Bernard Lee Hamilton v. Daniel Vasquez, Warden of San Quentin the Attorney General of the State of California

Plan, prior decisions language of court, of the situation. equities or in af- court is district judgment of the

firmed. HAMILTON,

Bernard Lee

Petitioner-Appellant, Quen VASQUEZ, Warden San

Daniel

tin; Attorney of the State General California, Respondents-Appellees. 91-56252, 91-56295, 91-56251, 91-

Nos. and 93-55039. 91-80385 Appeals, Court of

United States

Ninth Circuit. Dec. 1992.

Argued and Submitted Feb. 1994.

Decided Rehearing; on Denial of

As Amended Rehearing En Banc

Suggestion for

Rejected March 1994. Benzian, Watkins,

Peter H. Latham & San Camino, Diego, and Richard C. Tustin, California, petitioner-appel- for the lant. Attorney Zaharopoulos,

Pat Assistant Gen- eral, California, Diego, respon- for the San dents-appellees. SCHROEDER, FLETCHER and

Before: TROTT, Judges. Circuit SCHROEDER, Judge: Circuit pris- a California state Bernard death, appeals oner sentenced to district § court’s denial of his 28 U.S.C. 2254 habeas petition. from The case arises County Diego Superior conviction in San murder, burglary, rob- degree Court for first bery in violation of Cal.Penal kidnapping §§ and his sentence Code the Buchanans’ credit of Hamilton had used appeals from the denial He also to death. items, food, 60(b) in- buy gas and other asking the district cards to motion Rule saw, and a set of consider, cluding a a screwdriver original of his part court wrenches, relief, knife and twine. Blood a butcher claims that he had for habeas petition of the van and blood on Hamil- of the on the floor during pendency to exhaust failed type the blood the district ton’s shoe matched affirm We petition. habeas 60(b) motion and victim. the Rule court’s denial the merits on those relief on the denial Diego police interviewed Hamilton in San underlying validity of the going to claims day Ham- on the after his arrest. Oklahoma Hamilton is enti- hold that We convictions. rights told the his Miranda ilton waived respect only with relief tled to Diego from San police that he had traveled proceedings, because of the state phase nickname) (Mrs. Buchanan’s with “Fran” confusing giv- instruction the basis on that Mrs. “Spider,” Spencer. He said Calvin have made a reasoned en, jury could Spider, left her husband for Buchanan had between a death sen- choice and informed Louisiana, departed the two and a life sentence tence and credit leaving with the van and Hamilton parole. Mrs. Buchanan cards. Hamilton identified he saw picture from a and stated that when of this case are circumstances The factual Hamilton, wearing “light jeans colored and 41 her she was People v. length in set out at 902, purse.” 408, carrying beige a non-leather Cal.Rptr. 710 P.2d 981 221 Cal.3d Hamilton, vacated, 478 (1986), v. California S.Ct. trial, presented evi prosecution At 3328, 1017, 92 L.Ed.2d 734 106 U.S. had called Donna Hatch dence that Hamilton I), (1986) (Hamilton People and v. Hamil Terrell, 31, May Texas on 1979 from his in 31, 351, ton, Cal.Rptr. P.2d 247 753 45 Cal.3d Diego. He Hatch parents’ home in San told denied, 1047, (1988), 109 cert. for Texas in a van when that he would leave (Hamilton (1989) 879, 102 L.Ed.2d morning. gas opened station in the II). convictions arise from the Buchanans’ credit card to Hamilton used Frances Buchanan. Mrs. Eleanore death of on buy gas 4:45 a.m. and 10:15 a.m. between San body was discovered near Buchanan’s 31, bought gas May He also later 1979. 31, California, May on 1979. The Diego, Centro, day in El California and Tuc missing. hands were Two body’s head and son, Arizona. Hamilton arrived Terrell on ankles, cord were tied to her strings of white testimony June 1. Hatch’s was that when body tie stuck to her and blue fibers were arrived, dirty, the van it was and the arm of on her There present wrists. marks were chair, the driver’s the mirror and the window in her abdomen and evi were stab marks passenger on the side were broken. Hatch that her head and hands were dence showed stated that she saw credit cards in the names of both a knife and a saw. removed use Terry and Eleanore Buchanan the van. day disappearance, her Mrs. Hatch also testified that she heard Hamilton On the he had driving family’s homе call his brother and tell him that Buchanan left her in order to attend class at Mesa flown to Texas. Hamilton told Donna blue van “thought he College. testified that she was he he had killed man but did Her husband Levis, shirt, beige not want to tell her details because she wearing tan brown and purse. might anything carrying a brown Mrs. Buchanan not want to have to do with and I, 221 last seen alive at him if he told her.” Hamilton Cal. attended class 905, Rptr. p.m. as she toward the 710 P.2d at 984. about 9:30 walked parking lot. school Diego jail, at the At trial an inmate San Thomas, spoken stopped trav- Steven testified that he had Bernard Hamilton while 8, Hamilton, eling in blue van in Oklahoma on June who said “well did but 906, they’ll police prove the vehicle never it.” Id. at P.2d 1979. When checked number, they transported learned that the at 985. When Hamilton identification August belonged appar- he van Buchanan. Hamilton courtroom on Mrs. week, ently “alright, you During preceding told Parsons: was arrested. Sheriff Court, v. Deputy Superior fun, 35 Cal.3d Cal. mine later.” The your I’ll have (1983), Rptr. your already had 672 P.2d 862 because the thought you “I responded, “Yea, I’ll kill on the did not instruct the necessi responded, fun.” Hamilton my ty felony-murder kill in more, too, for intent you may be first a lot special Supreme circumstance. The Court 710 P.2d at 985. list.” Id at agreed, finding spe and set aside the nev- had testified at trial that he Hamilton circumstance, cial reversed the death he found the victim. He stated that er seen grounds. but on all other affirmed 12:45and parked the van on a street between May keys Hamilton I was vacated 1:00 a.m. on 31. The were home, Court, Hamilton, U.S. the van called ignition and he drove (1986), morning. 92 L.Ed.2d 734 and left for Texas later that Hatch Clark, story light for consideration in of Rose v. He testified that he invented the about spending Spider time with and Fran so that remand, II, On charged

he would not be with theft of the uрheld special He denied the threats to Donna Hatch. California Court van. explained bought finding and the He that he saw circumstance sentence of People knives in order to rob a store in Texas. death. 45 Cal.3d other (1988), 753 P.2d 1109 cert. degree Hamilton was convicted of first denied, 879, 1047, 102 murder, burglary, robbery kidnapping. (1989). L.Ed.2d 1002 2,1981. March He was sentenced death on Court, appeal, petition in on Hamilton thereafter filed a dis- court, se, guilt pro setting the conviction as to Hamilton’s trict forth exhausted affirmed shackling People sentence. See claims. Hamilton contended that but reversed death 408, legs 41 Cal.3d 221 his hands and at trial was unconstitu- v. (1 1). 902, upholding In 710 P.2d 981 tional CR The district court dismissed conviction, petition reviewing court the court ruled that there was no state appeal, in of Hamilton’s record. On this court reversed the error court’s denial judgment proceed pro per. motion to in The court also of the district court and remanded case, upheld instructing the district court the trial court’s decision to shackle during agreed Hamilton trial. The court examine the entire trial court record and evidentiary hearing necessary. with Hamilton that it was error to allow into conduct an if 1469, Vasquez, letters that he in F.2d 1473 evidence had written while Hamilton v. 882 (9th Cir.1989). Id., jail appoint- 221 on an earlier conviction. Cal. We also directed the 913, However, Rptr. at 710 P.2d at 992. the ment of counsel. preju that the court ruled evidence was petitions, more two of Hamilton filed three ‍​​‌‌‌​​​​‌‌​​‌​​​‌​‌​​​​‌‌​‌​‌‌‌​‌​​‌​​​​‌‌​​‌​​‍dicial, and refused to overturn the conviction. dismissed, which were and one of which was upheld

The court the admission into evidence (SER petition pending consolidated with the letter, by of another written Hamilton to 8; 210). 6, 1990, ER On March the district Roch, Theresa which threatened the defense identify, court ordered Hamilton to within 90 attorney, proseсutor and witnesses in his days, all additional claims to be on raised upheld murder trial. The court the admis (ER 207-08). corpus habeas Hamilton iden of Hamilton’s sion statement to Sheriff Par claims, majority tified 38 of which were It also sons. affirmed admission into (id. 245-256). unexhausted On June at saw, evidence of the knife and twine that concurring following Judge Alarcon’s purchased. The Hamilton court ruled that opinion Whitley, 860 F.2d v. Neuschafer any error in the admission of Steven Thom (9th Cir.1988), cert. denied testimony beyond as’s was harmless a rea 107 L.Ed.2d sonable doubt. (1989) (Alarcon, J., concurring), the district sentence, respect With to his death Hamil- court ordered Hamilton to file all the unex- argued court, special ton circumstance hausted claims state or amend the finding claims, should petition be set the death aside and contain exhausted (id. 211). August reversed September due to Carlos On error under earlier, When time this matter before us we extended court the district until directed that review the the district court state remedies to exhaust

