, 752 F.3d 768, 778 (9th Cir.

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2014) (internal quotation marks omitted). “[A] state-court factual determination is not

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unreasonable merely because the federal habeas court would have reached a different conclusion

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in the first instance.” Burt v. Titlow, 134 S. Ct. 10, 15 (2013). That said, “where the state courts

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plainly misapprehend or misstate the record in making their findings, and the misapprehension

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goes to a material factual issue that is central to petitioner’s claim, that misapprehension can

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fatally undermine the fact-finding process, rendering the resulting factual finding unreasonable.”

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Taylor v. Maddox, 366 F.3d 992, 1001 (9th Cir. 2004).

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In examining whether a petitioner is entitled to relief under 28 U.S.C. § 2254(d)(1) or §

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2254(d)(2), a federal court’s review “is limited to the record that was before the state court that

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adjudicated the claim on the merits.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011). In the event

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that a federal court “determine[s], considering only the evidence before the state court, that the

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adjudication of a claim on the merits resulted in a decision contrary to or involving an

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unreasonable application of clearly established federal law, or that the state court’s decision was

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based on an unreasonable determination of the facts,” the federal court evaluates the petitioner’s

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claim de novo. Hurles, 752 F.3d at 778. If error is found, habeas relief is warranted if that error

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“had substantial and injurious effect or influence in determining the jury’s verdict.” Brecht v.

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Abrahamson, 507 U.S. 619, 638 (1993). Petitioners “are not entitled to habeas relief based on trial

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error unless they can establish that it resulted in ‘actual prejudice.’” Id. at 637 (quoting United

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States v. Lane, 474 U.S. 438, 449 (1986)).

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B.

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Federal Evidentiary Hearing (28 U.S.C. § 2254(e))
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Under Cullen v. Pinholster, habeas review under AEDPA “is limited to the record that was

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before the state court that adjudicated the claim on the merits.” 563 U.S. at 180–81. The Ninth

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Circuit has recognized that Pinholster “effectively precludes federal evidentiary hearings” on

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claims adjudicated on the merits in state court. Gulbrandson v. Ryan, 738 F.3d 976, 993 (9th Cir.

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2013); see also Sully v. Ayers, 725 F.3d 1057, 1075 (9th Cir. 2013) (“Although the Supreme Court

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has declined to decide whether a district court may ever choose to hold an evidentiary hearing

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before it determines that § 2254(d) has been satisfied . . . an evidentiary hearing is pointless once

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the district court has determined that § 2254(d) precludes habeas relief.”) (internal quotation marks

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and citation omitted).

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III.

This Court has resolved 20 of Petitioner’s 22 claims. The remaining claims are Claim 13

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DISCUSSION

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and Claim 22. The Court addresses these claims in turn.

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A.

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Claim 13
Claim 13 of Petitioner’s federal habeas petition alleges that Petitioner was deprived of a

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fair and reasonable penalty phase decision, in violation of the Fifth, Sixth, Eighth and Fourteenth

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Amendments to the United States Constitution. See Pet. at 236–37. This claim consists of two

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subclaims. Specifically, Petitioner alleges that, at the penalty phase of his trial, (1) the prosecutor

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committed prosecutorial misconduct by intentionally and affirmatively misleading the jury during

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closing arguments; and (2) Petitioner’s trial counsel rendered ineffective assistance of counsel by

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failing to investigate and present certain mitigating evidence. See id. at 236–87.

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Petitioner presented this claim to the California Supreme Court in his state habeas petition.

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See AG019887 (asserting, in claim twelve of his state habeas petition, that petitioner was

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prejudicially deprived of a fair and reliable determination of penalty). The California Supreme

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Court denied this claim on the merits without explanation. AG023690. In addition, the California

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Supreme Court held, except to the extent Petitioner argued that his trial counsel was ineffective,

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Petitioner’s claim was procedurally barred because the claim “could have been, but [was] not,

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raised on [direct] appeal.” AG023690. In his federal habeas petition, Petitioner argues that this

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claim is not procedurally barred. Petitioner also argues that the California Supreme Court erred in

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denying this claim on the merits.

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The Court first addresses Petitioner’s subclaim in Claim 13 that the prosecutor committed

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misconduct, which the California Supreme Court held was procedurally barred. The Court then

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addresses Petitioner’s subclaim that Petitioner’s trial counsel was constitutionally ineffective,

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which the California Supreme Court denied on the merits.

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1. Prosecutor’s Alleged Misleading of the Jury

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First, Petitioner argues that he is entitled to habeas relief because, during the penalty phase,

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the prosecutor “intentionally misled the jurors.” See Pet. at 239. This argument is based primarily
on the prosecutor’s statements during closing arguments during the penalty phase of trial that

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“[t]here is nothing, nothing medically or psychiatrically wrong with this man down here at the end

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of the table at all. . . . If there was anything, anything psychiatrically or medically wrong with him,

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you would have heard it. . . . if there was anything, a scintilla of anything that his lawyers could

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have grabbed a hold of to bring to you, they would have.” See id. at 239–40. Petitioner states that

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the prosecutor made these statements despite knowing that the “argument was contrary to the

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actual facts,” which showed that Petitioner “suffered from pervasive and significant brain

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damage.” Pet’r Br. at 25–26. Petitioner further argues that the prosecutor intentionally misled the

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jury during the penalty phase of trial that Petitioner “had modified the handgun found in his

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possession to make it easier to conceal and retrieve” the handgun quickly, despite the fact that the

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Prosecutor had “no good faith or reliable basis to conclude the gun had been modified.” See id.

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Respondent contends that this subclaim is procedurally defaulted because the California

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Supreme Court rejected this subclaim on the ground that Petitioner could have, but did not, raise

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this subclaim on direct appeal to the California Supreme Court. See AG023690 (citing In re

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Dixon, 41 Cal. 2d 756 (1953)). Respondent contends that the rule of procedural default applied by

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the California Supreme Court—the so-called “Dixon bar”—forecloses this Court from reviewing

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Petitioner’s subclaim of prosecutorial misconduct during the penalty phase of trial. For the

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reasons discussed below, the Court agrees with Respondent that Petitioner’s prosecutorial

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misconduct subclaim is procedurally barred, and thus the Court cannot consider this subclaim on

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federal habeas review.

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“Generally, when a state court’s rejection of a federal claim is based on a violation of a

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state procedural rule that is adequate to support the judgment and independent of federal law, a

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habeas petitioner has procedurally defaulted his claim” and a federal court cannot review the

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claim. Carter v. Chappel, 2013 WL 1120657, at *36 (S.D. Cal. Mar. 18, 2013) (citing Coleman v.

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Thompson, 501 U.S. 722, 729 (1991) (stating that federal courts will not review “a question of

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federal law decided by a state court if the decision of that court rests on a state law ground that is

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independent of the federal question and adequate to support the judgment”)). If the state
procedural rule invoked by the state court is both adequate and independent, then to overcome the

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procedural bar, the petitioner must establish either “cause” for the default and “actual prejudice”

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as a result of the alleged violation of federal law, or the petitioner must demonstrate that failure to

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consider the claim will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 750.

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As stated above, the California Supreme Court applied the state procedural rule of In re

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Dixon, 41 Cal. 2d 756 (1953), to deny Petitioner’s claim that the prosecutor violated Petitioner’s

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rights under the United States Constitution. Under the “‘Dixon bar,’ a defendant procedurally

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defaults a claim raised for the first time on state collateral review if [the defendant] could have

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raised it earlier on appeal.” Johnson v. Lee, 136 S. Ct. 1802, 1804 (2016) (citing In re Dixon, 41

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Cal. at 264 (“[Habeas corpus] will not lie where the claimed errors could have been, but were not,

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raised upon a timely appeal from a judgment of conviction.”)). Here, the California Supreme

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Court concluded that the Dixon bar applied to Petitioner’s prosecutorial misconduct subclaim

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because Petitioner’s argument that the prosecutor committed misconduct during the penalty phase

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of trial “could have,” but was not, raised on direct appeal. See AG023690. Because the Supreme

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Court applied the Dixon bar to Petitioner’s subclaim, the Court must decide whether the Dixon bar

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is an “adequate” and “independent” state procedural rule. If so, Petitioner’s claim that the

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prosecutor committed misconduct during the penalty phase of trial is procedurally defaulted, and

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this Court may not consider it on federal habeas review. For the reasons discussed below, the

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Court finds that the Dixon procedural bar is both “adequate” and “independent,” and thus the

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Dixon bar forecloses Petitioner’s prosecutorial misconduct subclaim in Claim 13.

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First, the Dixon bar is “adequate.” For a state procedural rule to be “adequate,” the “state

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rule must be ‘firmly established and regularly followed.’” Johnson, 136 S. Ct. at 1805 (quoting

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Walker v. Martin, 562 U.S. 307, 316 (2011)). Significantly, in Johnson v. Lee, the United States

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Supreme Court recently held that “California’s Dixon bar satisfies both” of these “adequacy

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criteria.” 136 S. Ct. at 1805. Specifically, the United States Supreme Court concluded that the

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Dixon bar has been “firmly established” in California for “decades,” and that the Dixon “bar is

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regularly followed” by the California Supreme Court. Id. (internal quotation marks omitted). The
United States Supreme Court further emphasized in Johnson that the Dixon bar is an “adequate”

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procedural bar because “[f]ederal and state habeas courts across the country follow the same rule

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as Dixon.” Id. Thus, as the United States Supreme Court found in Johnson, this Court finds that

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the Dixon bar “qualifies as adequate to bar federal habeas review.” Id.

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Second, the California Supreme Court’s application of the Dixon bar is “independent” of

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federal law. As the Ninth Circuit has explained, a state procedural bar is “independent” if “the

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state law basis for the decision [is] not be interwoven with federal law.” La Crosse v. Kernan, 244

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F.3d 702, 704 (9th Cir. 2001) (citing Michigan v. Long, 463 U.S. 1032, 1040–41 (1983)).

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Whether a procedural bar is “independent” from federal law is measured at the time that the

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procedural bar was applied by the state court. See Vaughn v. Adams, 116 F. App’x 827, 828 (9th

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Cir. 2004) (looking to the date the “habeas petition was denied by the California Supreme Court”

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in determining whether the application of Dixon was “an independent procedural bar”); Jones v.

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Ayers, 2008 WL 906302, at *27 (E.D. Cal. Mar. 31, 2008) (explaining that “the independence of

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the Dixon default is determined . . . when it was imposed”).

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Here, the California Supreme Court applied the Dixon bar to Petitioner’s prosecutorial

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misconduct subclaim on March 16, 2005. AG23690. At that time, the Dixon bar was

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“independent” from federal law. Specifically, in 1998, in In re Robbins, 18 Cal. 4th 770, 811–12

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(Cal. 1998), the California Supreme Court clarified “that it now declines to consider federal law

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when determining whether claims are procedurally defaulted” under the Dixon bar. Accordingly,

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district courts in this circuit have held that, after the Robbins decisions in 1998, “the Dixon bar is

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independent” of federal law. See, e.g., Protsman v. Pliler, 318 F. Supp. 2d 1004, 1007 (S.D. Cal.

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2004) (examining whether Dixon rule was independent and concluding that, following Robbins,

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“the Dixon bar is independent”); Flores v. Roe, 2005 WL 1406086, at *11 (E.D. Cal. June 14,

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2005) (concluding that the California Supreme Court’s application of the Dixon bar, following

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Robbins, was an independent state ground). Accordingly, because the California Supreme Court

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applied the Dixon bar to Petitioner’s claim on March 16, 2005, after the Robbins decision in 1998,

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the California Supreme Court’s application of the Dixon bar was “independent” of federal law.
See Protsman, 318 F.Supp. 2d at 1007 (finding application of Dixon bar by the California

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Supreme Court in 2002, after Robbins was decided, was an independent state law ground).

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In sum, the Court finds that the California Supreme Court’s application of the Dixon bar to

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Petitioner’s prosecutorial misconduct subclaim is both an “adequate” and “independent” state law

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ground. Accordingly, because the Dixon bar is both “adequate” and “independent,” this Court

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cannot consider Petitioner’s prosecutorial misconduct subclaim on federal habeas review unless

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Petitioner establishes “cause” for his procedural default and “actual prejudice” from the alleged

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violation of federal law, or unless Petitioner establishes a fundamental miscarriage of justice. See

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Coleman, 501 U.S. at 750. Significantly, Petitioner has not attempted to make any such showing.

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By failing to address these issues, Petitioner “therefore fails to establish cause, prejudice, or

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miscarriage of justice.” Ramirez v. Stolc, 2016 WL 2962454, at *3 (E.D. Cal. May 23, 2016)

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(finding Petitioner failed to establish cause, prejudice, or fundamental miscarriage of justice to

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avoid application of Dixon bar where Petitioner failed to “address these issues”). Accordingly,

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Petitioner’s procedural default with respect to his prosecutorial misconduct subclaim in Claim 13

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is not excused, and this claim is not reviewable in this Court.

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2. Ineffective Assistance of Counsel at the Penalty Phase of Trial

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The Court next turns to Petitioner’s subclaim in Claim 13 that Petitioner’s counsel was

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ineffective at the penalty phase of trial for failing to present mitigation evidence.3 As set forth

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above, the California Supreme Court applied the Dixon bar to Claim 13 except to the extent that

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the claim was based on ineffective assistance of counsel. AG023690. To the extent Claim 13 was

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based on ineffective assistance of counsel, the California Supreme Court denied Petitioner’s

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claims on the merits without explanation. See id. Because the California Supreme Court did not

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provide reasons for its denial of Petitioner’s subclaim, this Court must determine what arguments

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or theories could have supported the California Supreme Court’s decision. See Richter, 562 U.S.

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at 102 (“Under § 2254(d), a habeas court must determine what arguments or theories supported or,

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as here, could have supported, the state court’s decision.”). The Court then “must ask whether it is
possible fairminded jurists could disagree that those arguments or theories are inconsistent with

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the holding in a prior decision” of the United States Supreme Court. Id.
In Strickland v. Washington, 466 U.S. 668 (1984), the United States Supreme Court held

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that ineffective assistance of counsel is cognizable as a denial of the Sixth Amendment right to

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counsel, which guarantees not only assistance, but effective assistance, of counsel. Id. at 686. To

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prevail on an ineffective assistance of counsel claim, a petitioner must establish that: (1) his

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counsel’s performance was deficient, i.e., that it fell below an “objective standard of

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reasonableness” under prevailing professional norms; and (2) he was prejudiced by counsel’s

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performance, i.e., that “there is a reasonable probability that, but for counsel’s unprofessional

19

errors, the result of the proceeding would have been different.” Id. at 688–94. “A reasonable

20

probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694.
Ultimately, a petitioner must overcome the “strong presumption that counsel’s conduct

21
22
23
24
25
26
27
28

3

In his brief in support of Claim 13, Petitioner argues in his introduction that trial counsel was
ineffective for “fail[ing] to object and exclude the prosecutor’s unfair” closing argument. See
Pet’r Br. at 22. Petitioner does not further develop this argument in his brief in support of Claim
13, and this argument does not appear in Petitioner’s federal habeas petition. Most significantly,
Petitioner does not appear to have raised this in his state habeas petition. See AG019887–
AG019895. Because Petitioner has not properly presented this argument to the state courts, and
because Petitioner did not properly raise this argument in his federal habeas petition, this Court
cannot consider it for the first time in Petitioner’s opening brief on federal habeas review. See
Hiivala v. Wood, 195 F. 3d 1098, 1106 (9th Cir. 1999) (“A habeas petitioner must give the state
courts the first opportunity to review any claim of federal constitutional error before seeking
federal habeas review of that claim.”).
12
Case No. 11-CV-02458-LHK
ORDER DENYING CLAIMS 13 AND 22

1

falls within the wide range of reasonable professional assistance” and “might be considered sound

2

trial strategy” under the circumstances. Id. at 689 (internal quotation marks omitted). Moreover, a

3

“doubly” deferential standard of review is appropriate in analyzing ineffective assistance of

4

counsel claims under AEDPA because “[t]he standards created by Strickland and § 2254(d) are

5

both highly deferential.” Richter, 562 U.S. at 105 (internal quotation marks omitted). When §

6

2254(d) applies, “the question is not whether counsel’s actions were reasonable. The question is

7

whether there is any reasonable argument that counsel satisfied Strickland’s deferential standard.”

