Fernando Eros Caro v. Arthur Calderon, Warden

County Chesterfield, F.3d 1263 man- han v. day attending they spend each minutes (4th Cir.1996). police headquarters. datory roll calls at summary judgment, City for moved the court af- judgment district 15, 1985, Inter-Of- September submitting a deny City’s firmed. We motions Manager to City from the fice Memorandum portions of the appellants’ strike brief and announcing of a the establishment his staff appeal. joint appendix and to dismiss the police of- for twenty-eight-day work schedule ficers, of Police Chief and affidavits City Manager averring that the City department police scheduled

had thereafter twenty- recurring regularly

personnel on granted court1

eight-day basis. The district City, con-

summary judgment in favor of the peri- work

cluding this evidence satisfies 553.224, § requirements of 29 C.F.R.

od evidence, and plaintiffs this failed to refute CARO, Petitioner- Fernando Eros be- plaintiffs’ claims fail overtime therefore Appellant, City U.S.C. cause the is entitled 207(k) exemption § as matter of law.2 CALDERON, Warden, Arthur plaintiffs argue there is appeal, On Respondent-Appellee, pays City genuinе dispute fact because basis, daily and because

them overtime No. 96-99019. September 1985 memorandum ambiguous. agree public We made Appeals, United States Court city that a with the district court Ninth Circuit. 207(k) by paying § over exemption forfeit its Secretary’s generously than the time more Argued March 1998. and Submitted exemp require, regulations would Decided Oct. by public decla need not be established tion ration, September 1985 City’s and that 11, 1999. Amended Jan. unambiguously memorandum established declaring, compliance “In exemption by 15 ... September [t]he ... [e]ffeetive

FLSA day on a 28 work

police department will be

schedule.” argue en further the FLSA

Plaintiffs regular compensation at their

titles them unpaid attending man time

rates whenever

datory their total hours in roll calls increased period to more than twenty-eight-day work the 171 maximum but less than

160 hours 207(k) regulations. permitted §

hours noted, this claim was not

As the district court response untimely

pleaded and raised summary judgment. City’s motion event, it merit. See Mona is without DAVIS, FLSA mini- also dismissed district court O. LAWRENCE 1. The HONORABLE Judge wage are not at Magistrate the Eastern law claims that and state United States mum Missouri, as- to whоm the case was appeal. District issue on this parties. U.S.C. signed by See 28 consent 636(c)(1). §

Joseph Spero, Evans-Orville, C. Keith ‍​‌‌​​​​​​‌​​‌‌‌​​‌​‌​‌​‌​​​​‌‌‌‌​​​‌‌‌​‌‌‌​‌‌​‌​‍Coblentz, Patch, Duffy Bass, LLP, & San Francisco, California, for petitioner-ap- pellant. Gillette,

T>ane R. Senior Assistant Attor- ney General, Francisco, California, San respondent-appellee. PREGERSON, Before: FERGUSON and KLEINFELD, Judges. Circuit FERGUSON, Judge: Circuit appeals Fernando Caro the District Court’s corpus dismissal of his writ of habeas pursuant § to 28 2254.1 In opin- U.S.C. this ion, we consider whether Caro was entitled evidentiary to an hearing on his claim that counsel’s failure to the combined extraordinary effects of Caro’s exposure to neurotoxicants, neurological impairments, personal background constituted ineffec- tive assistance of penalty counsel at phase trial. We conclude that Caro is enti- evidentiary hearing tled to an and remand to the district proceedings. court for further FACTUAL AND PROCEDURAL