for Hamilton addition, 212-14). (id. evidentiary state court record and conduct an 22,1990 October hearing necessary claims the merits any to determine ordered court the district any “[indepen or claim. court We observed that filed in state not been that had often in federal dent review of the state court record is not raised claims exhausted petitions, particularly waived in habeas but so be considered vital that date (id.). challenging a decision t'o shackle petitions through his criminal trial. the defendant amended consolidated filed an Hamilton Shackling strongly disfavored because is court on October in the district petition may deprive danger that it the defendant is the basis of the denial of which presumption of innocence.” 48). (2 This to this court CR present appeal Citing at 1471. Wilson Vasquez, 882 F.2d pending consolidated petition superseded the (9th McCarthy, F.2d Cir. (id.). He had not filed unex- petitions 1985), shackling observed that we further court, the state and all claims with hausted a serious threat of proper “where there is petition had been ex- raised claims around the escape danger to those or 119). court, (ER The district hausted disruption in the court courtroom or where that all claims ordered November likely if is not restrained.” room is defendant petition in the amended were not included Id. 215(b)). (id. at The district waived deemed a three-week evidentia- court then conducted remand, the district court conducted Upon (I-X EH). ry hearing At the end of record thorough review of the state court hearing, the district court denied evidentiary evidentiary hearing which includ- and held an stay proceedings motion testimony from Hamilton’s former coun- ed (ER 216-22). present new evidence order to sel, him- judge and Hamilton the trial court court made detailed find- self. The district 23, 1991, the district court de- August On concerning surround- ings the circumstances (id. 114-206). at The dis- petition nied the shackling and the basis for the trial ing the probable granted a certificate of trict court court’s decision. (id. 13, 1991 at appeal on November cause to (id. 229-30). timely appealed Hamilton findings reflect that Hamilton was Those 44). filed in the district court Hamilton then to trial at originally placed prior in restraints 60(b) motion for relief from a Fed.R.Civ.P. request The request of his counsel. judgment and for leave to amend upon Hamilton’s sexual assault based petition. court corpus The district habeas assistant, physical and a assault on counsel’s (13 September motion on denied the request, At Hamilton’s counsel himself. 210). timely Hamilton filed a notice of CR removed, began were and the trial shackles 60(b) appeal from the denial of the Rule leg in a restrictive brace un- with Hamilton (13 210). 26, 1992 motion on October CR point, trousers. At that the district der his Hamilton was on notice that court found that Accordingly, three sets we before us upon Hamilton’s shackling depended future relating validity to the of issues: those out of court. conduct both conviction; relating underlying those proceedings; penalty phase of the state subsequently removed leg The iron was 60(b) relating to the denial of the Rule those trial complained pain. after Hamilton motion. availability of other inquired court about that Hamil- types of restraints and concluded Challenges Underlying to I. Convic- trial with- ton should have a chance to start tions restraints. out Shackling A. gave to episode rise further was a verbal assault and violent

Hamilton contends restraint the trial deputies exhibited toward who were decision to shackle behavior during court’s him his cell to bring Hamilton from to couri> state criminal process. violated due day on the third house after selection shackles. Less restrictive alternatives were attempted hearing morning, After a but commenced. failed. pattern

the trial court found a of increased proper- Hamilton contends that he was not agitation part on the of Hamilton and was ly warned that he might placed in shack- he the edge losing concerned that was “on les, but this contention is without merit. Al- control of himself at time.” The court though he expressly was not warned that he rejected increasing considered and the num- shackles, placed would be the district court inability ber of bailiffs because of their found that he was on notice that further control a sudden outburst. The court also disruptive might behavior lead the court to removing considered Hamilton from the order finding shackles. This fully sup- during rejected courtroom trial but this al- ported by the record which shows that Ham- ternative because of Hamilton’s status co- ilton was shackled after he himself com- counsel. The court ordered Hamilton shack- plained pain leg from the brace and ex- led for trial “with no alternative available.” pressed preference his own for shackles to the brace. placed

Hamilton was then in handcuffs at- Finally, tached to a chain around his waist. He had a Hamilton contends that placed chain legs. Although around his district improperly allowed the trial trial, during judge seated testify evidentiary hearing. court, was aware of the shackles because he took This in remanding case, testify. the stand to instructed the district court to hold an evi dentiary hearing if it deemed hearing such a findings, On the basis of these which are appropriate supplement the state court evidence, fully supported by the the district record. 882 F.2d at 1473. Cal. court concluded that the trial court had taken § judge Evid.Code 703.5 bars a testify from requisite steps safeguard all of the Hamil ing at subsequent proceedings civil as an rights. ton’s These determining included on expert judi about matters before him in his adequate inquiry basis that an unusual capacity, cial preclude but it does not judge necessary measure preserve security, testifying from as a fact in a witness habeas pursuing alternatives, less restrictive proceeding. There is no holding basis for warning the disruptive defendant that behav law, that California state much less féderal might physical ior result in restraints. See law, was violated the district court’s hear Allen, Illinois v. testimony. is, sum, There no (1970); Jones v. basis to overturn the district court’s conclu 883, (9th Meyer, Cir.), 899 F.2d cert. shackling sion that the at trial did not violate denied, 498 U.S. 111 S.Ct. process rights. Hamilton’s due (1990); Rushen, L.Ed.2d 67 Spain (9th Cir.1989), denied, F.2d cert. B. Assistance Counsel Ineffective Hamilton raises a number of contentions (1990); Finner, Tyars v. 709 F.2d relating performance counsel, to the of his (9th Cir.1983). 1284-85 The district court Ryan, agree Mr. at trial. We with the dis- shackling concluded that the did not violate trict contentions, court that none of these right process. to due combination, standing either alone or in rise appeal, On Hamilton contends that to the level of constitutional violation of the facts judge before the trial justify right did not to effective assistance of counsel. shackling. contentions, The record fully as more weighing devel- these we must bear in oped in the district court’s evidentiary hear- mind that in order to demonstrate ineffective ing counsel, belies this contention. Hamilton’s behav- petitioner assistance of a habeas ior outside of court and demeanor in performance court must show that counsel’s fell supported the shackling determination that attorney, below that of a reasonable and that justified. similarly The record belies the proba- counsel’s created a errors reasonable that, errors, contention that the trial bility court failed to con- but for the the outcome of sider a less restrictive alternative than have been proceeding different. Washington,

Strickland v. 2. investigate Failure to present cer- 2062, 2064, 2068, 80 L.Ed.2d tain evidence. deal with We each Hamilton’s Hamilton contends that trial counsel was contentions in turn. (1) ineffective because he failed to: investi- gate present evidence that the victim request 1. Counsel’s that Hamilton be (2) decapitated post-mortem; present an shackled. theory alternative as to how the victim’s (3) appeared shоe; blood on Hamilton’s chal- Ryan pretrial request made a Mr. lenge prosecution’s theory that Hamilton request that Hamilton be shackled. The transported van; body victim’s her principally upon based Hamilton’s violent at (4)challenge prosecution’s use Hamil- which, Ryan’s on during tack assistant ton’s identification of the victim. court, hearing before the district the assis threatening.” Ryan tant as “life described Decapitation. a. himself testified in the district court that the request episodes pathologist on performed was also based earlier who Ryan autopsy and threats. violence further informed the victim testified trial that he certainty the trial court that he was unable to state with was concerned that whether prejudice the victim’s Hamilton would his own case if he head and hands were removed (42 2337). violently were to jury. behave front of the before or after death RT He did state, however, that “probably the victim was It is difficult to conclude that counsel’s (id.). dead” when her hands were cut off pretrial request was unreasonable in the cir- petition, In this habeas Hamilton claims cumstances, but even we were to so con- trial, that his counsel at in order to counter clude, request could not have affected the prosecutor’s suggestion decapita- that the outcome of the trial. This Ryan is because might tion have occurred before the victim shackling request withdrew the before Ham- argued died should have decapita- that the appearance ilton’s first before jury, tion occurred after death. days Hamilton remained unshackled for six jail against deputies until the outburst con- The district court determined that counsel court, Ryan’s objection, vinced the trial over was not declining ineffective in to make suсh that Hamilton should be shackled. argument. agree an We that counsel could reasonably arguing concluded that true, out, points It is that the point might seem to be an effort to trivialize episode violent on October 8 would not in and the crime. justified shackling, itself have accord- Yet, judge. according to the trial b. Blood on the shoe. judge, Hamilton’s demeanor in played large also shackling role Hamilton contends that trial counsel decision. accept We cannot Hamilton’s fur- was present ineffective because he failed to suggestion ther Ryan’s that but for earlier theory an alternative as to how the victim’s request shackling, the trial court appeared would blood on Hamilton’s shoe. The never any have known of other prosecution’s incidents of evidence included Hamilton’s considering shoe, violence. In options its on Octo- stained with blood that analysis re ber the trial court obligated was to become vealed matched the type victim’s blood and circumstances, informed of (51 all relevant in- was different from Hamilton’s RT cluding any 3114). prior by attacks Hamilton of The defense theory was that the shoe which his counsel was aware. If might the court have been smeared with the victim’s already had not known of prior through relevant blood contact with the van’s blood inquired. Jones, behavior it have should carpet, See opposed stained to contact with the short, 899 F.2d at In (59 3906). 885. Hamilton cannot victim herself In support RT prejudiced show how he was by Ryan’s pre- theory, Bell, expert, Mr. the defense request for shackling was which with- testified at the blood could trial that drawn before the trial began. been the shoe from carpet transferred to (id.). However, argued he conceded on cross-exami- Defense counsel at trial that pres- body carpet transported no fibers nation that there were another car driven (id.), killer, by on the shoe noting ent in the blood true tire tracks prosecution’s expert on rebuttal testified different by from those left the van were carpet have been mixed in with body fibers would discovered in the area from where theory the blood on the shoe if the defense was recovered. 4018). (60

