*1 petition rehearing for en banc is BELMONTES, Fernando Petitioner- denied. Appellant, REINHARDT, Judge, Circuit concurring petition the denial of the for AYERS, Jr., Robert L. Warden for banc, rehearing joined by en PAEZ: Judge Quen- California Prison at State San tin, Respondent-Appellee. There no greater burden that falls on judiciary a member of the than to sit in
No. 01-99018. judgment on whether an individual shall Appeals, United States Court of die, live greater responsibility and no Ninth Circuit. than to every capital make certain that defendant the full protection receives Dec. 2008. which he is entitled under our Constitution judges and our laws. When consider CA, Multhaup, Valley, Eric S. Mill this, case only presents such as not Sacramento, CA, Christopher Wing, H. for questions serious of constitutional law but Petitioner-Aрpellant. may result the most serious Johnson, Anthony Mark AGCA-Office of consequences, human it duty is their General, Attorney the California Sacra- weigh consider and each constitutional mento, CA, Respondenb-Appellee. for claim made the defendant with the ut- most care. The failure to do so would be a fulfill obligation only failure to defendant, public but to the and to our legal system Equally, itself. it is the re- REINHARDT, Before: STEPHEN sponsibility judge disagrees of a who with DIARMUID F. O’SCANNLAIN and explain the court’s decision to her dis- PAJEZ, RICHARD A. Judges. Circuit agreement fairly objectively and and to seeking refrain from to bias or mislead the ORDER reader respect with to the serious constitu- Judges Reinhardt and Paez voted to questions tional involved. deny the Respondent-Appellee’s petition concurring opinion We write this brief rehearing for and rehearing en banc. point make one clear.1 Judge Callahan Judge grant O’Scannlain voted to the peti- opens her dissent from the denial of the rehearing
tion for rehearing en banc. petition rehearing en banc with the
The full court
petition
was advised of the
statement that
is the
“[t]his
third time that
for rehearing
judge requested
en banc. A
panel
of this court has set aside Bel-
a vote on whether to rehear the matter en montes’s death sentence.” Dissent at
banc.
context,
The matter failed to receive a ma-
16811-12. Read in
implica-
jority
tion,
of the votes of the
carefully
nonrecused active
phrased though may
be in
judges
iteration,
favor of en banc rеconsideration.
its final
is that we have flouted
App.
Fed. R.
P.
Court,
the will
Supreme
at-
court,
Although
agree
legal
position
we do not
with the
of this
as to those issues is set
arguments
advanced in
Callahan's dis-
opinion,
Ay-
forth in the court’s
Belmontes v.
petition
sent from the denial of the
for rehear-
ers,
(9th Cir.2008),
requires
865
meantime,
help
late to
him.
In the
while
death
aside
tempted to set
occasions, or
separate
reversing
capital
three
initial decision
on
our
sentence
reasons. The sentence
separate
for three
original
on the
instruction
sentence based
the reader who
only to bias
can serve
Supreme
upheld
Court
pending,
of the constitutional
the merits
reaches
governed by
in a case
the instruction
Moreover,
later in the dissent.
question
AEDPA,
133,
Payton, 544
Brown v.
U.S.
by a footnote
accompanied
is
the sentence
(2005).
1432,
L.Ed.2d 334
125 S.Ct.
161
Supreme
appear
it
that makes
so, however,
merits,
on
did
not on the
but
deci-
prior
reversed our
has twice
Court
did not meet the
ground
error
sions.
requirements
requirements
AEDPA
—
knows,
panel
well
Judge Callahan
As
to Belmontes’s case.3
applicable
were not
death
considered Belmontes’s
which has
reviewing
opinion
our
invalidat
Instead of
has at all
years
over six
for well
sentence
case,
ing
pre-AEDPA
in a
instruction
sought
implement
diligently
times
customary
the Court issued its
GVR4 so
fulfill its function
and to
Constitution
deci
that we could determine whether its
not executed
individuals are
ensuring that
ruling. Brown v. Bel
sion affected our
time,
of law.
