ANTHONY LETRICE TOWNSEL, Petitioner, v. RON DAVIS, Respondent.
Case No. 1:19-cv-01394-JLT-CDB (HC)
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
February 27, 2025
UNITED STATES MAGISTRATE JUDGE
FINDINGS AND RECOMMENDATION TO DENY PETITION FOR WRIT OF HABEAS CORPUS AND DECLINE TO ISSUE CERTIFICATE OF APPEALABILITY; 14-DAY DEADLINE (Doc. 1)
A jury in the Madera County Superior Court convicted Petitioner of (1) the murder of Mauricio Martinez, Jr. in violation of Penal Code § 187(a) with special allegations that Petitioner was convicted of multiple murders and used a firearm; (2) the murder of Martha Diaz with special allegations that the murder resulted in the termination of a pregnancy, Petitioner used a firearm, and the victim was a witness to a crime; and (3) attempting to prevent and dissuade a witness in violation of Penal Code § 136.1(c)(1).4 (ECF No. 28-3 at 280-88).5 The jury returned a verdict of death, and the trial court sentenced Petitioner accordingly. (Id. at 297; see ECF No. 28-4 at 163-64).
On appeal, the California Supreme Court summarized the pertinent facts of the underlying offenses.6
In September 1989, Martha Diaz and her son Andrew were staying in the home of her sister, Teresa Martinez, on Saunders Road in Madera. Also living there were Teresa‘s husband, Mauricio; their two children; and Mauricio‘s friend Luis Anzaldua. Mauricio‘s parents and siblings lived in the house next door. Diaz was six months pregnant with defendant‘s child.
On September 18, 1989, defendant came to Teresa‘s house and spoke with Diaz about the baby. The conversation was not amicable.
On the evening of September 21, 1989, defendant encountered Luidivina Hernandez, a mutual friend of his and Diaz‘s. He asked her if she had seen or spoken to Diaz, and whether Diaz had said anything about him. Hernandez acknowledged having seen Diaz and told him Diaz had said only that they were having problems. Defendant told her he wanted nothing further to do with Diaz or the baby, and that if he couldn‘t have her, neither could anyone else.
About 10:00 the following morning, defendant and a companion pulled up to Teresa‘s house in a brown car. Defendant got out, handed Teresa an envelope containing a letter, and angrily told her to tell Diaz she had better stay in the house. After he drove away, Teresa showed Diaz the envelope and letter, which was dated September 20, 1989, and addressed to defendant from the Madera Justice Court. It informed him that a criminal complaint charging
him with a violation of section 273.5 (battery or willful infliction of injury on a spouse or cohabitant) was on file against him and directed him to appear in court on November 7, 1989. About 5:00 that evening, Teresa, Diaz, and their children, along with Luis Anzaldua, were sitting in front of Teresa‘s house. Mauricio‘s brother, Rene, was near an ice cream truck parked between Teresa‘s house and his residence. Defendant and a passenger pulled up in a gray Cadillac. From the car, defendant made a hand gesture like a pistol, yelled at Diaz to get back in the house and that “your ass is mine after the baby is born,” and drove away.
Three hours later, around 8:00 p.m., Teresa and her family, including Diaz, along with Rolando Martinez and Luis Anzaldua, were in her house when they heard gunshots outside. Rene and his sister Valerie, next door, also heard the gunshots. Rene and Valerie went to the window and saw defendant shooting a handgun in the air before getting into a gray Cadillac and driving away. After the shooting, family members collected shell casings from the street and gave them to Madera County Sheriff‘s Deputy Gerald Stephen Kirkland, telling him defendant was the shooter.
Still later that night, around 11:00 p.m., Rene, Rolando, and Anzaldua heard more gunshots outside their houses. Rene and Rolando saw shots being fired from the passenger window of a moving gray Cadillac. Rolando saw two figures in the car, which drove away at a high speed without stopping. Deputy Kirkland again responded to the family‘s call to the police, and collected more shell casings. Bullet holes were later seen in the garage door and a window of Teresa‘s house.