8

Id.

9

In the instant claim, Petitioner argues that trial counsel was ineffective during the penalty
phase of Petitioner’s trial because trial counsel failed to adequately investigate and present

11
United States District Court
Northern District of California

10

mitigating evidence. In general, Petitioner argues that trial counsel failed to adequately investigate

12

and present during the penalty phase three categories of mitigating evidence (1) evidence that

13

Petitioner suffered from “pervasive brain damage and psychiatric disorders;” (2) evidence of

14

Petitioner’s family history; (3) evidence to rebut the prosecution’s aggravating evidence. See Pet’r

15

Br. at 29–35. In resolving this subclaim, the Court first discusses the aggravating and mitigating

16

evidence that was presented at the penalty phase of Petitioner’s trial. The Court then discusses

17

Petitioner’s arguments regarding the mitigating evidence that should have been investigated and

18

presented, and whether Petitioner’s trial counsel rendered ineffective assistance of counsel.

19

a. Evidence Presented at Penalty Phase of Trial

20

1. State’s Aggravation Evidence

21

As the California Supreme Court summarized on direct appeal, the state “presented

22

evidence [during the penalty phase of trial] of specific instances of [Petitioner’s] misconduct

23

against both civilians and law enforcement officers,” in addition to “evidence of the effect of the

24

murders on the families of Daniel McDermott and Peter Baeza.” Marks, 31 Cal. 4th at 208. The

25

Court briefly summarizes this evidence below.

26

i.

27
28

Petitioner’s Other Violent Criminal Conduct

Brenda Bailey (“Bailey”) testified during the penalty phase that she had grown up with
13
Case No. 11-CV-02458-LHK
ORDER DENYING CLAIMS 13 AND 22

1

Petitioner and knew him “since he was a little boy.” AG017007; see also Marks, 31 Cal. 4th at

2

208. On December 14, 1978, Bailey was at her home in Alameda when Petitioner came over to

3

her apartment to use the telephone. AG017007–08. After completing the phone call, Petitioner

4

made derogatory comments to Bailey about Bailey’s brothers. AG017008. Bailey told Petitioner

5

she did not want to hear those comments. Id. Petitioner then began to hit Bailey in the head with

6

the telephone. Id. Petitioner grabbed Bailey’s foot and pulled her from the chair upon which she

7

was sitting. AG017010. Bailey hit the concrete floor and broke two of her bottom teeth. Id.

8

Petitioner then grabbed Bailey and pushed her through a thick bathroom window. AG017010,

9

AG017014–15; see also Marks, 31 Cal. 4th at 208–09. Petitioner also threw Comet and fingernail
polish remover on Bailey. AG017014. Petitioner told Bailey that if she told anyone about the

11
United States District Court
Northern District of California

10

assault, he would put a bomb in her six-year old son’s mouth, cut off her nine year old son’s head,

12

and “kill [her] mother.” AG017015–16. As a result of the assault, Bailey needed 26 stitches on

13

the inside of her chin and 27 stitches on the outside of her chin. AG017014. Bailey suffered a

14

concussion, a broken nose, and several cuts on her body. AG017017. After the assault, Bailey

15

would get “sick to [her] stomach” when Petitioner would call her, and Bailey’s doctors told her

16

that she was developing a stomach ulcer. AG017020. Bailey obtained a weapon after the attack.

17

Id.

18

Shirley Hitchens (“Hitchens”) testified during the penalty phase that she had lived with

19

Petitioner for approximately a year, but that she ultimately left Petitioner because he had mentally

20

and physically abused her. AG016881; see Marks, 31 Cal. 4th at 209. Hitchens testified that

21

Petitioner had beaten her and stabbed her in the back with a knife. AG016882. Hitchens never

22

went to the police for these assaults because she was afraid of Petitioner. AG016888.

23

On January 31, 1982, approximately two months after Hitchens left Petitioner, Petitioner

24

who was in a car approached Hitchens and wanted her to get into the car. AG016880–83.

25

Hitchens did not get in the car because she was scared of Petitioner. Id. Hitchens ran to Bobby

26

Jones (“Jones”) for help. AG016883–84. Petitioner tried to physically get Hitchens into his car,

27

but Jones intervened. AG016886. Jeff Heilbronner (“Heilbronner”) testified during the penalty

28

14
Case No. 11-CV-02458-LHK
ORDER DENYING CLAIMS 13 AND 22

phase that he witnessed Petitioner chase Jones around Petitioner’s vehicle while Petitioner was

2

wielding a knife. AG016894–96; see Marks, 31 Cal. 4th at 209. The police soon arrived,

3

including Officer Terry Lewis (“Officer Lewis”), who also testified during the penalty phase of

4

Petitioner’s capital murder trial. After the police arrived, Petitioner dropped the knife that he was

5

holding and entered the driver’s side of his vehicle. AG016918. Jones approached Petitioner’s

6

car and began banging on the driver’s side window. The police ordered Jones to stop banging on

7

the window, but Jones refused to stop. AG016919. Officer Lewis testified that he grabbed Jones,

8

and the two men fell to the street. Id. Petitioner remained in his vehicle. Another officer at the

9

scene twice ordered Petitioner to exit his vehicle, but Petitioner did not comply. AG016901.

10

Instead, Petitioner put his car into reverse and began driving backwards. The police warned

11
United States District Court
Northern District of California

1

Petitioner that individuals were behind Petitioner’s car, and that Petitioner should not back the car

12

up. AG016901. Petitioner reversed his car and drove over Officer Lewis and Jones. AG016920;

13

AG016906.

14

Trent Payne testified during the penalty phase of Petitioner’s trial that on December 24,

15

1988, at approximately midnight, he and his father Jim Payne (“Payne”) went to a 7-Eleven store

16

in Alameda. AG016930–31. While Payne was at the counter to pay, Petitioner stole

17

approximately $400 to $500 from Payne. AG016932. Payne and Petitioner fought over the

18

money, and Petitioner threw Payne to the ground and bloodied Payne’s nose. AG016934–36; see

19

Marks, 31 Cal. 4th at 209.

20

Reginald Saunders, the Deputy District Attorney for Alameda County, testified during the

21

penalty phase of Petitioner’s trial that on November 6, 1992, Petitioner was sitting with his arms

22

shackled in the courtroom. AG017090–01. Petitioner’s attorney, Joseph Najpaver (“Najpaver”),

23

entered the courtroom. AG017092. Petitioner suddenly “bolted” from his chair towards

24

Najpaver. AG017093. Petitioner began kicking Najpaver repeatedly in his groin and stomach.

25

AG017094. Petitioner kicked Najpaver hard and “very fast,” at least five times. Id.; see also

26

Marks, 31 Cal. 4th at 210. Petitioner acted “cold and deliberate.” AG017085. A bailiff

27

eventually grabbed Petitioner and separated him from Najpaver. AG017094.

28

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Case No. 11-CV-02458-LHK
ORDER DENYING CLAIMS 13 AND 22

1

Finally, several individuals testified during the penalty phase regarding violent incidents

2

that Petitioner had with individuals and correctional officials while Petitioner was in various

3

correctional facilities. For example, Alameda County Deputy Sheriff Greg Breslin (“Deputy

4

Breslin”) testified that on February 4, 1989, Petitioner was yelling and kicking his cell door in the

5

North County Jail. AG016954. Petitioner was in a “karate stance” and challenging Deputy

6

Breslin to a fight. AG016956. Deputy Breslin told Petitioner to calm down and that if he did not

7

calm down, Petitioner would have to be removed from his cell. AG016957. Petitioner did not

8

calm down. Id. Deputy Breslin left to get another officer, Deputy Sheriff Darren Nelson

9

(“Deputy Nelson”)—who also testified during the penalty phase about the incident—and the two
deputies went back to Petitioner’s cell. AG016957. Another officer opened Petitioner’s cell while

11
United States District Court
Northern District of California

10

Deputies Breslin and Nelson stood outside of the cell. AG016959. Petitioner refused Deputy

12

Breslin’s order to go to the back of his cell, and instead Petitioner lunged towards Deputy Breslin.

13

AG016960; AG017000. Petitioner bit Deputy Breslin in the back of his neck and punched Deputy

14

Breslin in the groin. AG016960. Petitioner was eventually subdued and taken to a different area

15

of the prison. AG016960. Petitioner bragged to Deputy Breslin, “I bit you and punched you in

16

the balls. How does it feel, punk?” AG016961. Deputy Nelson testified that Petitioner remarked:

17

“I bit him real good. And I remember he cried out like a bitch.” AG017003.

18

Alameda County Deputy Sheriff Joseph Hoeber (“Deputy Hoeber”) testified that on March

19

28, 1989, at the North County Jail, he witnessed Petitioner attempting to throw “karate style”

20

“back kicks” at the “shins and lower leg area” of Deputy Jones, who was attempting to escort

21

Petitioner to an appointment. See AG016967–68, AG016975. Petitioner was “acting

22

aggressively,” and managed to kick Deputy Jones “at least once or twice in the shins.”

23

AG016970. Deputy Hoeber joined Deputy Jones, and the two men moved Petitioner into a multi-

24

purpose room. Id. AG016969. Petitioner “put his foot up on the wall and drove himself

25

backwards into Deputy Jones.” AG016969–70. Deputy Hoeber pulled Petitioner to the ground so

26

that Petitioner could not continue kicking. The deputies eventually “tactically withdrew” from the

27

multi-purpose room so as to not further escalate the incident. Id.

28

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Case No. 11-CV-02458-LHK
ORDER DENYING CLAIMS 13 AND 22

Alameda County Deputy Sheriff Sebastian Tine (“Deputy Tine”) testified that on October

1
2

1, 1992, at the Santa Rita Jail, Petitioner asked Deputy Tine for a roll of toilet paper and a razor.

3

AG016978. When Deputy Tine returned with the toilet paper and razor and opened Petitioner’s

4

cell door to deliver the items, Petitioner struck Deputy Tine in the face. AG016982; see also

5

Marks, 31 Cal. 4th at 210. The blow knocked Deputy Tine’s glasses off of his face and drew

6

blood. AG016981–82. Deputy Tine “thought [he] had lost [his] eye at that time because [he]

7

could not see.” AG016982. Deputy Tine received medical attention at the medical facility at the

8

Santa Rita jail. AG016983. The medical facility at the jail advised that Deputy Tine “go see a

9

surgeon and have [the cut] properly sutured.” AG016983–84. Deputy Tine went to the hospital
and received 17 stitches on his face. AG016984. Deputy Tine still had a scar on his face as a

11
United States District Court
Northern District of California

10

result of the incident. AG016985.

12

Finally, correctional officer James Hewitt testified that on January 19, 1986, while

13

Petitioner was housed at the California Men’s Colony West Facility at San Luis Obispo, Petitioner

14

approached another inmate and struck the inmate in the nose. AG017029; Marks, 31 Cal. 4th at

15

210.
ii.

16

Impact of Crime on Victims of Shooting

17

In addition to evidence about Petitioner’s past violent conduct, the prosecution also

18

presented evidence during the penalty phase of the impact of the instant capital murder crimes on

19

the friends and family members of Petitioner’s victims. Specifically, the prosecution presented

20

testimony from friends and family members of McDermott and Baeza, who both died on the night

21

of the shootings.

22

McDermott’s older daughter, Jacqulin Le Gree (“Le Gree”), testified that her father was a

23

kind and loving man that went out of his way to help strangers. See AG016856–57. Le Gree had

24

to identify her father’s body at the coronor’s office after his death. AG016864. Le Gree testified

25

that she feels her father’s loss most painfully when her children tell her that they do not remember

26

their grandfather. AG016758–59; AG016866–67.

27
28

McDermott’s youngest daughter, Ingrid Page (“Page”), testified that her father was
17
Case No. 11-CV-02458-LHK
ORDER DENYING CLAIMS 13 AND 22

1

“everything to [her],” and that the hardest part of losing her father has been that her father “died

2

because someone shot him and they took his life,” and that McDermott never had the chance to

3

meet Page’s husband or her daughter. AG016872–74.

4

Thomas Carter (“Carter”), an employee of Baeza at the Gourmet Market, testified that,

5

prior to meeting Baeza, Carter could not get a job because Carter suffered from a seizure disorder.

6

AG017037–38. Baeza gave Carter a job at the Gourmet Market, and Baeza helped Carter obtain

7

disability benefits. See AG017038–39. Carter testified that Baeza was always helping others, and

8

that Baeza would extend credit to those who could not pay. AG017040. Carter testified that

9

Baeza treated Carter like a son, and that Carter’s seizures had almost disappeared due to Baeza’s
assistance. See AG017041–42. Following Baeza’s death, Carter lost his job at the Gourmet

11
United States District Court
Northern District of California

10

Market, and Carter testified that he was unable to find another job. Id. Since losing his job,

12

Carter’s seizures had returned, and his fiancé left him because she could not “take the pressure” of

13

his seizures. Id.

14

Baeza’s daughter, Carmen Baeza Waller (“Waller”), testified that her father was a “class

15

act, a gentlemen.” AG017043–44. Waller testified that Baeza was very involved in his

16

grandchildren’s lives, and that he loved spending times with his kids and his wife. Id. Baeza’s

17

memorial service was “standing room only,” and people that the family did not know approached

18

the family throughout the service to describe Baeza’s acts of kindness. See AG017048–49.

19

Waller testified that, after the memorial service, the family brought a collage of photographs from

20

Baeza’s life to his widow’s home. Waller’s four-year-old son moved his toys next to the collage

21

and explained that he “just wanted to play with Poppo, like we used to.” AG017047–48.

22

Baeza’s wife, Fanny Baeza (“Fanny”), testified that she met Baeza when she was nine and

23

Baeza was seven. See AG017057. They immigrated to the United States together from Chile in

24

1962, with their two children. AG017057–58. Baeza bought the Gourmet Market in 1972.

25

AG017059–60. Fanny testified that Baeza was her “best friend,” and that he was “honest, hard

26

work[ing], responsible,” with “high ethics” and “high morals.” AG017062. Fanny testified that

27

Baeza was a good husband, and that he would “call [her] during the day four or five times to tell

28

18
Case No. 11-CV-02458-LHK
ORDER DENYING CLAIMS 13 AND 22

1

me how much he love[d] [her].” AG017064. Fanny was recovering from breast cancer when she

2

found out that Baeza was murdered. Id. Fanny testified that, by losing Baeza, she “lost another

3

me.” AG017068. Fanny “lost everything” after Baeza’s death, and she had to sell their home and

4

come out of retirement. AG017069. She testified that, since her husband’s death, she had become

5

very lonely and that she had woken “up every morning at 3:15,” which is the time the police called

6

her on the night of the shootings to tell her about her husband’s death. AG017072.

7

Baeza’s son, Charles Baeza (“Charles”), testified that Baeza taught Charles how to work

8

hard and how to be polite. AG017073. Charles had to identify his father’s body at the morgue.