In that
process
due
without
montes,
945,
1697,
125
161
544 U.S.
S.Ct.
that issued what
panel
of the
(2005).
we concluded
L.Ed.2d 518
When
has found
of the court
now the
not,
pre-AEDPA
that it did
and that our
prejudicial violations
serious and
two
ruling on the merits was
affected
rights. A close-
constitutional
ruling, the
post-AEDPA
the Court’s
Court
disagreed with
Court
ly
Supreme
divided
to consider on the
agreed
for the first time
by a vote of 5-4.
of those conclusions
one
constitutionality
of the
question
merits the
on the second
no view
expressed
It has
noted, it ulti
jury
As
of the
instruction.
here.
that we consider
one—the violation
by a 5-4
mately upheld the instruction
re-
issue we
single
constitutional
Belmontes,
7, 127
v.
549 U.S.
Ayers
vote.
prior
fаvor
in Belmontes’s
solved
(2006).
469,
As is
L.Ed.2d 334
S.Ct.
166
validity
high-
was the
current decision
majori
comparison
from a
apparent
instruction,
jury
which Cal-
ly questionable
dissent, as well as from
ty opinion and the
already changed
of its
because
ifornia
Court, it
in the
the nature of the division
unfairness.2 Unfortu-
ambiguity if not its
extremely
question.
too was an
close
change
came
nately for
1983,
gave
majority its
Breyer,
respondent’s
Justice
who
"[j]ust
year
after
2. In
Supreme
explicitly
Court
in his
sentencing!!]
Payton,
the California
stated
fifth vote in
with factor
considerable discomfort
evinced
in which
that "this is a case
concurrence
(k),”
question, and "insert
the instruction in
to the reason-
Congress’ instruction to defer
effectively amending fac
ed a critical footnote
judges
makes
conclusions of state-court
able
(k)
expanding
that a
the evidence
tor
28 U.S.C.
See
critical
difference.
properly
de
jury could
consider in
California
2254(d)(1).
judge,
§
I a California state
Were
impose
ciding
a death sentence.”
whether
Payton's penalty-
likely
I would
hold
469,
S.Ct.
Ayers
549 U.S.
Eighth
phase proceedings
violated
J.,
(2006) (Stevens,
dis
166 L.Ed.2d
Payton,
Amendment.”
legisla
Subsequently,
senting).
the California
J., concurring).
(Breyer,
S.Ct.
instruction
ture also amended
way
confirm that "the
question in such a
as to
remanding.
vacating,
granting,
4. Order
may provide the
category
evidence that
death is much
a sentence other than
basis for
category
in factor
described
broader
Ok)."
482 n.
At the time we decided the instruc- now. More important, frames the ensu- issue, second, tion we were аware that a prejudice discussion so as to the un- serious, equally question constitutional informed reader’s view of the merits of the regarding had been raised ineffective as- *3 Putting constitutional case. hu- our fellow decided, sistance of counsel. We without beings man to death far is too serious a objection, only to resolve the former issue business for resort to such tactics —or decision, in our appeared first for what judges for to allow themselves to be compelling us to be reasons. the Where Here, swayed by them. our colleagues resolution of one constitutional issue will have rightly petition denied the to rehear case, dispose obviating of a thus the need banc, the case en and the vast majority оf second, general juris- to reach a it is the judges this court’s active have declined to prudential practice not to decide both sign their names to Judge Callahan’s dis- questions simply provide in order to an al- sent. With assurance we have ternative basis for the court’s decision. Constitution, faithfully upheld the and that Although may it be within our discretion nothing we have done than give less to resolve more than one constitutional most deliberate consideration to each claim unnecessary so, issue when it is to do us, presented regretfully we it find nec- ordinarily contrary courts do not act essary to file this concurrence in the denial the well-established rule that we avoid de- of petition rehearing en banc. ciding if questions constitutional we can
arrive at the same result without reaching CALLAHAN, Judge, Circuit with whom them. O’SCANNLAIN, KLEINFELD, GOULD, TALLMAN, BYBEE, BEA, and N.R. then, present opinion, our we are SMITH, Judges, join, Circuit dissenting simply doing requires what the law of us— rehearing from the denial of en banc: serious, confronting extremely unques- tionably legitimate constitutional issue that I again respectfully must dissent from we found no reason to reach the first time rehearing denial of en banc. This is the the case was before That us. issue is panel third time that a court this has set provided whether defendant’s counsel inef- aside Belmontes’s death sentence.1 How fective assistance at penalty phase. ever, if even this were our first exposure Upon exhaustive review of the law and the case, panel’s majority us, facts agreed before we with Belmontes has created a standard for effective assis and concluded that he had received and penalty tance of counsel in a death case been prejudiced constitutionally defi- that, effect, guarantees a defendant a representation. cient penalty stage second trial. The
Judge Callahan’s
subtly
interpretation
introduction
dis-
the facts
this case evis
transpired
torts what has
pertinent
prejudice prong
cerates the
of the test for
judicial proceedings and leaves the reader
ineffective assistance of counsel set forth
with a
impression
false
of what
668,
this court
Strickland v. Washington, 466 U.S.
