Dwayne Woods v. Stephen Sinclair

WOODS, Anthony Dwayne

Petitioner-Appellant, SINCLAIR, Respondent- Stephen

Appellee. No. 09-99003. Appeals, Court States United Ninth Circuit. 25, 2014. Aug. Elliott, of Su- Law Offices

Suzanne Lee Seattle, Washington, Elliott, Lee zanne Zuckerman, Offices Law David B. Seattle, Zuckerman, Washington, B. David Petitioner-Appellant. for Samson, Attor- Assistant Joseph John for Re- General, Washington, Olympia, ney spondent-Appellee. PAEZ, A.

Before: RICHARD TALLMAN, MILAN C. RICHARD

SMITH, JR., Judges. Circuit D.

OPINION PAEZ, Judge: Circuit jury found 1997, Washington In counts of of two guilty Dwayne A. Woods 1116 (2012). in

aggravated degree, murder the first one May 2012, we ordered par- count of in attempted murder the first supplemental ties to file addressing briefs degree, and one count of attempting to impact of Martinez and Sexton v. Coz- a police days elude vehicle. After ner, (9th two 1150, Cir.2012) 679 F.3d on deliberation, jury sentenced Woods to month, this case. That same petition for Washington death. The Supreme State rehearing en granted banc was in Detrich sentence, upheld Court his conviction and (9th Cir.2012). Ryan, v. 677 F.3d 958 Det- Woods, 561, State v. 143 Wash.2d 23 P.3d rich also involved Martinez issues. The (2001), petition and denied his for parties’ supplemental addressing briefs Woods, post-conviction relief, In re 154 Martinez and Sexton were filed before the (2005). 400, Wash.2d 114 P.3d 607 en banc court in Detrich filed its opinion petition then filed a for a writ of habeas 3, September 1237, 2013. 740 F.3d court, in corpus federal district which was (9th Cir.2013) (en banc). We ordered denied. appeals from the denial of supplemental further briefing on im- relief, (1) habeas contending that he was pact of Detrich. parties’ supplemen- denied right his Sixth Amendment rep- tal briefs September 27, were filed on (2) himself, resent the state court’s admis- 2013. With the exception of the claims sion of certain evidence violated the Con- Martinez, by affected again we affirm the (3) Clause, frontation the State withheld district rulings court’s on the remaining material, exculpatory violation claims for all the reasons set forth in our Brady 83, v. Maryland, 373 U.S. 83 original opinion. We vacate the district (4) (1963), 10 L.Ed.2d 215 ruling court’s as to the claims affected his trial representation counsel’s was inef- Martinez and remand for further proceed- jurisdiction fective.1 have under 28 ings light of that case. §

U.S.C. 1291. I. THE CRIME previous In a opinion August filed on 2011, we affirmed the district 26, 1996, court’s order Friday, April On Telisha Shav- denying corpus Woods’s habeas petition. er housesitting at her aunt’s trailer Sinclair, (9th Woods v. 655 F.3d Spokane home in Valley, Washington. Te- Cir.2011). 26, 2012, On March planned Su- lisha3 to spend night at her preme granted Court petition home, boyfriend’s but agreed had to let certiorari, opinion, vacated our sister, Venus, and re- her friend, and Venus’s Jade manded the Moore, case for further consideration spend night at the trailer. Ve- light of Martinez Ryan, 566 U.S. nus and Jade arrived at the trailer at -, 132 S.Ct. 182 L.Ed.2d 272 approximately 1:45 a.m. on Saturday alleges 1.Woods also that the State violated background This factual largely is taken process rights his due when it misled the Washington Supreme from the State Court’s progress court and defense as to the aof DNA opinion affirming Woods’s conviction and claim, during hearings. test several This Woods, sentence. See 23 P.3d at 1053-59. claim petition, 6.1 in Woods’s federal habeas Appeal- was not included in the Certificate of opinion frequently we refer to Teli- ("COA”). ability Although prosecution the by sha and Venus Shaver their first names for proper failed diligence to act with in the com- clarity. the sake of We also refer to Jade pletion testing, of the agree DNA we with the Moore her first name to avoid confusion State prejudice that there was no any from father, Barry with her Moore. notify failure to Woods of the reasons for the delay. Because we conclude that the claim merit, grant lacks we decline to a COA. Peering door locked. the and and found alcohol women drank The morning. trailer, a in the she saw through Jade a window Venus and point, At some socialized. Woods, as whom later identified she Dwayne man —whom to contact decided After the of the dated. from the side previously exiting other had Venus Woods— Woods, eventually joined he trailer on locked paged pounded She the women trailer. time, approxi- beaten, that By door, Jade, at the trailer. eventu- naked and them and a.m., asleep. was Sherry 4:20 Jade Shaver mately the door. ally opened called 911. him- trailer, Woods served at the While Ac- Venus. with and talked alcohol self at the arrived Emergency personnel was testimony, Woods cording to Venus’s hospital. to the took the victims trailer and urged Ve- asleep and that Jade

upset a hospital, Jade told route to the enWhile tried to wake up. Venus wake her to nus prior about the events paramedic respond. At did up, but Jade Jade her also told hospital, At the she evening. and, to according irate this, became Woods and father, physician, emergency room the and the couch Venus, onto shoved her transpired. Of the what had a nurse about pants. her to unbutton Venus attempted victims, Teli- only Venus survived. three escaped Woods’s initially she that said conscious- regaining ever died without sha her managed grab to that he but grasp, to medi- initially responding Despite ness. and her head then and slammed again following day. treatment, the Jade died cal that testified a door. Venus against neck Sherry reported after Shortly Shaver transpired memory of what no has she trailer, the he was leave seeing Woods inter- except for point forward from the close to local businesses seen at two she memory which flashes mittent businesses, At one of those crime scene. struggling with Woods. recalls to drive patron another convinced Woods a.m., 7:80 Woods approximately At close Spokane. Within him to downtown He point. at knife up to Jade wake forced dropped to where Woods proximity bedrooms, the another one of her to took withdrawals off, cash machine series severely and lay unconscious where Venus card. ATM the use of Jade’s with occurred him help to forced Jade Woods beaten. same p.m. 12:30 At approximately ATM him her give the trailer and loot brother-in-law, ran into his day, Woods number. identification personal and card store grocery at a Thompson, Louis orally vaginally. raped then Jade He Woods a Thompson gave area. downtown Jade, re- Telisha on During the attack friend, Johnny home of ride per- some to retrieve to the trailer turned friend, Mary Knight and his Knight. and bound seized effects. sonal came to that when Woods Knapp, testified Jade, floor laying who was her. home, them some offered sell he their unconsciousness, later stated feigning Knight’s auto- buy one jewelry and hit Telisha’s bat heard baseball she mobiles. then hit she was Jade said that head. bat, knocked uncon- with head Ger- night Elizabeth at spent hap- scious, memory of what and had no morning, following apartment. ber’s point. after that pened apart- to leave Gerber asked trial, that Woods she testified ment. At home to return Telisha failed When “a said he was want- agitated became Shaver, mother, Sherry de- morning, her him on the “putting she was man” and her. ed to check on to the trailer go cided a.m. streets.” approximately 10:25 arrived She Knight

Later that day, heard a televi- kits were sent to the Washington State sion broadcast (or “WSPCL”) authorities were Laboratory Patrol Crime in searching response, for Woods. In Knight Spokane. lab, At Spokane the William called police agreed the and to lead them Morig examined the swabs search of Knight’s Woods. With cooperation, sperm cells that might contain the DNA of deputies Knight sheriffs followed as he suspect. the murder Morig found no went pick up Knight Woods. After sperm on the swab taken from Venus picked up, deputies pulled Shaver, the the but samples found usable from the car Knight out, over. got but Woods swabs taken from Telisha Shaver and Jade jumped into the driver’s seat sped and The prosecution Moore. also obtained a away. deputies eventually The caught, ar- vial of Woods’s blood to use DNA tests. rested, interrogated him. sample That was sent Spokane to the lab as well. The in Spokane WSPCL did not Woods told the interviewing detectives required have the testing equipment, DNA that he fled because he had a number of Morig’s so responsibilities were limited to “outstanding traffic violations” and some preparing DNA samples from rape kits “traffic warrants.” At the time of his ar- and Woods’s blood that could be submitted rest, Woods had outstanding no vio- traffic to other labs for DNA testing analysis. lations. any Woods denied responsibility for the crimes and claimed he had not 23, August 1996, On Woods’s defense in contact been with Venus for about a counsel moved for a continuance of the week. He further denied a wom- knowing trial date based on they fact that had an named Jade. He also told detectives not received the DNA test results and that that he had not been in Spokane Valley for they needed produce additional time to month, a about he had never visited a mitigation evidence. Although Woods ob- home, trailer and that logical there was no jected motion, to this defense counsel ar- explanation why of his fingerprints would gued that unless a grant- continuance was have been found in the trailer. ed, Woods would be unable to receive a fair trial. The trial court ultimately grant- II. PRE-TRIAL PROCEEDINGS ed the motion and the trial reset date for 17,1997. March Woods was charged with two counts of aggravated degree murder, first one count 16, On October 1996, prosecutor in- attempted degree first murder, formed court that the DNA evidence alternative, one count of degree first yet had not been for testing. sent The arraignment assault.4 At his 30, on May prosecutor represented that the results pleaded not guilty to the from testing would be received charges and right waived his to be tried January 1997. Consequently, the court sixty days within of his arraignment, but that the ordered DNA test results be dis- not later than November 1996. The closed to the by January defense 1997. 21,1996. trial was set for October The prosecutor also informed the court meantime,