BACKGROUND 16,1981, was convicted October murder, degree two counts of first the kid- victims, napping of one of the and two counts of assault with intent to commit murder. On 10, 1981, sentencing jury December re- turned verdict of death. On October By disposition a memorandum corpus guilt phase filed this date to habeas relief on the issues petitioner we have petition. concluded that is not entitled raised in his inexplicable aggressive to cause otherwise Supreme set aside Court the California family used water laden behavior. Caro’s findings as special circumstance one at home and in the fields both judg- duplicative, otherwise affirmed drinking, bathing, cleaning. His Caro, Cal.3d People ment. daily on a family used insecticide basis Caro Cal.Rptr. P.2d 680 761 fight At the insect infestation home. corpus subsequently of filed two writs habeas half, age drank a bottle of of one and Caro Supreme Court. with the California convulsions, turning and went into Clorox filed a both writs. Caro then court denied mouth, foaming at the for four to blue and corpus in the United States writ of habeas childhood, Throughout six minutes. his Caro of for the Northern District District Court played and fields covered with worked denied Caro’s The District Court California. day, pesticides. playing One while on tank evidentiary hearing, granted request for an ammonia, peered into tank and of Caro State, dis- judgment for the summary lost from the fumes. consciousness petition. missed the school, high During Caro worked as Yaqui Caro is of Mexican-American “flagger” who stands in the fields —someone heritage. racially in a He was raised Indian crop dump duster where to to indicate community ab- in conditions of rural divided pesticides. his of was denied the load Caro labor- ject poverty. The oldest son of farm protective clothing supervisors his wore as ers, living of childhood spent Caro most his they mix load watched him the chemicals yards livestock in a shack surrounded prior dumping. Because access no run- agricultural fields. house had change to a or time clothes before shower and, ning plumbing or due its water indoor school, day spend pesticide- all Caro would yards, proximity to livestock was filled pungent of clothes. smell drenched that “made the and other insects with flies “Stinky” him pesticides earned the nickname summer, During the sky black.” Caro and among his classmates. migrant family joined stream of farm his adult, As an Caro worked for two fields, family open slept workers. years prior to his arrest as maintenance tents, road, along using sometimes produced corporation at a toxic worker along- empty crates as Caro worked beds. primary tasks pesticides. of Caro’s One adults as soon as he was able to side the system and ventilation the air clean walk. heating equipment. Workers mixing and role as oldest son of tradition- respiratory given protective de- were not family parents’ expectations his al meant that Rather, they with a tethered vices. were higher sib- him than those for his of were they pulled could be rope to a waist belt sister, mother, lings. Declarations from his they conscious- system when lost all indicate that and other relatives Caro also cleaned contaminated ness. Workers severely his brothers and the most beaten of equipment in holding pieces of equipment, Both he was the oldest. sisters because Plastic with their hands. vats solvents of severely throughout his parents beat Caro during this gloves regularly tore protective fists, childhood, hitting him with closed five to break down volunteered work. Caro boards, sticks, belts, tools, kicking containing polychlorinat- or six transformers him with work boots. (“PCBs”), formerly banned byphenyls ed injuries as a Caro suffered severe head part of the also formed from use. Caro reports that he born child. His mother Team, respond- Emergency Response plant’s lump inch head with three due during his three ing at least accidents delivery. forceps during his difficult use accidents, During of these employment. one three, by a car struck age At the Caro was that was released of Parathion the cloud hit head. A water and fell back and paint off walls. burned year as well. on his head that cooler fell REVIEW STANDARD OF from acute and chronic also suffered denial of evi Court’s throughout The District chemicals to neurotoxie for an abuse of hearing is reviewed life, dentiary have been documented some which 1226 Peterson, v. deci-