were true RT In evidentiary hearing in the district request present coun- At court, attempted Hamilton to show that sel, experiment, prior Bell conducted an argu- counsel could have made additional evidentiary hearing, from the district court prosecution’s ments to rebut the case. The possible which he concluded that it would be accurately district court determined that carpet for blood to have come from the of the arguments such were also inconclusive. (id. carpet without a transfer of fibers at van Hamilton has not shown that additional 38). experiment carpet did not use Bell’s investigation of this issue would have led to a van, from the which were still avail- samples argument more credible than that made at evidence, able as and he conceded that trial. samples he used were “somewhat different (id. 36). carpet in the van” at Bell from the d. Hamilton’s identification of the victim. shoes, or did not use Hamilton’s a similar Hamilton contends that counsel was (IX 127). type, experiment EH challenge ineffective because he did not addition, from a bank Bell used blood blood prosecution’s use of Hamilton’s identification anticoagulants, had been treated with of the victim. AOB 27-28. This lacks claim clotting capability, consistency and so that its merit. time, drying were different from the victim’s Oklahoma, When Hamilton was arrested in (id 126-27). The district blood at positively he identified the victim from a properly experiment found that Bell’s officers, photograph by offered one of the flawed. nickname, correctly identified her her During evidentiary hearing in the dis- (49 2873). “Fran” RT Hamilton also stated court, attempted trict to establish wearing light-colored the victim was asking that counsel was ineffective never jeans carrying beige purse the last expert the defense whether the shoes could 2876-76). (id. A time he saw her friend of carpet have been stained without hav- the victim testified that when last seen the carpet the blood mixed fibers. Be- wearing jeans carrying victim was tan experiment, cause flaws howev- (41 2161). purse tan RT er, failing trial counsel cannot be faulted in story Hamilton abandoned this after the Moreover, theory. pursue such a even if the body recovered. He victim’s testified testimony presented, been had view the story being that he concocted the to avoid experiment, flawed there is no reasonable (54 3481). charged with theft of the van RT probability that the trial outcome would have had seen the Hamilton denied he ever been different. See 466 U.S. at Strickland (id). victim, argued at dead or alive Counsel Therefore, 104 S.Ct. at 2068. there was through the victim trial that Hamilton knew no denial of effective assistance of counsel purse the contents of the that he found in the connection with blood on the shoe. (id. 3393). specifical- did not van Counsel ly attempt prosecutor’s argu- to rebut Transportation body.

c. of the victim’s ment that Hamilton lied when he testified trial, prosecutor argued At that Hamil- (63 that he had never seen the RT victim transported body in ton the victim’s the vic- 4151-53). supported by tim’s van. This contention was large During evidentiary hearing in in storage compаrt- blood stain district court, presence carpet ment of the van and fibers Hamilton testified that he was able to of matching carpet identify photo- there were of the on the vic- the victim because van graphs purse, as as tim’s stomach and of well arms. her with (1986), many and 89 L.Ed.2d of the van S.Ct. the owner papers indicating that 46-47). just made untimely they were before (II as Hamilton were EH Fran was named proceedings had meaningful trial or after idea that she up with the that he came stated Smith, 780 F.2d States begun. of See United the color pants because wearing light was Cir.1986). (9th 46). (id. The district at light purse her was unworthy story be to Hamilton’s court found evidentiary hearing, the trial During the 152). .(ER of belief requests that judge counsel testified sincere, not but self-representation were that failed show has to Hamilton delay the trial. district to The were made under was deficient performance counsel’s finding that at- ultimate Hamilton’s court’s finding must court’s The district Strickland. expres- not tempts to relieve counsel were erroneous, clearly and noth upheld unless him- unequivocal represent desire to sions of finding is suggests that this the record trial, self, delay the is made to but were very was faced Counsel erroneous. by the record. amply supported Hamilton prosecution’s supporting strong evidence rights his under has not demonstrated to failure Counsel’s theory of identification. Faretta violated. were story not consti does an incredible present ineffective assistance. tute Improper D. Admission Evidence challenges admissibility Hamilton Self-Representa- Right to Denial C. permitted The trial court certain evidence. tion testimony Deputy Parson’s the admission deprived contends he was Hamilton threatening while statements of Hamilton’s right represent violation to himself his securing prison, chains he was Hamilton’s 806, 807, 95 California, 422 U.S. of Faretta v. they admissible as a on the were basis A S.Ct. declaration, spontaneous not the result of request grant a defendant’s trial court must By stipulation, interrogation. custodial long request so as the represent himself to purchased that Hamilton had was told intelligently. Id. knowingly made saw, rope traveling knife and while butcher at 2541. in the victim’s van. The trial court also reflects before the trial court The record three allowed admission of letters written lawyer appointed to Ryan the third was prison while he was for a Hamilton complained represent Hamilton. Hamilton his fear prior which demonstrated conviction attorney’s encourage to his first efforts willingness anything about to do to prison he insanity plea upon (52 3228-30; 3232-36). based an information secure release RT his in violation of had obtained confidences. The trial court ruled that letters were upon counsel theory trial court relieved based motive under relevant to show lawyer faith.” After a was “breach of second anything to would do avoid Hamilton agreed appointed, grudgingly the trial court killing returning prison, including to the vic- request, (24 upon him but tim, relieve his theft of her van who witnessed grounds no 324). that he saw reasonable addition, observed admit- RT the trial court counsel. remove where stated ted a Hamilton wrote he letter who kill his that he knew someone would Ryan appointed, trial court When attorney prosecutor if he were con- that it more stated entertain (47 2741). RT victed of murder requests relieve counsel for Hamilton be court ruled that the letter was admissible Hamilton cause trial court believed that prosecution be- attempt an to intimidate seeking delay The trial trial. outgoing mail cause knew that Hamilton Ryan court denied several motions relieve (id. being prison read authorities trial, including morning one before on the 2738). found, however, As the district court trial. Supreme Court requests unequivocal, appeal, Ar On the California these were see (9th letters Marquez, 772 F.2d held that the admission three mant Cir.1985), denied, prison prior for a cert. wrote while prejudi exceptional but conviction was error it was circumstances which warranted adjournment. at the People ‍​​‌‌‌​​​​‌‌​​‌​​​‌​‌​​​​‌‌​‌​‌‌‌​‌​​‌​​​​‌‌​​‌​​‍Cal.Rptr. v. 221 Id. cial. 911-914, 710 at The court P.2d 990-992. distinguishable Hamilton’s case is from

upheld trial of the oth the court’s admission not only Santamaría because was the ad- er evidence. journment pre-planned, but the court also legitimate a adjourn had reason to the trial. inadmissibility of evi Claims of Although the court could have been more pro cognizable corpus dence are habeas instructing jury stern the not to discuss ceedings when admission the evidence case, the Hamilton has failed to show that process rights the defendant’s due violated adjournment the the admonition ren- by rendering fundamentally proceedings the Jammal, dered his trial unfair. See 926 F.2d Kamp, Van F.2d unfair. Jammal v. de 926 holiday deny at 919. The recess did not (9th Cir.1991). Although erro the process. Hamilton due the presents neous admission of three letters questions with to Hamil respect different Challenges II. Penalty to the Phase concerning in penalty phase ton’s claim the A Modijied Briggs Instruction on struction, these letters did not render Hamil Commutation phase fundamentally guilt ton’s unfair. showing

There has been no that the admis all the Of claims raised Hamilton challenged sion evi of the remainder in this appeal, most serious relates to the rights. dence Hamilton’s violated federal given jury during instruction the pen

alty phase describing the life effect parole. sentence without Day Adjournment E. Eighteen aiding Hamilton contends that far from selection, During jury prospective jury making a reasoned and informed jurors there two- were informed would be a death, choice a sentence of life between (26 during holidays week recess winter process requires, given as due the instruction 90). 36, 39, 55; RT 27 RT On December jury parole misled the as to the likelihood of 18, 1980, the trial court consulted with eligibility, encouraged, than rather discour jury juror one could and learned that least jury aged speculating parole, from about immediately preced deliberate the week considering and distracted the from rel (65 1). RT had Christmas After mitigating evant evidence in violation of approximately for one- deliberated two and Eighth and Fourteenth Amendments. concerning days guilt, half It is well established that be January trial court recessed the trial until punishment qualitative cause the (8 death is objection 1981 without from RT ly punishment, from 1497). different other forms of greater reliability there is need adjournment Hamilton contends that determining ap a death whether sentence is right process violated his to due because it propriate particular Fetterly in a case. See unjustified proper- and the court did not (9th Paskett, F.2d Cir. ly jury. admonish the AOB 41. His conten- 1993) Carolina, (quoting Woodson v. North tion is meritless. 280, 303-305, 2990- (1976)). Thus, re Santamaria, People Hamilton relies on Eighth quirements and Fourteenth (1991) Cal.App.3d Cal.Rptr. dictate that: Amendments Santamaría, support his claim. Appeal California Court of held that sentencing where discretion is afforded days during body grave court’s recess order eleven on a matter so determi- jury deliberations violated the defendant’s nation of whether a human life be should Id., right process. spared, to due taken or that discretiоn must holding, 48. In so suitably court noted that as mini- directed and limited so specify wholly trial court did not arbitrary mize capri- the reason for the risk recess, and there was no cious indication of action. 1160 153, 189, capital S.Ct. a case that the Governor had the Georgia, 428 U.S. 96