In the prosecution pro- the vial of blood had been physical cessed the evidence in the ease. mistakenly frozen and had cracked. The Doctors had completed “rape kits” for all prosecution therefore needed new blood victims, three including taking a swab sample for testing purposes. Woods ob- vagina from the each victim. rape jected The providing sample new and re- State later amended the charge eluding police. information include a finger- that Woods’s expert testified print the trial having to objection his newed telephone and a on a bottle prints of were original date Octo- after the commence jury The also learned both found in the trailer. overruled 21, The court 1996. ber found at coat and shirt were that Woods’s objections. telephone and paging trailer and saw the 1997, had 2, the January WSPCL By demonstrating pager that Woods’s records test results. of two DNA only one returned the trailer several had called from been compa- test, private a performed That April early hours of during times the the source not that Woods was ny, showed 1996. body. At a in Telisha’s of found semen prosecu- the January theory was hearing on The defense the test- trial court that and the Telisha Jade tor informed not have murdered could Jade dining taken from sperm sample because he was ing the Venus of or assaulted per- the complete. Spokane not WSPCL at time a in downtown Moore at bar more advanced testing support at its To alibi occurred. formed the crimes required testimony it laboratory defense, because presented defense Seattle the prosecu- The testing procedure. eyewitness misidentifi- expert from complex the test would court that who testified informed the from a tor cation and bartender of Febru- until the middle bar on complete at downtown that he saw Woods be moved to ex- counsel question. Defense ary evening 1997. the aas the DNA evidence of admission clude of two guilty jury The found Woods case to dismiss the delay, the of result murder, count of one aggravated of counts mismanagement, prosecutorial of because murder, at- one count of and attempted have in order to the to continue case and police officers. tempting to elude for trial prepare adequately to time The testing. delay in DNA of the light PHASE IV. PENALTY but two motions the first trial court denied PROCEEDINGS trial to the the last and continued granted attorneys not his instructed trial, re- Before WSPCL May at the any mitigating present testing DNA the results the turned trial. Concerned phase penalty Seattle, which showed performed state, defense coun- Woods’s mental about second blood from Woods’s taken DNA penalty requested a continuance sel taken from the the DNA matched sample mental have Woods’s in order to phase from Moore. recovered Jade sperm trial court denied The capacity assessed. the trial com- and the motion ordered PHASE PROCEEDINGS III. GUILT prosecution mence that afternoon. iden- trial, Sherry Shaver and Venus At Sherry testimony of Shaver offered The jury as assailant. tified Moore, presented photographs Barry and statements, her including also heard Jade’s Jade, into and entered evi- of Telisha Woods, testimony via the identification prior of Woods’s judgments dence certified nurse, doctor who paramedic, of a convictions. testimony of her treated Jade instructions, de- Pursuant Moore, to Jade father, who Barry spoke any mitigat- present did Brown, counsel a foren- fense Dr. the attack. John after however, did, invoke ing evidence. Woods laborato- Seattle WSPCL’s sic scientist and made follow- right allocution recovered from sperm that the ry, testified jury: finger- ing A statement DNA. contained Woods’s Jade Well, gentlemen, you ladies and heard whether any of Woods’s proce- claims were prosecutor] you durally from and so know [the barred. On the basis of this first asking you impose he’s round of briefing, the district court con- penalty. just say I want to that I death portions cluded some of Woods’s IAC Also, objection. just I have no want to claims Brady claims proeedural- were you remind that a few weeks back dur- ly barred. The court then considered you each ing individual voir dire merits, remaining claims on the could, fact, you impose if asked ultimately petition dismissed the in its penalty. death I believe at that time entirety. you you impose each of said could the Woods a timely appeal filed notice of penalty providing death there’s not suffi- and moved for a COA on all of his claims. mitigating cient circumstances. COA, The district court granted a limited I you So am here to tell there’s absolute- scope of which we address below. none,

ly not one. So I ask that each of you go back impose and return a vote to VI. STANDARD OF REVIEW penalty. you. the death Thank We review de novo a district deliberating After for days, jury two court’s denial a prisoner’s petition found that mitigat- there were insufficient Omoski, habeas relief. Brown v. 503 F.3d ing leniency. circumstances to merit (9th Cir.2007). 1006, 1010 The district Woods was sentenced to death. findings court’s of fact are reviewed for clear error. Id.

V. AND STATE FEDERAL POST- CONVICTION PROCEEDINGS Because Woods filed his federal ha- 1996, petition beas after the Anti-Terror Washington The Supreme af- Court ism and Effective Penalty Death Act of firmed the convictions and sentence on (“AEDPA”) 1996 governs this action. See Woods, appeal. direct See 23 P.3d id. The AEDPA requires federal courts Supreme The Court denied certiorari. See to defer to the last reasoned state court 964, Woods v. Washington, 534 122 U.S. decision. A may Id. federal court grant a (2001). S.Ct. 151 L.Ed.2d 285 prisoner’s state petition habeas with re personal then filed a restraint petition spect to a claim “adjudicated that was (“PRP”) Washington Supreme the merits in proceedings” only State court Court. eighteen Woods raised claims for “(1) if adjudication resulted in a deci relief, including an ineffective assistance of to, contrary sion or involved an (“IAC”) claim, counsel claim, a Brady a of, unreasonable application clearly estab jury claim that the had been improperly law, lished Federal as determined prohibited viewing evidence, from certain Supreme States; Court of the United or and a claim that newly discovered evidence (2) resulted in a decision that was based on required a new trial. Washington an unreasonable determination of the facts Supreme Court petition. denied Woods’s in light of the evidence presented in the Woods, See re 114 P.3d at 611. proceeding.” State court 28 U.S.C. Woods next filed a federal peti- habeas 2254(d). § tion. The State’s answer raised number procedural-bar defenses, including a A state court decision is “con claim that Woods had not properly trary ex- to” federal law if it applies a rule hausted his claims. The district court bi- that contradicts the governing law set briefing furcated the to first in Supreme determine forth Court cases or if it “con- materially VII. SELF-REPRESENTATION are facts that a set of fronts of [the a decision from indistinguishable an un- contends that he made arrives and nevertheless Court Supreme] represent himself and equivocal request [Supreme Court] from different at a result obliged was thus under that the trial court Taylor, 529 U.S. Williams precedent.” California, Faretta v. L.Ed.2d 362, 405-06, 120 S.Ct. (1975), to con- 45 L.Ed.2d 562 (2000). decision involves A state court whether his colloquy to determine duct of federal application” an “unreasonable voluntary, knowing, and intel- request was the correct court identifies if “the state law so, failure to do Woods The court’s ligent. Supreme] rule from legal [the governing Amendment argues, violated his Sixth it unreasonably applies but cases Court’s ap- direct self-representation. to On right prison- state particular facts of the to the Supreme Court Washington State peal, unreasonably if “either or it er’s case” failed to make that Woods had concluded Su- principle from legal [the extends Woods, request. See 23 unequivocal an context to a new precedent preme Court’s] The district court P.3d at 1061-62. unreasonably apply or it should not where and we affirm. agreed, a new principle to extend that refuses to 407, at apply.” Id. where it should context Faretta, a criminal defen Under 120 1495. self-represen may right invoke the dant unequivocal request, by making tation section assessing In under intelligently waiving knowingly and 2254(d)(1) legal the state court’s whether Faretta, 422 at counsel. U.S. right to an unreason contrary to or conclusion was Here, 835, during pre-trial 2525. 95 S.Ct. law, our “review of federal application able informed the Woods twice proceedings, that before to the record ... is limited any continuance of opposed that he court claim adjudicated court the state 16, 1996, First, August the trial date. — Pinholster, v. on the merits.” Cullen opposed that he informed the court 1398, 1388, 179 -, 131 S.Ct. U.S. prosecution time for the any extension of (2011). circuit consider 557 We L.Ed.2d sentencing pro special file its notice of 5 as- purpose limited for the precedent his continuance of ceeding any or further “clearly estab- 23, 1996, constitutes sessing what August trial date. On whether law and fur Supreme any lished” Court opposition his again expressed that law unreason- applied court his defense counsel the state ther continuance when pushed F.3d date be Murphy, 331 the trial ably. requested Clark (9th 5, 1997, Cir.2003), other as a result May overruled on back to Andrade, the DNA evidence. delay processing Lockyer v. grounds by (2003). place: then took following colloquy 155 L.Ed.2d 123 S.Ct. law, a new trial. See entitled to was therefore Woods, Washington when a criminal 5. Under Washington 1062-63. The penalty, 23 P.3d at eligible the death for defendant argument, rejected that Supreme Court special required to file a notice of State is others, among opinion. Id. thirty days in a 5-1 after sentencing proceeding within however, dissent, concluded Sanders’s arraignment. Wash. Rev. Justice the defendant’s erred and that such 10.95.040(2). had indeed that the State § If that notice is Code filed, vacate Woods’s required the court to may death error timely not seek the the State J., (Sanders, 10.95.040(3). ap- Id. at 1079-81 § death sentence. penalty. On direct Id. state dissenting). did not raise this argued the State had failed peal, Woods petition. habeas in his federal requirement, and that he law issue comply with concluding I think the request COUNSEL]: [DEFENSE right equivocal, Washington Supreme we can ask for State only effective date May analogized request of '97. Court his to that made now is the 5th of Luvene, by the defendant State v. Honor, know, you I Your will WOODS: (1995). There, Wash.2d 903 P.2d 960 prepared proceed be be—I will attorney’s frustrated for a request with—with this matter here without continuance, the defendant addressed the 21st. counsel come October directly court and stated: right. All THE COURT: You under- know, July.... I’ve been here since You you right to do that. stand have I, any longer. don’t wanna sit here It’s WOODS: Yes. me that has to deal with If I’m this. Counsel, you have prepared, go myself, THE COURT: dis- then that’s know, your nobody cussed this with client? me. You can’t tell me this, They say what I wanna do. I did No. have [DEFENSE COUNSEL]: trial, why go why so not—if I wanna to point not that at all. discussed It’s a can’t I go they to trial on the date have surprise to me. my I’m prepared. set for life? I’m not already WOODS: I’ve—I’ve consented prepared go even about that. I wanna continuance, to one Your Honor. And trial, to sir they they nothing gross- have done but — ly misuse that time there. And I feel I my don’t wanna extend time. This is they granted if—if was a second continu- my out league doing of that. I do ance, it—it would be treated the same go. not want to If ready he’s not to manner, Your Honor. me, represent forget then that. But I right. you. THE COURT: All Thank go want to to trial on this date. afterward, Shortly prosecutor the stated Luvene, Id. at 966. In Washington the indicating that “the defendant is he wants Supreme Court concluded that- these state- proceed pro judge to se.” The trial re- ments, taken in the context of the record plied: “He that. didn’t indicate He indi- whole, only as a could be seen an as “ex- Nobody cated he was able to do that.” pression by of frustration [the defendant] any made further references to Woods’s delay with the in going to trial and not as request proceed pro throughout to se the unequivocal an right assertion of his to of hearing. remainder self-representation.” Id. Noting the similarities between the August