discretion. Swan F.3d are able make informed (9th Cir.1993) (citing Greyson represent sions about best v. Kel how their (9th Strickland, Cir.1991)). lam, 1409, 1412 clients. 466 U.S. at 937 F.2d Ratelle, 2052; Sanders Cir.1994). “Thus, we have found DISCUSSION counsel ineffective where he neither conduct- evidentiary to an entitled2 investigation ed a reasonable nor made a (1) hearing alleged if if he has facts strategic showing failing reasons for to do (2) relief; proved, him to entitle Sanders, so.” 21 F.3d at 1456. not, the state court trier fact has after Caro has several ‍​‌‌​​​​​​‌​​‌‌‌​​‌​‌​‌​‌​​​​‌‌‌‌​​​‌‌‌​‌‌‌​‌‌​‌​‍declara reliably hearing, full and fair found the rele experts stating tions from that no evaluation Marshall, v. vant facts. See Turner 63 F.3d capacities complete of his mental without Cir.1995) (9th 807, (quoting Tinsley 815 v. concerning exposure information to Caro’s (9th 520, Cir.1990)); Borg, 895 F.2d 530 see personal well as his back neurotoxicants as Sain, 293, also Townsend v. 372 U.S. 83 S.Ct. grоund. experts Caro was examined four 745, (1963), rev’d 9 L.Ed.2d 770 on other doctor, prior trial, including to one medical grounds by Keeney Tamayo-Reyes, v. 504 psychologist, psychiatrist. None 1715, 1, 112 118 S.Ct. L.Ed.2d 318 experts indicated Caro suffered from Calderon, (1992); 1308, Siripongs 35 v. F.3d impairment enough mental severe to consti (9th Cir.1994). 1314 insanity legal tute or capacity. diminished In order to demonstrate that his Nevertheless, medical doctor who exam ineffective, counsel was Caro must show that prior ined Caro to trial has since declared performance his counsel’s was so deficient extraordinary had known Caro’s “objective that it fell below an standard of exposure pesticides, to physical, the severe Washington, reasonableness.” v. Strickland emotional, psychological suf abuse he 668, 688, 2052, 466 U.S. S.Ct. 104 80 L.Ed.2d child, fered as a and his social and cultural (1984). judged 674 must be Effectiveness as history, he would have testified that Caro legal of the time the services were rendered capacity. had a mental diminished In addi so as to minimize hindsight. the distortions of tion, competence psychiatrist of the Bonin, addition, 59 F.3d at In subject question, prompted since he performance must deficient show by telling attempt suicide Caro that he rendered the results of his trial unreliable or right should have life. take his own Strickland, fundamentally See unfair’. 466 Finally, experts none of were neurolo 687, 2052; U.S. at 104 see S.Ct. also Lock gists toxicologists or and none conducted Fretwell, 364, 369, hart v. 506 U.S. 113 S.Ct. testing neurological needed to-evaluate 838, 122 L.Ed.2d 180 effects that chemicals on Caro’s brain. Failure to a defendant’s organic obligation other im an mental Counsel have to conduct pairments may an investigation constitute ineffective which will allow a assis determina See, e.g., experts tance of counsel. v. tion of Once Hendricks what sort of consult. Calderon, 1032, (9th made, 70 F.3d 1043-44 that determination has been Cir. 1995); Lewis, present experts Evans v. 855 F.2d must those 637-38 information (9th Cir.1988). addition, In this relevant expert. Court has to the conclusion of the recognized present the failure to evi Counsel this case was aware of Caro’s necessary bridge dence gap may extraordinary a cultural acute chronic neurotoxicants, yet constitute assistance of he failed ineffective counsel. to consult Siripongs, 35 or a neurologist toxicologist, experts F.3d at Counsel have a either a duty investigation to make a In poisoning. reasonable such the effects of the chemical Wood, (9th 2. The Anti-Terrorism and Effective Death Penal v. 827 Jeffries ty banc). 1996) (en § Act's 28 U.S.C. 2254 pre- amendments to do not apply Cir. We therefore apply retroaсtively. Murphy, Lindh v. 521 U.S. 1996 law. (1997); L.Ed.2d see presented with addition, was exten- because provide failed to those evidence, the information did examine Caro with sive there over- necessary make an accurate evaluation ag- whelming guilt, of Caro’s system. neurological weighed against him. gravating factors sentencing jury aware upon of the dissent is based conclusion injuries suffered head child. beaten and misunderstanding in the the difference in The also knew Caro worked as discussed and medical issues mental Cir. flagger high agricultural 52 F.3d 1465 and at school Williams 1995), here. In those company chemical as an adult. The did Williams, referring guilt phase not, however, have the benefit of testi- trial, psychiatrist would we that “no stated mony explain of these the ramifications Id. at 1470. We have made difference.” Expert experiences on Caro’s behavior. evi- disposi set in оur memorandum forth necessary lay on such when dence is issues guilt phase only to the pertains tion which judg- unable make people are a reasoned the lack of medical evidence trial that ment alone. opinion ground in this discussed addition, phase. has that over- guilt this Court granting the writ held whelming guilt of not amelio- evidence However, the sen- this case is now about present mitigating failure evi- rate the tencing phase trial and the effect in of Caro’s Hendricks, penalty phase. the 70 dence at chemically-induced phase neu- of Caro’s “The determination of wheth- F.3d at 1044. rological damage. It has been demonstrated impose sentence is not an er death poisoning inexplicable such causes legal ordinary No amount of disdain determination which turns aggressive behavior. change can the Yale Medical hаrd for School of