Gregg v. (1976) (opinion authority 859 a life The 49 L.Ed.2d to commute sentence. Stevens, JJ.). Powell, To avoid Stewart, commonly given and as instruction was known capricious” imposition instruction1, “arbitrary and “Briggs” provided the the body’s at- sentencing penalty, the death follows: specific to the be directed tention should state You instructed that under the charac- of the crime and the circumstances constitution, governor empowered a is 197, Id. at 96 the defendant. teristics of grant reprieve, pardon a or commutation 2936; v. 462 Stephens, see also Zant at S.Ct. following after of a sentence conviction 2744, 879, 2733, 862, 103 S.Ct. 77 U.S. governor may a power crime. Under this (1983). L.Ed.2d 235 modify in the or sen- future commute channelling jury’s discre imprisonment possibil- In tence of life without however, tion, Eighth re ity Amendment parole to a lesser sentence that sentencing scheme allow the quires possibility parole. that include the would mitigating evi all relevant jury to consider The from instruction was controversial its sentencing analyzing whether a dence. In inception and was considered the United Eighth Amend violates phase instruction Supreme in v. Ra States Court California ment, must determine if there a court mos, 992, 103 3446, 77 463 S.Ct. L.Ed.2d U.S. jury applied likelihood that reasonable (1983).2 held, The circum 1171 Court way prevented in such a that the instruction case, stances of that two-sentence mitigating of relevant evidence. consideration instruction survived federal constitutional 380, 370, U.S. Boyde California, 494 110 v. scrutiny. (1990). 1198, 1190, A S.Ct. Ramos, upholding In in instruction Eighth penalty phase instruction violates emphasized United Court States prevents jury giv from if it Amendment Briggs instruction itself aimed response peti ing moral a reasoned inac- accuracy. It intended correct the evidence, Ly Penry mitigating v. tioner’s curacy description under Cal- sentence 319, 302, 2934, 109 naugh, U.S. 492 imprisonment ifornia law as “‘life (1989) 256 or creates the 106 L.Ed.2d when, parole’ ... under state imposed risk that the death law, authority possesses Governor may despite call for a life evidence commute that sentence to a sentence lesser Ohio, sentence, v. 438 Lockett U.S. possibility of parole.” that includes the Id. (1978). 2954, 2965, 57 98 S.Ct. L.Ed.2d 973 (emphasis 103 S.Ct. at 3457-58 in Therefore, challenged we must examine the necessary original). corollary The of that light exacting of these stan instruction in holding analysis guides our in this case jury dards fair and informed deliberation mis- is that if an instruction is inaccurate or in death cases. We conclude leading upheld. it will not be Eighth process due and the Amendment’s prohibition against punish cruel and unusual this case two-sentence instruction at require phase ment a new penalty combine accurately did not issue Ramos describe trial. imposed the life which would be on sentence given Hamilton and the instruction in Ramos problems the case stem from the provision in re- repealed given now California law this case. When state it, objected quiring proposed trial court to counsel instruct defense Briggs seriously prejudicially incorporated mislead 1. The instruction was into cause "it is Penal Code as a of a the California result 1978 influ because it invites the to be Ramos, voter initiative. See 463 speculative improper enced consider n. U.S. 3450 n. 77 Ramos, People ations.” Cal.3d L.Ed.2d 1171. 800, 809-10, P.2d 439-40 II), denied, (1984) (Ramos cert. Briggs longer given, 2. The instruction is no for in 2367, 86 L.Ed.2d remand, Ramos, the California plаce penalty phase case took trial of this before Briggs Court found the instruction to violate the decisions Ramos. process California Constitution’s due be- clause Briggs’ being given. instruction Defense was safe to do so. This language only not objected, part, counsel in this negative because created implication a that the offi- case, Ramos, unlike the defendant had been cials would not properly perform jobs, their prior convicted of two felonies. The Gover- but jury it invited the to that assume case, therefore, in this nor could not com- question of Hamilton’s release would auto- life mute a sentence without possibility of matically come before these officials. This to a life parole possibility sentence with of too was inaccurate. parole unless at least four of the California The eventually given instruction was cob- Supreme justices Court given prior had ap- together bled ruled, by it when proval. (Deering § See Cal.Penal Code 4852 counsel, with eventual consent of that it 1992); Constitution, § California Article give Briggs would instruction as modified 1981). (Deering objected Defense counsel proposals all from both sides. The dis- any involving speculation instruction on the sent erroneously suggests that defense coun- parole of possibility and made clear the de- sel was resulting satisfied with the instruc- position if pa- fense instruction on tion, but the record demonstrates that de- given role were be it would have to incor- fense counsel no parole wanted instruction on porate Briggs modification of substantial and had to settle for a modified instruction. instruction. The result confusing was a pastiche that prosecution The proposed modifying the provided, after the two Briggs sentence in- Briggs two sentence instruction in order to itself, struction as follows: explain that in Hamilton’s case parole could subject This is that, requirement years considered be after 25 had been served the case any person of twice convicted of a sentence, on a life good less one-third off for felony, a commutation or may modification proposal time credits. effectively This told granted not be absent the written recom- jury that if it sentenced Hamilton to life justices mendation of at least four imprisonment possibility parole, without Further, California Court. a life parole he would be eligible serving for after requires sentence a minimum incarceration years and months in prison. This years of 25 good less one-third off for time was incorrect. Hamilton eligible be would credits may before parole be considered parole only for if sentence were commut- the proper authorities. You are now in- imprisonment to life ed with the possibility of structed, however, that the matter of a parole. This explained fact was not possible commutation or modification of prosecution’s requested instruction to the sentence is not to by you be considered jury. proposed instruction was there- determining punishment Mr. for Ham- misleading fore and inaccurate. ilton. speculate You not must toas wheth- prosecution requested, also part as er such commutation or modification would instruction, same language instructing ever your occur. It is not function to jury subject commutation, decide now whether this man bewill suit- modification, or parole “is not to be consid- parole able for at some future date. So far by you ered in determining the punishment you concerned, as you are to decide for Mr. wholly Hamilton.” This was incon- only whether this man shall suffer the prosecution’s sistent with the request death whether per- or he be shall jury be expressly instructed to consider mitted to upon alive. If remain consider- the Governor’s power of commutation and you ation of the evidence believe life eligible

when Hamilton would be parole. imprisonment parole without Finally, prosecution requested sentence, is the proper you must assume lengthy, “cautionary” addition the Briggs Governor, that the Court, the instruction that speculate what those charged officials the operation governmental the various if officialswould do parole system our perform will their the matter of parole were duty before manner, responsible correct and them; towas assume that the offi- and that Mr. paroled Hamilton will cials not release Hamilton unless unless he can safely be into released soci- See Code duty to the Governor. CaLPenal your back would be a violation

ety. It 1992). (Deering § Even the Board fix you jurors if were commutation, the recommends Prison Terms that the Gover- of a doubt because death of life carry cannot commute sentence properly Governor officials will nor and other justices of unless four parole responsibilities. their out com- Supreme Court recommend from the very different instruction This (Deer- § CaLPenal Code mutation. See upheld by the Unit- instruction two-sentence Constitution, 1992); Article 5 California That Supreme Court Ramos. ed States 1981). Furthermore, (Deering § even the predictions on what invited no instruction of Prison Terms and four both the Board do, Ramos, at 463 U.S. might Governor justices the Court recommend contrast, the 3455. In stark S.Ct. at commutation, authority the Governor has the focused on the in this case so instruction California reject to the recommendations. specu- parole process that and commutation 1981). Constitution, (Deering § Article 5 inevitable, not about the was and lation given incorrectly sug Governor, The instruction the state but about jury decided sentence Court, gested that if the to as well. parole and officials parole, possibility of to life without Hamilton Supreme Court in Ra The United States eligible for release. nevertheless be he would speculate permit jury to not the mos did Thus, jury speculate to the was invited re the the likelihood of defendant’s about likely only way avoid the it could Hamilton’s the trial parole, for it assumed that lease on The to sentence him to death. release was jury accurate provide the with court would jury’s improper speculation probability concerning of com the likelihood information prosecutor’s inap compounded the was Ramos, 463 U.S. at parole. mutation closing argument propriate assertion Furthermore, the at 3455. Hamilton, prison, to if sentenced instruction in Ramos assumed the Court devising ways manipulate “conniving and offering from preclude the defendant did prosecutor system get out.” The the power the Governor’s any regarding evidence inflammatory largely irrelevant relied on possibility a life sentence to commute years by Hamilton earlier letters written However, law case parole. Id. California showing prison. The California his fear sentenced time Hamilton at the was effect Supreme Court held that the admission showing the counsel from prevented defense prejudi letters was error but was not the being pa person of a ever likelihood actual guilt phase. People v. cial to the imprison to life if he were sentenced roled 911-914, 990- Cal.Rptr. at 710 P.2d at Morse, 631, 36 60 Cal.2d People See ment. however, court, con inadequately 992. The (1964).3 33, 43 388 P.2d Cal.Rptr. penalty effect of the letters at the sidered the fact, although defense In counsel phase. information, the present such permitted considering whether defendant eligibil- In way of standing parole hurdles death, California, jury must should be sentenced formidable indeed. In ity were discretion,” “guided as be able to exercise felon such is a twice-convicted person who Amendment, by lim Eighth required directly the Gover- apply must charac iting its deliberations commuted. to have his sentence nor order 1992). and the circum teristics of the defendant (Deering § 4802 Code See CaLPenal Gregg, offense. See applica- stances Governor, receipt upon exercising at 2936. In of Prison tion, it to the Board refer must discretion, jury must relevant consider recommenda- investigation and an Terms Penry, U.S. at mitigating See evidence. Terms Board of Prison After tion. Id. jury 2947. The in this case recommendation, 109 S.Ct. at it transfers its makes by having its this task from diverted along recommendation application Morse, parole. deciding jury between 3. with life death

attention focused on lihood. procedures commutation The dissent articulates no reason why rather than significant mitigating evi- the instruction favored the defendant dence defense pen- begs counsel introduced but question by incorrectly assum- alty phase. ing the defense counsel wanted the instruc- tion.

