Visciotti v. Martel
862 F.3d 749
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 and did minimal investigation or mitigation preparation; he also elicited testimony about prior convictions and did not review the prosecutor’s file.
- At trial the court conducted death-qualification voir dire in chambers (closed to public) for multiple days; Agajanian never objected on the record.
- During the penalty phase the prosecution ultimately presented Kathy Cusack’s testimony about a brutal 1978 stabbing as aggravation; the record shows Cusack’s testimony was initially excluded and later admitted as rebuttal after the defense’s mitigation presentation.
- State habeas courts assumed deficient performance but denied relief for lack of prejudice; Ninth Circuit granted relief as to penalty phase but the U.S. Supreme Court summarily reversed in Woodford v. Visciotti, 537 U.S. 19 (2002), concluding relief was not permissible under AEDPA.
- On remand the Ninth Circuit (this opinion) affirms denial of remaining federal habeas claims: (1) penalty-phase ineffective-assistance claims (including a cumulative-error IAC claim) are foreclosed by the Supreme Court’s prior summary reversal; and (2) the public-trial (closure of voir dire) claim is procedurally defaulted because counsel did not object and, under Strickland, counsel’s failure to object was not constitutionally deficient given the historical context.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether penalty-phase counsel IAC (failure to investigate/present mitigation and causing Cusack’s rebuttal admission) entitles Visciotti to habeas relief under AEDPA | Agajanian’s pervasive failures caused admission of Cusack’s testimony and omitted mitigating evidence; state courts unreasonably weighed facts under §2254(d)(2) | Supreme Court’s summary reversal held habeas relief not permissible under §2254(d); state-court prejudice finding was reasonable | Denied — Visciotti IV’s broad language forecloses reconsideration under §2254(d), so relief is barred |
| Whether cumulative ineffective assistance across guilt and penalty phases prejudiced penalty outcome | Cumulative defects (guilt+penalty) rendered penalty unreliable and warrant relief | Same preclusive effect of Visciotti IV; AEDPA bars relitigation | Denied — Visciotti IV precludes review of cumulative IAC claim |
| Whether trial court’s multi-day closure of death-qualification voir dire violated Sixth Amendment public-trial right | Closure violated Press-Enterprise/Waller/Presley; structural error requires relief | Claim is procedurally defaulted because counsel failed to object; if considered, closure may have been common practice then and counsel’s failure was reasonable | Denied — procedurally defaulted; Agajanian’s failure to object not deficient under Strickland, so no cause to excuse default |
| Whether counsel’s failure to object to voir dire closure constitutes cause to excuse procedural default (i.e., was counsel ineffective for not objecting) | Visciotti: failing to object was IAC and satisfies Strickland cause/prejudice to excuse default | Agajanian’s conduct was within strategic reasonableness in 1983 given California practice (Hovey) and unsettled law; no deficient performance | Denied — counsel’s performance not deficient; therefore no cause and claim remains defaulted |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (1984) (two-prong standard for ineffective assistance of counsel)
- Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984) (voir dire and jury selection presumptively public; closure requires overriding interest and narrow tailoring)
- Waller v. Georgia, 467 U.S. 39 (1984) (Sixth Amendment public-trial right requires the same safeguards as Press-Enterprise)
- Presley v. Georgia, 558 U.S. 209 (2010) (public-trial right extends to voir dire)
- Woodford v. Visciotti, 537 U.S. 19 (2002) (per curiam) (summary reversal: habeas relief not permissible under §2254(d))
- Wiggins v. Smith, 539 U.S. 510 (2003) (prejudice in death-penalty IAC claims measured by reasonable probability of different outcome after reweighing mitigation)
- Weaver v. Massachusetts, 137 S. Ct. 1899 (2017) (petitioner alleging counsel ineffective for failing to object to voir dire closure bears burden to show prejudice)