About 11:30 the next morning, Anzaldua, Diaz, and Andrew were driving in Anzaldua‘s car. Stopping at an intersection, they noticed two men standing near a gray Cadillac parked at a gas station. Frightened, Diaz said, “There he is.” Anzaldua understood her to be referring to defendant. One of the two men got into the driver‘s seat of the Cadillac.
Believing he was going to be chased, Anzaldua drove into town, going as fast as 70 miles per hour. The Cadillac followed, matching his speed. As Anzaldua neared the local sheriff‘s station, the Cadillac crashed into a fire hydrant. Anzaldua and Diaz got out of his car and tried to enter the station, only to find the front and back doors locked. Seeing a tall, dark-complexioned man wearing a white T-shirt and blue pants walking toward them, Anzaldua, who had worked in the station as a janitor, led Diaz to the basement. There they hid for about 10 minutes before going upstairs, where they told the deputy on duty what had happened. The deputy informed them a suspect was already in custody at the crash site. Anzaldua and Diaz went to the site and saw a Mexican male in custody. Anzaldua and Diaz then returned to their residence, and Anzaldua went to Rene‘s house next door to visit.
The same day, between about 12:30 and 12:45 p.m., Teresa and Diaz were in the living room of Teresa‘s home with their children and Mauricio was in the master bedroom. Anzaldua and Mauricio‘s siblings Rene, Valerie and Marybell were next door at Mauricio‘s parents’ home. A neighbor, David Sepulveda, saw a gray car, possibly an LTD or a Thunderbird, park next to his fence. A Black man he later identified as defendant exited the passenger side of the car, which drove away. In Teresa‘s house Diaz, seeing defendant approach, picked up her son and ran from the living room. Teresa stepped toward the front door intending to ask defendant what he wanted with Diaz. Defendant opened the door and entered, a gun at his side in his left hand, and Teresa froze. Defendant looked at her without saying anything and walked down the hallway, bumping into Mauricio, who had emerged from the bedroom. Defendant raised his gun and fired twice, hitting Mauricio in the chest. Defendant continued toward the master bedroom, stopping in the doorway to fire three shots in rapid succession. Teresa fled to her in-laws’ house next door.
Inside the in-laws’ house, Rene, Valerie, Marybell and Anzaldua heard shots being fired. Sepulveda also heard the shots from inside his home and told his wife to call 911. Rene, Valerie and Marybell ran outside and met Teresa, who told them the shooter was defendant. All four took refuge in the in-laws’ house, but Teresa soon became concerned about her child, who was still in her house. She started to leave the in-laws’ house, but just then defendant left Teresa‘s house, firing his gun in the air, and approached the in-laws’ house. Rene retrieved his rifle and loaded it as Teresa called 911. He and Teresa went to the open garage door and saw defendant walk toward Raymond Thomas Street, which intersects Saunders Road, and fire into the gas tank of Anzaldua‘s car, parked in front of Teresa‘s house. Rene took aim and shot defendant in the back of the neck. Defendant fell and crawled some distance before collapsing.
Teresa and Rene ran back to her house and found Mauricio lying prone on the front porch. Inside the house, Rene found Diaz in the master bedroom with bullet holes in her face and neck, her son standing in front of her crying.
When Sergeant Bob Holmes of the Madera County Sheriff‘s Department arrived on the scene, defendant was lying supine on the ground, holding a 9-millimeter Taurus semiautomatic handgun with the hammer cocked and ready to fire. Sergeant Holmes kicked the gun out of his hand. Defendant identified himself and said he was the shooter. Madera County Sheriff Glenn Seymour arrived shortly after Sergeant Holmes and remained with defendant while Holmes investigated. Sheriff Seymour asked defendant what was going on. Defendant replied: “I did it. There‘s no one else to worry about.” David Sepulveda approached the sheriff and told him defendant was the shooter. Defendant told Sepulveda to shut up, adding, “or you will get it, too.”