9

AG017082. He testified that the financial impact of his father’s death was “devastating,” and that
there was not enough money in the estate to even pay for the funeral. AG017075–77. When

11
United States District Court
Northern District of California

10

Charles and his mother visited Gourmet Market after the shooting, people came up and “just

12

thank[ed] [them] for letting [Baeza] be part of their lives.” AG017084. One woman told Charles

13

that Baeza extended her credit until she got a job after she fled her husband. AG017085. The

14

woman told Charles that she had since become successful, and that she would not have become

15

successful if not for Baeza’s generosity and kindness. Id.
2. Petitioner’s Mitigation Evidence

16
17

The Court next summarizes the evidence presented by Petitioner in mitigation. As the

18

California Supreme Court summarized, Petitioner testified at the penalty phase of trial, and his

19

testimony “covered both the general circumstances of his life and the specific incidents raised by

20

the People’s penalty phase evidence.” Marks, 31 Cal. 4th 212. In addition, several members of

21

Petitioner’s family and other individuals who knew Petitioner throughout his life testified in

22

mitigation. These witnesses “presented mostly consistent testimony that described [Petitioner] as

23

having grown up in a good family environment with religion, where there was no drug or alcohol

24

abuse, no domestic violence, and with a father who encouraged education and hard work.” Id. at

25

213.

26
27
28

i.

Petitioner’s Testimony

Petitioner testified as to his version of the events presented in aggravation. For example,
19
Case No. 11-CV-02458-LHK
ORDER DENYING CLAIMS 13 AND 22

1

Petitioner testified that, on the day that Petitioner allegedly chased Jones with a knife and ran over

2

Officer Lewis and Jones with his car, it was Jones who chased Petitioner with the knife, not the

3

other way around. Petitioner did not think he ran over Officer Lewis, but Petitioner admitted that

4

Petitioner “might have hit his leg.” AG017166–67. Petitioner stated that, if he did run over

5

Officer Lewis, it was only because Petitioner was fleeing from being murdered by Jones and he

6

did not see Officer Lewis. AG017167–69. Additionally, Petitioner testified that he

7

“pickpocketed” Payne, but that he was not aggressive towards Payne. AG017158. Moreover,

8

Petitioner testified that he kicked Najpaver because he needed a different attorney, but the trial

9

court had denied his motions to have different attorneys. See AG017241–42. Petitioner knew that

10

United States District Court
Northern District of California

11

physical contact would result in Petitioner receiving a new attorney. Id.
Petitioner also testified about his family and life growing up. Petitioner grew up in

12

Alameda, and Petitioner was the oldest child in a family of six. AG017197–98, AG017201.

13

Petitioner helped his parents with his younger brothers and sisters. Id. Petitioner’s father worked

14

“very hard” while Petitioner was growing up, including working in construction or in shipyards.

15

AG017198. Petitioner’s mother also “worked very hard.” Id. Petitioner participated in sports,

16

singing, and dance in grade school. AG017199.

17

Petitioner joined the Navy in 1974 at the age of 18. AG017202. Petitioner was in the

18

Navy for two years, and Petitioner served on the U.S.S. Nimitz. AG017203–10. Petitioner

19

testified that he received awards in the Navy. AG017236. After the Navy, Petitioner received

20

money to continue his education, and Petitioner went to Merritt College. AG017211–12.

21

However, Petitioner did not do any work in school because he “didn’t want to.” Id. Petitioner

22

stated that he “really didn’t go” to classes, he “was just a body there.” AG017212.

23

In 1978, Petitioner’s girlfriend got pregnant, and Petitioner started working as a

24

receptionist. AG017212. In 1980, Petitioner was arrested after the incident with Bailey.

25

AG017213. Petitioner plead either no contest or guilty, and was placed on probation. Id.

26

Petitioner continued his work in school and “maintained some kind of odd job.” AG017214.

27

Petitioner was in and out of prison over the course of the next decade. See, e.g., AG017217–18;

28

20
Case No. 11-CV-02458-LHK
ORDER DENYING CLAIMS 13 AND 22

1
2

see also Marks, 31 Cal. 4th at 211. Petitioner frequently violated his parole. See id.
In October 1988, Petitioner was in a bus accident and injured his head. AG017222–24.

3

According to Petitioner, he began suffering from epileptic seizures as a result of the accident.

4

AG017224–25. Petitioner testified that he had been getting medication for the seizures since

5

1988. AG017227–28. Petitioner also testified that his head had been injured in 1987 when the

6

police threw him against a wall. AG017230.

7

While Petitioner was in prison, Petitioner’s mother passed away. No one in Petitioner’s

8

family told Petitioner for four months. AG017223. Petitioner “fell out” upon hearing that his

9

mother died, and “went into epilepsy convulsions and seizures and fits.” AG017224.
ii.
Testimony of Other Family Members and Individuals who
Knew Petitioner

10

United States District Court
Northern District of California

11

Reverend Betty Williams (“Williams”), a pastor, testified that she has known Petitioner

12

since Petitioner was born because she lived in the same building as Petitioner’s parents.

13

AG017106–07. Williams saw Petitioner “through his grade school years and junior high school

14

years.” AG017109. According to Williams, Petitioner was “just like any average child.”

15

AG017109. Williams testified that Petitioner “did have some problems of growing up,” but

16

Williams did not further elaborate. AG017109. Williams stated that Petitioner “was a very good

17

child” with good manners, and that Petitioner was “never disrespect[ful]” of Williams or

18

Petitioner’s parents. AG017109. According to Williams, Petitioner did not “tak[e] sides in any

19

fights or get into any major trouble” as a child. Id. Williams stated that she was surprised to see

20

Petitioner end up in prison after his Navy service, and that throughout her relationship with

21

Petitioner she never feared for her own safety. AG017111. Williams stated that she did not see

22

Petitioner as a murderer. Id. Williams testified that Petitioner was affected by his mother’s death

23

because Petitioner’s “mother was the only person that he really had that he felt loved him and

24

helped him when he was in a crisis.” AG017112.

25

Relisha Marks (“Relisha”), Petitioner’s daughter, also testified. AG017118. Relisha

26

testified that, when her father was not in prison, she saw him once or twice a week at her

27

grandmother’s house. Id. Relisha testified that she never had any problems with Petitioner and

28

21
Case No. 11-CV-02458-LHK
ORDER DENYING CLAIMS 13 AND 22

1

that Petitioner treated her “normal, just fine.” AG017119. Relisha stated that Petitioner never hit

2

her and that she never saw Petitioner hit anyone else. AG017119.

3

Willorisin Childs (“Childs”), the grandmother of Petitioner’s daughter, testified that she

4

has known Petitioner since he was approximately eight years old, and that she saw Petitioner on a

5

regular basis while he was growing up. AG017123. Childs testified that she never had any

6

problems with Petitioner when he was a child, and that Petitioner was a good kid until he left the

7

Navy. AG017124.

8

Damon Marks (“Damon”), Petitioner’s younger brother, testified that he admired

9

Petitioner growing up, and that Petitioner was the “best brother out of all [his] brothers.”
AG017134. Damon testified that Petitioner “played a good role” in the family, and that Petitioner

11
United States District Court
Northern District of California

10

was “very helpful” to the family. AG017134. Damon testified that Petitioner “was a good brother

12

in school, good in all sports, the kind of brother that you will want in the family.” AG017134.

13

Damon stated that the family attended church on a weekly basis growing up, and that his mother

14

and father supported their children growing up. AG017137. Damon stated that Petitioner’s

15

problems started once Petitioner left the Navy. AG017135.

16

Effie Jones (“Jones”) testified that she had known Petitioner his entire life, and that she

17

considered Petitioner her nephew, although they were not related. AG017142. Jones testified that

18

Petitioner never presented any problems growing up, and that he “was a good kid.” AG017142.

19

Jones stated that Petitioner was very close to his mother and that he had a good relationship with

20

his siblings. AG017145. Jones testified that she noticed a significant change in Petitioner’s

21

behavior after his mother’s death. AG017145.

22

Bobbie Jane Redic (“Redic”), Petitioner’s aunt, testified that she did not see any problems

23

with Petitioner when he was a child. AG017150. Redic testified that Petitioner was helpful to the

24

family, and that he never did anything to suggest that he had a violent nature. AG017151. Redic

25

testified that, after Petitioner’s mother died, Redic noticed a “drastic behavioral change” in

26

Petitioner. According to Redic, following his mother’s death, Petitioner “would start a

27

conversation with you that sounded very sensible, and then [Petitioner] would go off on a tangent

28

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Case No. 11-CV-02458-LHK
ORDER DENYING CLAIMS 13 AND 22

1
2

on something else.” AG017152.
Elaine Marks Bell (“Elaine”), Petitioner’s sister, testified that Petitioner’s mom “loved

3

[Petitioner], and [Petitioner] loved [his] mother,” and that Petitioner’s mother stood by all of her

4

children. AG017280–81. Elaine testified that Petitioner was not the same when he came back

5

from the Navy. AG017281. Elaine testified that Petitioner was not able to come to his mother’s

6

funeral. AG017283. Elaine stated that she and her brother came from a “great home,” and that

7

her parents were disappointed with Petitioner because they “expected him to go on and do some

8

good things.” AG017283–84.

9
10

b. Ineffective Assistance of Counsel
Petitioner argues in Claim 13 that trial counsel was ineffective during the penalty phase

United States District Court
Northern District of California

11

because trial counsel “failed to investigate adequately and introduce readily available” mitigation

12

evidence. Pet’r Br. at 29; see AG019895. Specifically, Petitioner argues that trial counsel failed

13

to investigate evidence that Petitioner “suffered from pervasive, significant brain damage and

14

psychiatric disorders,” which were evident based on the reports of “mental health professionals

15

who evaluated [Petitioner] prior to his competency trial.” Pet’r Br. at 29. In addition, Petitioner

16

contends that trial counsel failed to introduce evidence of Petitioner’s “multi-generational history”

17

of poverty, substance, and physical abuse, and that trial counsel failed to investigate and present

18

evidence of Petitioner’s long-term exposure to neurotoxic chemicals. Id. at 29–32. Finally,

19

Petitioner argues that trial counsel failed to adequately investigate and impeach the state’s

20

witnesses who testified in aggravation. Id. at 33. The Court addresses these four categories of

21

evidence, and trial counsel’s performance with respect to the investigation and presentation of this

22

evidence during the penalty phase of trial, below.

23
24

i.

Organic Brain Impairment and Psychiatric Disorders

First, Petitioner argues that trial counsel was ineffective in failing to investigate and

25

introduce evidence that Petitioner suffered from organic brain impairment and psychiatric

26

disorders. Specifically, Petitioner contends that trial counsel failed to “investigate the evidence

27

developed” in advance of Petitioner’s competency trial, which “would have informed counsel”

28

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ORDER DENYING CLAIMS 13 AND 22

1

that Petitioner suffered “from pervasive brain damage and psychiatric disorders,” including Post

2

Traumatic Stress Disorder (“PTSD”), depression, psychosis, Schizoaffective Disorder, and

3

dementia. See Pet’r Br. at 29. In support of this claim, Petitioner relies on reports and testimony

4

presented during Petitioner’s competency hearing, in addition to new expert reports submitted in

5

support of Petitioner’s state habeas petition. See Pet’r Br. at 29; Pet. at 254–78. Accordingly, to

6

resolve the instant subclaim, the Court first provides a brief overview of the background and

7

procedural history of Petitioner’s 1992 competency trial, which is relevant to understand the

8

instant subclaim. The Court then discusses the evidence Petitioner contends should have been

9

presented in mitigation, and then discusses whether trial counsel was ineffective.

10

United States District Court
Northern District of California

11

a. Background on Petitioner’s Competency Trial
On January 31, 1992, the state trial court, upon Petitioner’s motion, suspended criminal

12

proceedings against Petitioner and appointed two psychiatrists, Karen Gudiksen, M.D (“Dr.

13

Gudiksen”), and Fred Rosenthal, M.D. (“Dr. Rosenthal”), to evaluate Petitioner’s competency to

14

stand trial. AG000943–44, AG000946–47. In March 1992, both experts informed the Court that,

15

in their opinions, Petitioner was not competent to stand trial. Neither Dr. Rosenthal nor Dr.

16

Gudiksen rendered a formal diagnosis of organic brain damage, however, because “appropriate

17

neurological testing” would have been necessary in order to complete a diagnosis of Petitioner’s

18

medical condition, and there was insufficient funding available for Drs. Gudiksen and Rosenthal

19

to conduct such testing. AG009803–04, AG023064–65, AG023584. However, Petitioner’s

20

counsel had previously been granted funding to employ Dr. David Stein, Ph.D. (“Dr. Stein”), to

21

perform neuropsychological testing on Petitioner. See AG019027. Dr. Stein performed the

22

testing in May 1992. AG01928–29.

23

At the state’s request, a full jury trial on the issue of Petitioner’s competency was

24

conducted before Judge Michael Ballachey of the Alameda County Superior Court from June 24

25

to July 22, 1992. AG000957–60, AG001258. Petitioner called all three doctors as expert

26

witnesses. Dr. Rosenthal testified that he had performed an evaluation of Petitioner in prison, and

27

that he had reviewed Petitioner’s psychological, criminal, and social history. AG01589.

28

24
Case No. 11-CV-02458-LHK
ORDER DENYING CLAIMS 13 AND 22

1

According to Dr. Rosenthal, the nature of Petitioner’s condition was organic, meaning based on

2

neurological defects of brain damage. Dr. Rosenthal listed “organic personality disorder” as his

3

diagnosis, and also testified that he “felt there was evidence of schizophrenia, paranoid type, but

4

[he] was not as certain that that [wa]s the diagnosis.” AG010599. Dr. Rosenthal also noted that

5

there “was possibly substance dependence.” AG010599.

6

Dr. Stein testified during Petitioner’s competency trial that Dr. Stein had conducted a

7

“battery” of neuropsychological and personality tests that Dr. Stein performed on Petitioner. See

8

AG01933–57. Dr. Stein described each of the tests that he performed on Petitioner, which

9

assessed Petitioner’s sequencing of material, ability to understand speech and language, sensoryperceptual abilities, parietal lobes, temporal lobes, and Petitioner’s ability to read and complete

11
United States District Court
Northern District of California

10

arithmetic. See id. Dr. Stein concluded that, “having given him this whole battery of tests . . . my

12

conclusions are that he has considerable pervasive brain imparity.” AG010949. Dr. Stein found

13

that “for the most part, [Petitioner is] anywhere from mildly to moderately to severely impaired

14

depending on what part of the brain.” AG019049. Dr. Stein stated that the impairment was

15

“fairly significant.” AG010949. Although Dr. Stein did not testify as to the cause of Petitioner’s

16

organic brain impairments with “medical certainty,” Dr. Stein opined that the cause of Petitioner’s

17

brain damage could be Petitioner’s history of head injuries and drug abuse. AG010957. In

18

addition, Dr. Stein testified that Petitioner scored at “the third and second grade level” on tests for

19

reading, spelling, and arithmetic, even though Petitioner had “a high school diploma.”

20

AG010948.

21

In opposition, the state offered three lay witnesses from the Santa Rita Jail who testified in

22

support of Petitioner’s competency. See Marks, 31 Cal. 4th at 217–18; AG011159. Holly Lasalle,

23

an accounting supervisor at the Santa Rita Jail, testified that Petitioner “never spent more money at

24

the prison commissary than he had remaining in his account.” Marks, 31 Cal. 4th at 217.