On one of Woods’s statements Luvene and Woods’s state- attorneys acknowledged in a written sub- ment, Washington Supreme State mission to the court that he was aware of Court held: “prompt Woods’s desire for a resolution” 30, 1996, August of the case. On Woods’s Woods’s statement cannot be viewed as request unequivocal defense team renewed their for a an statement of his desire to motion, statement, continuance. At a hearing proceéd pro on the to trial se. His Luvene, judge stated: “I’ve heard Mr. Woods’s like that which we examined in it, I point unchanged. merely of view and take it is displea- revealed the defendant’s responded, Is that correct?” Woods request sure with his counsels’ to contin- ‘Yeah.” The trial judge grant- lengthy period nonetheless ue the trial for a of time. Woods, Luvene, ed the motion to continue the trial to like the defendant 17,1997. March undoubtedly was frustrated the de- se, proceed pro to stat- asking Woods was to the court trial his statement lay, and that didn’t indicate that ing “[Woods] [he of expression an to have been appears He indicated proceed pro se]. wanted to feelings. those he was able to do that.” Woods had clarify the court’s opportunity to correct or telling judge trial are satisfied We if nei- understanding it was incorrect. Yet without proceed prepared be he “will nor his counsel reasserted ther Woods than qualitatively different is counsel” during the request proceed pro again se pro- judge that one wishes telling a hearings.6 light hearing any or future inwas comment pro ceed se. Woods’s exchange, we cannot conclude not an category and was the former court’s factual determination the state desire to unequivocal an expression is therefore en- unreasonable. Woods conclude, there- We represent himself. this claim. titled to relief under fore, not denied his constitu- that he was pro se right proceed tional CLAUSE VIII. basis. CONFRONTATION a new trial

entitled to Woods, P.3d at 1062. next that admission statements at Washington of Jade out-of-court that the Moore’s conclude under the rights trial Confron determination violated Court’s Supreme pro statement, tation Clause. The Sixth Amendment quoted pre-trial as that, prosecutions, un vides all criminal above, “[i]n expression “not an himself,” id., ... to be enjoy right accused shall represent equivocal desire against with the witnesses of confronted “an unreasonable determination was not Const, 2254(d)(2). Ohio him.” amend. VI. Under facts,” § U.S. 28 U.S.C. the Cf. Roberts, law at the of controlling v. time Kienenberger, 13 F.3d v. United States Cir.1994) conviction, (9th of an out-of- admission 1354, 1356 (expressly consid Woods’s the at trial did not violate court statement of fact whether a de ering question as a pos if the statement Clause re Confrontation unequivocal Faretta fendant made reliability.” indicia of “adequate sessed apparent what Although it is quest). 2531, 65-66, 65 56, 448 100 S.Ct. Washington Supreme U.S. basis the factual (1980), abrogated L.Ed.2d 597 to conclude relied on that Court Crawford 1354, 36,124 S.Ct. “frustration,” Washington, 541 U.S. we v. merely expressing (2004).7 is A statement trial court 158 L.Ed.2d say, light state cannot a if it falls sufficiently reliable “within record, unrea holding the court’s that bears firmly hearsay exception” or that rooted Shortly after Woods stated sonable. of trustworthi “particularized guarantees proceed to without coun prepared he was 66, The 2531. Id. at 100 S.Ct. sel, expressly disagreed ness.” trial court subsequently recognized Supreme Court that prosecutor’s statement with the hearing became final before he 7. Woods’s conviction claims that at the next 6. Woods Crawford, opinion Supreme its proceed pro Court issued right At that to se. reasserted pre-Craw- apply clearly grant we established discussing so hearing, in whether or not stated, continuance, v. Supreme law. See Court Whorton ‘Tve the trial court a ford 1173, it, Bockting, 127 S.Ct. point view I take heard Woods' Mr. (2007) (holding that new 167 L.Ed.2d unchanged. Is that correct?” Woods it is only applicable to cases reasonably dis- rule replied, "Yeah.” cannot Crawford are still on apply does direct review and reply request proceed a cern Woods’s from review). retroactively collateral to cases on pro se. “spontaneous declarations”'—the same must resolve whether Jade’s statements to referred to as “excited these fell within either types of statements witnesses “firmly rooted” Washington’s hearsay excited utterance or medi- utterances” under diagnosis exceptions hearsay cal “firmly hearsay rooted” laws—constitute rule. Illinois, We address the five witnesses’s exception. 502 U.S. White statements in turn. 8,n. 112 S.Ct. 116 L.Ed.2d 848 (1992). Likewise, recognized the Court First, that some physicians made to in the statements of Jade’s statements to Dr. Edminster and diagnosis course of also fall within a “firm- purposes nurse Bethel were not elicited for ly exception. Id. rooted” diagnosis and treatment and therefore do not fall

Here, objection, diagnosis within the medical over the trial exception hearsay to the rule. Under testify court allowed five witnesses to White, in order for a statement to fall about statements that Jade made after the within the diagnosis exception, medical it attack and her death. Deputy before must have been in the “made course of Douglas Spokane County Lawson of the services, procuring medical where the de- Department, responded Sheriffs who clarant may knows a false statement crime, the scene of the at trial testified misdiagnosis cause or mistreatment.” Id. that he asked Jade whether she knew who 356, 112 at responded attacked her and that she it was guy Dwayne.” “a Ragland- named Carol Washington Supreme Court held Stone, paramedic accompanied who Jade that Jade Moore’s statements to Dr. Ed- (1) hospital, to the testified at trial that: minster and Bethel were admissible under when happened she asked Jade what had exception they because pertinent were her, Jade told her that she had been hit to later post treatment traumatic (2) bat; with a baseball when she asked stress disorder. Because this conclusion is her, who hit responded Jade Jade that it plausible Supreme least and because the (3) Dwayne; was a man named when yet Court has to address whether such assaulted, sexually asked whether she was only psycho- statements relevant to later father, yes. Barry Jade said Jade’s logical treatment fall within the medical Moore, rule, testified that when he went to visit diagnosis exception hearsay to the we room, in the emergency gave Jade she him cannot Washington conclude that the Su- a account Barry preme clearly detailed of the incident. Court’s determination was repeated Moore account jury. to the unreasonable. Edminster, Dr. working who was at the Woods next that Jade’s admitted, hospital where Jade was testi- Barry statements para to Moore and to ques- fied that he asked Jade a number of Ragland-Stone medic should not have part rape tions as of a routine examination been into admitted evidence under the ex procedure. Dr. gave Edminster detailed White, exception. cited utterance testimony about Jade’s answers to these explained Court that statements that have Bethel, questions. Finally, regis- Dianne “been offered in a moment of excitement — tered nurse who assisted Dr. Edminster in opportunity without the to reflect on the examination, rape the administration of the consequences of one’s exclamation” fall also testified as to Jade’s answers to the exception. within the excited utterance Id.

rape questions. examination If, hand, on the other statement is made To determine whether Woods’s Confron- after the declarant an opportunity has had violated, rights tation Clause were we to reflect or discuss the matter with oth- ing Deputy statements to ers, qualifies for the excited Jade’s Law- longer it no Hall, requirements. son fell within White’s exception. Winzer utterance Cir.2007) (9th (interpret- F.3d Barry statements to Jade’s White). ing however, Moore, do not fall within the exception excited utterance as formulated Washington Supreme According to the by they because were not made White Court, manifestly “it unreasonable was an opportunity before Jade had to reflect. admit Jade’s state- the trial court to Rather, statements were made after these father as Ragland-Stone to and her ments already transported had been to the Jade Woods, 23 P.3d at excited utterances.” already hospital and after she had recount Rag- to statements to 1069. As Jade’s Ragland-Stone, ed the events to Edmin- land-Stone, the court noted: Furthermore, ster and Bethel. recount that the statements record reflects [T]he father, ing the events to her Jade said that made, spon- in a Ragland-Stone were to early despite the fact gone she had bed manner, the heels of a clear- taneous a.m., until up past that she had been Also, event.... it is clear ly startling she also failed to recount that she had making when the state- Jade drinking prior to the attack or that been un- Ragland-Stone, Jade was ments sought buy drugs from she had Woods. underlying der the stress caused Woods, misrepre Those 23 P.3d According Ragland-Stone, assault. suggest op had the sentations Jade am- was first moved into the when Jade portunity consequences to reflect on the bulance, Ragland-Stone said she was Furthermore, unlike its her statements. crying almost” and “whimpering, like Rag- findings about Jade’s statements to emotional, very distraught, “very land-Moore, Washington Supreme clearly upset pain.” and in a lot of opinion contains no similar find Court’s ings spontaneity as to the of Jade’s state accept at 1068. We must the state Id. Barry Moore. therefore con ments to findings objectively factual unless court’s clude that the state court’s determination 2254(d)(2); § unreasonable. 28 U.S.C. statements to her father were Jade’s (9th Woodford, Davis v. 384 F.3d “excited utterances” was an unreasonable Cir.2004). no Because there was White, clearly application established contrary, the state court’s conclu- Accordingly, federal law. admission “in a that the statements were made sion Barry Moore consti Jade’s statements to manner, of a spontaneous on the heels rights tuted a violation of Woods’s under event,” objectively was not clearly startling the Confrontation Clause. Woods, 23 P.3d at 1068. unreasonable. circumstances, of the Confrontation Jade’s state- Violation Given those however, Clause, subject to the harmless- Ragland-Stone ments to met White Arsdall, analysis. v. Van they an excited utterance: error Delaware requirement for a moment of excitement— n 673, 684, “in 475 106 S.Ct. 89 were offered U.S. (1986). If error did not opportunity to reflect on the L.Ed.2d 674 the without prejudice,” in “actual Woods is not consequences exclamation.” result [her] White, Brecht v. Abra at 112 736. The entitled to habeas relief. 502 U.S. 619, 637, hamson, 113 S.Ct. state court’s conclusion was therefore (1993). Here, Jade’s For 123 L.Ed.2d 353 objectively unreasonable. the same were, reasons, statements to her father we conclude that the state court the statements objectively part, unreasonable in hold- most cumulative of Edminster, Rag- process. Bethel and review Woods bases this gave she conten- prior statements all Jade’s on Dr. in land-Stone. tion Brown’s conduct detailed the crime and iden- the details of included Barfield, State v. 22121058.9 In WL the perpetrator. as tification Woods Barfield, Dr. Brown DNA tested the from Furthermore, prior statements Jade’s sample rape a semen retrieved from a testimony by Ve- were cumulative compared victim and the results to a nus, identified Woods as the at- who also WSPCL database included defendant Thus, prej- cannot establish tacker. Woods Barfield’s DNA. Id. at *1. He did not a result of the Confrontation udice as match, identify a and created a draft re- violation, and he is not entitled to Clause port reflecting that result. Id. Brown’s issue. habeas relief MacLaren, supervisor, indepen- Donald and, dently analyzed the test results after IX. DUE PROCESS CLAIM- reviewing report, Brown’s draft noticed MATERIAL WITHHOLDING that Brown had made error. Id. After EVIDENCE brought MacLaren the error to his atten- argues prosecution that the with- tion, Brown discarded the erroneous draft material, exculpatory evidence in vio- held report report prepared new reflect- Brady Maryland. Specifically, lation of ing analysis, the correct which indicated argues Brady in two sub-claims8 sample the DNA from the semen matched prosecution withheld evidence in profile Barfield’s DNA the WSPCL da- (1) concerning: general policy WSPCL’s pretrial tabase. Id. interview with destroying as reports, “draft” evidenced counsel, initially defense Brown denied ex- in Dr. Brown’s conduct State v. Bar- John cluding report, Barfield in an earlier but 48147-9-1, field, No. WL performed later admitted that he had (2) 15, 2003), (Wash.Ct.App. Sept. analysis incorrectly first round of and had full of how the details WSPCL mishandled initial discarded the erroneous draft re- case, physical including port. Id. Dr. Brown testified at Barfield’s spillage sample. of Woods’s first blood On rape trial that he had lied defense coun- sub-claim, Brady the first the district sel because he was embarrassed about request court denied Woods’s for an evi- making an obvious error. Id. at *2. dentiary hearing and denied relief. habeas In a declaration submitted the Wash- The district court ruled that second ington Supreme Court Woods’s PRP proeedurally defaulted. sub-claim MacLaren, proceeding, who also reviewed address each subclaim in turn. case, analysis Dr. Brown’s in Woods’s stat- A. The failure to disclose State’s process ed that the review followed general practices WSPCL’s including peer review and dis- Barfield — carding reports erroneous draft prosecution that the had —was procedure standard MacLar- knowledge testing of WSPCL’s DNA WSPCL. declared, however, en protocol, discarding review which included that “out of the reports, “draft” and was therefore re- thousands of autorads this lab has devel- quired Brady oped under to disclose the lab’s there have been than ten in- less analyzed 8. The first sub-claim is set out in claim 5.1 in 9. Dr. Brown DNA in the Barfield petition. 1997, Woods’s federal habeas The second analyzed case in but after he the DNA sub-claim is set out in claim 5.2 in Woods’s evidence and testified in Woods’s case. petition. federal habeas

