Brett Pensinger v. Kevin Chappell
787 F.3d 1014
9th Cir.2015Background
- In 1982 Brett Pensinger was convicted of two kidnappings and first-degree murder for the killing of five‑month‑old Michele; the jury found two special circumstances including murder during a kidnapping and sentenced him to death.
- The trial court omitted paragraph 2 of CALJIC No. 8.81.17 (the "Green" instruction), which requires the kidnapping be for an independent felonious purpose (not merely incidental to the murder).
- Pensinger pursued state appeals and state habeas; the California Supreme Court affirmed the convictions and the kidnap‑murder special‑circumstance finding.
- Pensinger filed a federal habeas petition (pre‑AEDPA). The district court granted relief vacating the kidnap‑murder special circumstance and the death sentence for instructional error under People v. Green.
- The State appealed and argued (among other things) that Teague non‑retroactivity should bar relief and that any instructional error was harmless; Pensinger also appealed denial of an ineffective‑assistance claim based on counsel’s failure to request the Green instruction.
Issues
| Issue | Plaintiff's Argument (Pensinger) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether federal court should sua sponte apply Teague non‑retroactivity to bar Green‑based relief | Teague does not apply; federal pre‑AEDPA review controls and State waived Teague by failing to timely raise it | Teague should bar retroactive application of Green and preclude relief | Court declined to invoke Teague sua sponte given State’s repeated waiver and inadequate briefing; Williams v. Calderon governs |
| Whether omission of Green instruction violated constitutional due process / Eighth Amendment | Omission was constitutional error because Green is required to narrow felony‑murder special circumstance to avoid arbitrary death sentences | Modern California precedent narrows Green’s reach; not always constitutionally required | Court held instructional error occurred: Green narrowing was required under pre‑AEDPA Ninth Circuit precedent (Williams) |
| Whether the Green omission was harmless (Brecht standard) | The error was not harmless because the only remaining special circumstance supporting the death sentence was the defective kidnap‑murder finding | Any error was harmless because other instructions or current CA law would prevent misuse on retrial | Error was not harmless under Brecht; it could have had substantial/injurious effect and vacating the special circumstance was required |
| Whether trial counsel was ineffective for failing to request Green instruction (Strickland) | Counsel was ineffective because the instruction was fundamental and the trial court had a duty to instruct | Counsel pursued a theory that Pensinger did not kidnap or kill Michele; not requesting Green fit trial strategy | Counsel’s failure was not deficient performance; claim denied because strategy reasonably supported the omission |
Key Cases Cited
- Teague v. Lane, 489 U.S. 288 (1989) (bars retroactive application of new constitutional rules on collateral review)
- People v. Green, 27 Cal. 3d 1 (1980) (requires independent felonious purpose for felony‑murder special circumstance)
- Williams v. Calderon, 52 F.3d 1465 (9th Cir. 1995) (interprets Green as constituting a constitutional narrowing instruction required for special‑circumstance death eligibility)
- Brecht v. Abrahamson, 507 U.S. 619 (1993) (harmless‑error standard for habeas review: whether error had substantial and injurious effect)
- Furman v. Georgia, 408 U.S. 238 (1972) (Eighth Amendment limits on arbitrary death sentences)
- Gregg v. Georgia, 428 U.S. 153 (1976) (upholds guided‑discretion capital schemes; requires narrowing of death eligibility)