25

Sergeant Harvey Lewis testified that Petitioner completed various paperwork requesting legal

26

materials. See, e.g., AG011188. Deputy Sheriff Timothy Durbin (“Durbin”), a classification

27

officer at Santa Rita Jail, testified that in June 1992, Petitioner asked Durbin for a work

28

25
Case No. 11-CV-02458-LHK
ORDER DENYING CLAIMS 13 AND 22

1

assignment because Petitioner believed that if he had a job it would look better to the jury in his

2

upcoming trial. Petitioner told Durbin that he was rejecting an invitation to appear on the

3

television program America’s Most Wanted because his attorney had advised him that it was not in

4

his best interest. Petitioner told Durbin that he would have a competency hearing soon. When

5

Durbin asked whether that was a hearing to decide whether Petitioner could fire his attorney,

6

Petitioner responded “No, it is a competency hearing to see whether or not I am sane.” Petitioner

7

told Durbin that Petitioner “should lose that in June and I’ll start my main trial later in the year or

8

early ’93.” Marks, 31 Cal. 4th at 217.

9

In rebuttal, the defense called Dr. Jules Burstein (“Dr. Burstein”), a clinical and forensic
psychologist. Dr. Burstein examined Petitioner’s competence in 1989 regarding a prior case. See

11
United States District Court
Northern District of California

10

AG011258. In 1989, Dr. Burstein had concluded that Petitioner was competent, but that Petitioner

12

simply did not wish to cooperate with his attorney and that Petitioner was a malingerer.

13

AG011259–60. Dr. Burstein concluded that Petitioner was “someone who is kind of acting

14

bizarre and crazy in order to get the judicial proceedings against him to stop.” Id. Petitioner told

15

Dr. Burstein in 1989 that Petitioner “acted like a zip-down fool in the courtroom” because

16

Petitioner did not want the public defender as his attorney. AG011283. Dr. Burstein testified that

17

he examined Petitioner again in July 1992 in advance of Petitioner’s 1992 competency trial, and

18

that he had changed his mind about Petitioner. In advance of the 1992 competency evaluation, Dr.

19

Burstein examined Petitioner’s social history, in addition to the reports of Drs. Gudiksen,

20

Rosenthal, and Stein. Id. Dr. Burstein came to the conclusion that Petitioner was incompetent.

21

Dr. Burstein noted several changes in Petitioner’s presentation from 1989 to 1992. See

22

AG011262–63. In addition, although Petitioner’s prior clinician found Petitioner non-psychotic in

23

1989, Petitioner’s current therapist, Josalyn Harris, “who has a good reputation as a clinician,

24

found [Petitioner] to be psychotic,” and Dr. Burstein agreed. AG011262–63. Dr. Burstein found

25

Petitioner had “no capacity to shift his behavior towards his attorney” when Dr. Burstein

26

examined Petitioner in 1992, and Dr. Burstein concluded that it would be “extraordinarily difficult

27

for [Petitioner] to cooperate rationally” and that Petitioner exhibited “real cognitive and thinking

28

26
Case No. 11-CV-02458-LHK
ORDER DENYING CLAIMS 13 AND 22

1

impairments.” AG011264. Dr. Burstein told the State on cross-examination that there was

2

nothing in his notes or the materials provided to him that indicated that Petitioner was competent.

3

AG011270.

4

On July 22, 1992, the jury found Petitioner competent to stand trial. AG001257. The

5

defense moved for a judgment notwithstanding the verdict, but the court denied the motion. See

6

Marks, 31 Cal. 4th at 218.

7

On July 21, 1994, three days before jury selection in Petitioner’s capital murder trial was

8

set to begin, the defense moved under California Penal Code § 1368 to suspend the proceedings

9

and have a second competency hearing. See AG011558, AG011563–64. Petitioner’s counsel
represented to the trial court that Petitioner was out of touch with basic reality and could not

11
United States District Court
Northern District of California

10

comprehend the significance of simple facts that were necessary to prepare his case.

12

The state law applicable to Petitioner’s motion for a second competency hearing provided:

13

“When a competency hearing has already been held and defendant has been found competent to

14

stand trial . . . a trial court need not suspend proceedings to conduct a second competency hearing

15

unless it is presented with a substantial change of circumstances or with new evidence casting a

16

serious doubt on the validity of that finding.” People v. Kelly, 1 Cal. 4th 495, 542 (1992). After

17

reviewing the transcript of the 1992 initial competency trial, the trial court found on January 24,

18

1994, that Petitioner’s circumstances at trial were not substantially different from his

19

circumstances at Petitioner’s pre-trial competency hearing, and that the new evidence Petitioner

20

presented did not cast a serious doubt on the validity of the competency jury’s prior finding that

21

Petitioner was competent. AG011586–87.

22

On March 28, 1994, Petitioner’s trial counsel again moved to suspend the proceedings and

23

conduct a competency hearing under § 1368. AG014987. The next day, on March 29, 1994, the

24

trial court heard arguments on the motion to suspend the proceedings and hold a competency

25

hearing. The trial court denied the defense’s § 1368 motion to suspend the proceedings.

26

AG015298. The trial court again found that Petitioner’s circumstances had not substantially

27

changed, and that the new evidence submitted by Petitioner did not cast a serious doubt on the

28

27
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ORDER DENYING CLAIMS 13 AND 22

1
2
3

determination that Petitioner was competent. See AG015293–98.
b. Evidence of Organic Brain Impairment and Psychiatric Disorders
Petitioner Contends Should Have Been Presented in Mitigation
In support of the instant subclaim, Petitioner asserts that the mental health experts who

4

examined Petitioner prior to his 1992 competency hearing documented and observed Petitioner’s

5

clinical profile, and that “[a]ny minimally competent trial counsel would have retained and

6

consulted these experts to prepare [Petitioner’s] penalty phase defense.” See Pet. at 255.

7

Petitioner cites the testimony and expert reports introduced during Petitioner’s competency

8

hearing discussed above, in addition to expert reports developed after Petitioner’s capital murder

9

trial which rely on evidence developed during Petitioner’s competency hearing. Petitioner argues
that these declarations show that Petitioner suffered from organic brain impairment and “a

11
United States District Court
Northern District of California

10

constellation of psychiatric disorders,” and that Petitioner was “both under the influence of

12

extreme mental and emotional disturbance and incapacitated in his ability to understand the nature

13

of his conduct or conform [his conduct] to the requirements of the law on the date of the charged

14

offenses.” Id.

15

Specifically, Petitioner relies on declarations submitted in support of Petitioner’s state

16

habeas petition in 2002 by Dr. Stein and Dr. Rosenthal, who testified in favor of Petitioner at

17

Petitioner’s 1992 competency hearing. Dr. Stein’s 2002 declaration states that, consistent with Dr.

18

Stein’s testimony at Petitioner’s 1992 competency hearing, that Dr. Stein’s May 1992 testing of

19

Petitioner “determined that [Petitioner] suffers considerable, pervasive organic brain damage.”

20

AG023081. Similarly, Dr. Rosenthal’s 2002 declaration states that Dr. Rosenthal reviewed the

21

transcript of Petitioner’s capital trial and the neuropsychological testing performed by other

22

doctors in conjunction with Petitioner’s 2002 state habeas petition, and Dr. Rosenthal concluded

23

that this additional data “confirm[ed] that [Petitioner] suffers significant, pervasive brain damage,”

24

as Dr. Rosenthal had testified during Petitioner’s 1992 competency hearing. AG023065. Dr.

25

Rosenthal’s declaration concludes that “[o]n the date of the charged offenses, October 17, 1990,

26

[Petitioner’s] neuropsychiatric condition satisfied” criteria for mitigation evidence in California,

27

and that Dr. Rosenthal “would have so testified if [he] had been called as a witness at the penalty

28

28
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ORDER DENYING CLAIMS 13 AND 22

1
2

phase of [Petitioner’s] trial.” AG023068–69.
In addition to Drs. Stein and Rosenthal, Petitioner also introduced the declarations of Drs.

3

Karen Froming (“Dr. Froming”) and Dr. George Woods, Jr., (“Dr. Woods”) in support of his state

4

habeas petition in 2002.

5

According to Dr. Froming’s 2002 declaration, Dr. Froming performed a

6

neuropsychological evaluation of Petitioner in 2002 and Dr. Froming also reviewed the

7

evaluations and testimony performed in 1992 by Drs. Gudiksen, Rosenthal, and Stein.

8

AG022964. Dr. Froming noted that Petitioner’s clinical presentation when evaluated by Dr.

9

Froming in 2002 was “defined by a neuropsychiatric disorder.” AG022969. Dr. Froming’s
testing in 2002 showed that Petitioner was “significantly impaired frontotemporally.” In addition,

11
United States District Court
Northern District of California

10

Dr. Froming found that Petitioner’s “level of understanding of what he reads is at the 10–11 year

12

old level or 4th or 5th grade equivalent.” AG022973–74. Dr. Froming found that, although

13

Petitioner’s “fluency is at the normal level, measured at the 56th percentile, frontal lobe deficits

14

prevent [Petitioner] from structuring his speech so that it essentially comes to him in a torrent of

15

words and comes out as a flood of words.” AG022974. Dr. Froming found that “[t]he severity of

16

deficits detected in [Petitioner’s] frontal lobe significantly impaired [Petitioner’s] cognition and

17

executive functioning.” AG022975. Dr. Froming’s declaration does not make any conclusions

18

regarding Petitioner’s mental state at the time of the offense or Petitioner’s ability to appreciate the

19

nature of his actions at the time of the offense. Rather, Dr. Froming’s declaration makes

20

conclusions only with regards to Petitioner’s competency at the time of trial. See AG022978–79.

21

Dr. Wood’s 2002 declaration submitted in support of Petitioner’s state habeas petition

22

states that Dr. Woods performed a neuropsychiatric evaluation of Petitioner in 2002. In

23

preparation for this neuropsychiatric evaluation, Dr. Woods conducted a clinical interview of

24

Petitioner, reviewed Petitioner’s social history and personal records, and interviewed Petitioner’s

25

family members. Dr. Woods also reviewed the neuropsychological evaluations and testimony

26

prepared in advance of Petitioner’s 1992 competency hearing, including the reports and testimony

27

of Drs. Gudiksen, Rosenthal, and Stein. AG023133–34, AG023149. According to Dr. Woods,

28

29
Case No. 11-CV-02458-LHK
ORDER DENYING CLAIMS 13 AND 22

1

the reports and testimony of Drs. Gudiksen, Rosenthal, and Stein at the time of Petitioner’s 1992

2

competency hearing demonstrated that Petitioner “was not only psychiatrically impaired, but

3

significantly neurologically defective as well.” AG023152. Dr. Woods found that Dr. Froming’s

4

testing, performed in 2002, “reinforced Dr. Stein’s findings” at the time of Petitioner’s 1992

5

competency hearing. AG023153. Dr. Woods found that “Dr. Froming’s testing and clinical

6

observations capture the multiplicity of [Petitioner’s] cognitive problems, including his

7

neurological impairment that is consistent with the diagnosis of dementiaform illness.”

8

AG023159. Dr. Woods further found that “[t]he clinical profile drawn by [Petitioner’s] disordered

9

thinking in light of his neurological impairments meets the diagnostic criteria for Schizoaffective
Disorder currently.” AG023160. Dr. Woods also reviewed a social history report of Petitioner

11
United States District Court
Northern District of California

10

prepared by Dr. Julie Kriegler, Ph.D, and noted that Dr. Kriegler identified a “clinical criteria

12

diagnostic of PTSD,” which gave Petitioner a “propensity to become overwhelmed in stressful

13

circumstances.” AG0231340.
Dr. Woods’ own clinical analysis concluded that Petitioner “suffer[ed] from a multiplicity

14
15

of symptoms.” First, Dr. Woods found that Petitioner had “significant neuropsychological

16

impairments” and that Petitioner was “unable to track a problem, so that he could foresee possible

17

alternatives.” AG023161. Second, Dr. Woods found that Petitioner’s “cognitive deficits” were

18

“confounded by [Petitioner’s] severe mental illness, Schizoaffective Disorder.” AG023162. Dr.

19

Woods found that Petitioner’s Schizoaffective Disorder “impair[ed] [Petitioner’s] ability to

20

emotionally process his world, and force[d] him to view the world through a psychotic lens.”

21

AG023162. Dr. Woods concluded that Petitioner’s “brain impairment coupled with his disruptive

22

psychotic illness, left [Petitioner] unable to appreciate the nature of his actions or to conform his

23

behavior to the law at the time of the offenses for which he was tried and convicted.” AG023163–

24

64.

25
26
27
28

c. Counsel’s Performance
Having reviewed the evidence submitted in support of Petitioner’s state habeas petition,
the Court next considers Petitioner’s argument in Claim 13 that counsel was ineffective for failing
30
Case No. 11-CV-02458-LHK
ORDER DENYING CLAIMS 13 AND 22

1

to investigate Petitioner’s organic brain defects and Petitioner’s psychiatric disorders in

2

preparation for the penalty phase of Petitioner’s capital trial. According to Petitioner, the evidence

3

of Petitioner’s organic brain damage and psychiatric disorders discussed above qualified as

4

mitigating evidence under California Penal Code § 190.3 subsections (d) and (h), which allow the

5

trier of fact to take into account “[w]hether or not the offense was committed while the defendant

6

was under the influence of extreme mental or emotional disturbance,” or “[w]hether or not at the

7

time of the offense the capacity of the defendant to appreciate the criminality of his conduct or to

8

conform his conduct to the requirements of law was impaired as a result of mental disease or

9

defect.” Cal. Penal Code § 190.3(d)&(h); see Pet’r Br. at 29. Petitioner contends that “[a]vailable
evidence would have medically established that [Petitioner] was both under the influence of

11
United States District Court
Northern District of California

10

extreme mental and emotional disturbance, and unable to understand the nature of his conduct or

12

to conform it to the requirements of the law on the date of the charged offenses.” Pet’r Br. at 29.

13

However, the California Supreme Court could have reasonably concluded that the

14

performance of Petitioner’s trial counsel fell “within the wide range of reasonable professional

15

assistance,” and thus that Petitioner’s trial counsel was not constitutionally defective in its

16

investigation and presentation of mitigation evidence relating to Petitioner’s organic brain

17

impairments and psychiatric disorders. Strickland, 466 U.S. at 689. Significantly, “this is not a

18

case in which trial counsel failed to conduct any mental health investigation,” despite being on

19

notice of potential organic brain impairment or psychiatric issues. See Carter v. Chappell, 2013

20

WL 1120657, at *91 (S.D. Cal. Mar. 18, 2013). To the contrary, at the time of Petitioner’s penalty

21

phase trial, Petitioner’s trial counsel had conducted significant investigation into Petitioner’s

22

mental health in preparation for Petitioner’s competency hearing. As set forth in detail above, Drs.

23

Stein, Rosenthal, and Gudiksen evaluated Petitioner in advance of Petitioner’s 1992 competency

24

hearing, and these experts found that Petitioner suffered from organic brain deficiencies. Indeed,

25

Dr. Stein testified during Petitioner’s competency hearing at length about the “battery” of

26

neuropsychological and personality tests that he had performed on Petitioner. See, e.g. AG01940–

27

57. Dr. Stein concluded that “having given [Petitioner] this whole battery of tests . . . my

28

31
Case No. 11-CV-02458-LHK
ORDER DENYING CLAIMS 13 AND 22

1

conclusions are that [Petitioner] has considerable pervasive brain imparity.” AG01949. Dr.

2

Rosenthal testified that, although he was not making a complete diagnosis, that Petitioner suffered

3

from organic personality disorder and that “there was evidence of schizophrenia.” AG010599. In

4

addition, Dr. Burstein concluded that, consistent with the conclusion of Petitioner’s clinician, Dr.

5

Petitioner was psychotic and that he suffered from a form of organic brain syndrome.