1127 resizing possession prosecutor, was necessitated not known to the where a stances process.” applies only to evidence ris- by the review but “favorable ing importance.” a material level of had he known about argues that Woods 419, 438, Kyles Whitley, v. 514 115 U.S. trial, of he practices at time WSPCL’s (1995). 1555, 131 490 S.Ct. L.Ed.2d More- to im- used the information would have over, duty to un- prosecutor’s disclose challenge and to Dr. Brown peach Brady der is limited to evidence a reason- by question- DNA evidence prosecution’s prosecutor perceive able would at the time of internal re- ing quality WSPCL’s material favorable being as and to the that Dr. process. Woods contends view 436-37, at defense. Id. 115 S.Ct. 1555. in the case misconduct Brown’s Barfield was not revealed the results of would be that there were tests that were never fense. it the defense.” 281-82, must demonstrate inadvertently; reports may have been pressed probability sufficient sued.” cally, sured the omitted). suppressed by the able dence either because it is (1999); defendant 1194. To establish completed by January probability that the result of the trial impeaching; at issue argues that it is reasonable to infer have see Strickler v. completed 119 S.Ct. [evidence] a delay “A ‘reasonable prosecution must longstanding practice Brady, To indicia in this case that draft been points out that WSPCL as- [is] prevail exculpatory Strickler, was due to one or (internal quotation prove favorable to the that “there is a reason until State, ^[2] 373 U.S. at 1936, 144 exculpatory, prejudice, had different ^[3] Greene, that evidence on a reported to the de- destroyed. Specifi- that February prejudice ... en been disclosed undermine either probability’ 1, 1997, Brady tests testing 527 U.S. “[1] L.Ed.2d if the willfully or or because defendant and that The evi 20,1997. accused, 83 S.Ct. claim, hiding marks would but confi more [was] sup is a 286 it a Woods’s review and destruction of erroneous draft view turned not have a reports violate match with a sion was not ed that WSPCL’s al peachment instances when its revealed an erroneous Woods’s' misconduct subjected have followed such and discarded draft case. We show that an error occurred Woods’s able draft § about pressed an erroneous draft after Woods’s nothing could have cution did not 2254(d)(1). practices application Brady report Brown’s actions in Brady The case, case. DNA test results to duty recognize that destruction of a impeached value. in suggest up state contrary trial and that the suspect’s The bare fact that the lab in Barfield to disclose the lab’s an error does not tend to procedures. possess excluded Moreover, light exculpatory general practice supreme concluded, Although reports practice peer him at tomor DNA would analysis, occurred months any under 28 U.S.C. a defendant review the state prosecution court when Barfield WSPCL Dr. Brown’s in those rare so the This conclu report’s peer material information in report unreason conclud there is peer process review gener prose likely trial. peer sup may as im did re in in a dence the outcome.” United States gen if evidence of Even WSPCL’s 667, 682, Bagley, 473 U.S. 105 S.Ct. practices exculpatory, eral were not (1985). L.Ed.2d it to infer argues that would be reasonable from Dr. Brown’s conduct in duty imposed by Brady Barfield government’s delay obtaining in the DNA test results extends ington Supreme deny in to conducted tests Court his case that WSPCL all he reported request hearing to the for when could that were never his case speculation evidentiary offer that an su was contends the state defense. Woods testimony or other hearing might produce denied him an evi- wrongfully court preme evidence inconsistent with Dr. Brown and develop this claim. dentiary hearing MacClaren’s declarations. a claim that argument his as construe factfinding process was the state court’s Washing- that the We further conclude an was therefore unreasonable flawed and make an unrea- Supreme ton Court did not facts under U.S.C. determination sonable determination of the facts under 2254(d)(2). fact-finding § A state court’s 2254(d)(2) § when it found that there was 2254(d)(2) § under process is unreasonable destroyed showing no Dr. Brown evidence any appel only when we are “satisfied only in this case. The evidence before pointed whom the defect is late court to state court was that MacClaren reviewed in holding unreasonable out would be agreed with Dr. Brown’s test results factfinding process state court’s Washington agree them. We with the Su- Maddox, v. 366 F.3d adequate.” Taylor that “the record does not preme Court (9th Cir.2004). 992, 1000 intentionally show that Dr. Brown de- stroyed and then lied exculpatory evidence Here, was no defect in the there Woods, about it.” In re 114 P.3d at 622. factfinding process. court’s supreme state supreme Because the state court’s Although might prudent it have been ruling appli neither an unreasonable provide opportunity with the to de cation of federal law nor an unreasonable of velop underlying aspect the facts facts, determination of the 28 U.S.C. claim, Brady his the state court’s decision 2254(d)(l)-(2), § affirm the we district deny hearing him a was based on its relief on this sub-claim.10 court’s denial of Dr. consideration of the declarations of that were filed with Brown and MacClaren B. Failure to disclose details of Washington Supreme Al Court. spillage first of Woods’s though expressly neither declaration de sample blood the existence of an erroneous draft nied case, in nothing alleges in there is the State failed report Woods’s anywhere spillage or else in the disclose the full details of the of those declarations labora- suggest report sample record to that such exist his first blood WSPCL’s tory Spokane. claims that this ed. It was not unreasonable for the Wash- against any requested evidentiary helps which them chal 10. Woods also an hear- then steel ing develop in the district court to his claim. lenge presented based on ... evidence adjudicated our review of a claim Because Taylor, in federal court.’’ See first time the merits the state court under 28 U.S.C. alleges sup F.3d at 1000. Woods no facts to 2254(d)(1) § is limited to the record before port beyond suspicion his claim that the Pinholster, the state court under 131 S.Ct. at delay obtaining report prosecution's 1398, we see no need to afford Woods an ing DNA test results the destruction indicates opportunity develop support exculpatory evidence. and non-disclosure argument supreme the state court allegation[s],” "speculation,” "Bare unreasonably applied Brady. To the extent suggestions” peti entitle a "wishful do not that Woods attacks the state court’s factfind- evidentiary hearing. tioner to an Morris ing, we held that where there is no have (9th California, F.2d 455-56 Cir. factfinding process, defect in the state court's 1991). We affirm the district therefore here, findings are as “the state court’s evidentiary hearing. court's denial of correctness, presumption dressed in a

1129 longer remedy state court and no has a have shown that there was evidence would kit rape risk that the swab significant Thompson, a that court. Coleman v. 501 contaminated 722, 732, 2546, from Moore was taken Jade 111 U.S. S.Ct. 115 L.Ed.2d leaked, thus sample (1991). blood when Woods’s Although, 640 due to the state DNA match. leading positive to a false default, may court a federal be pro- court that did court found Woods The district cedurally reviewing barred from such a to the fairly present this sub-claim 750, claim. Id. at 111 S.Ct. 2546. that Washington Supreme Court and ruled Here, presented Woods the state procedurally

the sub-claim was barred. agree.11 supreme operative court both the with legal theory facts and of his that sub-claim prisoners seeking a writ State withheld State evidence of WSPCL’s corpus habeas from a federal court must of general testing protocols, and review but their remedies in state court. first exhaust he present relating did not facts to the 2254(b)(1)(A). § A petitioner 28 U.S.C. breakage containing of the vial his first has exhausted his federal claims when he sample Spokane blood at the lab. Woods fully fairly presented them to the has that, argues although his PRP never ex Boerckel, v. 526 state courts. O’Sullivan pressly spillage raised a claim about the of 838, 844-45, 1728, 144 119 S.Ct. sample potential his blood and the for con (1999) (“Section 2254(c) requires L.Ed.2d 1 evidence, tamination of other his state prisoners give that state courts only state Brady alleging court claim the non-disclo claims.”). opportunity to act on their fair practice discarding sure of WSPCL’s of purposes exhausting state reme “[F]or reports erroneous draft was sufficient to dies, corpus a claim for relief habeas raise prosecution’s the issue failure specific must include reference to a federal mishandling disclose the of all the evi guarantee, constitutional as well as a state testing. dence related to DNA In his petitioner ment of the facts that entitle the PRP, unequivocally amended Woods stat Netherland, Gray to relief.” v. 518 U.S. Brady ed his claim related to how 152, 162-63, 116 L.Ed.2d 135 general practices related to his WSPCL’s (1996); Silva, see also Davis v. 511 (9th Cir.2008). case. noted in his PRP that “coun Woods A F.3d claim depositions sel moved to take of Dr. fairly may presented has not been Brown, Morig, if and Donald Ma- technically also be deemed exhausted William cLaren, petitioner Washington defaulted on the claim in all of the State Patrol has disagree procedural rulings. 11. Woods and the State as to wheth- elude the district court's Sinclair, procedural v. er the COA includes the earlier See Woods No. CV-05-0319-LRS or, rather, (E.D.Wash. 2008). rulings light related to each claim is Dec. of these only showing limited to the claims as considered circumstances and the minimal issue, Lopez required the court in its order. for a COA to final see Schriro, (9th Cir.2007) grant F.3d that the district court’s of COArelates only (stating appellant only to the merits of the claims but also to need show that procedural rulings jurists associated with each reasonable would find the district State, hand, argues claim. The on the other court’s assessment of the constitutional procedural wrong), agree we that the COA does not cover the claims debatable or with rulings and therefore does not allow us to Woods that the COA should be construed encompass procedural rulings. Brady review whether Woods’s second sub- related Therefore, properly we includes claim was exhausted. In his Memo- conclude that the COA Support question randum in of Motion for Certificate of whether Woods exhausted his court, sub-claim, Brady proceed Appealability filed with the and we district second expressly requested that the COA in- consider it. Lab, specific prac- tained his because he established to determine sub-claim Crime added). (emphasis procedural preju- case.” cause for the default and tices in this language resulting was suffi- from failure to exhaust suggests dice Dretke, supreme court on put cient to the state state remedies. See Banks Brady 690-91, sub-claim he notice of the second (2004) petition. in federal habeas raised his (holding petition- L.Ed.2d 1166 evidentiary er would be entitled to an section, Brady in the PRP’s Nowhere hearing in if federal court he could show however, spillage mention the does Woods failure to the develop cause for his facts sample. of the first blood Aside from his actual proceedings preju- state-court and Morig, only- request depose Woods’s failure). resulting dice from that For in the PRP to the forensic work reference “ claim, Brady prejudice ‘paral- cause and Spokane facility at stated that WSPCL’s the components lel two of three of the swabs, kit Morig rape pre- received the ” alleged Brady violation itself.’ Id. at swabs, from the and sent pared samples Strickler, (quoting S.Ct. 1256 527 U.S. to other laboratories to be samples the 1936). petitioner may 119 S.Ct. A presented claim in the Brady tested. The by showing prose- establish cause that the entirely PRP focuses on the actions of Dr. suppression of evidence was the cution’s Brown, in the case and in both Barfield petitioner’s reason for the failure to devel- nothing case. Yet Dr. Brown had Woods’s op the factual basis of the claim state storage, spillage, to do with the and break- Prejudice court. Id. is established containing age of the vial Woods’s first showing suppressed evidence is fact, sample. blood Woods does Here, material for Brady purposes. Id. Dr. that a allege that Brown even knew develop he failed above, spillage occurred. As discussed Dr. facts of this sub-claim because the State Brown’s conduct in the case does Barfield spill- never the full disclosed details WSPCL, presumption not create a as age sample. agree of his first blood We systematically organization, suppressed an with district court that this is insuffi- material. We thus fail exculpatory to see alleged cient to show that prosecution’s PRP, Brady claim in how the Woods’s suppression of evidence caused Woods’s spoke only proce- which to Dr. Brown’s develop failure to his sub-claim state testing analysis dures for in the Se- court. lab, gave attle the state court a supreme opportunity full fair to act alle- Notably, prosecution disclosed be- gation prosecution that the withheld evi- containing trial that vial fore Woods’s spillage dence related to the of a blood sample first blood had cracked and leaked sample Spokane laboratory. at WSPCL’s put at the That Spokane lab. disclosure