687, 104
2052,
(1984).2
has done in
past
and what it
doing
S.Ct.
struck
II
*6
well aware
He noted that “counsel was
majority attempts to circumvent
The
up to
I have lined
of all the witnesses
FN5
by focusing on
prejudice
this barrier
to
past].”
testify to
violent
[Belmontes’s
counsel,
majori-
in
ways that
all the
have to
agreed:
going
“I’m
to
The court
provide
failed to
effective
ty’s opinion,
into the whole back-
go
allow him to
However,
accepting
even
assistance.
(emphasis
we don’t do that.”
ground if
counsel’s
majority’s characterization of
added).
immediately acquiesced;
Schick
efforts,
ag-
that
the excluded
it is clear
character
judge ordered Martinez’s
outweighed any
evidence far
gravating
record and
testimоny stricken from the
might
that
have arisen
benefit
it.
jury
disregard
to
admonished the
mitigating evidence.
of further
admission
little doubt that the
This incident leaves
ready
admit the Howard
court was
to
that counsel failed:
majority
asserts
impeachment.
evidence
rebuttal
adequate investigation
—to conduct an
FN5
would test the witness's
He stated that he
and to
mitigating evidence
possible
man,
young
knowledge
of the facts that as
pen-
Belmontes for the
properly prepare
police
attempted to seize a
officer's
Belmontes
trial,
alty phase of
arrest,
gun
gun during an
that he carried
having
with
849-51;
was
trouble
school because he
F.3d at
schoolmates,
of the Black
that he was a member
mitigating evi-
additional
present
—to
Ontario, California,
Angels gang
and that he
851-853;
jury,
dence to the
id.
Jerry Howard. The record shows
murdered
such evidence
whether he believed
prosecution had in-
asked
habeas counsel that the
Donaldson,
‘devastating,’
who
said: ‘Certain-
tended to call Detective
Schick
would be
fash-
would have testified to
'cold-blooded
ly.’” Id.
killed. When
ion’ in which Howard had been
present
jury
unlikely
—to
to the
evi-
evidence
meaningful
“substantial
was
to be
jury
mitigation
majority puts
hu-
without —as the
it—
might
dence
Belmontes,”
863;
expert
“an
who could make connections
manized
id. at
mitiga-
between the various themes in the
adequately prepare
—“to
his witnesses
explain
jury
they
tion case and
to the
how
testify
with the result that their testi-
could have contributed to Belmontes’s in-
mony
unhelpful
possibly
was
even
in criminal activity.”
volvement
Id. at 853.
id.;
damaging,”
expert
But no
could form an
on
present
expert
explain
—“to
an
mitigation”
how the
might
“themes
of the
evi-
relevance
available
“have contributed to Belmontes’s involve-
id.; and,
jury,”
to the
dence
activity,”
ment
criminal
learning
without
explain
jury
closing
—“to
to the
in his
of, and considering, Belmontes’s murder of
argument
of the small
relevance
any
Accordingly,
expert
Howard.
who
quantum mitigating
evidence he did
might
testify
support
have been able to
introduce,
and failed to make
of the
in mitigation”
“themes
humanizing arguments
critical
subject
would have been
to cross-examina-
might
jury,”
influence a
id.
tion about Belmontes’s role in Howard’s
O’Scannlain’s dissent notes
murder.
jury
seems self-evident that a
the factual problems
number of
with these
already
that had
convicted
Belmontes
However,
key
assertions.5
flaw the
degree
swayed
first
murder would not be
majority’s approach
recog-
is a failure to
by evidence of his difficult childhood when
nize that whatever Belmontes’s character
also
reveals to the
experiences,
and childhood
and whatever
previously
committed an execu-
contracting
murder,
the effect on him of
tion-style
only
rheumatic
convicted of
fourteen,
age
fact,
fever
this mitigating
being
accessory
after the
and had
example,
majority
5. For
explain
positive
asserts that
does not
what
mentioned,
effectively
qualities
prepare
lay
Schick "did not
were not
could
but
havе been illuminated.
testify.”