6

AG0112310–11. In reaching these conclusions, these doctors had examined Petitioner, and had

7

also reviewed a nineteen page social history of Petitioner, which was compiled by defense

8

counsel. AG011261; AG01589; AG010881; AG010956. The evidence of organic brain defects

9

and psychiatric disorders submitted by Petitioner in support of his state habeas petition largely
confirm and supplement the evidence found and presented during Petitioner’s competency

11
United States District Court
Northern District of California

10

hearing. See, e.g., AG023081; AG023065; AG023153.

12

Accordingly, it is clear that at the time of Petitioner’s penalty phase, Petitioner’s trial

13

counsel had prepared a social history report of Petitioner, had engaged several experts to examine

14

Petitioner, and trial counsel knew that these experts had concluded that Petitioner suffered from

15

organic brain impairments and psychiatric disorders. On the basis of all of this mental health

16

evidence, a full jury trial was held on Petitioner’s competence, and trial counsel twice moved

17

during the course of Petitioner’s capital habeas trial for a second competency hearing because trial

18

counsel believed Petitioner to be “seriously mentally ill.” See, e.g., AG023115–16. Given that

19

trial counsel was undoubtedly aware of the evidence that Petitioner suffered from organic brain

20

impairments and psychiatric disorders, the question is whether, given trial counsel’s knowledge of

21

Petitioner’s mental health, Petitioner’s trial counsel was ineffective in failing to further pursue and

22

use this evidence in support of Petitioner’s penalty phase trial.

23

Petitioner’s trial counsel submitted a declaration in support of Petitioner’s habeas petition.

24

AG023112. This declaration, however, does not mention trial counsel’s actions in preparing for

25

Petitioner’s penalty phase trial, and the declaration does not discuss trial counsel’s strategy with

26

regards to Petitioner’s penalty phase trial. However, under the double deference owed to the

27

California Supreme Court under Strickland and AEDPA, the Court must “indulge a strong

28

32
Case No. 11-CV-02458-LHK
ORDER DENYING CLAIMS 13 AND 22

1

presumption that counsel’s conduct falls within the wide range of reasonable professional

2

assistance.” Strickland, 466 U.S. at 689. The question is whether “there is any reasonable

3

argument that counsel satisfied Strickland’s deferential standard.” Richter, 562 U.S. at 105

4

(internal quotation marks omitted). Here, for the reasons discussed below, the California Supreme

5

Court could have reasonably concluded that, after investigating Petitioner’s mental health in

6

advance of Petitioner’s 1992 competency hearing, Petitioner’s trial counsel made a “strategic

7

decision” to not introduce the mental health evidence developed during Petitioner’s 1992

8

competency hearing during the penalty phase of Petitioner’s capital murder trial, and this strategic

9

decision was not constitutionally deficient. Strickland, 460 U.S. at 690–91.
First, the California Supreme Court could have reasonably concluded that, given the

11
United States District Court
Northern District of California

10

outcome of Petitioner’s 1992 competency hearing, Petitioner’s trial counsel made a tactical

12

decision to not rely on Petitioner’s mental health during Petitioner’s capital murder trial. To be

13

sure, Petitioner’s competency to stand trial is a different issue than whether Petitioner committed

14

the crimes while “under the influence of extreme mental or emotional disturbance,” or whether

15

Petitioner had the capacity at the time of the offense “to appreciate the criminality of his conduct

16

or to conform his conduct to the requirements of law.” Cal. Penal Code § 190.3(d)&(h).

17

Nonetheless, a jury during Petitioner’s 1992 competency hearing heard the consistent expert

18

testimony of Drs. Gudiksen, Rosenthal, Stein, and Burstein, who testified about Petitioner’s

19

organic brain impairments and psychiatric disorders. Despite this consistent expert testimony, the

20

jury in Petitioner’s 1992 competency hearing rejected this evidence on the basis of the testimony

21

of only three lay witnesses, who testified about the words from Petitioner’s “own mouth.” Marks,

22

31 Cal. 4th at 219. Trial counsel also moved for a second competency hearing on two occasions

23

during the course of Petitioner’s capital murder trial, and the trial judge in Petitioner’s capital

24

murder trial denied both motions. Thus, Petitioner’s trial counsel may have made the strategic

25

decision that the expert evidence from Drs. Gudiksen, Rosenthal, Stein, and Burstein would not be

26

particularly persuasive or compelling to the jury in Petitioner’s penalty phase trial, who would

27

have observed Petitioner throughout the capital murder trial and who would have heard evidence

28

33
Case No. 11-CV-02458-LHK
ORDER DENYING CLAIMS 13 AND 22

1
2

of Petitioner’s words and actions on the night of the murder.
Indeed, although Petitioner contends that evidence of his organic brain impairments and

3

psychiatric disorders would have shown that Petitioner was delusional and “incoherent,” that

4

Petitioner exhibited “poor impulse control,” and that Petitioner experienced “psychic numbing,”

5

and “depression, paranoia, and anxiety,” see, e.g., Pet. at 274–76, evidence presented during the

6

guilt phase of Petitioner’s trial demonstrated that Petitioner appeared “normal” on the night of the

7

shootings, and that Petitioner acted calmly and deliberately. For example, Boyd, who knew

8

Petitioner and saw Petitioner come to Taco Bell “just about every day or so,” testified at

9

Petitioner’s capital trial that Petitioner greeted Boyd on the night of the shooting and that
Petitioner acted “pretty much normal.” AG014737–38. After greeting Boyd, Petitioner pointed

11
United States District Court
Northern District of California

10

the gun directly at Luong’s head and pulled the trigger. Petitioner then walked 795 feet to the

12

Gourmet Market, where Petitioner took “straight aim” at Baeza and Myers. AG015128. Myers

13

testified that Petitioner appeared “deliberately focused.” Petitioner left the store “real cool and

14

calm.” Marks, 31 Cal. 4th at 204. After the Gourmet Market shootings, Petitioner met up with

15

Menefee and told Menefee that he had shot two people. AG05678. According to Menefee,

16

Petitioner acted “like his normal self.” AG015689. Petitioner and Menefee entered McDermott’s

17

taxi, and Petitioner directed McDermott to drive to a parking lot near Petitioner’s grandmother’s

18

house. AG015694. During the ride, Petitioner engaged McDermott in a casual conversation about

19

the World Series game, which was playing on the radio. AG015692–93. Petitioner directed

20

McDermott to the back of the parking lot, and Petitioner told Menefee to leave the taxi.

21

AG015693–94. Petitioner then shot McDermott in the face. After the shooting, Petitioner told

22

Menefee that he had shot the driver, and continued to act normally. Marks, 31 Cal. 4th at 206.

23

Petitioner and Menefee hid under a building near Petitioner’s grandmother’s house for

24

approximately 25 minutes, and evidence suggested that Petitioner changed his clothing and

25

hairstyle after the shooting. Id.; see also AG015707–08; AG015451–52.

26
27
28

In sum, given that a jury during Petitioner’s 1992 competency hearing had already rejected
the consistent expert testimony of Drs. Stein, Gudiksen, Rosenthal, and Burstein based on the
34
Case No. 11-CV-02458-LHK
ORDER DENYING CLAIMS 13 AND 22

1

words from Petitioner’s “own mouth,” and given the evidence presented during Petitioner’s capital

2

murder trial which showed that Petitioner acted “normal” and deliberate on the night of the

3

shooting and tried to avoid detection by hiding and changing his clothing and hairstyle,

4

Petitioner’s trial counsel may have made the strategic decision that evidence of Petitioner’s

5

organic brain impairments and psychiatric disorders was not particularly compelling or effective to

6

show that Petitioner was under the influence of extreme mental and emotional disturbance at the

7

time of the offense, or that Petitioner could not understand his conduct or conform it to the law.

8

See also, e.g., Boyer v. Chappell, 793 F.3d 1092, 1105 (9th Cir. 2015) (finding petitioner failed to

9

establish ineffective assistance of counsel based on trial counsel’s failure to investigate and
present evidence of organic brain damage during the penalty phase because evidence suggested

11
United States District Court
Northern District of California

10

the petitioner was in search of money when he committed the crimes and that he took actions after

12

the crimes “to avoid arousing suspicion”); Rhoades v. Henry, 638 F.3d 1027, 1050 (9th Cir. 2011)

13

(finding no ineffective assistance of counsel for failing to present evidence of PTSD because, in

14

part, there was “no suggestion that” the petitioner committed the crime “while in any kind of

15

PTSD-induced disassociative state”).

16

Moreover, the California Supreme Court could have reasonably concluded that trial

17

counsel made the strategic decision to avoid evidence of Petitioner’s organic brain defects and

18

psychiatric disorders because if this evidence was compelling and effective to the jury, it could

19

function as “a ‘two-edged sword’” that demonstrated that Petitioner was dangerous. Vieira v.

20

Chappell, 2015 WL 641433, at *72 (E.D. Cal. Feb. 5, 2015) (quoting Atkins v. Virginia, 536 U.S.

21

304, 321 (2002)). Specifically, if trial counsel had argued during mitigation “that [Petitioner] was

22

brain damaged, the jury could conclude that [Petitioner] was ‘simply beyond rehabilitation.’” Id.

23

(quoting Pinholster, 131 S. Ct. at 1410). Instead, it appears from the record that Petitioner’s trial

24

counsel “made a tactical decision to focus on Petitioner’s positive characteristics at the penalty

25

phase trial, rather than Petitioner’s mental health.” Ervin v. Davis, 2016 WL 4681203, at *10

26

(N.D. Cal. Sept. 7, 2016). Petitioner’s trial counsel emphasized during the penalty phase that

27

Petitioner was raised in a strong home, that Petitioner was helpful in taking care of his siblings,

28

35
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1

and that Petitioner entered the Navy after graduating high school. Petitioner’s friends and family

2

members were called to testify, and these witnesses testified consistently that Petitioner was a

3

good kid, that Petitioner did not show any signs of violence as a child, and that Petitioner began to

4

get into trouble with the law only after returning from the Navy and after the devastating loss of

5

his mother. During closing arguments, Petitioner’s counsel emphasized that Petitioner was a “nice

6

kid,” and that although Petitioner had committed violent conduct in recent years, Petitioner had

7

not committed any violent conduct in the last eighteen months. AG017617. Petitioner’s counsel

8

emphasized to the jury that Petitioner “was something else” before his capital crimes, and that

9

Petitioner “c[ould] be something else” if the jury spared his life. AG017629.
Accordingly, the California Supreme Court could have reasonably concluded that trial

11
United States District Court
Northern District of California

10

counsel made a strategic decision during the penalty phase to avoid presenting Petitioner as an

12

individual who was “beyond rehabilitation,” but instead as someone who was capable of

13

rehabilitation and who was indeed already on the path to rehabilitation. Vieira, 2015 WL 641433,

14

at *72. Again, the question under AEDPA is whether “there is any reasonable argument that

15

counsel satisfied Strickland’s deferential standard.” Richter, 562 U.S. at 105 (internal quotation

16

marks omitted). Under the double deference owed to trial counsel’s tactical decisions under

17

Strickland and AEDPA, the Court cannot say that trial counsel was constitutionally deficient. See,

18

e.g., Leavitt v. Arave, 646 F.3d 605, 611–12 (9th Cir. 2011) (finding counsel did not render

19

ineffective assistance of counsel by “steer[ing] clear of the mental health issue” because the

20

evidence could have been perceived as mitigating and it would have conflicted with the reasonable

21

strategy to “humanize” the defendant during mitigation); Ervin, 2016 WL 4681203, at *10

22

(finding counsel did not render ineffective assistance where trial counsel made reasonable strategic

23

decision at mitigation phase “to focus on Petitioner’s positive characteristics at the penalty phase

24

trial, rather than Petitioner’s mental health”); Ochoa v. Davis, 2016 WL 3577593, at *67 (C.D.

25

Cal. June 30, 2016) (denying ineffective assistance of counsel claim where petitioner argued

26

defense counsel should have presented evidence during the mitigation phase of a dysfunctional

27

childhood and brain damage because the evidence could have been interpreted as showing that

28

36
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ORDER DENYING CLAIMS 13 AND 22

1

petitioner was “irretrievably broken”); Vieira, 2015 WL 641433, at *72 (“[A]rguing that Petitioner

2

was brain damaged could constitute a ‘two-edged sword’ that juries might find to show

3

dangerousness,” which would have undermined trial counsel’s reasonable mitigation strategy to

4

portray the petitioner’s crime as “an aberration”).

5

To summarize, the California Supreme Court could have reasonably concluded that, after
investigating Petitioner’s organic brain defects and psychiatric disorders during the course of

7

Petitioner’s 1992 competency trial, Petitioner’s trial counsel made a strategic decision to not

8

present this testimony in mitigation at Petitioner’s penalty phase trial. “While [trial counsel’s]

9

chosen strategy failed, [the Court] must avoid the temptation to evaluate [trial counsel’s] decision

10

through the fabled twenty-twenty vision of hindsight.” Leavitt, 646 F.3d 605 (internal quotation

11
United States District Court
Northern District of California

6

marks omitted). Rather, the Court “must evaluate [trial counsel’s] performance only based on

12

whether [trial counsel] made reasonable, informed decisions based on what [trial counsel] knew at

13

the time.” Id. For the reasons discussed above, the California Supreme Court could have

14

reasonably concluded that, after investigating Petitioner’s mental health, trial counsel made a

15

strategic decision to not present evidence of Petitioner’s mental health during the penalty phase of

16

Petitioner’s trial because the evidence may not have been seen as particularly compelling or

17

persuasive, and because the evidence may have constituted a two-edged sword which would

18

contradict trial counsel’s chosen strategy of portraying Petitioner as a good individual who was

19

capable of rehabilitation. Although this Court may not make the same decision in the first

20

instance, under the doubly-deferential standard of Strickland and AEDPA, this Court cannot say

21

that the California Supreme Court’s decision was objectively unreasonable. See Richter, 562 U.S.

22

at 105 (stating that, when § 2254(d) applies, “the question is not whether counsel’s actions were

23

reasonable. The question is whether there is any reasonable argument that counsel satisfied

24

Strickland’s deferential standard”).

25
26
27
28

d. Prejudice
Further, even assuming that Petitioner’s trial counsel was deficient for failing to investigate
and present evidence of Petitioner’s organic brain defects and psychiatric disorders during
37
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ORDER DENYING CLAIMS 13 AND 22

1

Petitioner’s penalty phase trial, the California Supreme Court could have reasonably concluded

2

that Petitioner was not prejudiced by trial counsel’s deficiency. In order to establish prejudice,

3

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

4

errors, the result of the proceeding would have been different. A reasonable probability is a

5

probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. “In

6

assessing prejudice, [the Court] reweigh[s] the evidence in aggravation against the totality of

7

available mitigating evidence.” Wiggins v. Smith, 539 U.S. 510, 534 (2003).

8
9

Here, the aggravating evidence presented by the State was substantial. For example,
during the penalty phase, Bailey testified that Petitioner assaulted Bailey with a telephone, pulled
Bailey onto a concrete floor, threw her through a bathroom window, and threw Comet and

11
United States District Court
Northern District of California

10

fingernail polish remover on her. AG01010–14. Petitioner threatened Bailey that if she told

12

anyone about the assault, Petitioner would put a bomb in her six-year old son’s mouth, cut off her

13

nine year old son’s head, and “kill [her] mother.” AG017015–16. As a result of the assault,

14

Bailey suffered a concussion, a broken nose, and she needed 26 stitches on the inside of her chin

15

and 27 stitches on the outside. AG017014. After the attack, Bailey became so nervous about

16

Petitioner that doctors told her she was developing a stomach ulcer. AG01020. Bailey was so

17

afraid of Petitioner, she obtained a weapon to protect herself. Id.