Teresa Martinez approached defendant as he lay on the ground and asked, “Why my husband?” Defendant indicated he was not through yet and “Morris” was going to “come and finish you off.”
As paramedics were attending to him, defendant said, “I was paid to do a job and I did it.”
Autopsy results showed that Mauricio had been shot twice. One bullet, fired at close enough range to leave powder residue and tattooing on the left side of his face, entered near the right armpit and exited on the right side of the chest without hitting any vital organs. The second, fatal bullet entered the upper right shoulder, moving in a downward trajectory to strike a pulmonary artery within the lower lobe of the right lung and passing through the thoracic aorta, striking the left kidney, and exiting the left flank. Mauricio would have been crouched very low or bent at the waist when this second bullet entered, consistent with his having assumed a defensive posture.
Diaz had been shot five times, suffering wounds to the upper right thigh, right arm, left ear, nose, and the nape of the neck. The latter two wounds, which were fatal, fractured the base of her skull and caused a brain stem concussion. Her six-month fetus appeared normal and “died simply because he lost his life support, his mother.”
Criminalist John Hamman tested defendant‘s handgun and determined that its magazine could hold 15 rounds and the chamber an additional round, for a total of 16 rounds. Cartridge casings and bullets recovered from the crime scene were all definitely or probably fired by defendant‘s gun.
In an effort to show that defendant lacked the mental state required for the charged offenses, the defense presented the testimony of three psychologists who had evaluated defendant and concluded he is mildly to moderately intellectually disabled. ... In rebuttal, the prosecution presented the testimony of psychiatrist Lee Coleman, M.D., to the effect that IQ testing is not a reliable measure of intelligence, behavior is the best indicator of mental state, and mental health professionals have no greater ability than lay persons to tell who is malingering. ... The prosecution also presented evidence that defendant was placed in special education classes in school because of a learning handicap, not because he was thought to be intellectually disabled; he functioned well in prior employment; and, while incarcerated, he regularly requested and appeared to read daily newspapers. The parties stipulated that defendant had a California driver‘s license.
(Doc. 30-14 at 2-7 (footnote omitted)). On appeal, the California Supreme Court reversed the conviction for dissuading a witness and vacated the witness-killing special circumstance finding, but otherwise affirmed the judgment. (Doc. 30-14 at 1).
On February 20, 2014, Petitioner filed a petition for writ of habeas corpus in the California Supreme Court, including a claim pursuant to Atkins v. Virginia, 536 U.S. 304 (2002).
Petitioner now raises eighteen claims for relief:
- Petitioner was incompetent at the time of his trial and was deprived of his right to an adequate, fair and reliable determination of competency due to trial counsel‘s failure to investigate and present evidence of Petitioner‘s developmental disability of mental retardation and mental disorder.
- Reversal of the guilt judgment is required because the trial court violated Petitioner‘s federal constitutional rights to due process and reliable guilt and penalty determinations by failing to suspend the proceedings and appoint the director of the regional center for the developmentally disabled to evaluate him in light of substantial evidence that Petitioner was both intellectually disabled [and] incompetent.
- Trial counsel‘s prejudicially deficient performance in failing to investigate and present evidence of Petitioner‘s intellectual disability and mental illness deprived Petitioner of his rights to the effective assistance of counsel and to a fair and reliable determination of guilt.
- Trial counsel rendered ineffective assistance of counsel by failing to investigate, prepare and present evidence of Petitioner‘s mental state that would have resulted in verdicts less than first degree murder.
- The trial court‘s instructional error improperly limited the jurors’ consideration of the intellectual disability evidence to the sole element of malice aforethought and precluded their consideration of the evidence on the element of premeditation and deliberation.