facts. statuto- establishment fact that here was never give ry broad [in California] factors mitiga- important evidence of with the most amorphous human fac- latitude to consider poisoning of brain. chemical tion —the tors, against weigh the of one’s life worth Furthermore, fails understand the dissent type mitigating culpability.” Id. poisoning between chemical the difference precisely type is omitted here evidence in causing ag- which results jury’s likely most to affect a evaluation of the death of a brain gressive behavior and receive. punishment Caro should by oxygen as the cell caused the lack (9th 1170 Babbitt v. ag- of a stroke which does not cause result Cir.1998), this case. distinguished from gressive behavior. As the dissent does not difference, then it is clear in which the defendant understand that Babbitt case ex- must have such difference post traumatic stress disorder suffered by may be difference plained experts. It in Id. experiences of his Vietnam. because and death. between life trial, presented testimo at At Babbitt experts concerning his condition. ny from two imperative It is that all relevant in Also, proceeding district at the habeas Id. for consideration at information be unearthed court, that he hired counsel stated trial capital phase. sentencing “The Constitu- investigator penalty penalty experienced death prohibits imposition of the death tion investigation thorough into adequate of factors without consideration who conducted Hendricks, mercy.” every piece of might history which evoke 70 found Babbitt’s (quoting Whitley, Deutscher v. F.3d 1044 regarding Babbitt’s back relevant evidence 1152, Cir.1989), F.2d 1161 vacated 884 in mitigation. Id. ground that could bear grounds, remanded on other 500 U.S. respect to with 1176. The court held 1678, (1991)); 111 L.Ed.2d 73 S.Ct. phases, counsel’s fail guilt penalty both Penry v. Lynaugh, 492 U.S. see that was pursue ure further L.Ed.2d 256 given testimony largely cumulative constitutionally deficient. the trial was not government suffered argues 1174, 1176. phase Id. at prejudice during sentencing entirely determining All that is different from Caro’s constitutional Sixth Amend- is not a case of stress caused competency attorneys case. Caro’s ment personal on its rather, history; it is a case of stressful “good unsubstantiated belief in what law- causing ag- poisoning of the brain do, chemical yers” actually often rather than on what case, gressive behavior. Unlike Babbitt’s happened in this case. single piece of evidence of Caro’s condition It must be understood that Caro’s brain Counsel, although was introduced at trial. injuries poisoning are different from the aware of the acute and chronic facts othеr case that has been called chemicals, nothing did re- neurotoxie to the court’s attention. Caro suffered se- gard acquiring experts on the effects injuries vere head at birth and afterwards. addition, poisoning. chemical child, As a he drank and bathed in water provide failed to those who did examine Caro then, poisons contaminated with high All with the information that he had. coun- school,- worked fields where he was question sel had to do was ask “What did adult, pesticides. drenched in As an extraordinary exposure all that to chemicals worked vats filled with toxic then, to his And do brain?” order find any protective without benefit of breath- answer, merely had to address the ing devices. who knows of but question neurologist to either a or a toxicolo- expert does not inform his witnesses about gist. Similarly, he could have asked the pieces these essential going of information question he did retain who mitigation the heart of the case have then him told that he needed to function as “counsel” under the Sixth others. consult Amendment, “good lawyer.” let alone as a This differs from cases Babbitt where Furthermore, whose witness was no need for “[t]here counsel to seek out advises his client to commit suicide must experts] independently.” [additional Id. at engage pejoratively in what the dissent labels that, contrary It is clear to what the shopping.” “witness believes, dissent Babbitt and this case are not materially facts,” Despite based “on similar Caro’s efforts to obtain an see ante eviden- newly tiary issue, hearing added dissent footnote because on this neither the dis- every piece trict mitigation reliably of relevant evidence in court nor the state courts have presented not here at found thе facts trial. relevant to this claim. Caro evidentiary is therefore entitled to an hear- We also held in if Babbitt that even there ing to determine whether he suffered brain performance was deficient of counsel that exposure as a result to neuro- prejudice. the defendant could not show Id. personal background. toxicants and his If case, In 1175-76. Caro’s on the issue of so, counsel’s failure to will have prejudice, the dissent does not state that the penalty phase rendered the results of Caro’s prejudice exist, only case for does not that it trial unreliable. Ante, is “weak.” at 1177 n. 2. It is submit- prejudice prejudice ted that “weak” is none- judgment of the denying district court theless, particularly when the petition corpus writ of habeas as it single with the important most ev- pertains sentencing phase to the peti- of the mitigation poison- idence of brain —chemical tion is remanded to the district court for an ing causing aggressive behavior. evidentiary hearing opin- as set forth in this Finally, with reference to footnote one in ion. dissent, always revised robust dissent has REMANDED. universally recognized