Defense called counsel seven witnesses. They included two of Bernard court, The district citing Boyde, also relied brothers, mother, neighbor upon and Hamil the “absence in the record” of pastor. jury ton’s spent days three de showing that the jury failed to listen to the liberating in penаlty phase, suggesting trial court’s admonition not to consider the that the saw this as a close possibility of Boyde, however, commutation. case. People Murtishaw, See 29 Cal.3d requires us to look at the instructions as a 733, 175 631 P.2d 471 whole to determine whether there is a rea- (1988), holding that days sonable, deliberation of two objective likelihood that penalty the phase suggésted the issue was Boyde, misled. was 494 U.S. at 110 close. The lengthy deliberation, coupled Here, S.Ct. at 1198. where the trial court the mitigating presented, evidence sup jury the told not to just consider what it had ports the conclusion that the detailed instruc been instructed considerations, were relevant tion on the possibility of commutation and jury the must have been misled. The admo- parole prevented jury the from properly con nition to jury the that it should not consider sidering Hamilton’s penalty. the possibility of events that just had been described could not cure the error. The jury short, given the modified instruction required to decide issues of life or death this case did very thing that United with instructions it could not follow. This is Supreme States Court in Ramos said the something the Constitution permit. does not instruction in that case did do: the in- There are some contexts which the risk struction in this case created inaccuracies not, jury cannot, will or follow confusion. The Briggs two-sentence in- great, instructions is so and the conse- upheld struction in Ramos inapplicable quences of defendant, failure so vital to the because, to Hamilton unlike the defendant in that the practical and human Ramos, limitations of Hamilton was a twice-convicted felon jury system ignored. cannot be subject therefore was to different com- requirements. mutation The trial States, court’s Bruton v. United 391 U.S. instruction, modifications the Briggs of how- 88 (1968). S.Ct. evеr, problems did not cure the by created that, dissent to contend under appears rather, the inaccuracy; they jury allowed the Boyde, there is no constitutional violation impose a death sentence upon based im- unless the proves defendant jury that the has proper assumptions concerning parole eligi- actually used the challenged instruction in an bility. impermissible Boyde’s standard, way. al- though “stringent,” accept We cannot is not stringent. district court’s con- clusion that The standard by the instruction announced favored Hamilton. court Boyde The district is whether “there court stated that is a the instruction reasonable like- jury informed the lihood that the jury applied that the possibility has pa- of chal- lenged role seen, was “remote.” As we have instruction” unconstitutionally. howev- er, Boyde, opposite instruction had the 110 S.Ct. at effect 1198: suggesting that Hamilton would come before Although a defendant need not establish parole authorities in less years. than 17 jury that the likely was more than not to years Hamilton was 30 old at the time of have been impermissibly by the inhibited trial, assumed, so the could have instruction, based a capital sentencing proceeding instruction, (cid:127)upon the that there was a likeli- is not Eighth inconsistent with the Amend- hood that Hamilton would be released from ment if there is of possibility such prison the time he was 47 if it decided to inhibition. This ‘reasonable likelihood’ impose sentence of life possibility standard, think, without we better accommodates was, parole. however, There no such like- finality accuracy concerns of than 1164 Hamilton, 478 inquiry the defendant. makes a standard California does 734 92 L.Ed.2d single hypothetical on how dependent (1986). in- might have or could juror

‘reasonable’ however, remand, Califor the instruction. terpreted Before the Carlos. overruled Supreme Court had nia discussed, have no we reasons For the Id. Cal. Anderson, Cal.3d People v. is a reason- there concluding that difficulty P.2d Rptr. impermissibly likelihood able from sentence On remand Briggs instruction. modified applied Court, California States United there- proceedings are phase New holding applied its Supreme Court in- any Briggs and without required, fore sentence, the death and affirmed Anderson clarifica- intervening struction, of the light not errone the instruction holding that II, 207 See Ramos law. tion ous. (remanding P.2d at argues now Briggs phase new case was a viola- application Anderson Court’s instruction). deliberat- jury in this case Facto Clause of Ex Post tion not have could instructions these ing under 60. AOB Constitution constitutionality rea- mandated made a sen- however, choice between held, informed that retroac has soned This imprisonment without life does not offend application tence Anderson tive where, here, of death. a sentence parole and the conviction rights federal decided. was before Carlos occurred (9th 695, Counsel Assistance Cir. B. 705 Borg, 898 Hughes v. F.2d Ineffective 899 F.2d 1990); Vasquez, v. also Hunt see counsel, that contends his Hamilton Cir.1990). Therefore, (9th 878, retroac 881 did not because he Ryan, was ineffective Mr. is not a violation application of Anderson tive consider jury that it should argue federal rights protected under of defendant’s aas guilt Hamilton’s doubt lingering about law. phase. in the mitigating factor could Ryan found that district court 60(b) Motion III. Denial of reasonably that concluded from the appeals district Hamilton argu- such an persuaded 60(b) in of his Rule motion court’s denial agree. We ment. court to he asks the district consider which Facto Ex Violation Post Claimеd C. in claims that not exhausted myriad of were Supreme Deci- Court in Clause the district court until after court the state United Su- Remand States on sion from judgment denying habeas relief entered its Court preme and which dis on exhausted claims on the merits. Hamil Supreme on trict determined court The California Court to hold the district initially pen ton us that court appeal reversed death asks direct 60(b) denying holding trial court’s failure to its discretion alty, that the abused by the kill an he taken aback that to element motion ‍​​‌‌‌​​​​‌‌​​‌​​​‌​‌​​​​‌‌​‌​‌‌‌​‌​​‌​​​​‌‌​​‌​​‍because was intent instruct McCleskey v. special Supreme man Court’s decision felony murder circumstance 467, 1454, Zant, 113 Superior Carlos v. 499 U.S. reversal under dated (1991), holding petitioners Court, 517 Cal.Rptr. 35 Cal.3d 197 672 L.Ed.2d (1983). corpus petitions filing subsequent People v. habeas P.2d 902, 916, failing for to prejudice 710 P.2d must show cause Cal.3d petition the claims in a for United States raise first habeas corpus. Hamilton claims that he had relied granted and vacated and Court certiorari pre-McCleskey light upon permitting of Rose law more remanded reconsideration Clark, petitions filing of habeas subsequent 92 lenient (1986), exhausting earlier which held when he refrained from L.Ed.2d that harmless 60(b) He analysis apply claims. maintains may to Rule motion error instructions him, McCleskey before erroneously it was reasonable for proof shift burden of decided, to district court ask the district court warned Hamilton that if he and, only some when if presented decide claims only claims, his exhausted he unsuccessful, proceed those claims were subject would be to abuse of the princi- writ bring subsequent peti- claims and other ples if he to later were raise additional claims tion. (id.). Hamilton chose only to raise the ex- claims, hausted and did so on October 22. would be sympathetic

We Hamilton’s argument if he had in fact reasonably as- 16, 1991, April On Court de- sumed that all unexhausted claims could be Zant, McCleskey cided presented subsequent in a restriction (1991), which However, case, petition. particular in this held petitioner habeas had to demon- was not reasonable for Hamilton to make strate prejudice cause and failing to raise assumption, such an because the district his claims in his first petition. federal habeas repeatedly court warned Hamilton that he April On evidentiary did not exhaust all his present claims and hearing 9,1991, commenced. On May at the timely in a original them in his peti- manner close of evidentiary hearing, Hamilton tion, the district court would deem the unex- stay moved to the closing hearing claims hausted waived. In these unusual light McCleskey so that he could exhaust circumstances, we hold cannot that it anwas state remedies. The court district denied abuse discretion for the district request. asked court to 60(b) grant refuse to the Rule motion and reconsider this motion on July which require present Hamilton to those claims in a August the court date, denied 23. On this subsequent petition subject to the strictures the court also denied peti- Hamilton’s habeas McCleskey. tion. Hamilton filed a motion for reconsider- presentation A more detailed of the chro- ation, denied on November nology reflects not that Hamilton was 1991. repeatedly warned he should all exhaust petition Hamilton filed a habeas claims in order to ensure a full hearing on Supreme California 30, Court on December them, could, but that Hamilton with a brief 1991, raising the unexhausted claims that application Court, to the Supreme California 8, were identified in filing his June 1990 in have secured such unduly exhaustion without the district court. The Supreme California delaying the district prоceedings. court petition Court denied his without citation on 8, 1990, March On the district or court 17, February 1992. On March identify Hamilton to dered all claims he in 60(b) Hamilton a Rule filed motion in the in petition tended raise his habeas district This court. court a ordered limited Judge accordance with Alarcon’s concurrence remand so that the district court could con- Whitley, 1470, v. 860 F.2d Neuschafer 60(b) sider the motion. The district court (9th Cir.1988), denied, cert. 493 U.S. denied the motion. 264, (Alarcon, J., concurring). Hamilton identified 38 Hamilton has failed show excusable ne- on June including claims glect the claim attempting to exhaust his state might that Jesse Moffet committed remedies between June and October murder for which Hamilton was convicted. 1990. Nowhere in his does brief he ex- 5). (ER The district court eventually gave plain why he could present his unex- until Hamilton October 1990 to either hausted to the claims exhaust state respect remedies with to Court during period. this time the identified unexhausted, claims that were complains of the fact that district court or present petition a habeas containing only discovery denied his requests concerning exhausted claims. claim, The district court was Moffet but the district court has the willing stay consideration deny Hamilton’s discovery discretion to pro- in habeas proceeding habeas if he demonstrated that ceedings, particularly for claims are he initiated state proceedings prior to Octo 6(a), See unexhausted. Rule Rules Govern- (ER 19). order, ber In however, its Section Cases. v. Vas her nursing death and that she was still him on Coleman reliance Hamilton’s (N.D.Cal.1991) May 30, People 303-04 1979.” F.Supp.