- The trial court violated Petitioner‘s Fifth, Sixth, Eighth, and Fourteenth Amendment rights by permitting Lee Coleman to present his unqualified and legally incorrect “expert” opinion that all expert diagnoses of mental retardation, along with all related
intelligence testing, is so inherently unreliable as a class that it is legally irrelevant and should be completely disregarded by jurors. - The trial court erred in admitting the opinions of unqualified lay witnesses and hearsay declarants that Petitioner was not intellectually disabled in his developmental years in violation of his Fifth, Sixth, Eighth and Fourteenth Amendment rights.
- The trial court erred in overruling Petitioner‘s objections to the prosecutor‘s cross-examination of Dr. Christensen regarding her opinion that Petitioner was not competent to stand trial due to the developmental disability of intellectual disability, and violated Petitioner‘s Fifth, Sixth, Eighth and Fourteenth Amendment rights.
- The cumulative effect of the errors raised in claims five, six and seven, undercutting Petitioner‘s intellectual disability-based defense was prejudicial and violated his federal constitutional rights to a fair trial, proof beyond a reasonable doubt and trial by jury on every element of the charge offenses, a meaningful opportunity to present his defense and reliable jury verdicts that he was guilty of a capital offense.
- Trial counsel rendered ineffective assistance of counsel by failing to prevent the admission of false evidence in violation of Petitioner‘s rights under the Fifth, Sixth, Eighth and Fourteenth Amendments.
- Petitioner was denied his right to the effective assistance of counsel by counsel‘s failure to exclude the pretrial mental disorder competency evaluations from the underlying trial and by counsel‘s failure to object to the prosecution‘s improper use of the evaluations at trial.
- Trial counsel failed to present readily available expert evidence to challenge the prosecution‘s evidence and argument regarding the aggravated nature of the killings of both Mauricio Martinez and Martha Diaz.
- Trial counsel rendered ineffective assistance by failing to make the correct evidentiary proffer to admit critical evidence at both the guilt and penalty phases of trial.
- Petitioner was denied his rights under the Fifth, Sixth, Eighth and Fourteenth Amendments based on juror misconduct at the guilt and penalty phases of his trial.
- The trial court‘s unauthorized restrictions on Petitioner‘s communications with trial jurors and Respondent‘s refusal to interview a juror violated Petitioner‘s constitutional rights.
- The shackling of Petitioner throughout the trial was unconstitutional and prejudicial.
Deficiencies, impediments, and obstacles in trial and post-trial processes render Petitioner‘s convictions and sentence unreliable and unconstitutional. - The cumulative nature of the errors in this petition requires the granting of habeas corpus relief.
(Doc. 1-3 at 14, 42, 53, 196, 233, 241, 255, 264, 275, 279, 290, 304, 318, 322, 325, 335, 341, 351).
II. STANDARD FOR FEDERAL HABEAS RELIEF
A federal court‘s statutory authority to issue habeas corpus relief for persons in state custody is set forth in
“Deciding whether a state court‘s decision ‘involved’ an unreasonable application of federal law or was ‘based on’ an unreasonable determination of the facts requires the federal habeas court to ‘train its attention on the particular reasons—both legal and factual—why state courts rejected a state prisoner‘s federal claims.‘” Wilson v. Sellers, 584 U.S. 122, 125 (2018). When the state court‘s decision “does not come accompanied with [its] reasons” for the decision, a federal court “should ‘look through’ the unexplained decision to the last related state-court decision that does provide a relevant rationale.” Id. However, when there is no reasoned decision to “look through,” it may be presumed—in “the absence of any indication or state-law procedural principles to the contrary“—that the state court adjudicated the claim on the merits and the petitioner must show “there was no reasonable basis for the state court to deny relief.”