Accordingly, we conclude that Woods may notice that other Woods on present underlying failed to the facts contaminated. have been Woods does Brady Washington second sub-claim to the allege what further facts the exculpatory Court, Supreme and we affirm the district prosecution possessed but failed to dis- ruling that the regarding court’s sub-claim Moreover, although sought close. spillage sample of Woods’s blood Washington authorization from the Su- technically procedurally exhausted but preme discovery, to conduct certain Court barred. discovery requests neither his nor his re- evidentiary contends that the for an quest hearing specifical- dis ly spillage trict court nonetheless should have enter- related to the of the blood sam- alias, object to the use of contamination of other “Mi- pie possible or the Smith,” during chael A. the trial. develop the factu- His failure to evidence. claim, therefore, cannot of his al basis The district court also concluded that a prosecu- attributable to the properly be proce- number of the IAC sub-claims were to disclose relevant evidence. tion’s failure (1) barred, durally including: counsel’s court’s dismiss- thus affirm the district failure to address Venus’s recovered mem- default- procedurally al of this sub-claim as (2) ories; adequately counsel’s failure to ed.12 prior cross-examine Venus on her false (3) her;

allegation raped that Woods had expert counsel’s failure to call a DNA X. INEFFECTIVE ASSISTANCE (4) evidence; contest the DNA coun- OF COUNSEL to investigate adequately sel’s failure the potential DNA contamination by that he was denied his caused the broken vial of Woods’s blood. right Amendment to effective assis- Sixth of counsel on the basis of a number tance parties agree Both that the per- team’s of deficiencies his defense Supreme Court’s decision Strickland v. court concluded formance. The district 668, 2052, Washington, 466 U.S. 104 S.Ct. that seven of these IAC sub-claims had (1984), “clearly 80 L.Ed.2d constitutes properly been exhausted before the state providing federal law” established the courts and therefore considered them proper assessing framework for Woods’s (1) workload; heavy the merits: counsel’s AEDPA, pri IAC claims. Under the the (2) experience counsel’s lack of and train- mary issue is whether the state court ad (3) im- ing; properly counsel’s failure to judication of the Strickland claims was (4) Johnny Knight; coun- peach witness objectively reasonable. Schriro v. Lan investigate present sel’s failure to and 465, 473, drigan, 550 U.S. S.Ct. (5) defense; capacity Woods’s diminished (2007). prevail To on an 167 L.Ed.2d 836 investigate present and counsel’s failure Strickland, claim a petitioner IAC under defense; (1) voluntary intoxication performance must show “that counsel’s (6) (2) deficient,” counsel’s failure to ensure that the was and “that the deficient autoradiograms jury went into the performance prejudiced DNA the defense.” (7) Strickland, room; at deliberation counsel’s failure 466 U.S. (B) evidentiary hearing underlying the claim would

12. Woods also seeks an the facts by the on the merits of this sub-claim and on be sufficient to establish clear and prejudice convincing as an excuse for issue cause evidence that but for constitu- AEDPA, error, procedural default. Under the tional no reasonable factfinder 2254(e)(2): § U.S.C. applicant guilty found the would have underlying the offense. Woods cannot applicant develop failed to [i]f has high meet this standard. Woods fails to pro- factual basis of a claim in State court Brady allege what relevant to his facts ceedings, the court shall not hold an evi- preju- claim or to the issue of cause and dentiary hearing on the claim unless the by evidentiary dice will be uncovered an applicant that- shows hearing suspicion aside from the that (A) the claim on- relies hiding prosecution might been in- law, have (i) a new rule of constitutional made relating to DNA contamina- formation retroactive to cases on collateral review Court, agree court tion. with district Supreme previous- that unavailable; allegations speculative do not ly that these or (ii) required showing predicate meet under a factual that could not 2254(e)(2), previously through § and we affirm the district have been discovered diligence; evidentiary hearing. the exercise of due court’s denial of an claims, evaluating example, IAC “our load. For neither of Woods’s In ‘doubly a attorneys capital ... had tried a case require [we] cases use ever gives attorneys standard of review was the deferential’ before. One Woods’s and the defense at state court attorney both the lead on four other murder cases of the doubt.” Burt v. torney the benefit during representing the time he was — Titlow, -, 10, 13, 134 S.Ct. Woods, responsible while other .(2013) (quoting Pinhol 187 L.Ed.2d 348 aggravated three other murder cases. 1403). ster, at fact, trial, 131 S.Ct. just weeks before Woods’s de attorney requested fense an extended con prong, petitioner As to the first tinuance, explaining pre that he never had performance was prove that counsel’s must pared magnitude for a case of this before objective deficient that it “fell below so begin and that he did not feel comfortable Strickland, standard of reasonableness.” ning the trial. The court denied this re 104 S.Ct. 2052. The Su 466 U.S. deficiencies, quest. Despite alleged these has instructed lower courts preme Court not, these circumstances do in and of “indulge strong presumption themselves, amount to a Strickland viola falls within the wide counsel’s conduct Rather, specific point tion. Woods must professional assis range of reasonable may or have resulted acts omissions ...” Id. at 104 S.Ct. 2052. As tance. inexperience pro from counsel’s and other petitioner “must show prong, to the second Strickland, obligations. fessional See that, probability a that there is reasonable 690, 104 Thus, at 2052. S.Ct. Woods errors, the unprofessional but for counsel’s not entitled to relief on this sub-claim have proceedings result of the would been alone. 694, Fi different.” Id. at 104 S.Ct. 2052. nally, satisfy if can of even Woods both capacity B. Diminished defense requires AEDPA that a prongs,

those court find the state court’s con federal attorneys Woods claims that his should objectively trary conclusions are unreason investigated pursued have a diminish- granting habeas relief. See able before capacity supreme ed defense. The state at Landrigan, 550 U.S. court concluded: reasonable coun- [Woods’s] was [I]t those claims that We first review pursue the alibi defense rather sel merits, district court addressed on the capacity than diminished because Woods then consider those the district court con- continuously denied his involvement technically pro- cluded were exhausted but pursue the crimes. To the diminished cedurally barred. capacity required defense would have essentially com- admit he Woods inexperience A. Counsel’s murders, position entirely mitted and caseload inconsistent with his contention that he that, argues because his did not commit the murders. un primary attorneys two defense faced Woods, In re 114 P.3d at 618. manageable inexperi caseloads and were capital litigation, perform enced in their adding that agreed, The district court deficient. The district court ance was staunch insistence on his inno- rejected argument, and so do we. cence made it reasonable for counsel to pursue a defense of alibi and points troubling “cho[o]se out several as- than a experience and case- mistaken identification rather de- pects his counsel’s capacity, only proba- the latter of has shown ‘a [defendant] of diminished fense bility of failure.” sufficient to undermine high probability had a confidence which ” Petition, Denying Supplement, Jennings Woodford, the outcome.’ Order (9th Cir.2002) of Habeas (quoting Petition for Writ F.3d Revised Sinclair, Strickland, No. 2:05- at Woods v. 466 U.S. at 104 S.Ct. Corpus (E.D.Wash. 2052). 5, 2009), Thus, Feb. Woods must demonstrate cv-00319-LRS Order], objectively No. 185 Dist. Ct. it was unreasonable for [hereinafter EOF and the Washington Supreme Court the state court to conclude that his coun- that, affect, if agreed performance also even sel’s district court deficient did not deficient, in, had been or performance counsel’s otherwise undermine confidence present capaci- a diminished the failure to outcome of his trial. light of the

