946 F.3d 489
9th Cir.2019Background
- Dean Phillip Carter was convicted in separate Los Angeles and San Diego trials of multiple murders, rapes, robberies, and burglaries arising from a 1984 crime spree; juries returned death sentences in both counties.
- At the Los Angeles guilt phase counsel rested without calling a defense case; multiple Marsden hearings revealed conflicts between Carter and trial counsel, and counsel ultimately pursued a penalty-phase mitigation strategy emphasizing adult rehabilitation.
- In San Diego, counsel presented some guilt-phase witnesses but used a similar penalty-phase mitigation theme; mitigation testimony in both trials included 21 witnesses about Carter’s abusive childhood and adult achievements.
- The California Supreme Court affirmed the convictions/sentences on direct appeal (2005) and summarily denied subsequent state habeas petitions; the U.S. Supreme Court denied certiorari.
- Federal habeas: Central and Southern Districts denied relief but issued Certificates of Appealability (COAs) on select claims (irreconcilable conflict/refusal to let Carter testify; penalty-phase ineffective assistance; denial of competent psychiatric expert). The Ninth Circuit affirmed, granted a limited COA expansion on one penalty-phase claim, and denied the rest.
Issues
| Issue | Carter's Argument | Davis's Argument | Held |
|---|---|---|---|
| Whether irreconcilable conflict with trial counsel denied Sixth Amendment rights | Carter: conflicts shown in multiple Marsden hearings and counsel’s tactical choices amounted to a per se denial of counsel (no prejudice required) | Davis: Supreme Court has not recognized a per se rule; disputes over strategy do not automatically deprive defendants of counsel | Court: Rejected Carter; AEDPA requires clearly established Supreme Court law and no Supreme Court case holds that strategy disputes constitute per se denial; reviewed under Strickland |
| Whether counsel’s refusal to let Carter testify was deficient assistance | Carter: counsel prevented him from asserting his fundamental right to testify; trial court should have inquired and secured a waiver | Davis: Record shows Carter did not insist he would testify if other witnesses were not called; tactical decision by counsel; no established Supreme Court rule compels a different result | Court: Counsel’s conduct was not shown unreasonable; even if deficient, Carter failed to show prejudice given overwhelming evidence of guilt |
| Whether counsel rendered ineffective assistance at penalty phase by failing to investigate/present more childhood abuse and brain-damage/FAS evidence | Carter: broader investigation would have uncovered more corroborating witnesses and proof of fetal alcohol syndrome/brain damage, which would have altered sentencing | Davis: Counsel investigated extensively (investigator trips to Alaska, 21 witnesses presented), made tactical choices; further evidence was largely cumulative or speculative; presenting mental-health evidence risked harmful rebuttal | Court: Under AEDPA and Strickland, state court reasonably concluded investigation and strategy were adequate; no prejudice shown |
| Whether Carter was denied the right to competent psychiatric expert assistance (Ake claim) | Carter: experts and counsel failed to prepare/evaluate psychiatric evidence adequately; due process entitles him to competent expert assistance | Davis: Ake requires states to provide an expert when due process demands, but Ake does not guarantee effective expert assistance; Carter had access to experts | Held: Ake does not create a right to effective expert assistance; Carter had experts and failed to show Supreme Court precedent that would make the state-court denial unreasonable |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (establishes two-prong ineffective-assistance-of-counsel test)
- Ake v. Oklahoma, 470 U.S. 68 (due process may require state-provided psychiatric assistance to indigent defendants)
- Wiggins v. Smith, 539 U.S. 510 (counsel must investigate mitigating evidence; failure can be deficient if investigation was unreasonable)
- Williams v. Taylor, 529 U.S. 362 (AEDPA standards and requirement that state decisions not unreasonably apply clearly established Supreme Court law)
- Harrington v. Richter, 562 U.S. 86 (deference to state-court decisions under AEDPA; look to last reasoned state decision)
- Florida v. Nixon, 543 U.S. 175 (counsel may make tactical choices about defense and testimony; defendant’s right to testify is personal but counsel’s strategy is afforded deference)
- Stenson v. Lambert, 504 F.3d 873 (9th Cir. approach to alleged irreconcilable conflicts over strategy)
- United States v. Moore, 159 F.3d 1154 (9th Cir. three-part test for irreconcilable-conflict claims)