quez, 771 court Coleman, 351, 357-58, 247 district Cal.3d 753 P.2d In misplaced. is (1988). petitioner’s granted briefing and stayed McCleskey. Id. light discovery request during kidnapping killing For this in Cole However, petitioner 303-04. brutally took Bеrnard Lee Hamilton petition habeas his amended had filed man life, Terry Eleanore Buchanan’s Buchanan’s McCleskey prior only seven weeks wife, mother, and their son’s Hamilton has present ordered to had not been decision been convicted of murder and sentenced as Hamil single petition claims all of his identify any I Constitu- death. am unable Vasquez, 999 also Bonin v. ton See was. infirmity tional either in his conviction or his (9th Cir.1993) (affirming 425, 426-27 F.2d sentence. 60(b) petitioner motion where denial single in a present all of his claims ordered to so). and failed to do petition

habeas denying Hamil- court’s order The district Court has validated 60(b) motion was not an abuse Rule ton’s jurors inviting in the practice must be affirmed. discretion and to consid- phase of a state death case pro submitted a brief se. Appellant has in their deliberations that a sentence er all of his claims and to the reviewed really We have parole possibility life without presented they differ from those extent that of life with of commuta- sentence counsel, they rejected. Ramas, 992 n. tion. California n. L.Ed.2d 1171 103 S.Ct. 3446 Conclusion approving practice, the Court denying of the district The order that a instruc- specifically determined 60(b) Rule motion to consider Hamilton’s compati- containing information is tion such part claims as previously unexhausted Eighth and Fourteenth Amend- ble with the petition is AFFIRMED. original habeas Notwithstanding the Court’s defini- ments. denial of habeas relief on The district court’s issue, majority con- holding on this tive claim that the instruction infor- providing with such clude that Eighth the trial violated his penalty phase of Constitution, in this case violates mation rights Amendment is RE- and Fourteenth disregard though jury was told to even the matter is REMANDED to VERSED verdict, arriving at its information instructions to order court with the district though the California and еven proceedings. judg- phase The new analyzed of the admoni- has the effect Court is in all other ment of the district disregard concluded that it was tion to respects AFFIRMED. majority rely on holding In effective. so PART; IN REVERSED AFFIRMED I rejected in Ramos. arguments made and IN PART. REMANDED AND opinion to the majority do concur (1) affirms the district court’s extent that it TROTT, Judge, concurring Circuit (2) 60(b) motion, and of the Rule denial dissenting. on the merits denial of relief district court’s validity 1979, concerning the 31, claims body 1 of Hamilton’s May p.m., about “On respectfully I underlying convictions. Frances Buchanan was discover- of Eleanore however, dissent, majority’s deci- from the near a off Pine grass ed in the cul-de-sac denial of district court’s Road, reverse the Harry Piper sion to Valley Diego. near San sentence to Hamilton’s relief as walking habeas noticed it while back to his car from a new to order with instructions body remand target shooting. The had no head or I so do petitioner. bra, phase for clothed in a hands and was under- majority I am convinced Buchanan, Terry ... pants, socks. because authority habeas under our husband, exceeds opinion testified that victim’s his wife had baby boy corpus. given birth to a three weeks before

II B. Boyde v. California, 494 U.S. A. S.Ct. (1990) L.Ed.2d 316 the Su preme Court set out the standard by which My disagreement with the majority’s anal we evaluate disputed instructions in this con ysis validity as of Hamilton’s death text. When an instruction is assailed as sentence is essentially First, twofold. be ambiguous and subject to an erroneous inter lieve generally that the majority’s analysis of pretation, the proper inquiry is “whether the disputed commutation instructions is so there is a reasonable likelihood that the jury entangled with concerns about purely state applied has the challenged instruction in a law matters trespasses on the Su “ way that prevents the consideration of consti preme Court’s admonition that ‘federal ha- tutionally relevant 380, 110 evidence.” Id. at corpus beas relief does not lie for errors of added). S.Ct. 1198 (emphasis so In man — state law.’” McGuire, Estelle v. dating, rejected the Court lesser formula -, -, 475, 480, 112 S.Ct. 116 L.Ed.2d tions such as what a juror reasonable (1991) “could (quoting Lewis Jeffers, 497 U.S. have” or “would have” done in the shadow 3092, 3102, 111 L.Ed.2d disputed instruction, well as (1990)). whether question as I see it is only “ there was a ‘substantial possibility that the disputed whether instruction violated jury may have rested its verdict on the “im Hamilton’s federal rights, Constitutional par ’ ” proper ground.” Id. at 110 S.Ct. at ticularly his Fourteenth right Amendment Instead, 1197. the Court chose a test which process due of law and rights his under the Justice Marshall acknowledged in dissent to Eighth Amendment, not whether the Briggs “stringent,” unduly albeit so in judg Instruction violated the California Constitu ment. (Mar Id. 110 S.Ct. at 1201 tion, or whether the instruction was com shall, J., dissenting); Cupp see also pletely accurate as to California’s commuta Naughten, 141, 146, 414 U.S. S.Ct. requirements, tion or what a twice-convicted (1973) (“ 38 L.Ed.2d 368 ‘[I]t must be felon must do to have his sentence commute merely established not that the instruction is ed. undesirable, erroneous, or even “universally Second, I do not disputed believe the condemned,” but that it violated [Con some instruction did violate of Hamilton’s fed- right].’” stitutional (quoted in Estelle v. eral Constitutional rights. majority — McGuire, U.S. -, -, opinion is correct that the disputed instruc- 482, 116 (1991); L.Ed.2d 385 Donnelly v. tion in this case different Briggs from the DeChristoforo, approved Instruction in Ramos. After (1974))). In ex Ramos, studying however, I do not believe plaining application test, the new the differences are Constitutionally signifi- Court explicitly repudiated conjecture about cant. This is a classic case of differences the behavior of as a basis for ovеr being insufficient to create a legal viable turning verdict, evoking “strong policy However, distinction. even if I start from against years retrials after first the majority’s position that is there some- where the claimed error amounts to no more thing possibly distracting part about of the speculation.” than Boyde, 494 U.S. at disputed instruction, I am unable to conclude 110 S.Ct. at 1198. that infringed it on Hamilton’s Constitutional The Court likened its new test to exacting rights. applicable tests to inquiries: other In summary, I respectfully believe the ma- contexts, In other we have held that a jority opinion inappropriately magnifies state defendant cannot establish a constitutional law technicalities into a federal Constitution- simply by violation demonstrating that an infirmity. al Compare Fetterly Paskett, alleged trial-related might error could or (9th Cir.1993) 997 F.2d 1295 (allegation of have jury. affected the To establish that misapplication of state sentencing law held to ineffective assistance of counsel violates issue). raise a federal Constitutional Amendment, the Sixth example, for a de- be is to determining which In probabili- “reasonable a must show