18

In addition, Hitchens, Petitioner’s former girlfriend, testified that Petitioner mentally and

19

physically abused her during their relationship. AG016881. Petitioner had beaten Hitchens and

20

stabbed her in the back with a knife. AG016882. Approximately two months after Hitchens left

21

Petitioner, Petitioner approached Hitchens and tried to get Hitchens into his vehicle. AG016880–

22

83. Once the police responded to the scene, Petitioner put his car in reverse and backed over

23

Officer Lewis. Officer Lewis testified that, if Petitioner had backed the car up in a straight

24

direction, Petitioner’s vehicle would have run over Officer Lewis’s leg. However, Petitioner

25

turned the wheel and Petitioner’s vehicle ran over Officer Lewis’s lower back. AG016922–23.

26
27
28

Further, while incarcerated, Petitioner bit Deputy Breslin in the back of his neck and
punched Deputy Breslin in the groin. AG01690. Petitioner bragged about his assault of Deputy
38
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ORDER DENYING CLAIMS 13 AND 22

1

Breslin after the incident. Id. Petitioner punched Deputy Tine in the face while Deputy Tine

2

delivered a toilet paper and razor to Petitioner’s cell. AG016981–82. Deputy Tine received 17

3

stitches as a result of the incident, and Deputy Tine still had a scar on his face from the incident.

4

AG016986. Petitioner also assaulted Deputy Jones, and Petitioner assaulted another inmate.

5

Petitioner assaulted his former attorney, Najpaver, by repeatedly kicking Najpaver in his groin and

6

stomach, “at least five times.” AG017085. Petitioner acted “cold and deliberate” in his assault of

7

Najpaver. Id.
In addition to the aggravating evidence presented about these other incidents, the

8
9

aggravating nature of the instant capital murders was significant. “[T]he facts of the crime play an
important role in the prejudice inquiry.” Mickey v. Ayers, 606 F.3d 1223, 1245 (9th Cir. 2010).

11
United States District Court
Northern District of California

10

The evidence presented during the guilt phase established that Petitioner deliberately shot four

12

innocent strangers at close range. Specifically, Petitioner entered a Taco Bell at the night of

13

October 17, 1990, and greeted Boyd, an employee at Taco Bell who knew Petitioner. Petitioner

14

ordered two encharitos from Luong, another Taco Bell employee. Petitioner then “pulled out his

15

gun,” pointed the gun directly at Luong’s face, and fired a single shot. AG014744–45. Petitioner

16

left the Taco Bell and walked approximately 795 feet from the Taco Bell to Gourmet Market,

17

where Petitioner shot Baeza and Myers at close range. Petitioner met up with his girlfriend,

18

Menefee, and the two entered McDermott’s taxi. Petitioner directed McDermott to the back of a

19

parking lot near Petitioner’s grandmother’s house. AG015694. Petitioner told Menefee to leave

20

the taxi, and Petitioner shot McDermott in the face. AG015696–97. Baeza and McDermott died

21

from the shootings, while Luong and Myers survived. Luong remained in a persistent vegetative

22

state.

23

Family members of Baeza and McDermott testified during the penalty phase about the

24

good characters of Baeza and McDermott, and the devastating effect that their deaths had on their

25

family, friends, and others in the community. For example, Carter, an employee of Baeza at the

26

Gourmet Market, testified as to Baeza’s generosity in giving Carter a job at the Gourmet Market

27

despite Carter’s seizure disorder. As a result of Baeza’s death, Carter lost his job at the Gourmet

28

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1

Market. Carter had been unable to find another job, and his seizures had returned. Fanny Baeza,

2

Baeza’s wife, testified that “she lost everything” after Baeza’s death and that she had to sell her

3

home and come out of retirement. AG017069. Baeza’s funeral was “standing room only,” and

4

full of people from the community who approached Baeza’s family and told stories of Baeza’s

5

generosity and kindness. AG017084–85.

6

In light of this substantial aggravating evidence, the California Supreme Court could have
reasonably concluded that, even if Petitioner introduced mitigating evidence of organic brain

8

defects and psychiatric disorders in mitigation, the result of the proceedings would not have been

9

different. As set forth above, Petitioner contends that Petitioner’s organic brain defects and

10

psychiatric disorders “impaired his abstract thinking,” made him “incoherent and rambling,”

11
United States District Court
Northern District of California

7

caused him to experience “poor impulse control,” “psychic numbing,” “depression, paranoia, and

12

anxiety,” and other symptoms. See, e.g., Pet. at 274–76. Petitioner contends that a jury

13

considering this evidence would have found that Petitioner was “under the influence of extreme

14

mental and emotional disturbance” at the time of the crime, and that Petitioner was “unable to

15

understand the nature of his conduct or to conform it to the requirements of the law.” Pet’r Br. at

16

29. However, as set forth above with regard to trial counsel’s deficient performance, the impact of

17

this mitigating evidence, if presented at trial, would have been substantially lessened by the

18

significant evidence that Petitioner appeared “normal” on the night of the crimes, that Petitioner

19

engaged in ordinary conversations on the night of the shootings, that Petitioner lured McDermott

20

to the back of a parking lot and told Menefee to leave the taxi before shooting McDermott, that

21

Petitioner and Menefee hid from the police after the shootings, and that Petitioner changed his

22

clothing and hairstyle after the shootings. See, e.g., Boyer, 793 F.3d at 1105 (finding petitioner

23

failed to establish prejudice from his trial counsel’s failure to investigate and present evidence of

24

organic brain damage during the penalty phase because evidence suggested the petitioner was in

25

search of money when he committed the crimes and that he took actions after the crimes “to avoid

26

arousing suspicion”); Rhoades, 638 F.3d at 1050 (finding no ineffective assistance of counsel for

27

failing to present evidence of PTSD because, in part, there was “no suggestion that” the petitioner

28

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1

committed the crime “while in any kind of PTSD-induced dissociative state”).

2

Accordingly, the California Supreme Court could have reasonably concluded that

3

Petitioner’s mitigating evidence of organic brain defects and psychiatric disorders would not have

4

produced a different outcome given the aggravating evidence of the deliberate nature of

5

Petitioner’s actions in shooting four innocent victims, the impact that these crimes had on the

6

victim’s families, and Petitioner’s other significant violent conduct. The California Supreme

7

Court could have reasonably concluded that Petitioner failed to establish “a substantial, [and] not

8

just conceivable, likelihood of a different result” at the penalty phase of Petitioner’s trial.

9

Pinholster, 563 U.S. at 189.

10

United States District Court
Northern District of California

11

ii.

Family and Social History

Next, Petitioner contends that his trial counsel was constitutionally ineffective because

12

they should have investigated and presented “substantial, readily available social history evidence”

13

of a “multi-generational history” of mental illness, poverty, substance abuse, and physical abuse in

14

Petitioner’s family. In support of his state habeas petition, Petitioner submitted declarations from

15

approximately forty individuals who knew Petitioner throughout his life, in addition to an expert

16

report prepared by Dr. Julie Kriegler. See, e.g., AG022663–65. The Court first summarizes the

17

evidence that Petitioner contends should have been presented in mitigation. The Court then

18

considers trial counsel’s performance and whether Petitioner was prejudiced by trial counsel’s

19

alleged deficiencies.

20

a. Evidence of Family and Social History that Petitioner Contends
Should Have Been Presented

21

In support of his habeas petition to the California Supreme Court, Petitioner submitted

22

over forty declarations from friends and family members of Petitioner. These declarations state

23

that Petitioner’s maternal and paternal families were from poor backgrounds, that Petitioner’s

24

paternal ancestors were slaves, and that Petitioner himself grew up in the housing projects of

25

Alameda. Petitioner’s father, Jimmie Lee Marks (“Jimmie Lee”), was a severe disciplinarian of

26

his children, and Jimmie Lee often punished his children by whipping them with his hands and

27

belts and, at least on one occasion, with an extension cord. See AG022468; AG022689;

28

41
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ORDER DENYING CLAIMS 13 AND 22

1

AG022503–04. Jimmie Lee did not show affection towards his children, and Jimmie Lee made

2

his children leave the house when they were teenagers if they disobeyed. See AG022695. Jimmie

3

Lee himself would leave “for long periods of time.” AG022467–68. In order to make his children

4

“tough,” Jimmie Lee would make them fight each other. AG022546. Petitioner’s mother, Sallie

5

Marks (“Sallie”), worked shift work, but took care of the children when she was not working.

6

AG022675–76. Sallie “also used a belt to whip” the children, and Sallie drank a lot. AG022469.

7

At least two individuals described Sallie as a “functioning alcoholic.” AG022529; AG022730.

8

On one occasion, Sallie drove Petitioner’s sister, Elaine, home while Sallie was drunk and high,

9

and Sallie wrecked the car. AG022471. Sallie was in other car accidents as well, likely as a result
of her drinking. AG022471; AG022693. Petitioner’s friends and family described one event in

11
United States District Court
Northern District of California

10

which Sallie caught Petitioner and his brother with a girl that they had brought home. Sallie got

12

“so upset when she found them that she got out Jimmie Lee’s gun” and the gun accidentally

13

discharged, which sent a bullet through the bathroom wall near where Petitioner was standing.

14

AG022473. Sallie and Jimmie Lee frequently fought, and Jimmie Lee was abusive towards Sallie.

15

AG022527; AG022578.

16

Building from these declarations, Dr. Kriegler submitted an expert report in support of

17

Petitioner’s state habeas petition. AG022981. According to Dr. Kriegler, Petitioner “was

18

endangered by neurological insults in utero from a variety of sources including physical abuse by

19

his father perpetrated upon his mother” and his mother’s use of alcohol. AG022985. Dr. Kriegler

20

states that Petitioner was raised in a “chaotic and violent home environment,” which offered “no

21

emotional nurturing, support, or safety.” AG022985. Dr. Kriegler describes Petitioner’s father as

22

“terroriz[ing] the children with fierce beatings,” and Dr. Kriegler states that Petitioner’s father

23

would “abandon[]” the children as teenagers by forcing them to leave the house and “fend for

24

themselves on the streets of Alameda.” AG022986. Dr. Kriegler states that “Sallie frequently

25

beat the children more intensely than Jimmie Lee.” AG022986. Dr. Kriegler states that domestic

26

violence between Jimmie Lee and Sallie “added to the terror in the home,” and that Jimmie Lee

27

and Sallie’s “constant alcohol abuse was a clearly destabilizing force for [Petitioner] and his

28

42
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ORDER DENYING CLAIMS 13 AND 22

1

siblings.” According to Dr. Kriegler, each setting that Petitioner encountered as a child “was

2

traumatic, and each disallowed the normative development and functioning critical to the creation

3

of a coherent, integrated self.” AG022988.

4
5

b. Counsel’s Performance
Having reviewed the evidence which Petitioner contends should have been presented in
mitigation, the Court next considers counsel’s performance with regards to investigating and

7

presenting evidence of Petitioner’s family and social history. According to Petitioner, trial

8

counsel was deficient in investigating Petitioner’s family and social background because trial

9

counsel failed to investigate and uncover the family and social history set forth above, which

10

Petitioner contends demonstrates that his family history is characterized by poverty, domestic

11
United States District Court
Northern District of California

6

violence, substance abuse, and physical abuse. See Pet’r Br. at 30–31. However, for the reasons

12

discussed below, the California Supreme Court could have reasonably concluded that trial counsel

13

was not deficient in its investigation of Petitioner’s family and social background.

14

The declaration from Petitioner’s trial counsel submitted in support of Petitioner’s state

15

habeas petition does not explain what investigation Petitioner’s trial counsel did into Petitioner’s

16

background. However, it is clear from the record that Petitioner’s trial counsel prepared a social

17

history report of Petitioner, engaged an investigator to interview witnesses, and Petitioner’s trial

18

counsel called Petitioner’s friends and family members to testify in favor of Petitioner at

19

Petitioner’s penalty phase trial. Significantly, several of the individuals who testified during

20

Petitioner’s penalty phase trial—such as Petitioner’s sister Elaine, Petitioner’s brother Damon,

21

Reverend Betty Williams, Relisha Marks, and Effie Jones—also submitted declarations in support

22

of Petitioner’s state habeas petition. Although the declarations of these individuals submitted in

23

support of Petitioner’s state habeas petition state that Jimmie Lee was abusive towards Sallie, that

24

both Jimmie Lee and Sallie abused alcohol, and that both Jimmie Lee and Sallie disciplined

25

Petitioner and his siblings with belts and other objects, none of these individuals testified to these

26

facts during the penalty phase trial. To the contrary, as the California Supreme Court accurately

27

summarized in its order denying Petitioner’s direct appeal, these witnesses presented “mostly

28

43
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ORDER DENYING CLAIMS 13 AND 22

1

consistent testimony that described [Petitioner] as having grown up in a good family environment

2

with religion, where there was no drug or alcohol abuse, no domestic violence, and with a father

3

who encouraged education and hard work.” Marks, 31 Cal. 4th at 213.

4

Indeed, Petitioner’s sister Elaine testified during the penalty phase trial that the defense
investigator interviewed Elaine, and that Elaine told the defense investigator that Elaine and

6

Petitioner grew up in a “great home.” AG017284–85. Elaine testified during the penalty phase

7

trial that neither Jimmie Lee nor Sallie abused alcohol. AG017285–86. Elaine’s testimony during

8

the penalty phase of Petitioner’s trial is in direct contradiction to Elaine’s declaration in support of

9

Petitioner’s state habeas petition, in which Elaine states that both Jimmie Lee and Sallie abused

10

alcohol, and that Elaine was in a car accident with her mother because her mother was driving

11
United States District Court
Northern District of California

5

while drunk and high. AG022470. Elaine’s declaration states that the defense investigator talked

12

to her for thirty minutes in advance of the trial, but Elaine does not state what the defense

13

investigator asked her or why she testified during the penalty phase about facts that she now

14

contends are not true. See AG022478–79.

15

District courts in this Circuit have recognized that “[w]hen counsel or their investigators

16

speak with family members and friends and others who might have had information on family

17

history, but none of them provide the information whose absence a petitioner later complains

18

about, it cannot be said that counsel was ineffective.” Ochoa v. Davis, 2016 WL 3577593, at *69

19

(C.D. Cal. June 30, 2016); see also Ervin v. Davis, 2016 WL 4681203, at *10 (finding trial

20

counsel was not deficient in failing to introduce mitigating evidence from petitioner’s childhood

21

where “none of the fifteen witnesses that Petitioner’s trial counsel called to the stand during the

22

penalty phase trial . . . even mentioned” childhood problems). Here, as set forth above, the record

23

demonstrates that the defense investigator spoke to several of Petitioner’s friends and family

24

members, that defense counsel called these individuals as witnesses during the penalty phase of

25

Petitioner’s trial, but that none of these witnesses disclosed—and, in fact, expressly

26

contradicted—the information that these witnesses now raise for the first time in Petitioner’s

27

habeas petition. Moreover, trial counsel also had access to Petitioner himself, and Petitioner took

28

44
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ORDER DENYING CLAIMS 13 AND 22

1

the stand during the penalty phase to testify about his life and family upbringing. Petitioner also

2

did not mention any of the problems now raised for the first time in the declarations submitted by

3

friends and family members about his home environment. See Mickey v. Ayers, 606 F.3d 1223,

4

1242–43 (9th Cir. 2010) (“[R]efus[ing] to find counsel deficient for not uncovering evidence” of

5

petitioner’s abuse and family problems where Petitioner himself self-reported that there were no

6

problems and witnesses confirmed Petitioner’s original story). Again, the testimony presented by

7

witnesses at Petitioner’s penalty phase trial was consistent that Petitioner grew up “in a good

8

family environment with religion, where there was no drug or alcohol abuse, no domestic

9

violence, and with a father who encouraged education and hard work.” Marks, 31 Cal. 4th at 212.