Under
Under
III. ANALYSIS
Petitioner represents that he presented each of his claims to the state courts, either on direct review (Claims Two and Five through Nine) or in his state habeas petition (Claims One, Three, Four, and Ten through Eighteen). Respondent does not dispute that Petitioner has exhausted each claim. Accordingly, the claims must be evaluated under the deferential AEDPA
A. Withdrawn Claims
In his reply, Petitioner withdraws Claims Thirteen, Fifteen, Sixteen, and Seventeen. (Doc. 72 at 13). Thus, these claims no longer remain pending, and the Court need not address their merits.
B. Ineffective Assistance of Counsel – Competency Proceedings
Claim One focuses on trial counsel‘s conduct concerning Petitioner‘s competency. Petitioner challenges trial counsel‘s failure to specifically inform the trial court that Petitioner was intellectually disabled and request the appointment of the director of the regional center rather than psychologists to assess his competency; counsel‘s failure to inform the examiners that Petitioner was intellectually disabled; counsel‘s waiver of a hearing; and counsel‘s failure to request additional competency proceedings at trial. (Doc. 1-3 at 21-22). Petitioner raised these arguments in his state habeas petition and the California Supreme Court summarily denied relief. (Doc. 33-41).
1. Background
On November 2, 1989, trial counsel Linda Thompson informed the court that after discussion with Petitioner and an evaluation by psychologist Dr. Lea Christensen, she did not believe Petitioner was competent to assist in his defense. (Doc. 29-20 at 13-14). The court certified Petitioner to the superior court consistent with California Penal Code § 1368 for determination of his competency to stand trial. (Id.). On December 1, 1989, the superior court held a hearing on Petitioner‘s competency. (Doc. 28-11 at 152-57). Ms. Thompson agreed to submit the issue on the reports of Dr. Howard Terrell and Dr. Charles Davis. (Id. at 154-55). Dr. Terrell concluded it was “extremely likely that the Defendant is Malingering (Lying) about his answers in order to escape culpability for his crimes” but there was a “small possibility that he also suffers from a concurrent mental disorder.” (Doc. 28-25 at 6). As such, Dr. Terrell recommended finding Petitioner incompetent to stand trial at that time. (Id. at 7). Dr. Davis also concluded Petitioner was malingering and recommended Petitioner be found competent to stand trial. (Doc. 28-26 at 5). The superior court recognized the possibility Petitioner was suffering
2. Law and Analysis
A claim of ineffective assistance of counsel is evaluated under the two-prong test set out in Strickland v. Washington, 466 U.S. 668 (1984). Under this test, “a petitioner must prove: (1) that his counsel‘s performance fell below an objective standard of reasonableness (the deficient performance prong), and (2) that there is a reasonable probability of a more favorable outcome if counsel performed effectively (the prejudice prong).” Rogers v. Dzurenda, 25 F.4th 1171, 1181 (9th Cir. 2022) (citing Strickland, 466 U.S. at 687-88, 694). While a petitioner must prove both prongs to be entitled to relief, “a court need not determine whether counsel‘s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.” Strickland, 466 U.S. at 697.
“The prejudice prong focuses on the question whether counsel‘s deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair.” Rogers, 25 F.4th at 1182. In making this assessment, a reviewing court must “compare the evidence that actually was presented to the jury with the evidence that might have been presented had counsel acted differently.” Hernandez v. Chappell, 923 F.3d 544, 551 (9th Cir. 2019).
Here, even if the Court were to assume, without deciding, that counsel‘s performance was deficient, Petitioner cannot show prejudice with respect to the competency proceedings. While counsel may have failed to alert the court to Petitioner‘s intellectual disability during the pretrial competency proceedings, evidence of his intellectual disability was offered at trial and, as discussed below in addressing Claim Two, did not support further competency proceedings. As such, there was no prejudice from counsel‘s failure to specifically inform the court of Petitioner‘s intellectual disabilities before the initial competency proceedings or request a second round of competency hearings. Concerning counsel‘s failure to inform the experts that Petitioner was intellectually disabled, there is nothing to support that such information would have altered their conclusions that Petitioner was likely malingering, which were based on their own observations
Because Petitioner cannot show he was prejudiced by counsel‘s actions at the competency stage of the proceedings, the state court‘s rejection of his ineffective assistance of counsel claim was not contrary to, or an unreasonable application of, clearly established federal law, nor was it based on an unreasonable determination of the facts. The undersigned recommends that Claim One be denied.