he called
Belmontes's moth-
witnesses
already
er
had told the
that Belmontes
particular,
matter of childhood traumas knowledge, certain Ill becoming likely person’s in a can result criminal con- engage subsequent mean- majority’s approach renders duct, they always do and not that forth in our en the standard set ingless necessarily particu- did they Mayfield, Mayfield. banc jury. There would lar case before carefully weigh held that a court “must we suggesting that such be no basis for (both that which mitigating evidence be differ- opinion professional was omit- introduced аnd that which informed that expert if the were ent understated) against aggrava- ted rath- murders Belmontes committed two Taylor], 529 ting [v. Williams er than one. [362,] 120 S.Ct. U.S. *8 (2000) F.3d at 869 n. 20. ], 529 and determine 389 ... [ L.Ed.2d probabili- ‘a there was reasonable whether judge compelled is attorney or What errors, that, the sentencer absent ty conclu- majority’s unsupported accept that the balance ... would have concluded professional expert’s sion mitigating circum- aggravating and expert if the “any not be different would Martinez, friend, testified majority Belmontes’s Robert lay witnesses that Even the person. a violent was not would have that Belmontes Belmontes, argues should called counsel at- at 881. Belmontes's suggest 529 F.3d very not to had to be careful violent, testimony agreе sugges- torney that Martinez's a was not as such prevent him prosecution would be stricken order tion would have allowed being about the Howard cross-examined murder. As from question them about the Howard noted, exactly happened when murder. what this alcoholism, did not warrant death.’ father’s stances Strick- Belmontes also suf- land, as a maternal grand- S.Ct. 2052.” fered result of his (footnote omit- Mayfield, prescription mother’s alcoholism and ted). addiction, which, in Although balancing gives drug this test combination every doubt, manipulative controlling the defendant the benefit of with her and here, behavior, the admission of Belmontes’s confes- caused constant strife within murdering family. sions to Howard would have both his immediate and extended any mitigating overwhelmed additional evi- spite adversity experienced, he majority argues dence that counsel kind, responsible Belmontes was a and presented. possi- should have There is no very pleasant likeable child with a de- bility that the admission of the additional loving protec- meanor. He awas and evidence, mitigating accompanied younger tive older brother to his two by aggravating be would siblings, respectful and was kind and to- juror’s would have changed reasonable grandparents ward his maternal not- mind. withstanding they fact that disap- proved of him on account of his mixed aby
This conclusion is reinforced
review
racial background.
participated
He
allegedly mitigating
evidence.
League,
Navy Cadets,
Little
team
First,
present
Bеlmontes’s counsel did
sports, and had a
route.
paper
his
attempt
number of witnesses
to hu
years,
school,
early
kept up
he
made
by
manize
Belmontes. As noted
easily,
got along
friends
and
with his
dissent,
aspects
O’Scannlain in his
“several
teachers.
positive
childhood charac
14, however,
ageAt
Belmontes was be-
presented:
teristics were
fever,
set
rheumatic
a condition for
mother told the
of his
relation
‘close’
repeatedly
which he was
hospitalized.
sister,
ship
grandfather
with his
spoke
his
significantly
The disease was
debilitating
of Belmontes’s devotion to
grandmoth
his
required
stop
him to
er,
attending
learned that Belmontes had
school and to terminate his involvement
a leadership position
assumed
on his CYA
in sports and оther social activities. As
joined
fire
religious
crew and had
the ‘M2’
result,
he was isolated from
peers
his
program
custody.”
while
CYA
Bel
pursue
and unable to
montes,
through
means
Id. at 852 Instead, 865 n. argues that his “drug use should have been presented to There can be little doubt that Belmontes by humanize him showing tragic how the had a childhood. But wretched experienced circumstаnces he grow- while past aggravating included additional fac- up adversely affected him.” Id. This majority’s tors as well as the selected miti- perspective contrary Furthermore, our observation gating factors. the rele- in Mayfield “juries unlikely are vance of “traumatic experiences” favor danger- defenses based on abuse of would not meaningful jury have been to a (who drugs evaluating ous a defendant’s cul- expert without the use of witnesses pability for violent behavior.” 270 at have had to have been informed of murder).7 n. 17. the Howard sum,
The record indicates that
addition to
support
the record does not
Howard,
the murder of
there were addi
assertion that
there
“a
aggravating
tional
large quantity
factors
...
mitigating evidence
past that
presented
jury.
were not
to the
that was never
presented
uncovered or
attempt
These include his
a police
jury.”