10

Accordingly, based on the evidence in the record, the California Supreme Court could have

United States District Court
Northern District of California

11

reasonably concluded that trial counsel was not deficient in its investigation of Petitioner’s family

12

and social history. See Vieira, 2015 WL 641433, at *73 (finding that trial counsel was not

13

ineffective in failing to uncover evidence of a “highly dysfunctional” family life where the record

14

showed that petitioner’s trial counsel interviewed immediate family, friends, and neighbors, and

15

these witnesses portrayed petitioner as having been raised in a normal suburban home).
c. Prejudice

16
17

Moreover, even assuming that Petitioner’s counsel was deficient in their investigation of

18

Petitioner’s background and should have uncovered the new evidence presented in Petitioner’s

19

state habeas petition, the California Supreme Court could have reasonably concluded that

20

Petitioner’s counsel was not prejudiced by defense counsel’s failure to present this evidence

21

during the penalty phase, and thus that Petitioner’s trial counsel was not ineffective under

22

Strickland.

23

Significantly, although “[t]he evidence of [Petitioner’s] childhood does not paint a pretty

24

picture, [] it is not so dramatic or unusual that it would likely [have] carr[ied] the day for

25

[Petitioner]” at the penalty phase. Samayoa v. Ayers, 649 F.3d 919, 929 (9th Cir. 2011).

26

Petitioner’s background of “harsh discipline, poverty, drug abuse,” and family alcohol abuse is,

27

unfortunately, “not an uncommon one.” Id. Indeed, taken as a whole, the additional family and

28

45
Case No. 11-CV-02458-LHK
ORDER DENYING CLAIMS 13 AND 22

1

social evidence which Petitioner contends should have been presented in mitigation “is

2

equivocal.” Miles v. Ryan, 713 F.3d 477, 492–93 (9th Cir. 2013). Although some aspects of the

3

additional evidence presented by Petitioner in support of his habeas petition are disturbing, such as

4

the fact that Jimmie Lee was abusive towards Sallie, the declarations submitted by Petitioner’s

5

friends and family members in support of Petitioner’s state habeas petition hardly support the

6

dramatic conclusions in Dr. Krieger’s expert report that Petitioner faced “unrelenting” trauma as a

7

child, and that Petitioner grew up without “emotional nurturing, support, or safety.” AG022985.

8
9

For example, the declarations submitted in support of Petitioner’s state habeas petition
state that Jimmie Lee and Sallie worked hard and provided for the family, that Sallie helped the
children get ready for school, that Sallie helped the children with their homework, that Petitioner’s

11
United States District Court
Northern District of California

10

family “had Bible study classes in the afternoon,” and that Petitioner’s family always “had a nice

12

new car and nice furniture.” AG022465–70; AG022529. Petitioner’s parents made Petitioner and

13

his siblings do chores, complete their homework, and follow curfews. See, e.g., AG022669–70.

14

Petitioner’s parents also “tried to show [Petitioner and his siblings] positive examples of people

15

doing right in the neighborhood,” and encouraged Petitioner and his siblings “to get a trade or go

16

to school.” AG022675–66. Jimmie Lee and Sallie did not allow Petitioner and his siblings to

17

associate with individuals whom they perceived to be bad influences. See, e.g., AG022671.

18

Moreover, although both Jimmie Lee and Sallie used belts and other objects to whip Petitioner and

19

his siblings when they disobeyed, these whippings, “although harsh, were largely disciplinary in

20

nature,” and they were “not so unusual or severe as to prevent Petitioner from wanting to live

21

with” his parents after Petitioner returned from the Navy. Sanders v. Davis, 2017 WL 2591907, at

22

*57 (E.D. Cal. June 15, 2017) (finding Petitioner failed to establish prejudice from failure to

23

introduce testimony of childhood whippings because “[t]he habeas declarations filed by family

24

members suggest that the beatings Petitioner and his brother [] received at home, although harsh,

25

were largely disciplinary in nature,” and “were not so unusual or severe as to prevent Petitioner

26

from wanting to live with [his father] after his parent’s divorce”); see AG022669 (testifying

27

during the penalty phase that Petitioner lived with his parents after Petitioner returned from the

28

46
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ORDER DENYING CLAIMS 13 AND 22

1

Navy).
Dr. Krieger’s expert report also makes much of the fact that Jimmie Lee made his children

2

move out of the house when they were teenagers, which according to Dr. Krieger, forced

4

Petitioner and his siblings to “fend for themselves on the streets of Alameda.” AG022986.

5

However, the declarations submitted by Petitioner’s family show that Jimmie Lee believed that his

6

children should not be allowed to stay at home unless they “complete[d] high school and [went] to

7

college or g[ot] a job.” AG022676. Indeed, Petitioner was not kicked out of his parent’s house.

8

See, e.g., AG022476. Rather, Petitioner stayed at home with his parents until he entered the Navy.

9

Jimmie Lee and Sally “were proud of [Petitioner] joining the Navy.” AG022677. Petitioner

10

visited home while he was in the Navy, and Petitioner lived with his parents for a period after

11
United States District Court
Northern District of California

3

returning from the Navy. See, e.g., AG022677.4
Accordingly, the California Supreme Court could have reasonably concluded that trial

12
13

counsel was not deficient in failing to present during the penalty phase evidence that Petitioner

14

faced “unrelenting” trauma as a child, as Dr. Krieger concludes. Although the declarations

15

submitted by Petitioner’s family and friends show unfortunate aspects of Petitioner’s upbringing

16

that were not presented in mitigation, the record as a whole also shows several other aspects of

17

Petitioner’s childhood that appear nurturing, and thus this “equivocal” evidence would not have

18

been particularly powerful mitigation evidence. Miles, 713 F.3d at 439 (finding additional

19

evidence of petitioner’s family and social history to be “equivocal” because even though

20

petitioner’s mother was a prostitute, the petitioner’s mother “was clearly quite devoted to” the

21

petitioner and the petitioner “had a community of friends and a support system” even if his

22

surroundings were problematic).
Indeed, if defense counsel had presented evidence during the penalty phase that Petitioner

23
24

was raised in a troubling home environment, “the State could have put on” in rebuttal at least

25

4

26
27
28

Dr. Krieger’s expert report also describes Sallie Lee as getting drunk and dancing with her
children “in a sexualized way that made them uneasy.” AG023014. However, although the
declarations submitted by Petitioner’s siblings state that Sallie would, on occasion, get drunk, put
on music, and ask the children to dance with her, there is no indication from the declarations
submitted by Petitioner’s siblings that these interactions were “sexualized.” See, e.g., AG022673.
47
Case No. 11-CV-02458-LHK
ORDER DENYING CLAIMS 13 AND 22

1

some of the friends and family members who testified at the penalty phase that Petitioner grew up

2

in a strong and supportive home environment. See Mickey, 606 F.3d at 1242–43 (stating that

3

petitioner was not prejudiced by trial counsel’s failure to introduce evidence of petitioner’s

4

troubled childhood because witnesses at petitioner’s penalty phase trial testified that petitioner

5

grew up in a strong home environment, and the state could have called at least some of these

6

witnesses “to contradict [Petitioner] or the other witness” who would testify that petitioner’s

7

upbringing was troubled).
Moreover, if Petitioner’s trial counsel had introduced evidence of Sallie’s alcohol abuse or

9

Sallie’s harsh discipline of Petitioner and his siblings during the penalty phase trial, this evidence

10

would have distracted from the consistent evidence presented at Petitioner’s penalty phase trial—

11
United States District Court
Northern District of California

8

and the evidence in the declarations submitted in support of Petitioner’s habeas petition—that

12

Petitioner was very close to his mother and that Petitioner was devastated by her unexpected death

13

in 1990. Multiple witnesses testified during the penalty phase that Petitioner was in prison at the

14

time of his mother’s death, that Petitioner was not immediately told of her death, and that

15

Petitioner was not able to attend the funeral. Indeed, Petitioner argues in his habeas petition, as

16

Petitioner’s trial counsel argued in Petitioner’s penalty phase trial, that Sallie’s death had a large

17

impact on Petitioner, and that Petitioner began to significantly decline after her death. See Pet’r

18

Br. at 32 (arguing that Sallie’s unexpected death caused Petitioner to become “increasingly

19

dysfunctional”). Evidence that Sallie was an alcoholic who harshly disciplined Petitioner would

20

have complicated and detracted from this mitigation evidence, and thus the California Supreme

21

Court could have reasonably concluded that Petitioner was not prejudiced by trial counsel’s

22

decision to not present this evidence during Petitioner’s penalty phase trial, and instead focus on

23

Sallie’s positive attributes and Petitioner’s close relationship to her.

24

In sum, although the additional evidence submitted in support of Petitioner’s state habeas

25

petition demonstrates that some aspects of Petitioner’s upbringing were troubling, this evidence is

26

largely equivocal, and it is “not so dramatic or unusual that it would likely carry the day for”

27

Petitioner, particularly in light of the substantial aggravating evidence in this case. Samayoa, 649

28

48
Case No. 11-CV-02458-LHK
ORDER DENYING CLAIMS 13 AND 22

1

F.3d at 929. As set forth in detail above, Petitioner severely assaulted Bailey, abused Hitchens,

2

ran over Officer Lewis with his vehicle, assaulted Deputies Breslin and Tine, and assaulted his

3

former attorney Najpaver. With regards to the instant capital murders, Petitioner shot four random

4

strangers at close range, killing two of them and leaving one in a persistent vegetative state. The

5

California Supreme Court could have reasonably concluded that the additional evidence of

6

Petitioner’s family and social history, even considered together with the other mitigating evidence

7

that Petitioner claims his trial counsel failed to introduce, did not demonstrate “a substantial, [and]

8

not just conceivable, likelihood of a different result” at the penalty phase of Petitioner’s trial.

9

Pinholster, 563 U.S. at 189.

10

United States District Court
Northern District of California

11

iii. Exposure to Neurotoxic Chemicals
Petitioner further contends that his trial counsel was ineffective at the penalty phase for

12

failing to investigate and present evidence of Petitioner’s “life-long pervasive exposure to

13

numerous toxic substances,” which affected Petitioner’s physical, mental and emotional

14

development and functioning. See Pet. at 276. Petitioner contends that “[t]rial counsel failed to

15

investigate or recognize the significance of neurotoxin exposure and therefore failed to adequately

16

investigate, prepare, and present evidence of exposure and its toxic effects on” Petitioner, which

17

Petitioner contends would have borne on mitigation. Id. at 276–78. The Court first discusses the

18

evidence that Petitioner contends should have been presented in mitigation, and then the Court

19

discusses counsel’s performance.

20

Petitioner asserts that trial counsel should have investigated and presented evidence that

21

Petitioner was exposed to neurotoxic substances because Petitioner was raised in Alameda, and

22

that “[f]rom 1942 to 1978, the Navy abandoned somewhere between 45,000 and 500,000 tons of

23

toxic rubbish on the extreme western end of Alameda.” Id. at 280. Petitioner asserts that the

24

housing project where Petitioner was raised and the schools in which Petitioner attended were

25

“located on the marsh crust toxic site,” which “affects 700 acres of contaminated land.” Id. at

26

280–81. Petitioner also asserts that he was exposed “to lead from drinking water” because “his

27

housing unit was built in the 1940’s” and “plumbing installed in the early 1940’s contained lead.”

28

49
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ORDER DENYING CLAIMS 13 AND 22

1

Pet. at 285. Petitioner further contends that the housing projects in which he lived “were

2

constructed prior to the 1980s, when the use of” lead-based paint and asbestos were common, and

3

lead and asbestos are “present at the existing building sites.” See Pet. at 283.

4

However, the California Supreme Court could have reasonably concluded that trial counsel

5

was not ineffective with regards to its investigation and presentation of evidence that Petitioner

6

was exposed to neurotoxins as a child.

7

First, the California Supreme Court could have reasonably concluded that trial counsel was

8

not deficient in its investigation of Petitioner’s exposure to neurotoxins. As set forth above,

9

Petitioner’s trial counsel investigated Petitioner’s social history, and Petitioner’s lifelong friends
and family members testified at Petitioner’s penalty phase trial. “[N]one of [these] witnesses

11
United States District Court
Northern District of California

10

called to the stand during the penalty phase trial,” such as Petitioner’s siblings, “even mentioned

12

Petitioner’s childhood exposure to toxic chemicals.” Ervin, 2016 WL 4681203, at *10 (finding

13

trial counsel was not defective in its failure to investigate evidence of petitioner’s childhood

14

exposure to neurotoxins where petitioner’s counsel investigated petitioner’s background but

15

petitioner’s friends and family members did not mention childhood exposure to neurotoxins).

16

Petitioner’s evidence of neurotoxin exposure is far from the facts in cases in which courts have

17

found trial counsel ineffective for failing to investigate and present evidence of the petitioner’s

18

exposure to neurotoxins. For example, in Caro v. Calderon, 165 F.3d 1223 (9th Cir. Jan. 11,

19

1999), the Ninth Circuit found that counsel was ineffective for failing to investigate and introduce

20

evidence of the Petitioner’s exposure to pesticides. In that case, trial counsel knew of the

21

petitioner’s “extraordinary exposure to pesticides,” such as the fact that the petitioner’s job in high

22

school was to “stand[] in the fields to indicate to the crop duster where to dump his load of

23

pesticides” without protective clothing, and that the petitioner worked prior to his arrest as a

24

maintenance worker at a corporation that produced toxic pesticides. Id. at 1226.

25

In contrast to the “extraordinary exposure” in Caro of which Caro’s trial counsel was

26

aware, id., Petitioner here has introduced only generic evidence and speculation about Petitioner’s

27

own exposure to neurotoxins. Petitioner’s evidence of neurotoxin exposure—such as the fact that

28

50
Case No. 11-CV-02458-LHK
ORDER DENYING CLAIMS 13 AND 22

1

Petitioner lived in Alameda, attended certain elementary schools, and lived in older and poorly

2

maintained housing projects—would also apply to all of the residents of the town of Alameda, the

3

residents of the housing projects in which Petitioner was raised, the students at the schools in

4

which Petitioner attended, and individuals who lived in homes constructed prior to 1940 or 1980.

5

Petitioner merely speculates from the fact that Petitioner lived in these “hot spots” that Petitioner

6

himself suffered the effects of toxic exposure. Indeed, although Petitioner states that his exposure

7

to neurotoxins was “a major contributing factor to the diffuse brain damage identified by Dr. Stein

8

and Dr. Froming,” see Pet. at 277, the reports of Dr. Stein and Dr. Froming do not make any such

9

conclusion. See, e.g., AG023079–97; AG022977.

10

Second, the California Supreme Court could have reasonably concluded that, even

United States District Court
Northern District of California

11

assuming that trial counsel should have investigated and presented evidence of Petitioner’s

12

childhood exposure to neurotoxins, Petitioner was not prejudiced by trial counsel’s failures. As

13

set forth above, Petitioner’s evidence of childhood exposure to neurotoxins is not particularly

14

powerful. This evidence, even when considered together with all of the mitigating evidence that

15

Petitioner contends trial counsel failed to present, the California Supreme Court could have

16

reasonably concluded that this evidence would not outweigh the substantial aggravating evidence

17

in this case. As set forth in detail above, Petitioner severely assaulted Bailey, abused Hitchens,

18

ran over Officer Lewis with his vehicle, assaulted Deputies Breslin and Tine, and assaulted his

19

former attorney Najpaver. With regards to the instant capital murders, Petitioner shot four random

20

strangers at close range, killing two of them and leaving one in a persistent vegetative state. Thus,

21

the California Supreme Court could have reasonably concluded that the additional evidence of

22

Petitioner’s family and social history, even considered together with the other mitigating evidence

23

that Petitioner claims his trial counsel failed to introduce, did not demonstrate “a substantial, [and]

24

not just conceivable, likelihood of a different result” at the penalty phase of Petitioner’s trial.