been as an essential part judicial process of the requires as it KLEINFELD, Judge, dissenting: Circuit judges particularity upon to focus with those matters the case that divide them. respectfully I dissent. majority intensity welcomes the of the dis- However, sent in Today’s this case. it is difficult decision is conflict with our Calderon, believe that the dissent would base its test decision Williams v. Williams, Cir.1995).1 (9th peti- In we af- trists’ declarations submitted with the writ, saying that he despite- counsel's tion suffered from diminished firmed denial capacity past people medical when killed three after client’s failure to examine his raping indepen- one of them. We said that аppointment of an evi- records or seek despite psychia- five dence of Williams’ “intent psychiatrist, kill dent functioning panel lawyer guaranteed on Babbitt v. All of us missed 'counsel' (which three Cir.1998). say, It 151 F.3d 1170 came the Sixth Amendment is finishing responses to fortiori, any good we were our each lawyer) Obviously down as would do. petition opinions this case. The others' draft properly experi- all of should and do our us use rehearing us Babbitt. We has educated about lawyers judges ence as to consider what duty Babbitt now either follow have lawyers competent do whether "counsel distinguish it. made that errors serious counsel not distinguish it and must fol- guaranteed by I think we cannot functioning as the 'counsel' be low it. Our decision in Caro cannot recon- Washington, Sixth Amendment.” Strickland v. We in Babbitt. are 668, 687, ciled with the earlier decision 466 U.S. 104 S.Ct. 80 L.Ed.2d precedent. obligated to conform our decision to opposite conclusions and Caro reach Babbitt exposure about Caro's chemical materially similar facts. The defendants in massive, brought fully jury. capital both cases claimed ineffective assistance experts had access to it. Dr. Benson In both cases defense counsel con- of counsel. employed gave a clinical social worker who him experts. appropriate sulted with both, medical In history an of Caro’s extensive childhood and experts refer defense counsel ‍​‌‌​​​​​​‌​​‌‌‌​​‌​‌​‌​‌​​​​‌‌‌‌​​​‌‌‌​‌‌‌​‌‌​‌​‍those did not Dr. adolescence. Benson now that swears (in experts post-traumatic Babbitt stress to other "necessary is pesticide experts toxicity and in Caro disorder forming predicate” opinion. a medical That experts) counsel that habeas ar- disorder may something wrong show that Dr. Benson did cаses, gued been consulted. In both should have opinion years ago, when he a medical formed habeas claimed that defense counsel at counsel necessary taking history after deemed experts provided have his medical trial should time, pesticide exposure. explore that and did not experts did additional information anything It show did both, argued not ask for. habeas counsel wrong. Nor the fact that another brought out about the more should been defense used Caro that in doctors told family circumstances of the defendant. Babbitt people ought opinion, sentenced to death hearing evidentiary required,. holds suicide, committing option show that that one is. The factual distinctions holds as Sixth Amendment did function by majority drawn are immaterial. “counsel.” applicable equally principle, relevant experienced That Caro skull trauma chem- cases, the medical both where damage, may ical that cause brain does they required counsel retained "did not state that prove not link between those factors and experts,” "was the services of additional there no Reyes' Aspirin causes crimes. sometimes Caro’s independent- them need for counsel seek children, syndrome but that does not mean in 1170, Calderon, ly.” (9th Cir.1998). 151 F.3d Babbitt aspirin a anyone who taken child has rejects And Babbitt habeas coun- Reyes' syn- be assumed to suffered should sel’s focus "on what evidence his counsel could Reyes' with If the did not fall ill drome. child family [regarding and social back- obtained syndrome, that he then it does not matter took focusing ground] whether rather than aspirin. consequence makes the Absence of investigative efforts were reasonable.” counsel’s thing may potential One be a cause immaterial. Id. in the sense it medical cause another experts’ lawyers simply Good do not read probability consequence, increases the legal newspapers they until in the advertisements time, every happen consequence not does thing, say right expert who find an will and case, particular then and does not occur in if it An believed then use him. is not predisposing causal factor that the or fact frequently lawyers often Good con- sinks case. anything prove that mat- present does not was trust, they sult know consider experts did not find evidence of ters. Caro’s majority going their before further. The advice expo- damage. the fact that chemical So unintended, opinion undesirable conse- has as he had sometimes skull trauma such sure and creating requirement quence Constitutional not matter. cause brain does lawyers engage inappropriate wit- that defense stands, I think the district courts As it do not shopping. ness majority can reconcile decision and the bar evidently my majority view on The misreads majority articulated below, The has not Babbitt. prejudice. explained I there As think can be made. none, principles on which a distinction lawyers’ had fallen even if Caro’s work meaningful principle standard, to distin- some Without did which it not. below the Strickland cases, a man lives guish the decision whether suggests I majority The should be do, by may ultimately not be controlled neu- good lawyer or dies permitted say what a what, opinion, principles of tral law. opines freely its but then about issue, maturely meaningfully ability personal reflect As to the first Caro’s back- simply overwhelming.” ground, majority opinion on his actions does not at- tempt identify anything minimally Id. at 1470. Likewise here. that a lawyer

