John Visciotti v. Michael Martel
2016 U.S. App. LEXIS 18579
| 9th Cir. | 2016Background
- In 1983 John Visciotti was convicted of first-degree murder, attempted murder, and robbery; jury sentenced him to death.
- Trial counsel Roger Agajanian had little capital-trial experience, performed limited investigation, and presented a sparse mitigation case at penalty phase.
- Key aggravating evidence was testimony by Kathy Cusack about a 1978 stabbing; the trial court initially excluded her but later admitted her as rebuttal after defense mitigation testimony opened the door.
- On direct appeal and state habeas the California Supreme Court assumed some penalty-phase IAC but denied relief for lack of prejudice; it also rejected a public-trial claim as unpreserved.
- The Ninth Circuit granted habeas relief on the penalty phase but the U.S. Supreme Court summarily reversed (Woodford v. Visciotti), holding relief impermissible under AEDPA §2254(d).
- On remand the district court denied remaining claims; Visciotti appeals ineffective-assistance claims (penalty-phase and cumulative-guilt+penalty) and the closure-of-voir-dire public-trial claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Penalty-phase IAC (Cusack evidence) | Agajanian’s failures allowed Cusack’s shocking testimony in as rebuttal; her testimony was admissible only because of counsel’s IAC, so prejudice exists | California Supreme Court reasonably weighed aggravation (including Cusack) and found no prejudice; Supreme Court’s Visciotti IV bars relief under AEDPA | Denied — Visciotti IV precludes habeas relief under §2254(d); court does not reach §2254(d)(2) factual-unreasonableness argument |
| Cumulative IAC (guilt + penalty) | Combined deficiencies across guilt and penalty phases cumulatively prejudiced the penalty outcome | Visciotti IV’s broad language forecloses AEDPA review of IAC cumulative claim | Denied — claim foreclosed by Visciotti IV; procedural objections not reached |
| Public-trial right (closure of death-qualification voir dire) | Closure for ~6.5 days violated Sixth Amendment public-trial right; structural error excusing harmlessness | Claim was procedurally defaulted because no contemporaneous objection; any default is not excused because counsel’s failure was not deficient under Strickland | Denied — petitioner failed to show counsel’s performance was deficient in context (Hovey precedent, prevailing practice, and tactical ambiguity); thus no cause to excuse default and claim is unavailable |
| Whether state-court fact-finding under §2254(d)(2) was unreasonable | Visciotti argues the California court unreasonably assumed Cusack’s testimony would have been admitted absent IAC | State insists prejudice analysis valid and Supreme Court’s summary reversal bars further review | Court declines to decide §2254(d)(2) because Visciotti IV’s broad holding controls and precludes relief |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (establishes two-part IAC test: deficient performance and prejudice)
- Wiggins v. Smith, 539 U.S. 510 (prejudice assessed by reweighing totality of mitigating evidence)
- Porter v. McCollum, 558 U.S. 30 (mitigation evidence at habeas must be weighed against aggravation)
- Williams v. Taylor, 529 U.S. 362 (standards for federal habeas review of state-court decisions)
- Woodford v. Visciotti, 537 U.S. 19 (summary reversal holding habeas relief not permissible under §2254(d))
- Presley v. Georgia, 558 U.S. 209 (public-trial right extends to voir dire)
- Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (openness presumption in voir dire; closure only for overriding interest)
- Waller v. Georgia, 467 U.S. 39 (Sixth Amendment closure rules; findings and alternatives required)