25

Pinholster, 563 U.S. at 189.

26

iv. Impeachment of State’s Witnesses

27

Finally, Petitioner argues in Claim 13 that trial counsel was ineffective at the penalty phase

28

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ORDER DENYING CLAIMS 13 AND 22

1

because trial counsel “fail[ed] to investigate the prosecution’s aggravating, other crimes

2

evidence.” Pet’r Br. at 33. Specifically, Petitioner argues that “[m]inimal investigation” would

3

have shown that Petitioner could not have run over Officer Lewis and Jones with Petitioner’s car,

4

and that Petitioner’s assault of Bailey was the result of Petitioner’s “neuropsychiatric

5

impairments.” Pet. at 33. Petitioner also briefly raises arguments regarding trial counsel’s failure

6

to rebut the other aggravating evidence introduced by the prosecution. However, for the reasons

7

discussed below, the California Supreme Court could have reasonably concluded that trial counsel

8

was not ineffective in their investigation and rebuttal of the prosecution’s aggravating evidence.

9
10

a. Petitioner’s Assault of Officer Lewis and Jones
First, with regards to Officer Lewis and Jones, Petitioner introduces a declaration from

United States District Court
Northern District of California

11

Thomas Rogers, M.D. (“Dr. Rogers”), who reviewed the police department reports regarding the

12

incident with Officer Lewis and Jones, and photographs of Officer Lewis’s uniform after the

13

incident. AG023057. According to Dr. Rogers, “there is no medical evidence that the wheel of a

14

motor vehicle passed over the pelvis or lower back of Officer Lewis” because there were “no

15

external signs or disturbances to Officer Lewis’s skin or clothing that ordinarily are associated

16

with the pathology of transportation injuries when a wheel passes over a human body.”

17

AG023058. Dr. Rogers states that “[i]t is well documented in the forensic pathology literature that

18

when a motor vehicle runs over a person’s pelvis, the pelvis can definitely fracture, rather than

19

support the weight of the vehicle and leave no signs of injury.” AG023059. Moreover, Jones

20

“was not described in any police reports as having been injured.” AG023059. Petitioner also

21

states in his habeas petition that witnesses would have testified at mitigation that Petitioner did not

22

run over Officer Lewis and Jones, but that these witnesses were not called upon to testify at the

23

penalty phase of trial.

24

However, the California Supreme Court could have reasonably concluded that trial counsel

25

was not ineffective in rebutting the prosecution’s evidence that Petitioner ran over Officer Lewis

26

and Jones with Petitioner’s vehicle. Officer Lewis testified at Petitioner’s penalty phase trial that

27

Petitioner ran over Officer Lewis and Jones with Petitioner’s vehicle, and Officer Lewis’s

28

52
Case No. 11-CV-02458-LHK
ORDER DENYING CLAIMS 13 AND 22

1

testimony was corroborated by the testimony of another witness at the penalty phase trial,

2

Heilbronner, who saw Petitioner run over Officer Lewis and Jones. Heilbronner testified that

3

Petitioner “put the car in reverse at a high rate of speed, running over the police officer and the

4

other person on the ground.” AG016899. Moreover, although Officer Lewis did not suffer any

5

significant injuries from the event, Officer Lewis nonetheless visited the emergency room after the

6

incident, and Officer Lewis remained at the hospital for forty-five minutes to an hour.

7

AG016926–27.5 In addition, Petitioner testified during the penalty phase of trial that Petitioner

8

“might have hit [Officer Lewis’s] leg” with his vehicle because Petitioner had “no indication of an

9

officer in the area” when Petitioner was reversing his vehicle. AG017168.
In the face of this evidence presented during the penalty phase trial, the California

11
United States District Court
Northern District of California

10

Supreme Court could have reasonably concluded that trial counsel was not ineffective in failing to

12

call Dr. Rogers during the penalty phase trial to rebut the state’s aggravation evidence. As set

13

forth above, Dr. Rogers concludes only that, in general, one would “expect[]” further signs of

14

trauma if a vehicle ran over the lower back of an individual. AG023059. The California Supreme

15

Court could have reasonably concluded that Dr. Rogers’ conclusion offered little in comparison to

16

the corroborated testimony of Officer Lewis and Heilbronner and the testimony of Petitioner

17

himself.
Moreover, if trial counsel had called Dr. Rogers to testify during the penalty phase of trial

18
19

about the likely injuries that would result if a vehicle ran over an individual, Dr. Rogers’

20

testimony would have called further attention to the incident, and it would have allowed the

21

prosecution to emphasize the severity of Petitioner’s actions. In addition, Dr. Rogers’ testimony

22

could have led to a distracting “battle of the experts.” Richter, 562 U.S. at 109. Furthermore,

23

although Petitioner’s defense counsel did not call an expert to rebut Officer Lewis’s and

24

Heilbronner’s testimony, trial counsel nonetheless cross-examined Officer Lewis and Heilbronner

25

about the incident. Trial counsel asked Officer Lewis about his injuries and his time at the

26
27
28

5

Jones did not testify at trial, and there is no indication from the record as to what injuries, if any,
Jones suffered. See also Marks, 31 Cal. 4th at 209.
53
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ORDER DENYING CLAIMS 13 AND 22

1

emergency room, and trial counsel questioned the lack of serious injuries to Officer Lewis. Thus,

2

even though an expert was not called to discuss the “expected” injuries from a vehicle running

3

over an individual, Officer Lewis’s lack of serious injuries was nonetheless raised as an issue

4

before the jury, and the jury could appropriately draw its own conclusions from this evidence even

5

without the assistance of Dr. Rogers’ report.
Finally, Petitioner contends that defense counsel could have called certain individuals to

7

testify during the penalty phase that Petitioner did not run over Officer Lewis and Jones, such as

8

Jones himself or other individuals such as Sherry Uecker and Calvin James. However, “Petitioner

9

provides no evidence in the form of either affidavits or declarations stating whether the potential

10

witness was willing to testify or the facts to which the witness would have testified.” Russell v.

11
United States District Court
Northern District of California

6

Martel, 2011 WL 6817690, at *8 (C.D. Cal. Aug. 9, 2011); see Pet. at 287–88. Absent any such

12

evidence, Petitioner cannot establish trial counsel was ineffective for failing to call these witnesses

13

at the penalty phase. Id. (citing Dows v. Wood, 211 F.3d 480, 486–87 (2000)).

14

In sum, the California Supreme Court could have reasonably concluded that Petitioner’s

15

trial counsel was not ineffective in its investigation and presentation of rebuttal evidence relating

16

to the evidence that Petitioner ran over Officer Lewis and Jones with Petitioner’s vehicle.

17
18

b. Petitioner’s Assault of Brenda Bailey
Second, with regards to Petitioner’s assault of Brenda Bailey, Petitioner submitted a

19

declaration from Bailey in support of his state habeas petition in which Bailey stated that, at the

20

time that Petitioner assaulted her, Petitioner was saying things that “did not make sense.”

21

AG022450–51. Bailey stated that if the defense had called her as a witness—instead of treating

22

her as a hostile witness for the prosecution—Bailey would have testified in favor of Petitioner that

23

she “had forgiven” Petitioner, and that Petitioner had told Bailey that he was sorry for what he did.

24

AG022455–56. According to Petitioner, Petitioner’s trial counsel should have investigated and

25

presented this testimony from Bailey, which would have demonstrated that Petitioner’s assault of

26

Bailey was a result of Petitioner’s “neuropsychiatric impairment,” and that Petitioner was

27

remorseful about his assault of Bailey. See Pet. at 288.

28

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ORDER DENYING CLAIMS 13 AND 22

1

However, the California Supreme Court could have reasonably concluded that Petitioner’s

2

trial counsel was not ineffective for failing to call Bailey as a defense witness and instead treat

3

Bailey as a hostile witness for the prosecution. Significantly, although Petitioner contends in his

4

habeas petition that Bailey’s testimony would have shown that Petitioner’s assault of Bailey was

5

the result of Petitioner’s “neuropsychiatric impairment,” see id., Bailey’s declaration submitted in

6

support of Petitioner’s state habeas petition does not support this conclusion. To the contrary,

7

Bailey states in her declaration that, on the night of the assault, Petitioner was “obviously high”

8

and “under the influence of PCP.” AG022451. Moreover, the remainder of Bailey’s declaration

9

confirms the events to which Bailey testified during Petitioner’s penalty phase trial, including that
Petitioner pulled Bailey onto a concrete floor and pushed her through a bathroom window. See

11
United States District Court
Northern District of California

10

AG022452–53. Bailey’s declaration also states, as Bailey testified during the penalty phase of

12

Petitioner’s trial, that Petitioner threatened to kill Bailey’s mother, put a bomb in Bailey’s son’s

13

mouth, and cut her other son’s “neck off.” AG022451. The California Supreme Court could have

14

reasonably concluded that, even had Bailey testified during the penalty phase of Petitioner’s trial

15

that Petitioner was remorseful about his assault of Bailey, this additional testimony would not

16

outweigh the substantially aggravating nature of Petitioner’s brutal assault of Bailey.

17
18
19
20

c. Petitioner’s Remaining Arguments
Lastly, Petitioner briefly raises several additional arguments regarding trial counsel’s
ineffectiveness for failure to rebut the state’s aggravating evidence.
First, Petitioner argues that trial counsel was ineffective for failing to rebut the

21

prosecution’s evidence that Petitioner assaulted inmate Herzog. See Pet’r Br. at 33. According to

22

Petitioner, “[t]he altercation with Mr. Herzog resulted from [Petitioner’s] justifiable efforts to

23

defend himself from Mr. Herzog’s unprovoked and unwarranted assault and attempts to exploit”

24

Petitioner. Id. However, Petitioner submits no declaration or evidence in support of this

25

contention, but rather offers only speculation. See id.; see Pet. at 295–96. Absent any evidence to

26

support this argument, Petitioner cannot establish that trial counsel was ineffective for failing to

27

rebut the prosecution’s evidence regarding Herzog. See Russell, 2011 WL 6817690, at *8

28

55
Case No. 11-CV-02458-LHK
ORDER DENYING CLAIMS 13 AND 22

1

(rejecting ineffective assistance of counsel claim where petitioner presented “no evidence in the

2

form of either affidavits or declarations stating whether the potential witness was willing to testify

3

or the facts to which the witness would have testified”).

4

Second, Petitioner contends that his assaults of correctional officers, Deputies Breslin,

5

Jones, and Tine, in addition to his assault of Najpaver, were the results of Petitioner’s

6

neuropsychiatric impairments. See Pet. at 295–96. For example, Petitioner asserts that Petitioner

7

assaulted Deputies Breslin and Jones because Petitioner believed the assaults were the result of

8

Petitioner’s delusional belief that Petitioner needed “to protect himself from personal annihilation”

9

by assaulting these officers. Pet. at 295. However, evidence presented during the penalty phase of
trial contradicts Petitioner’s assertion in his habeas petition that these assaults were the “non-

11
United States District Court
Northern District of California

10

volitional” product of Petitioner’s delusional beliefs. See id. at 292–95. For example, Petitioner

12

was inside of his cell on the date that he assaulted Deputy Breslin, and Petitioner began to yell and

13

kick his cell door. Once Deputy Breslin responded to remove Petitioner from his cell, Petitioner

14

bit Deputy Breslin in the neck and punched him in the groin. Petitioner bragged to Deputy Breslin

15

“I bit you and punched you in the balls. How does it feel, punk?” AG016961. Deputy Nelson

16

testified that Petitioner remarked: “I bit [Deputy Breslin] real good. And I remember he cried out

17

like a bitch.” AG017003. The California Supreme Court could have reasonably concluded that

18

Petitioner’s actions and remarks would have belied any argument that Petitioner assaulted Deputy

19

Breslin or other correctional officers out of a delusional belief that the assault was necessary for

20

Petitioner’s protection, rather than Petitioner’s own aggression towards the deputies. Similarly,

21

Petitioner testified during the penalty phase of trial that Petitioner assaulted Najpaver because

22

Najpaver told Petitioner to plead guilty and accept a sentence of life imprisonment, that the judge

23

denied Petitioner’s motion to have a different attorney, and Petitioner knew that Petitioner “had to

24

make contact to get rid of” Najpaver as his attorney. Marks, 31 Cal. 4th at 214. Petitioner

25

testified that he knew “verbal conflict” would not be sufficient. Id.; see AG017195.

26
27
28

Further, even assuming these assaults were the result of Petitioner’s neurological
impairments, as set forth in detail above with regards to evidence of Petitioner’s organic brain
56
Case No. 11-CV-02458-LHK
ORDER DENYING CLAIMS 13 AND 22

1

impairments and psychiatric disorders, the California Supreme Court could have reasonably

2

concluded that trial counsel was not ineffective for failing to present at trial evidence and

3

arguments that Petitioner suffered from organic brain impairments and psychiatric disorders which

4

caused Petitioner to be violent and dangerous. Accordingly, the California Supreme Court could

5

have reasonably concluded that trial counsel was not ineffective for failing to present this evidence

6

with regards to Petitioner’s other assaults.
3. Summary

7

For the reasons set forth above, the Court concludes that the California Supreme Court’s

8
9

decision was not contrary to or an unreasonable application of clearly established federal law.
Accordingly, Petitioner’s Claim 13 is DENIED. Given this conclusion, Petitioner’s request for an

11
United States District Court
Northern District of California

10

evidentiary hearing on Claim 13 is unavailing. See Sully, 725 F.3d at 1075 (“[A]n evidentiary

12

hearing is pointless once the district court has determined that § 2254(d) precludes habeas relief.”).

13

Petitioner’s request for an evidentiary hearing on Claim 13 is therefore DENIED.

14

B.

15

Claim 22
Finally, Petitioner contends in Claim 22 of his federal habeas petition that “the

16

constitutional errors that have marred his conviction and penalty, when considered cumulatively as

17

they must be, render [Petitioner’s] conviction and sentence fundamentally unfair in violation of the

18

U.S. Constitution. See Pet’r Br. at 38. The California Supreme Court denied this claim on the

19

merits without explanation. AG023690.

20

In some cases, although no single trial error is sufficiently prejudicial to warrant reversal,

21

the cumulative effect of several errors may still prejudice a defendant so much that the defendant’s

22

conviction must be overturned. See Alcala v. Woodford, 334 F.3d 862, 893–95 (9th Cir. 2003).

23

However, where there is no single existing constitutional error, nothing can accumulate to the

24

level of a constitutional violation. See Mansuco v. Olivarez, 292 F.3d 939, 957 (9th Cir. 2002),

25

overruled on other grounds by Slack v. McDaniel, 529 U.S. 473 (2000). Here, Petitioner has

26

failed to establish any single instance of constitutional error. Accordingly, there are no errors to

27

aggregate. Petitioner’s allegation of cumulative error lacks merit, and the Court DENIES Claim

28

57
Case No. 11-CV-02458-LHK
ORDER DENYING CLAIMS 13 AND 22

1

22.

2

IV.

CONCLUSION

3

For the foregoing reasons, the Court DENIES Claims 13 and 22. Because Petitioner’s

4

arguments as to Claims 13 and 22 are unavailing, Petitioner’s request for a federal evidentiary

5

hearing as to Claim 13 is also DENIED. See Sully, 725 F.3d at 1075 (“[A]n evidentiary hearing is

6

pointless once the district court has determined that § 2254(d) precludes habeas relief.”).

7
8

IT IS SO ORDERED.

9
10

Dated: September 18, 2017
______________________________________
LUCY H. KOH
United States District Judge

United States District Court
Northern District of California

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25
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Case No. 11-CV-02458-LHK
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