competent would have done that lawyer did majority Caro’s not do. The men- performance. A. Deficient personal background phy- tions Caro’s seriously Today’s does not take decision testimony sician’s claim would have inquiry. question The the nature of our physician been different had the known of lawyer think Caro’s could not whether we history.” Caro’s “social and cultural something have done more or better than he majority cites Siripongs v. whether, is it in almost two dec- did. Nor Cir.1994), proposi- 1310-13 for the penalty imposed, ades since Caro’s death present tion that “failure to evidence neces- lawyer expert can think some of some- sary bridge gap may a cultural constitute thing more that could have been said or done ineffective assistance of counsel.” But the try persuade impose not to mаjority relate these observations penalty. question death whether question of whether counsel this performance counsel’s was so deficient that it case rendered ineffective assistance. if no was as Caro had at all. The lawyer got parents Caro’s both of Caro’s answer, plainly, is “no.” testify sorely abused him. He Supreme analyze Court told us how to brother, persuaded a brother-in- corpus petitions asserting for habeas ineffec- law, ex-wife, girlfriend, a former a friend tive assistance of counsel Strickland v. school, high high school football Washington, 466 S.Ct. 80 coach, work, Caro’s boss at in- vocational majority L.Ed.2d 674 prison structor from the Caro had served required analytic approach. follow the in, psychologist, time and a licensed clinical petitioner Strickland held that the had not testify. They social worker to told thе sufficiently made out a case of ineffective culture, background, all about Caro’s prejudice. assistance or In Strickland as suffering. They told the about how here, failing counsel was accused of ade- was, impoverished family and about how develop quately to medical evidence to show prejudice Caro suffered from on account of problems. mental Yaqui heritage, Mexican-Ameriean petitioner Strickland holds that must show “Stinky” how Caro was called in school be- that “counsel made errors so serious that pesticides. cause he stunk of What does the functioning as the ‘counsel’ majority think minimally competent lawyer guaranteed the defendant the Sixth would have done to “bridge Amendment.” Id. gap” cultural that Caro’s did not do? required apply “highly We are deferential” idea, majority I have opinion because thе judicial scrutiny, requires “every which that say. does I not also have no idea what distorting effort be made to eliminate the proud heritage Caro’s has to do with murder. hindsight.” effects of Id. at 104 S.Ct. majority The meat of opinion is that majority identify 2052. The does not errors lawyer enough Caro’s did not do to find the seriousness, of that level of does not review right experts and educate them about Caro’s all, any counsel’s conduct with deference at background. opinion The errs because it applies nothing hindsight. question: lacks a clear focus on the whether alleged The errors of counsel that the ma- made “counsel errors so serious that counsel (1) jority identifies are functioning failure to guaran as the ‘counsel’ (2) personal background, Caro’s by failure to teed the defendant the Sixth Amend (3) Strickland, neurologist 687, 104 consult a toxicologist, or ment.” 466 U.S. at рrovide failure to evidentiary those Suppose hearing consulted an were everts held, with sufficient helpful possible prop information. The record does at which the most (1) not establish that proved: counsel fell below Strick- ositions for Caro were that the land respect any only standards with to of these. reason counsel did not do more that (2) differently, it, of that had he would have testified reflects he did not think more, badly psychiatrist, a on the on Caro’s have found not law- counsel done he would testify toxicologist pesticide yer. If the know who would doctor needed to more to exposure opinion, had suffered can a he such as Caro form reliable should have asked. (one damage. up physicians expert cause brain That does not add two an a performance pharmacology) lawyer to colorable of below tell claim did not Caro’s to Strickland standard. for evidence to toxic look of chemi- toxicologist. Evidently or to cals consult a lawyer psychiatrists, two Caro’s consulted it, they did not think did not think of a a clinical and licensed clinical psychologist, questions asking taking when medical histo- worker, diligent attempt social in his to de- think it. ries would lead them to So velop some sort of evidence of why minimally competent lawyer should a psychia- mental or condition. The emotional thought have it?of trists of course medical doctors. One were M.D., had, lawyer’s experts to two Ph.D. de- What Caro’s told him addition gave him grees, physiology pharmacology. shop It is no reason to more evi- defect, lawyer’s, on expert’s duty, recog- damage, psy- not “to dence brain mental problem, theory nize he needs to chiatric or other such to what information order Calderon, mitigate punishment. opinion.” psychologist, render an Coleman Dr. (9th Cir.1998). Leifer, “functioning found that Caro was range superior psychometric within majority accepts lawyers’ Caro’s new ability,” I.Q. He an of 124. found that lawyer sentencing claims that his should gross significantly had “no or manifest- toxicologist neurologist. or consulted psychotic disorganized evidence of func- ed desirable, if Even have been it tioning.” college, Caro went where he does not establish “errors serious that performed satisfactorily girlfriend until his functioning counsel was as the not ‘counsel’ up year. in his broke with him senior Then guaranteed the defendant the Sixth Marines, joined he where did so well Strickland, Amendment.” officer, that he became commissioned lawyer defending S.Ct. 2052. crimi- lieutenant; discharged rape after the rely physician nal on a case is entitled history Despite a kidnapping. could physician in tell him another a dif- whether have led to some of relevant dam- sort People commonly specialty ferent is needed. psychiatrists psycholo- age, two rely physicians guide their own them any. did not find If gist studied Caro appropriate specialists, in matters of experts anything not think of else these could It their own life and death. the doctor’s history, find brain ask about dam- Caro’s fault, physician if the patient’s, not the consulting age, suggest or think a toxicolo- guidance. appropriate offer the neurologist, gist fortiori specific request, [I]n the absence coun- failing to incompetent do so. duty gather sel back- the best what made ground expert information which needs. him, gave psychologist by having the recog- Part of the of an is to skill ap- testify intelligence and despite nizе he needs in what information order to a mental parent normality, defect require opinion. render an To an attor- of child abuse. could be result which ney, interdisciplinary guidance, without lapses where the would cause “sudden defect provide psychiatric with all infor- ag- reality testing gone under quality of necessary mation to reach mental health themes.” Caro’s law- gressive and demonic diagnosis attorney that an al- demands yer evidence of built on this with massive ready skill possessed of the and knowl- be abuse. child edge expert. Calderon, 1105, lawyer his defendant two