ty defense was harmless assuming Even that Woods’s counsel premeditation. strong evidence Woods’s constitutionally per- were deficient in their Order, 44-45; In re supra Dist. Ct. See formance, the state court’s determination Woods, 114 P.3d at 618-19. Woods deficiency that this not prejudicial court’s determination on this that the state objectively According reasonable. objectively unreasonable and issue was Woods, his counsel should have conducted to an expansion that he is entitled investigation further into a diminished ca- evidentiary hearing. record and Yet, pacity supreme defense. as the state coun- need not address whether Woods’s noted, court even if counsel had unearthed performance was deficient because we sel’s significant evidence Woods’s diminished prejudice he cannot demonstrate conclude pursue the diminished ca- capacity, “[t]o not entitled to habeas and is therefore pacity required defense would have relief on this sub-claim. essentially admit that he committed the murders, possibility entirely a inconsistent relief, To be entitled habeas with his contention that he did not commit that the Woods must demonstrate Wash Woods, the murders.” In re 114 P.3d at unreasonably con ington Supreme Court present 618. Woods failed to the Wash- performance cluded that counsel’s did ington Supreme any Court with evidence Washington Supreme him. The prejudice declaration) (or a that he would have even that, held if Woods’ attor “[e]ven Court if willing been to abandon his alibi defense the diminished neys investigate failed to presented with an alternative diminished defense, capacity it is harmless error be capacity say defense. We thus cannot that strong premedi cause there is evidence of the state court’s determination on this sub- Woods, by tation Woods.” 114 P.3d at objectively claim was unreasonable. prong Under the second of 618-19. Strickland, prejudice, to demonstrate Voluntary defense C. intoxication reasonably that it Woods must show the outcome of his trial faults counsel for not ade probable a quately investigating presenting have been different had counsel con and vol would investigation untary Although a reasonable into his intoxication defense. re ducted defense, capacity capacity defense. 466 lated to a diminished diminished sepa a proba voluntary 104 S.Ct. 2052. “A reasonable intoxication constitutes Washington defense under bility cognizable does not mean that we must deter rate Hackett, Wash.App. jury likely more than not law. See State v. mine (1992) (per 1016 n. would have returned a verdict for some 827 P.2d curiam) murder, (holding voluntary that the intoxi- thing degree beside first but [sic] key Johnny Knight, one of the State’s applies to intoxication cation defense witnesses, any theft alcohol, falsely prior that a denied dimin- as drugs as well during direct and cross-exami- was not broad conviction instruction capacity ished argues that his counsel voluntary intoxication nation. Woods cover enough to disorder). constitutionally failing deficient in illness or was of mental falling short Knight’s testimony copy with a

impeach type alleged defi Although this rejecting In the theft conviction record. defendant, see Sei- ciency may prejudice Washington Supreme argument, (9th Merkle, 750, 757 Cir. 146 F.3d del v. held: Court 1998) where counsel (finding prejudice copy failure to obtain the certified [T]he investigate his client’s completely failed does not es- judgment and conviction signs despite health abundant mental deficiency. say tablish because his client suffered from the record that questioning prosecution from the illness); Jennings, 290 F.3d at mental parties established that all were defense where counsel (finding prejudice a theft convic- Knight aware that had investigate present mental failed to during questioning, Knight In fact tion. noting jury that the defenses and health about other volunteered information days despite two full over deliberated for Thus, well. it is clear convictions as defendant), whelming against evidence they jury that the was aware were lis- convinced that the state here we are not multiple with convic- tening to witness contrary court’s determination effect, him- Knight impeached In tions. failed to objectively unreasonable. Woods self. that, any had his defense submit (internal Woods, In 114 P.3d at 619 re option him with the presented counsel omitted). This characterization of footnote defense, agreed he would have pursue this Rather, quite the record is not accurate. fact, the state to it. In the evidence before Knight having denied a theft conviction trial court demonstrated and, attorney objected, ad- after Woods’s that, in all innocence and upon insistent mitted that he had been convicted of a rejected any have probability, he would colloquy a brief “drug transaction.” After guilt. him to admit requiring defense counsel, open trial judge with stated sum, counsel’s whether or subject you to recall or “[Knight is] court: deficient, constitutionally performance was just in the evidence about put can Washington Supreme Court’s determi counsel then moved conviction.” Woods’s prejudice failure did not nation that this questioning without on to other lines of objectively not unreasonable. Woods was asking any questions further about to relief on therefore not entitled Woods is introducing any evi- theft conviction or this sub-claim. pertaining dence to it. or not the failure to introduce Whether

D. of witness Cross-examination judg- copy Knight’s prior the certified Knight Johnny deficient, we are ment and conviction was supreme that the state court’s that counsel did not convinced alleges Woods not Johnny Knight preju- determination that Woods was cross-examine properly (2) (1) objectively by diced that failure was prior about theft conviction jury indeed made increasingly that unreasonable. The was police his statements to Knight that been convicted of a time. ad aware had incriminated Woods over argues Knight’s that admis- in turn. crime. Woods arguments dress those By trial, is drug Knight sion of his conviction irrelevant the time of Woods’s had been “drug a conviction for a transac- convicted of several felonies stem- because ming from his arrest to a and had been sen- comparable tion” is not theft convic- years prison. jury tenced to 10 at drug crimes are not crimes of tion because trial Knight’s did not learn of dishonesty Washington under law. See conviction and sentence. Woods 701, Hardy, 946 P.2d State Wash.2d that counsel’s failure to make jury (1997). 1175, agree While we that a Knight’s possible aware of arrest as a rea- may conviction as for drug be valuable son for the change Knight’s story consti- impeachment purposes as a theft convic- tuted a violation. Strickland tion, say cannot that the fail- we counsel’s Knight’s ure to elicit admission to a theft The Washington Supreme Court never sufficiently prejudicial conviction was decision, addressed this sub-issue in its nor supreme render the state court’s determi- personal did Woods’s restraint petition objectively nation unreasonable. Nonetheless, raise it. the district court concluded that this claim had been proper- to relief Nor is Woods entitled on the ly exhausted because the new factual alle- basis of his counsel’s failure to confront gations fundamentally did not alter the Knight with evidence that his statements legal claim already by considered the state police changed significantly after he was court.13 The district court thus considered 28, charged April with three felonies. On merits, this issue on the as do we. Irre- 1996, police questioned Knight spective of whether Woods’s counsel was reported: “Johnny Knight having denied failing Knight’s deficient in to raise arrest knowledge of the assaults or intention of trial, prejudice failure did not any may assaults have been [Woods] Ample evidence presented Woods. was in.” May Knight involved On jury Knight untrustworthy re-interviewed the police again said drug witness: he had admitted to a convic- nothing confessing about to the receiving tion and to a reward for informa- assaults. Woods, leading tion and defense counsel impeached Knight having on the 1997, however, stand February Knight On amount misrepresented the he received as drug was arrested for and firearm crimes Accordingly, there not a reward. significant prison for which he could face ... later, probability “reasonable the result police time. A week interviewed proceeding would have been differ- Knight jail, alleged and he for the first Knight impeached ent” had been further day murders, time that on the after the February with his 1997 arrest and related confessed that he had killed Strickland, interview, convictions. 466 U.S. at During Knight women. Thus, is not enti- police up also told that when he met with claim. murders, tled habeas relief on this Woods after Woods had cash, jewelry, women’s and some credit E. Woods’s alias cards which had been taken from the vic- Additionally, Knight tims. claimed that Woods contends that his trial said he get Spo- object Woods needed “to out of counsel’s failure to to the use alias, Smith,” kane.” “Michael A. request ruling light 13. The district court denied Woods’s cedes that this was correct in Pinholster, supporting Supreme to introduce new evidence Court's decision in brief, supplemental claim. In his Woods con- 131 S.Ct. at 1398. 1136 (“auto- autoradiograms examine the prejudicial. and could

constitutionally deficient rads”). Court, however, Washington Supreme of the alias was that the use determined court did not reach the mer- The district and law as “relevant proper under state (1) (2) (collectively the its of claims and any of the disprove or prove material to claims) it concluded because “DNA-IAC” (citing 114 P.3d at 619 in the case.” issues presented had not been that these claims 250, Elmore, 985 P.2d v. 139 Wash.2d State Supreme Court and Washington to the (1999); 76 289, Cartwright, 310 State exhausted, technically but therefore were (1969)). 340, 259, P.2d Wash.2d See Wash. Rev. procedurally defaulted. Supreme Washington Coleman, Specifically, 10.73.090; § see also Code that, the identi- because Court determined 2546.14 735 n. With issue, (3) above, was at because ty perpetrator of the the court held respect to- issue jail correctly at the under trial court re- was booked that because the Woods Smith,” A. and because two the autorads to the delibera- name fused to send “Michael consideration, could at the tion room for Woods fingerprints that were found claim related to the prevail on his IAC belonging as crime scene were identified first Woods’s autorads. We consider Smith,” the use of the alias was “Michael and then address 'the DNA-IAC claims identify as the Woods appropriate autorad claim. merits of Woods’s Id. That determination perpetrator. binding on this court. Brad- state law is 1. DNA-IAC Claims 74, 76, 126 S.Ct. Richey, shaw v. 546 U.S. argues that the factual (2005). The State Thus, even 163 L.Ed.2d allegations underlying Woods’s legal attorney was deficient assuming Woods’s presented to DNA-IAC claims were never alias, we objecting to the use of his for not court, the state court supreme the state prejudicial; that it was cannot conclude claims, and the claims never ruled on the objec- had defense counsel made even procedurally are defaulted. Woods now tion, properly it have been over- would fairly presented initially argued that he entitled to is therefore not ruled. Woods claims state court and therefore these claim. habeas relief on this- concluding the district court erred In his procedurally were defaulted. these DNA F. The State’s briefing, post-remand, supplemental trial counsel these claims Woods now concludes effectively challenge State’s prior failed defaulted. In -our procedurally were alleg- Specifically, DNA In evidence. we did not resolve this issue. opinion, in the stead, es that his counsel were ineffective that even if these we concluded (1) exhausted, ways: they failed to following properly three had claims been a,defense interpret that he was entitled present expert could not show (2) tests; they failed to relief. We now conclude results of the DNA to habeas contamination; fairly in the presented the claims were not explore the issue of DNA (3) that the first undisputed court. It is they jury failed to ensure that the state above, we con- judgment. As noted in footnote the district court did 14. As discussed encompass specific both the encompassed strue the COA specify whether the COA any procedur- related IAC enumerated claims procedural issues related to Woods's Therefore, we whether the only al issues. consider parts of the claim that the claim or those and, properly were exhausted DNA-IAC-claims district court determined were exhausted therefore, court. on the merits in its final state considered