C. Failure to Conduct Additional Competency Proceedings
In Claim Two, Petitioner asserts that substantial evidence before the trial court raised a doubt as to his competency to stand trial due to his intellectual disability and the trial court erred in failing to suspend proceedings and appoint the director of a regional center for the developmentally disabled to evaluate Petitioner pursuant to
1. Background
At trial, the defense called Dr. Christensen, a clinical psychologist, to testify regarding her opinion of Petitioner‘s intellectual disability. (Doc. 29-13 at 39). Dr. Christensen testified that she examined Petitioner in October 1989 at the Madera County Jail following his treatment at Valley Medical Center. (Id. at 41-42). Dr. Christensen detailed tests conducted on Petitioner, the results of those tests, and the opinions she formulated regarding Petitioner‘s mental capabilities. (See generally id. at 42-85). Through testing on Petitioner, Dr. Christensen determined his full-scale IQ was 47, which would place him in a category as mild to moderately mentally retarded.8 (Id. at 85). On cross-examination, Dr. Christensen specified that her testing revealed an IQ score
On direct review following his conviction, Petitioner raised his argument that Dr. Christensen‘s testimony should have prompted the trial court to initiate a second round of competency proceedings, and the California Supreme Court rejected this claim. (Doc. 30-14 at 10-19). The court explained that Dr. Christensen‘s testimony was insufficient to require the trial court to institute renewed competency proceedings given that “Dr. Christensen‘s conclusion concerning [Petitioner‘s] intellectual functioning was, by her own acknowledgment, an outlier that may have reflected the unusual circumstances present on the day of her evaluation rather than the true extent of [Petitioner‘s] abilities.” (Id. at 14-15). The court highlighted that while Dr. Christensen testified her testing of Petitioner “yielded a full-scale IQ score of 47, which she testified indicated moderate to severe intellectual disability,” two other defense experts “testified that they had tested [Petitioner‘s] full-scale IQ as 59 and 66, respectively—within the range of mild, not moderate or severe, intellectual disability.” (Id. at 16). Dr. Christensen “hypothesized that the different results might have been attributable to various factors present on the day she examined [Petitioner],” such as being conducted in an infirmary setting with distractions and poor lighting while Petitioner was recovering from an injury. (Id. at 16-17). The court concluded:
[G]iven the confounding factors operative at the time of Dr. Christensen‘s evaluation—including that defendant, still recovering from a gunshot wound, was immobilized in a head harness, in pain, and on medication, and that the testing was taking place in a hospital environment that was apparently poorly lit and full of distractions—the trial court could properly find she lacked “sufficient opportunity to examine” defendant for her opinion to raise a reasonable doubt as to his competency. (People v. Ramos (2004) 34 Cal. 4th 494, 507-508, quoting People v. Pennington, supra, 66 Cal. 2d at p. 519.) The trial court therefore did not err in failing to institute competency proceedings under section 1369, subdivision (a).
(Id. at 17).
As an initial matter, to the extent Petitioner‘s claim relies on the trial court‘s failure to comply with
“It is undisputed that ‘the conviction of an accused person while he is legally incompetent violates due process.‘” Maxwell v. Roe, 606 F.3d 561, 568 (9th Cir. 2010) (quoting Pate v. Robinson, 383 U.S. 375, 378 (1966)). “To be competent to stand trial, a defendant must have the ‘capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense.‘” Id. (quoting Drope v. Missouri, 420 U.S. 162, 171 (1975)). When the evidence before a court raises a “bona fide doubt” regarding a defendant‘s competence, the judge is required to conduct a competency hearing and this obligation continues through trial. Id. “[T]he test for such a bona fide doubt is whether a reasonable judge, situated as the trial court judge ..., should have experienced doubt with respect to competency to stand trial.” Id. When reviewing whether a state trial judge should have sua sponte conducted a competency hearing, “a federal court may consider only the evidence that was before the trial judge” and “suggestive evidence includes the defendant‘s demeanor before the trial judge, irrational behavior of the defendant, and available medical evidence of the defendant‘s competence to stand trial.” Williams v. Woodford, 384 F.3d 567, 604 (9th Cir. 2004).