Coleman v. 150 F.3d at 1115 sends (9th Cir.1998) (internal try psychologist and a find quotation psychiatrists citation and omitted). regarding mental psychiatrists evidence That one of the now some Caro, years later, says enough. That more has done if he had learned about condition 1232 Caro, lawyеrs profes- sympathy have found a army of to decide whether intro-

a new thought toxicology proba- School who has duction of the new Yale Medical sor at bly changed jury’s would have something that could have been collective more mind. shown, theory exposure brain2, damaged Caro’s is entire- might have evening, At around seven on a summer two question: ly whether “coun- irrelevant cousins, teenaged Mary Booher and Mark so serious that counsel was sel made errors Hatcher, bicycle together. riding went Their functioning guaranteed the ‘counsel’ not grandmother mother and went out to meet by the Amendment.” Sixth the defendant later, them a half hour and heard a shot. 687,

Strickland, 104 S.Ct. 2052. 466 U.S. after, Mark, they face, found in the Soon shot bicycles dead. Their were found the next Prejudice. B. ditch, day in Mary disappeared. days orange She was found five later in an half of Striсkland is that The other head, grove, decompos- shot in the dead and “affirmatively prove preju petitioner must ing. boy, kidnapped had killed the 693, Strickland, 466 dice.” girl, and then killed her too. enough for the 2052. “It is not defendant to had some that the errors conceivable show killing boy After kidnapping proceeding.” the outcome of the effect on girl, away Caro careened from the scene effect” is the most that Id. Yet a “conceivable truck, bed, pickup bicycles in with the lawyers arguably sug even Caro’s new clipped parking a car lot of a bar. gested. The Court defined the test as “a stop, When he did not the car owner and his probability but for counsel’s reasonable caught got friend chased and him. Caro out errors, unprofessional pro the result of the ‍​‌‌​​​​​​‌​​‌‌‌​​‌​‌​‌​‌​​​​‌‌‌‌​​​‌‌‌​‌‌‌​‌‌​‌​‍me,” his truck and said “don’t hurt while been ceeding would have different.” Id. at hiding one hand. One of the men told him Strickland, and in 104 S.Ct. him, going were not to hurt but wanted v. Williams Cir. to know if he had insurance. then 1995), despite some additional evidence that it, exposed gun in his hidden hand with a might prob used to show medical have been face, that man in shot and shot the other lems, it would have made no difference. thigh. approached man in the Then he in this case. Likewise man, ground, first who was on the and shot again, him in the chest. Then he chased the instructed us in The Court Strickland man, fleeing despite other who was totality we consider the of evidence “must wound, him and continued to shoot at until judge jury” in determining before the Miraculously, he ran bullets. both probability was a whether there reasonable Caro, People men lived testified. result, unprofessional of a but for different Cal.Rptr. Cal.3d 761 P.2d 680 majority pointedly errors. Yet the avoids (Cal.1988). “totality” considering the of evidence. A majоrity opinion pickup reader of the cannot even Caro hid his truck. He shaved off getting caught, find out did. But the knew. mustache. what Caro After he re- duty “totality peatedly escape. gave It is our to consider the tried to He a false evidence,” just generating testify the evidence alibi. He did not at his trial. Bullet my majority responds 2. The dissent attack- Caro's new submissions do not even claim that ing my it calls "disdain for the Yale Medical what when the December returned my death, School.” I have no idea what reference to verdict of the medical literature estab- Yale Medical School has to do with "disdain.” pesti- lished that the chemicals in duty point that a may damage. cides cause brain For all we know gain testimony professor access to and from a record, majori- the medical for the from the basis one of the most eminent try, institutions in сoun- ty opinion developed in the medical literature minimally competent. Though in order to be during years elapsed that have since the Yale, did not scale the walls of so, lawyer, decided this case. If however highly qualified experts. did consult several other diligent, proved could have then what is claimed They special- did not refer him to someone more now. learned, ized or or advise him that he needed consult someone else. ear, town, got of he her out made her fragments brain and wall from Mark’s naked, Eventually strip raped and her. she thigh in had the man shot a house where daring escape into traffic on a free- fled, gun, made a girlfriend’s which matched Caro’s caught, way. pleaded guilty to paint on Caro was the time. The he had access at exchange kidnapping in for dismissal of other parking lot clipped in thе bar the car time. charges, and served some pickup truck. paint matched the on thigh recalled Caro’s The man shot Williams, Strickland In and with no exactly. Exten- plate almost license number facts, it horrible was held that more irre- made the case sive additional evidence probably would have additional evidence jury superior A court convict- state futable. no difference to the outcome. Like- made degree of first murder ed Caro of two counts here, at a could most demonstrate wise firearm, kidnap- a one count with use of effect,” Strickland, at “conceivable firearm, and counts of ping of a two with use proba- not a “reasonable S.Ct. aggrava- to murder with assault with intent bility unprofessional but for counsel’s ting factors. errors, proceeding the result of the would Id. have sentencing jury of two addi- been different.” learned knew that he apparently had murdered that Caro had tional murders teenaged boy girl no relation- teenaged girls were found a who had committed. Two head, orchard, ship a him all. Then to kill in the he tried two in an shot dead got way. This no girlfriend’s gun. men who aber- fragment bullet from it, lapse pattern good a rational from behav- could not have done be- girlfriend before, years kidnapped had vagina in the of one ior. Six he semen was found cause period raped for an jurors had instructed woman extended girls. been murders her. Caro’s relentlessness was demonstrat- could not consider these pursued kidnap rape they unanimously beyond a rea- ed he found when unless bathroom, again into had committed victim the ladies’ sonable doubt that Caro them, jurors pursued men ear persuaded, when he the two whose and four were so had until he ran out оf presumably the did not consider hit bullets. them. Williams, the evidence we said clear, powerful that one of Caro’s former “was so lucid and live victim of testified, difference.” psychiatrist would have made a superior court com- crimes Williams, 52 F.3d at 1470. Caro’s she a law clerk six missioner. When work, lay before, mitigating expert and testi- years put it extensive she took bus but sentencing jury. The discharged passengers mony before the stopped and all the bar, it is In the case away. miles tried to hitchhike into heard 39 witnesses. some She unpersuasive than in Williams work, picked up. had even more and Caro her Once he have car, one more pulled gun suggest her in the threat- The defense could he made a difference. ened to kill her if she did not do what expo- her, toxicologist say that Caro’s put kidnapped driving He her far into said. cells. some brain get away during thе sure to killed the desert. She tried to physician put could on a insisting prosecutor she to The four hours he held her station, every has suffered say stroke victim go gas at a but to the bathroom ordinarily yet knows still room and death of brain cells came into the ladies’ forced her people.3 wrong right and does shoot her into the car. Far from from and forced back 1924, in Harrison’s majority my ignorance Diseases medi- Cerebrovascular 3. The claims ed.1980) understanding Principles cine disables me from what Medicine of Internal authority majority, without reference to original). (emphasis in treatises, claims, that brain the record or learned damage commonly cause mur- Brain aggressive from stroke "does not cause der, necessarily for murder. an excuse so is not "Only does. a few behavior." Sometimes it cells, Many people destruction of suffer patients problems are become serious behavior toxins, trauma, stroke, and other causes. trends, stroke, paranoid psychotic ill after unlikely event that stubbornness, Few kill. Even in peevishness temper, rec- are Adams, Mohr, minimally competent lawyer should have found ognized sequelae." Fisher Wilson, California, left with Pete have been the brutal Governor of bicycles, Defendant-Appellee, young people on murder of two attempted of'getaway murder wit- relentless nesses, rape years kidnapping six Bowersox, Superintendent, Michael before, ability per- demonstrated and the Center, Potosi, Potosi Correctional extraordinarily high on intel-