1137 fail- ation reference to defense counsel’s of “matters outside the trial record” specific McFarland, of DNA con- explore possibility appeal. ure to the on direct v. State 127 present testimony 322, 335, the of a tamination and Wash.2d P.2d (1995). in expert DNA feder- defense Woods’s In the supplemental State’s brief g agree petition. al habeas We therefore Martinez, significance the addressin and the court that parties with the district essentially argued the State that the ex procedurally claims were defaulted. these ception recognized Martinez was limited categorically to cases where state law pro nonetheless, argues, raising hibits a defendant from IAC claims procedurally if these claims are even appeal, on direct and that Martinez does defaulted, the default should be excused apply only state prohibits where law a represen because it was due to ineffective relying defendant from on extra-record ev counsel. by post-conviction tation his state support idence to IAC claims raised on Martinez, that, Supreme the Court held reject appeal. argument. direct We circumstances, repre in some ineffective filed, After the State’s brief was the Su by post-conviction may counsel sentation that, preme Court held Trevino al provide excusing procedural a basis for a though expressly Texas law did not re default. 132 S.Ct. establish “[T]o quire IAC claims to be raised on collateral default un procedural ‘cause’ to overcome review, applied Martinez still because Tex (1) Martinez, petitioner must show: der claims on as law limited direct review to underlying the ineffective assistance of tri record, making “virtually the trial thus it (2) ‘substantial’; al counsel claim is the impossible appellate counsel to ade represented or had inef petitioner was quately present an ineffective assistance during [post-conviction fective counsel the trial claim on direct review.” [of counsel] (“PCR”) (3) proceeding; relief the state ] rule, Washington 133 S.Ct. at 1918. The pro initial proceeding PCR was the review by the on direct limiting appeal (4) (or ceeding; required state law McFarland, record, see 899 P.2d at matter) practical petitioner forced as a 1257, poses practical the same barrier to claim in initial bring review raising claims as the rule at IAC Texas Ryan, v. proceeding.” collateral Dickens Thus, the third and issue Trevino.15 Cir.2014) (9th (citing F.3d requirements — are met. fourth Martinez Thaler, U.S. -, Trevino v. 133 S.Ct. (2013)). 1911, 1918, 185L.Ed.2d 1044 require- As to the first two Martinez substantiality latter two and ineffective assis- begin addressing ments — requirements. argues tance of counsel—the state Martinez PCR requirements that these two are satisfied that the defaulted IAC claims are merit- claims were less and that therefore cannot show because Woods’s DNA-IAC and, appeal prac- provided counsel ineffective assis- not raised direct as PCR matter, by failing to them in tical could not have been raised on tance of counsel raise similarly ar- appeal they rely direct because on extra- the state court. The dissent claims (e.g. gues record evidence a declaration from a Woods’s are meritless Riley) reject Dr. expert, DNA Donald E. that we should therefore However, Washington permit arguments. given law consider- Martinez does not argued Eighth position 15. The State also and remanded to the Circuit for fur- its supported by Eighth light Circuit’s decision in ther consideration in of Trevino. See — Norris, Hobbs, -, (8th Dansby Dansby 133 S.Ct. 682 F.3d v. Cir.2012). (2013). Dansby vacated 186 L.Ed.2d 215 has since been 1138 (four claims, failing to raise them. Id. at 1254 we believe the IAC

nature of Dickens, also judge plurality opinion); see is- substantiality and ineffectiveness the 740 F.3d at 1320.16 in- in the first addressed should be sues Judge court. As by the district stance autoradiograms 2. The Detrich, determining observed Watford counsel’s argues are satisfied requirements whether these that the DNA autorads17 fact- and rec- failure to ensure “requires highly generally amounted to a jury into the room 740 F.3d at 1262 went analysis.” ord-intensive trial, At the autorads Here, violation. (Watford, J., evaluat- Strickland concurring). illustrate Dr. Brown’s help were used to the new IAC substantiality of ing the Woods, testimony regarding DNA. re consideration the State’s requires claims in jurors at were 114 P.3d 621. The reliability pro- and the DNA evidence for demons formed that the autorads were expert of the inferences State’s priety only. During purposes trative Id. deliber it, the likelihood that as well as drew from autorads, ations, jury asked to see was contaminated. the DNA evidence request on the trial court denied the but acknowledges “[t]he Even State they only used for the basis were allega- multifaceted new claims ... involve purposes. Id. Neither illustrative nature, concerning tions of a scientific objected counsel prosecution nor defense into the DNA evi- investigations counsel’s ruling. this Id. dence, handling of the DNA the State’s evidence, an review of the expert’s Washington Supreme Court held Moreover, argues DNA evidence.” that, for illustra- “when an exhibit is used that, remand, an he should be afforded in- only jurors and the are purposes tive evidentiary hearing opportunity and an evidence, is not structed that the exhibit expand appropriate the record. With go to the than the exhibit should [sic] may pursue such remedies showing, he (citing jury room.” Id. at 622 State Dickens, 740 F.3d the district court. See Lord, 117 Wash.2d 822 P.2d 194 (four Detrich, 1321; at (1991)). at 740 F.3d 1246-47 Thus, that the trial the court.held Allowing the dis- judge plurality opinion). correctly refused to send the auto- court these issues in the trict court to consider room for consider- rads to the deliberation conduct an potentially first instance and to at 1173. We are ation. Id. S.Ct. greatly aid this evidentiary hearing will interpretation to defer to that bound Detrich, Bradshaw, at 1262 court’s review. F.3d Washington state law. See (Watford, J., therefore concurring). light at 602. In of that may that it ruling, prejudice remand to the district court so cannot show re- object failure to sulting determine in the first instance whether from his counsel’s auto- to the trial court’s exclusion of the DNA-IAC claims are substantial jury deliberation room. was ineffective rads from and whether PCR counsel Detrich, 1320-22; 740 F.3d at court to resolve 740 F.3d 16. We leave for district evidentiary hearing whether an should be with Woods’s held in connection Martinez autoradiogram photographic claims. To the extent that the State "a re 17. An 2254(e)(2) categorically § cording positions where ra that Pinholster and on a film obtaining hearing decay isotopes bar Woods from such or has occurred.” dioactive Technology in Forensic presenting extra-record evidence to es- Committee on DNA from al., Technology in Forensic prejudice procedural Science et DNA tablish cause and for the Dickens, (1992). default, reject argument. Science 167 we See objected, the supreme if defense counsel had the state court to have a fair Even objection properly opportunity would have been over- to apply controlling legal prin- Washington under law. Woods is ciples relating ruled to the facts to the claim. Thus, not entitled to habeas relief on therefore claim relating Woods’s to Venus claim. fairly presented Shaver was not may procedurally be defaulted. testimony G. Venus Shaver’s contends, however, Woods that he has In petition, his federal habeas established cause and prejudice excusing that he Woods asserted received ineffec procedural his default on this issue. In tive assistance counsel when his trial particular, he contends his failure to counsel failed to address Venus Shaver’s raise this issue before the state supreme “recovery” memory of her of the attack court was a result assistance ineffective adequately and failed to cross-examine her post-conviction his counsel. We vacate prior on her claim that raped false Woods ruling district court’s and remand this her. district court concluded that be claim to the district may court so that it fairly present cause Woods had failed to consider in the first instance whether court, they these claims to the state were Woods can show prejudice cause and un- procedurally agree barred. these der Martinez. fairly presented claims were not state court. H. Cumulative Deficiencies brief,

In opening his Woods admits that specifically he did not address in his PRP argued in his PRP that the cu- impeach his counsel’s failure to Venus impact mulative of his counsel’s deficien- fact, effectively. Shaver Woods’s prejudiced cies his requires defense and Washington Supreme Court PRP makes reversal of his conviction. previ- We have no mention of either Venus her Shaver or ously recognized that “prejudice may re- argues, “recovered” memories. He howev- impact sult from the cumulative of multiple er, that arguments because these new do Fitzharris, Cooper deficiencies.” v. 586 fundamentally not alter claim that trial (9th Cir.1978). F.2d 1333 “[Al- unprepared counsel were ineffective and to though may individual errors not rise to witnesses, impeach fully fairly pre- he violation, the level aof constitutional sented them to the state court. collection of errors might violate defen- Davis, Although alleged the specific rights.” dant’s constitutional 384 Wood, guarantee recognized Sixth Amendment (citing F.3d Harris v. Strickland, (9th by Cir.1995)). petition his state court Although did F.3d any not make reference to his counsel’s trial might pro- Woods’s counsel not have impeach defense, failure to “missteps Venus Shaver. The vided a model counsel’s analogous most claim is allegation misjudgments Woods’s did render that his counsel failed to impeach Johnny fundamentally trial unfair.” [Woods]’s Id. Knight properly. That claim simply did We therefore affirm the denial of relief on provide a sufficient factual basis for claim of deficiency.18 cumulative that, holding subject respect This to the caveat tance was ineffective with to these ultimately should district court conclude subjects, may the district court reevaluate procedural that Woods’s default of his DNA- impact whether the cumulative of counsel’s IAC and Venus Shaver-related IAC claims requires deficiencies reversal. was excusable and that trial counsel's assis- meet defaulted claims proeedurally

XI. CONCLUSION Ryan, requirements of Martinez narrow reasons, we affirm foregoing For the — U.S. -, 132 S.Ct. 182 L.Ed.2d the district court’s part part and vacate (2012). alleges that his trial remand for petition. We denial of Woods’s provided ineffective assistance counsel first to consider court the district (1) expert witness to failing to: call can show cause instance whether Woods claim that she had Shaver’s refute Venus Martinez. and under prejudice (2) attacks; of the recovered memories part, in in VACATED AFFIRMED rape a false cross-examine Venus about part, REMANDED. and (3) Woods; call a against de allegation interpret the results expert fense TALLMAN, concurring Judge, Circuit (4) evidence; explore the DNA and State’s dissenting part: in in part and of DNA contamination. Woods possibility Dwayne gave Supreme Court The post- of his argues that the ineffectiveness him a majority gives The an inch. (“PCR counsel”) Woods excus counsel conviction remanded this case the Court mile. When default of these four procedural es the affirmed panel that to the same claims, jury that had the heard more and oppor- gave in it Woods sentence pos a substantial topics, on these there is proeedurally four argue that his tunity to acquitted. sibility he would have been a federal audi- claims deserved defaulted under But is entitled to a remand new claims cast none of these ence. But (1) that: only if he can show Martinez guilt manifest on Woods’s any doubt ineffective under Strick PCR counsel was and of Jade Moore murders the brutal 668, 104 Washington, 466 U.S. land v. 27, 1996. Fortu- April Telisha Shaver (1984), for not 80 L.Ed.2d 674 of his senseless nately, the third victim raising a claim of ineffective-assistance-of- Shaver, violence, testify survived Venus (2) (“IAC”), underly “the trial-counsel and And even Woods him at trial. against ing ineffective-assistance-of-trial-counsel when, at sentence invited his death himself one, say which is to claim is a substantial trial, he told the phase of the penalty merit.” Mar that ... the claim has some objection” to a death jury that he had “no tinez, 132 S.Ct. at 1318. sentence, and “go them to back and asked has said that Supreme The Court penalty.” impose the death return vote to claim, IAC succeed on Strickland claims new Because none of Woods’s only that his trial counsel must show not juror to conclude would lead a reasonable also that this deficient was deficient but Moore not murder Jade that Woods did prejudice. caused Strick- performance Shaver, to murder attempt Telisha or land, 104 S.Ct. 2052. 466 U.S. Shaver, provide can no court Venus that his trial counsel proves Even if Woods majority’s The re- the relief he seeks. ineffective, Woods cannot manifestly unneces- only purpose: one mand serves rea- prejudice he shows prevail unless —“a dissent from sary delay. respectfully I that, but for counsel’s probability sonable X.G., X.F.1, footnote 18 of the Sections errors, result of the unprofessional majority opinion. different.” would have been proceeding challenges only his Because Woods Id. I (and sentence), he his death conviction not claims Court, that his new must demonstrate Supreme we On remand from the juror at least one reasonable four would cause whether Woods’s must now consider may him of the murders of it be guilty” practice” to find “not “standard for us “to Shaver, or the Moore and Telisha remand to the district court for a Jade decision attempted murder of Venus Shaver. This the first instance without requiring any justification simply possible special doing,” the face of the for so we need incriminating against evidence him. not do so “where there is little doubt about the correct Ryan, answer.” Detrich v. None of Woods’s new claims can refute (9th Cir.2013) (four F.3d judge strength inculpatory of the plurality opinion). majority does not (1) conclusively demonstrating guilt: tell us what the district court should do on Sherry Shaver’s identification of Woods as remand the face of this other record man fleeing she saw the crime scene than this obvious conclusion. reiterate Be- (2) murders; morning on the Jade possibly cause Woods cannot show preju- a treating paramed- Moore’s statements to Strickland, dice under his new are claims ic, nurse, physician, before she suc- “substantial,” and a remand to the injuries, that “a cumbed her man named district court is unwarranted even under hit a and Dwayne” her “with baseball bat” Lopez Ryan, Martinez. See also her, “sexually assaulted” and Jade’s state- (9th Cir.2012) F.3d (concluding ments to her father that her attacker was that a claim was not substantial under “Dwayne,” guy “a that Venus had been petitioner Martinez where the could not (3) with”; going expert testimony out that Strickland). prejudice show under fingerprints latent were found on Woods’s trailer; telephone a bottle and on a in the II (4) the fact that coat and shirt Woods’s (5) scene; found at crime if I thought necessary were the and Even it to review paging telephone performance counsel, and records demonstrat- the of Woods’s trial I ing pager that had Woods’s been called would reach the same conclusion: Woods from the trailer a few before the hours is not entitled to a remand. None of Nor newly alleged murders. do Woods’s new claims re- Woods’s IAC claims demon- that, immediately fute the fact after the performance strate Woods’s counsel’s murders, objective Woods was seen at two busi- “fell below an standard of reason- scene, Strickland, 687-88, nesses near the crime and was then ableness.” 466 U.S. at dropped Spokane any off in downtown near a Nor would of Woods’s number of ATMs specific reasonably likely where Jade Moore’s sto- claims have been change len ATM card was used to make withdraw- the outcome of his trial. Be- Finally, merit, als. new claims do not chal- cause new claims have no lenge they Woods’s statements to a friend that are under Martinez. substantial man,” he “awas wanted or that Woods led A on a