fendant defendant, con- you shall the imposed on unprofessional counsel’s that, for but ty has been which of evidence the would sider all proceeding the of errors, result the of this any part of the po- during Deportation of received different.” have been case, added) (emphasis not violate does witnesses defense tential a reasonable “there is unless process due guid- be into account take You shall testimony could the that likelihood factors, applicable: if following by the ed of fact.” of the trier judgment the affected possible of the by statement a [followed to disclose prosecution the of And failure factors mitigating aggravating to de- the evidence exculpatory allegedly case]. is “only if there process due violates fense of you the list to read previously I have that, evi- had the probability a reasonable law circumstances aggravating defense, the disclosed been dence that you find you consider to permits have been would proceeding of result evidence. by the is established of them based new trial a receive To different.” circum- aggravating only are These evidence, defendant newly discovered are You may consider. you that stances the evidence would that demonstrate must any other take account allowed not a different lead to not likely than more decid- aas basis or circumstances for facts outcome. an be penalty would death that (cita 4n. at 1198 110 S.Ct. n. at 380 Id. this case. punishment appropriate our omitted). analogies inform These tions added) (emphasis this task in our perform we as judgment ag- as an any fact consider you “we that Before statement Court’s case, does circumstance, find you must category gravating of infractions ‘have defined evidence established very narrow been fairness” has “fundamental violate fact ” doubt, (emphasis — at -, at beyond a reasonable Estelle, U.S. ly.’ States, added) Dowling v. United (quoting 668, 674, 107 L.Ed.2d 352, 110 sentence, you impose death In order (1990)). reasonable beyond a be convinced must aggravating totality of the that the doubt C. totality outweigh circumstances challenged of a assessing effect mitigating circumstances. “ ‘may be not is that instruction, rule however, instructed, now You isolation, be must but judged in artificial ” or possible commutation of a the matter charge.’ the overall the context viewed in be con- is not sentence modification at Boyde, punish- determining you in sidered Naught added) (quoting Cupp (emphasis must You Hamilton. Mr. ment for 396, 400,38 141, 146-47, 94 S.Ct. en, 414 U.S. commutation such as whether speculate opinion (1973)). majority L.Ed.2d is It ever occur. or Reading modification charge. part only at looks whether to decide now your Junction light record whole charge as a parole be suitable will this man likeli no reasonable there me convinces are con- as you So far date. some challenged instruc future jury applied hood this cerned, whether to decide you are consider prevented the way tion or death shall suffer man evidence. Constitutionally relevant ation to remain permitted he shall whether opinion the appendix in an forth set the evi- upon consideration If alive. following jury. charge to complete imprisonment life you believe that dence instructions, many of jury the from excerpts proper the parole is possibility majority the ignored in completely are gover- the sentence, you must assume on the focused me that convince opinion, Court, officials and those nor, Supreme factors, evidence, mitigating parole our operation of charged with factors, extraneous not some aggravating duty in correct their system perform matter: 1991) (order manner, responsible and that Mr. Hamil- denying petitions for writ of paroled safely added). ton will be unless he can corpus) habeas (emphasis society. released into It would be a There interesting is an twist to this issue. your duty jurors you violation On remand from the United Supreme States were to at death because fix case, Court in the Ramos the California Su governor the doubt that the and other offi- preme Court held Briggs that the Instructiоn properly carry respon- cials will out their violated California’s constitution. People v. added) (emphasis sibilities. Ramos, 136, 153, 800, 37 Cal.3d Supreme already Court has told us (1984), denied, 689 P.2d 430 cert. 471 U.S. disputed that the first two sentences of the 1119, (1985). 86 L.Ed.2d 266 instruction do not offend Constitution. appearance In his second before the Califor Ramos, ‍​​‌‌‌​​​​‌‌​​‌​​​‌​‌​​​​‌‌​‌​‌‌‌​‌​​‌​​​​‌‌​​‌​​‍See v. 463 U.S. California Court, nia argued Hamilton then on (1983). S.Ct. 77 L.Ed.2d 1171 the basis of the new Ramos decision that the infirmity Court could find no Constitutional use of the Briggs now-defunct Instruction telling jurors that a sentence of life with his case should entitled a new penalty him.to possibility parole really out a sentence so, phase responded trial. Not Justice Mosk imprisonment possibility of “life of com for the same recently rejected court that had 19, 103 mutation.” See id. at 1005 n. S.Ct. at Briggs Why? Instruction. Because lan 3455 n. 19. The “[T]he Court concluded: guage in the disputed instruction in Hamil Briggs any Instruction does not violate of the case, ton’s unlike Briggs Instruction in substantive limitations this Court’s prece Ramos, jurors told the not to consider com imposed capital dents have on the sentencing any mutation or modification of life without process. preclude It does not individualized possibility parole sentence. In answer to sentencing determinations or consideration of argument admonitory factors, mitigating nor it impermissibly does supplemental language did not cure the state inject speculative an element too for the problem by law created the now-defunct 1013, 103 jury’s Id. deliberation.” S.Ct. at Instruction, Briggs jurors but rather led the telling If governor’s 3459-60. about a indulge improper in irrelevant and specu power modify to commute or a sentence of lation, the Court ten possibility parole life without does not good dered a and sufficient which the answer Constitution, violate the I do not understand majority opinion analysis: rebuffs in its “The adding marginal how information about what meaning clear plain of the words of the ad happens under state law to twice-convicted monition ... argument.” refutes this People felons and about minimum incarceration time 45 Cal.3d 247 Cal. changes diagnosis. anything, If the add Rptr. (1988), denied, 753 P.2d 1109 cert. language majority ed opinion finds offen 488 U.S. 102 L.Ed.2d sive works in Hamilton’s favor when com (1989). Not does this answer make pared Briggs to the basic Instruction because face, sense on its but it is consistent with the significant legal impediments adds longstanding principle neglected in the ma might that Hamilton ever be freed jority opinion jurors presumed of a life respect, agree sentence. In this I admonitory given by follow instructions respected colleague with our on the district court unless the they information are or Judge court. Brewster impres said disregard posed dered to a “substantial 93-page opinion: sive importantly, “Most rights. threat” to a agreed defendant’s Constitutional parties modifications im States, proved See Bruton v. United Briggs unmodified Instruction from perspective. the defense S.Ct. this re — Estelle, gard, it should be See also U.S. at - impetus noted that -, (relying limiting behind the petition modification came 483-84 from counsel, seeking language “guard[ against possible er’s trial ] who was to miti misuse instruction”). gate impact Briggs [an] unmodified Informed the Su Vasquez, preme analysis Instruction.” Hamilton v. Nos. 86- Court’s decision and in Cali 90-0291-B, (S.D.Cal. Ramos, 2101-B & at 79 Aug. do not find such a sub- fornia 1170 19, L.Ed.2d 1171 6, 77 n. n. 3455 3451 prosecutor’s The this case. in threat stantial about public awareness of perception not This argument does during remark

isolated important and accurate is both commutation Judge with agree I analysis. this change in this pivotal issue understanding the in no moment. ofwas remark the Brewster from Bru- case distinguishes this case, it 1200 384, S.Ct. 110 U.S. 494 Boyde, See to confes- related ton, the concern where de- generally do counsel of (arguments admissions, of common not matters instructions). sions jury impact crease knowledge. Supreme California the opinion The subject opinion the majority power was the notwithstanding, commutation The Court during the jury be the in requested California debate public prosecutor great the claims in a 1978 power 1970s, Governor’s that culminated the a debate consider late told “to popularly “eligibility] initiative Hamilton’s death voter commutation” hap- added). This claim is What Initiative. Briggs (emphasis as the parole” known for jurors time were controlling simple: at the the is case law misleading. in this pened State something Briggs give consider to the not to judge told the appropriately required trial about, ex- Governor’s prosecution the The jury. all knew they probably to Instruction ju- sentence. judge to tell a murderer’s trial to alter power asked pressly attempt deter- to elimi- subject when apparent this in an judge, to consider rors wisely im- appeal, tried More on punishment. trouble possible mining Hamilton’s nate no Con- from however, simply factor commutation there to eliminate portantly, to capital sen- is akin “inviting admonition infirmity in This consideration. stitutional they commutation information consider not to use jurors to tencing juries telling Ramos, arriving newspapers sentencing decisions.” may have read in its power daily 8.n. 8, at 3451 that occurs verdict, n. an admonition at 998 at a 463 U.S. holding approach claim; precise to Contrary it is my courts. is not This our here, could Footnote 8 one no majority Ramos. Court of the taken this admonition opinion makes an such argue that seriously O’Connor’s Justice do prosecutor had jurors invites Even publicity media point irrefutable. about in this Yet Governor’s do. not to they consider told asked what day. Constitutional carries argument federal power, no an such commutation context implicated. been right would reiterate, California agree I with To true, majority Nevertheless, is not conclusion: bottom-line Court’s claims, jury was invited “the opinion this the substance with problems Any avoid way it could speculate admonitory by its erased were instruction him was to sentence likely release component. be- respectfully point, On to death.” simply refuses opinion majority lieve the E. charge. language of the acknowledge the full analy- my strong indicator is a There D. consented counsel correct: Hamilton’s sis is its much of suggested instruction may case that aspect of this is an There finding entered Judge Brewster understanding. language. As colleagues’ escape my agree- an reached parties “the of fact that in his dissent observed Richardson Justice Briggs Instruction.” a modified ment 180 Cal. Ramos, Cal.3d 30 People v. (order denying petitions at 77 rev’d, (1982), 908 P.2d Rptr. 639 opinion majority (1983), corpus). of habeas writ 1171 L.Ed.2d S.Ct. 77 implications. ignores its fact but admits this commutation already know “jurors record from this to conclude It is difficult Id., Cal.3d at power.” counsel, on the who was (Richardson, J., that Hamilton’s dissent P.2d and the case and familiar scene reiterated ing). This observation evidence, instruction have believed this Ramos, could O’Connor Justice a rea- giving from 19, 103 prevent the n. 996 n. response soned moral mitigat- to petitioner’s the light of all the record, evidence in the evidence, Perry Lynaugh, see especially the atrocities Hamilton committed 302, 319, 2934, 2947, upon L.Ed.2d Buchanan, Mrs. Eleanore who was still (1989), oí the instruction cre- would nursing baby the boy to whom she given had ate the risk the death be would im- just birth three weeks before Hamilton posed despite evidence which call for would slaughtered her. Mrs. Buchanan’s severed sentence, Ohio, life see Lockett 438 U.S. head and hands —removed with both a saw 57 L.Ed.2d 973 and a knife —have never been found. The (1978). Why it so is clear to the majority terror she must have suffered after being spelled that this instruction doom for Hamil- kidnapped and falling prey to Hamilton is ton when it acceptable was to his attorney? unspeakable. Even to the most hard-bitten This question almost answers observer, itself. The Hamilton’s atrocities as demon- instruction threatening to those strated the are record monstrous. present because, at the trial repeat, and I Against the this backdrop, the weak mitigating jury was told consider the information evidence cited the majority fades into causing is now all the trouble. Hamil- insignificance. utter In actuality, however, it ton’s performance counsel’s in this case was impossible is for us to know what days three extraordinary. In findings facts, signifies, deliberations if anything. Thus, Judge adopted Brewster the judge’s trial I prefer ignore altogether Ryan observation: “Mr. an job did excellent length of deliberations, rather than use it in a most difficult case with very, very as the basis for what appears to be a make- (order difficult client.” at 41 de- weight argument. nying petitions for writ of corpus). habeas judge and the trial lawyers were Conclusion comfortable with the jurors idea that Ramos, Applying Boyde and Bruton to