form at an level MO., Defendant-Appellee, ligence tests and in the Marines. Arthur Warden Cali evidence, no Because Caro has Quen fornia State Prison San grave so that it

еither of errors tin, CA., Defendant-Appellee. though no at all in the Sixth sense, prejudice or of from the Amendment 98-99035, Nos. 98-99036. made, we should errors he claims counsel precedent follow our own Williams and Appeals, United States Court affirm. Ninth Circuit.

Submitted to Motions Panel Jan. ‍​‌‌​​​​​​‌​​‌‌‌​​‌​‌​‌​‌​​​​‌‌‌‌​​​‌‌‌​‌‌‌​‌‌​‌​‍Decided Jan. MALONE, Shelby

Kelvin Petitioner-

Appellant,

v. CALDERON,

Arthur Warden of the Prison,

California San State

Quentin, Respondent, Missouri, Intervenor-Appellee.

State of Shelby Malone,

Kelvin Plaintiff-

Appellant, Carnahan, Missouri,

Mel Governor of

Defendant-Appellee, testify pesti- lawyers up witness to that Caro’s have not est come doctors brain, may damaged damaged cides this record definitive evidence that he is brain now, prejudice boy girl still would not establish from the ab- or was at the time he killed the testimony. Proving pesticides riding bicycles. experts suggest sence of such new their His may damage prove may damaged, cause brain that he have been brain based on did, they proving they did does what some chemicals sometimes do, prove partially impressions, that Caro should be excused for can clinical and Caro’s own murdering boy girl riding feelings bicycles. reports their of his abnormal and unfortunate necessarily anyone history. prejudice would not case for assume that This is a weak would, result, Plenty people with brain as a be com- ineffective assistance. farms, pelled by constantly Considering grew up cides, exposed pesti- his disorder kill. all the fine, anyone. persuade evidence that and do not kill That did not feel penalty, exposed to refrain to certain chemi- from the death there is some of the individuals particular damage, may suppose may which reason to that this suffer con- additional cals feeling thought, would have mattered. tribute to disorders of significant persons exposed It are is also even after not establish that all free almost two post-sentencing litigation, responsibility decades of for what do. Caro's lat-

Case Details

Case Name: Fernando Eros Caro v. Arthur Calderon, Warden

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jan 11, 1999

Citation: 165 F.3d 1223

Docket Number: 96-99019

Court Abbreviation: 9th Cir.