police they attempted car chase as him, apprehend in- permitting jury alleges Woods first that Venus Shaver fer his of guilt. consciousness complete “had amnesia of the events of strength 27,1996.” Demakas, of the against April Dr. a neurosur- result, overwhelming. Venus, geon As a treated who testified that, way there is no can examining show but when he was first Venus errors, juror room, for a emergency counsel’s reasonable she “did not recall what would have found that Woods not mur- happened” did and “was amnesic from the ac- time, der Jade Moore and Telisha or cident.” At that Shaver Venus was still attempt suffering to murder Venus Shaver. from While the immediate side effects memories,” defense large a skull for a few “flashes trauma and head

of blunt that, jury expressly suggested to the by the time counsel fracture. Woods of Venus’s recovered trial, recovered “considerable what the source had Venus articles, events,” really newspaper and he contends memories were: memory of the accounts, failing family ineffective for statements. television that his counsel have who would to admit on neuropsychologist got Defense counsel Venus to call (1) im- memory recovery is such that: had read a testified that cross-examination she new claim is much But Woods’s news article about the case while possible. lengthy nothing. she hospital though ado about in the even she knew (2) to; watched supposed wasn’t she had testify that Ve- did Dr. Demakas While (3) attack; television accounts that, “amnesic,” he also stated nus was picture featured a television account “uncommon” it not be while would (4) Woods; family at spoke with her she memories, memo- these to recover Venus her; happened about what hospital or influenced out-of-order might ries be (5) told her that she Dr. Demakas Thus, through Dr. De- suggestive stimuli. have “flashes of memories” about would jury heard that testimony, makas’s attacks. immediately recall Venus did evening, any recov- events of alleges that his counsel should Addi- suspect. could be memories ered testify expert called an on the have point would have testimony on tional But the ex memory. of recalled issue cumulative. largely been testimony have been pert’s proposed would that counsel had intro cumulative. Given memory problems were Also, Venus’s memory ample duced evidence of Venus’s by trial length during the at discussed ex problems, counsel’s failure to introduce great recalled herself. Venus Venus pert testimony point on this was defi house, to her Woods bringing Woods detail jury heard all cient under Strickland. sexually assaulting growing angry, Woods through competent impeachment of the door, into a her, slamming her head Woods obviously believed cross-examination but get to Woods to repeated attempts and her eyewitness present victim who was the that, however, memory her After leave. atrocious committed his when Woods thing “last saw” [she] went blank. The appropriate is on this crimes. No remand In coming up to [her].” was “[Woods] Cozner, claim. See Sexton v. insubstantial of “what question to counsel’s response (9th Cir.2012). 1150, 1157-58 679 F.3d she “[didn’t] then?” Venus said happens got I hit.” probably [sic] remember ... cuz B recognized that her memo- repeatedly

She evening was ry remainder of the of the argues next that counsel should Woods jury But the practically non-existent. re- aggressively challenged have Venus story fill in easily could the rest allegedly made garding a statement she evidence, including the from all available rape. But fails accusing Woods of Woods of an alumi- recovery from the crime scene decision not to to show that his counsel’s by human blood num baseball bat stained As cross-examine Venus was deficient. large and the skull fracture Venus’s attack, savage the victim of this Venus being by hit a blunt head consistent with extremely sympathetic Argu- witness. an instrument. wisely counsel acted ably, Woods’s point this on cross-examination pursuing not recall Although Venus could alienating jury. This except avoid further evening, the rest of the events of crossexamination, decision, wary destroyed. by understandably On Woods’s strategic Thus, counsel, spill. essentially insulated counsel re-confirmed the on is defense occasions, 1156; separate jury at two heard that reversal. Id. from Strickland Strickland, spill place 2052. a took in the lab. Trial counsel reason, declining not was not ineffective for to intro- counsel was For that Woods’s ‘ testimony cumulative duce additional deficient. the claim point. Because is not “sub- Martinez,

C stantial” under there is no need to remand. Next, challenges his counsel’s expert interpret

failure to call an Ill implicating of a DNA test Woods. results remand, trial, support Dr. of their decision to expert, DNA John At State’s Brown, my colleagues “[a]llowing note that that the male DNA recov- testified the crime scene matched district court consider these issues ered from potentially and to con- at four of six loci. Dr. the first instance DNA Woods’s that, evidentiary hearing greatly will aid at the other two duct Brown concluded inconclusive, Opinion They at 51. loci, were al- this court’s review.” the results Detrich, not exclude as the cite to where we chose to remand though they did that, question if the Martinez to the district court called donor. Woods to allow it to decide the merits first. But testify, Riley Dr. Donald would have ex- recognized even if the evi- that the results at five of the six Detrich plained inconclusive, “overwhelming meaning guilt dence of loci were unassailable,” safely then “we could con- conclusively DNA matched Woods’s has no real only petitioner] at the crime scene at clude [the DNA recovered showing But even if counsel chance of that his new trial-coun- one locus. ” Detrich, sel are ‘substantial.’ failing rigorously was deficient for chal- IAC claims the assis- 740 F.3d at 1249. Such is the case here. lenge the DNA evidence with manifest, qualified expert, guilt tance DNA Because Woods’s we can have, best, only declare on the current record that his would at neutralized Sexton, evidence, a narrow sliver of the State’s claims are not substantial. See overwhelming against (concluding case him. Even 679 F.3d at 1158 remand DNA, jury improper still find to the district court was under without the would guilty charged. Martinez Sexton’s claim was not as because

“substantial”); Schriro, Murray v. 746 Cir.2014) (9th D (concluding F.3d Murray’s ineffective-assistanee-of-tri- Finally, Woods claims his counsel al-counsel claim lacked sufficient merit to failing argue that a was ineffective remand). warrant a Martinez lab led spill might blood the crime have Moreover, distinguishable. sample being blood commin- Detrich Woods’s Detrich, question” the “central was gled vaginal with swabs taken from Jade trial, newly any presented At crime forensic “whether of Detrich’s Moore. State lab prejudiced claims him at Morig explained scientist William trial-counsel IAC (emphasis at 1249 spilled sentencing.” blood vial in an area of the 740 F.3d Woods’s jury original). hair examination took Because Detrich’s was place. lab where Morig split guilty that once on whether Detrich was spill testified was murder, discovered, immediately first-degree felony murder or sample was whether, jury impose upon if the death sentence hinged on inquiry prejudice respectfully him for he had done. I was the actual killer what that Detrich evidence X.F.1, X.G., from weaker, would nonetheless dissent Sections Detrich was I majority opinion. 18 of the to death. Id. This footnote sentenced have been remaining upholding trial concur in the sections question a close —“if other claims for ha- close, it would not take too the denial Woods’s then were evidence to call into beas relief. exculpatory much new sentencing judge’s trial deci- question the Here, habeas claims

sion.” Id. conviction, only to his not his are directed (Woods any present did not sentence. evidence; instead, he invited mitigating sentence.) jury impose the death Thus, prejudice inquiry is not the relevant Mary MURPHY, Elaine may new claims have whether Woods’s Plaintiff-Appellant, imposed, sentence but wheth- affected the claims cast doubt on Woods’s er the new not. guilt. They do SLOAN, Milligan William “evaluating majority also notes that Defendant-Appellee. substantiality of the claims new IAC No. 13-17339. consideration of the State’s DNA

requires reliability propriety evidence and Appeals, United States Court expert the State’s drew of the inferences Ninth Circuit. it, that the from as well as the likelihood Argued Aug. 2014. Submitted Opin- evidence was contaminated.” DNA majority at 51. But the focuses ion Aug. Filed turns performance and counsel’s deficient that, if fact even Woods eye

a blind to the ineffectiveness, he establishes counsel’s' prejudice must under Strick- still show Strickland, land. See 2052; Lopez, F.3d at 1139. Even trial counsel if convinces us that his ineffective, possi- he cannot glaringly juror would bly any show that reasonable him guilty. have found

IV overwhelming light of him, grant can against no court majority ignores this relief he seeks. The conclusion, favoring endless liti- foregone only purpose instead. The this re- gation delay years the mand will serve is to ob- seventeen-year-old judgment properly against a murderer who asked tained

Case Details

Case Name: Dwayne Woods v. Stephen Sinclair

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Aug 25, 2014

Citation: 764 F.3d 1109

Docket Number: 09-99003

Court Abbreviation: 9th Cir.