to seize
529 F.3d
arrest,
gun
Rather,
officer’s
during
weight
and his
and relevance of the
carrying
gun
to school because he was
additional mitigating evidence was far
having trouble with
problematic
schoolmates. Bel more
than the
ad-
montes,
Also,
881. Cecilio Petitioner- now advocated mitigation Appellant, ap- inconsistent with Belmontes’s cir- his defense. Under these proach to cumstances, any investigate failure to DUNCAN, Respondent-Appellee. W.A. mitigating evidence based on Bel- develop harm- childhood was montes’s wretched No. 06-56523. Belmontes cannot show that “there
less. that, Appeals, States United Court probability is a reasonable but errors, the result unprofessional counsel’s Ninth Circuit. differ- proceeding would have been 9, Argued and April Submitted 2008. Strickland, ent.”
S.Ct. 2052. Filed Dec.
VI en should have reheard this case
We
banc not so much because the law, applicable aware of the but
was not particular its view of the facts will
because impossible
make it almost for a court grant capital
the Ninth Circuit not to any trial penalty stage
defendant a new presenting to balance ad-
time counsel has mitigating against
ditional evidence evidence that most like-
aggravating
ly mitigating evidence. accompany present counsel will decline to
Competent possibly even de- it, investigate knowing
cline to second-guess
Ninth will his or her Circuit
decision, aggravating if the even prior of a confession to a murder.
consists majority opinion that creates this
situation results from a failure to heed the admonition that the rea-
Supreme Court’s
sonableness of counsel’s action must be “the con-
evaluated as of time counsel’s Strickland,
duct,” 466 U.S. at skewing
S.Ct. and the of the balanc- adopted Mayfield, we 270 F.3d
ing test Accordingly, I dissent rehearing
denial of
en banc.
notes
in the
elephant
murder. This was the
the
testimony
jury “never heard
about
the evi
knew of
courtroom. Belmontes
youth;
Belmontes faced as
traumas that
dence, the
knew of the evi
prosecutor
many
possessed
heard that he
it never
dence,
judge
and
knew
attributes,
it never heard
and
positive
managed
keep
to
but Belmontes’s counsel
substance abuse
struggled with
he had
hearing
from
the evidence.
The
Id. at
early teens.”3
since his
overwhelming.
The
was
evidence
had
that if this evidence
majority asserts
Bel-
years
of
two
before
spring
“there is
reasonable
presented
been
Jerry
Steaey,
Howard’s
montes murdered
come
would have
probability
secluded,
in a
semi-rural
body was found
conclusion about Belmontes’s
to a different
with a
“He had been executed
bullet
area.
Id.
sentence.”
Belmontes, 529
the back
the head.”
to
of
reading of
record
myopic
is a
This
(O’Scannlain, J., dissenting).
F.3d at 880
would have been
ignores
and
what
majority’s opinion,
In his dissent from
any attempt
of
devastating consequences
the evidence
recounts
Judge O’Scannlain
experi-
childhood
to relate
this execution as
connecting
to
Belmontes
Steaey
McConnell.
murder
ences
his
follows:
analysis
its
develоp
The
is able
for Belmontes
report prepared
A parole
the fact
minimizing
only by ignoring
“the
remarked that
Schick,
May
on
attorney, John
that Belmontes’s
carried
the murder was
jury’s
method
which
managed to exclude
had
sophistication,
planning,
indicate[d]
out
all evidence
Belmontes
consideration
testimony
premeditation.”
Witness
a cold-
only previously
not
committed
had
Bel-
against
murder,
strong
offered
blooded,
but had
execution-style
However,
of lack of
“because
montes.
that he had done
people
told several
also
witnesses,
part
on the
cooperation
promote
Bel-
Any further effort
so.
tried for mur-
could not be
miti-
experiences
[Belmontes]
childhood
montes’s
sug-
that it does “not
rehearing
admits
dissenting
en
3. The
the denial of
ion
from
banc,
under the influence
gest that
was
Belmontes
joined by Chief
Kozinski
Tallman,
O'Scannlain, Kleinfeld,
during
of the mur-
drugs
the commission
Judges
865 n. 18.
529 F.3d at
Bea).
der.’’
FN3Still,
police
prove
der.”
could
principal
involved.” Belmontes does
possessed
gun
deny
used to
the truth of this evidence.
Howard,
kill
agreed
so Belmontes
omitted).
(footnote