would do as told. This should tell us some- this case and charge to the as a thing. whole me convinces that Hamilton’s federal rights Constitutional were not trammelled F. disputed instruction. majority’s The majority opinion persistently opinion does fails to heed Court’s Boyde what tells us not speculates to do: it lеad in particular, Ramos. point every at Moreover, turn. conclusions the Court’s statement that “we find majority draws from its speculation pat- unpersuasive suggestion possible ently inconsistent with the evidentiary di- commutation of a life sentence must held mensions of the opinion case. The says, constitutionally irrelevant to the sentencing jury spent “[t]he days three deliberating decision and that it speculative is too an phase, suggesting that the Cali- element for jury’s consideration.” Ra fornia saw this as a mos, close case.” Why 1001-02, 3453- Why so? doesn’t the length of deliberations 54. All majority opinion has succeeded suggest jurors were conscientious in doing is to show what could have done careful and they followed the instruc- with the disputed instruction, not that tions as a whole rather than jumping “jury to a applied has the challenged instruction rash conclusion? Why doesn’t suggest it way in a that prevents the consideration of jurors did consider the mitigating seven wit- constitutionally relevant Boyde, evidence.” nesses called by Hamilton? U.S. at 110 S.Ct. at 1198 (emphasis added). As I pointed out earlier in this A close ease? juror Each was convinced opinion, the “could have” test has beyond been a reasonable doubt that death soundly rejected by the Supreme Court. proper penalty. hardly This sounds like Any close case. time jurors twelve each It both unnecessary and wrong to use agree issue, on an and do beyond so a rea- power of federal corpus habeas to require doubt, sonable “suggests” prosecutor’s again go case years trial fourteen case was overwhelming. surely This is so in after Eleanore Buchanan butchered. existence of and the trial, proceeding Trg.miH-.nn present not a to a fair entitled was found to be true. аny special circumstances he which was got he perfect one: me there is convinces of criminal presence record or absence The The entitled. B. applied the the likelihood which involves activity by the no reasonable defendant way that inter in a of force or vio- challenged attempted instruction use use or the Constitutionally proper determi implied threat to expressed or a fered with lence or the of conclusion the The penalty. his nation of or violence. use force point this Court on any pri- absence of or presence C. The assum way, even Put another unassailable. conviction. felony or error, not believe it I do ing actionable offense not the was D. Whether or injurious effect or substantial “‘“had was the defendant under committed while jury’s ver determining the in influence or extreme mental emo- influence of the — Abrahamson, Brecht dict.’”” disturbance. tional 1710, 1716, 123 L.Ed.2d -, -, the was a not victim E. or Whether omitted). (citations (1993) defendant’s homicidal in the participant (1) barbaric on his based penalty this earned homicidal to the act. or consented conduct aggra (2) weight the conduct, of extreme the the offense was or F. Whether (3) insignificance of factors, the vating which under circumstances the committed Thus, in his favor. I mitigating factors the reasonably believed to be mor- defendant part of from that the dissent respectfully expectation for his own justification al or overturning his sentence. opinion majority’s conduct. the defendant or not acted G. Whether Appendix or under sub- under extreme duress person. of another stantial domination charge jury in to the complete penalty phase: not at the time of the H. Whether or defendant capacity of the offense right. gen- All Ladies and The Court: criminality his conduct or appreciate

tlemen, I time have instructions at this requirements to the to conform his conduct proceedings. phase of these second for the impaired as a result of mental of law was this case has in been The defendant [sic] defect or the affects disease or degree. of the first guilty of murder found intoxication. murder commit- charge that the age of the defendant at the I. The time has special circumstances been ted under the crime. is the law of this found to be true. It state the defendant J. Whether or not penalty for defendant found accomplice partic- offense and his an degree of the first guilty of murder shall ipation offense commission prison be death or confinement state relatively minor. parole. life In for Any other circumstance which ex- any special K. case which circum- gravity of the crime charged this tenuates even stances case have been though legal it is excuse to be true. Under the law of found this you state must determine which crime. now penalties imposed said shall be on defen- weighing aggravating In and miti- determining dant. which is to merely gating you not to factors are count defendant, imposed you shall are numbers on side. You instruct- either consider all of the evidence which has been weigh ed rather to and consider factors during any part received of the trial of on each side as a whole. case. You shall take into account and be previously you the list of read factors, guided by following if applica- aggravating law circumstances ble:. you you find that permits to consider

A.The circumstances of the crime the evidence. of them is established only aggravating which the defendant was convicted These are circum- robbery The crime of taking is the personal property possession of an- you may consider. You stances person other from his or pres- immediate any other not allowed to take account of will, against ence and accomplished facts or circumstances as a basis for decid- means of force and fear. the death would be an prove In order to the commission of the appropriate punishment in this case. robbery, crime of following each of the mitigating The circumstances one, proved: per- elements must be that a your given read for are consideration possession property son had of of some you merely examples as of some to of value, two, slight; prop- however that such you may that factors take into account as erty was taken from person such or from deciding impose to reasons a death presence; his immediate three that such you on Mr. Hamilton. sentence But property against was taken the will of such your should not limit consideration of miti- four, person; taking that the was accom- gating specific circumstances to these fac- plished by either by force or violence or may any tors. You also consider other both, five, by fear or intimidation or presented circumstances as reasons for not property that such was taken with the you imposing penalty. the death Before specific permanently deprive intent to such any aggravating consider fact as an cir- person property. of the cumstance, you must find that that fact has Now, subject battery, relative to the of beyond the evidence been established a every рerson willfully who and unlawfully may reasonable doubt. You not consider any uses force upon person or violence choosing impose fact as a reason for to guilty battery, of another is of a misde- you the death sentence unless are satisfied foregoing meanor. As used in the instruc- beyond a reasonable doubt and to all cer- tion, “violence,” the words “force” and are tainty that fact is true. synonymous any wrongful appli- and mean Reasonable doubt is defined as follows: physical against [sic] cation or force possible it is not a mere doubt because another, person though of even it causes everything relating to human affairs and pain bodily mark, no or harm or leaves no depending open on moral evidence is though only feelings and even of such possible imaginary or some doubt. injured person the act. which, It is that state of the case after slightest touching, unlawful if done comparison the entire and consideration of insolent, manner, angry in an rude or an is all the evidence leaves the of the minds sufficient. jurors they in that condition that cannot necessary touching It is not that the be say they abiding feel an conviction to a anger or actual done actual malice. certainty charge. of the truth of the moral It is sufficient if it was unwarranted and sentence, unjustifiable. impose you a In order death beyond must be convinced a reasonable touching battery may essential to a totality aggravating that the of the doubt touching person, per- be a of the or the outweigh totality circumstances of the wearing something or at- apparel son’s of mitigating you circumstances. If are not closely tached to or connected with the beyond convinced a reasonable doubt that person. aggravating outweigh circumstances your duty It is now to determine which circumstances, mitigating you must re- penalties, of the death or confinement two imprisonment a of life turn verdict without prison possibili- in the state for life without possibility parole. of ty imposed parole shall be on Mr. Ham- ilton. couple

The next of instructions deal with robbery battery, since there evi- You are instructed that under state constitution, robbery empowered battery penal- governor dence of a trial, ty phase grant give you reprieve, pardon a or commutation and so I will following the definitions of of a conviction of a these offenses. sentence cir- aggravating that the If conclude you mitigating cir- outweigh the cumstances may, governor a power, Under crime. cumstances, impose a sentence you shall modify sen- future, or commute However, you determine death. possibil- imprisonment of life tence ag- outweigh the mitigating circumstances sentence a lesser parole ity of circumstances, impose you shall gravating parole. possibility include pris- in the state of confinement a sentence requirement subject This is parole. life without on for convicted twice any person the case one select retire and now You shall or modification felony, commutation foreman, will who to act number your written absent granted may your deliberations. over preside justices of four least of at recommendation as to a determination to make In order Further, a Court. agree. jurors must all the penalty, incarcer- a minimum requires sentence life dat- off for must you be one-third reach years, Any less that verdict of 25 ation may form be on a parole foreman by your signed credit before time ed and good you shall then proper authorities. by provided, will be considered however, instructed, to this courtroom. with return now You are or commutation possible of a self-explana- matter are forms two have con- to be is not of sentence provide penalty modification would One form tory. punish- determining the you death, form sidered other be fixed would must not You Hamilton. for Mr. imprisonment ment of life penalty for a provides such commutation to whether you as speculate and when parole, of possibility ever occur. you verdict, modification 12 of or all when reached a have now verdict, decide your function the foreman It is not have reached a have pa- be suitable will man return to this this verdict whether date the sign and you far as date. So future at some role courtroom. concerned, you are decide death suffer man shall whether permitted shall be he or whether alive. remain evidence consideration upon

If imprisonment without life

you believe sentence, proper parole is governor, must assume

you charged and those officials Supreme Court America, STATES UNITED system parole our operation of Plaintiff-Appellee, duty in a correct and their perform will manner, Hamil- and that Mr. responsible he can be paroled unless will ton Defendant-Appellant. MAYANS, Pablo society. into safely released No. 92-50530. duty your be a violation It would fix the you were to jurors Appeals, Court States ‍​​‌‌‌​​​​‌‌​​‌​​​‌​‌​​​​‌‌​‌​‌‌‌​‌​​‌​​​​‌‌​​‌​​‍United gover- the doubt that death because Ninth Circuit. carry properly officials will and other nor 7, 1993. Oct. Submitted Argued and responsibilities. their out evidence all of the having heard After 9, 1994. Feb. Decided [sic] consider having heard and after counsel, you shall consid- arguments guided and be into account and take er aggravating applicable factors you upon which

mitigating circumstances been instructed.

Case Details

Case Name: Bernard Lee Hamilton v. Daniel Vasquez, Warden of San Quentin the Attorney General of the State of California

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Mar 22, 1994

Citation: 17 F.3d 1149

Docket Number: 91-56251, 91-56252, 91-56295, 91-56403, 91-80385 and 93-55039

Court Abbreviation: 9th Cir.