43 F.4th 987
9th Cir.2022Background
- In 1986 Curtis Fauber murdered Thomas Urell with the blunt side of an ax during a burglary; co-defendant Brian Buckley and witness Mel Rowan testified against Fauber at trial.
- Buckley pleaded to second-degree murder under an agreement that conditioned parts of the plea on assessments of his truthfulness; the prosecutor read Buckley’s plea agreement to the jury and emphasized it in closing; defense counsel did not object.
- The jury convicted Fauber of first-degree murder and later sentenced him to death after an aggravation case that included evidence of two other killings.
- At the penalty phase Fauber sought to introduce an unaccepted DA plea offer (life without parole in exchange for testimony) as mitigating evidence; the trial court excluded it and the California Supreme Court affirmed.
- Fauber pursued federal habeas relief raising: (1) prosecutorial vouching via presentation of Buckley’s plea agreement; (2) ineffective assistance for failure to object to that vouching; and (3) exclusion of the unaccepted plea offer as mitigation. The district court denied relief and the Ninth Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Prosecutorial vouching by reading Buckley’s plea agreement to jury | Fauber: prosecutor vouched for Buckley and shifted credibility assessment away from jury | State: prosecutor’s remarks were grounded in trial evidence; jury instructions made jurors sole judges of credibility; claim forfeited by no objection | Procedurally defaulted for failure to object; alternatively, harmless error—no due process violation shown |
| Ineffective assistance for failing to object to vouching (Strickland claim) | Fauber: counsel’s failure to object was deficient and prejudiced outcome because Buckley’s credibility was pivotal | State: even assuming deficiency, no Strickland prejudice given corroborating evidence and jury instructions | AEDPA deference upheld California Supreme Court—no reasonable probability of different outcome; claim denied |
| Procedural default / cause & prejudice to excuse default | Fauber: ineffective-assistance claim of counsel’s failure to object excuses procedural default of due-process claim | State: to show cause, counsel error must amount to constitutionally ineffective assistance—and Fauber can’t show Strickland prejudice | Fauber cannot show cause & prejudice; procedural default stands |
| Exclusion of unaccepted plea offer as mitigating evidence at penalty phase | Fauber: plea offer (life) shows DA’s view that death was unnecessary and could rebut future-dangerousness claim | State: plea offers are not constitutionally required mitigators; admission risks confusion and mini‑trials about motives; CA Evidence Code §352 exclusion proper | No clearly established Supreme Court law requiring admission; California Supreme Court’s exclusion was not an unreasonable application of federal law under AEDPA; even without AEDPA, exclusion was harmless |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (ineffective assistance standard)
- Darden v. Wainwright, 477 U.S. 168 (prosecutorial comments and due process test)
- Donnelly v. DeChristoforo, 416 U.S. 637 (prosecutorial misconduct harmlessness inquiry)
- Lockett v. Ohio, 438 U.S. 586 (capital sentencer must consider relevant mitigating evidence)
- Eddings v. Oklahoma, 455 U.S. 104 (expansion of Lockett’s mitigation rule)
- Skipper v. South Carolina, 476 U.S. 1 (admission of mitigating evidence when prosecution argues future dangerousness)
- Brecht v. Abrahamson, 507 U.S. 619 (harmless-error standard in habeas)
- Harrington v. Richter, 562 U.S. 86 (AEDPA deference to state-court decisions)
- Cullen v. Pinholster, 563 U.S. 170 (AEDPA review limits)
- People v. Fauber, 831 P.2d 249 (Cal. 1992) (California Supreme Court affirming conviction and addressing plea‑offer exclusion and vouching)
- Summerlin v. Schriro, 427 F.3d 623 (9th Cir. en banc) (discussing unaccepted plea in mitigation context)
- Hitchcock v. Secretary, Florida Dep’t of Corrections, 745 F.3d 476 (11th Cir. 2014) (unaccepted plea offers are not mitigating as a matter of course)