As the California Supreme Court observed, Dr. Christensen‘s testimony regarding Petitioner‘s IQ was contradictory to other expert testimony and her testing was likely influenced
Considering all the evidence before the trial court, including the judge‘s own observations of Petitioner and the conflicting testimony, the state court‘s decision that the trial court was not required to conduct a second round of competency proceedings was not contrary to, or an unreasonable application of, clearly established federal law, or based on an unreasonable determination of the facts. Accordingly, it is recommended that Claim Two be denied.
D. Ineffective Assistance – Failure to Investigate
Petitioner‘s next two claims present similar issues and will be addressed together. Claim Three challenges counsel‘s failure to investigate and present evidence of his intellectual disability and mental illness to support that he could not form the required mental state to commit first degree murder. (Doc. 1 at 54-55). Similarly, Claim Four challenges trial counsel‘s failure to investigate and present evidence supporting that he acted in the heat of passion, which would support verdicts of second degree murder or voluntary manslaughter. (Id. at 199). In both claims, Petitioner essentially argues that had trial counsel submitted additional evidence related to his intellectual disability and mental illness, the evidence would show he could not form the required mental state for murder and the jury would not have convicted him. (See generally id. at 54-233). Petitioner relies on evidence submitted in support of his state habeas petition, including school records and post-conviction declarations from psychologists, school officials, family, friends, and other individuals who had interacted with Petitioner. (See id.). The California Supreme Court summarily rejected Petitioner‘s claims in his state habeas petition. (See Doc. 33-
These claims are analyzed under the same Strickland standard applied to Claim One above. Thus, to be entitled to relief, Petitioner must show not only that counsel‘s performance was deficient but also that he was prejudiced by the deficient performance. Rogers, 25 F.4th at 1181. In the interest of efficiency, the Court once again assumes, without deciding, that counsel‘s performance was deficient because Petitioner‘s claims fail on the prejudice prong.
Petitioner‘s argument that counsel was ineffective turns on the assumption that had counsel presented additional evidence to support that he was intellectually disabled, the jury would not have convicted him. However, the jury‘s finding that Petitioner was able to form the required mental state to commit first degree murder does not mean that it rejected Petitioner‘s claim of intellectual disability. None of the proposed evidence establishes that Petitioner‘s intellectual disability rendered him unable to form the specific intent required to support his convictions. The prosecution highlighted this distinction in its cross-examination of Dr. Christensen when it asked if she would agree that “a mentally retarded person can form an intent to kill, that that‘s not a complex thought process,” and she responded, “Yes. Even a three-year old can form an intent to kill.” (Doc. 29-13 at 151). Additional evidence to support that Petitioner formed the required mental state and acted with premeditation and deliberation included that he had made comments to Martha in the days before her death that “your ass is mine” once the baby was born; came to Martha‘s home and shot a gun into the air after making this comment; and told a mutual friend that if he could not have Martha, no one could. (See Doc. 29-11 at 154, 191-92, 234; Doc. 29-12 at 67).
Considering all the evidence that was presented with the evidence that might have been presented, the California Supreme Court could reasonably conclude that even had the additional evidence been presented, there was not a probability that the outcome would be different. Thus, Petitioner has not shown that the state court‘s decision was contrary to, or an unreasonable application of, clearly established federal law, or that it was based on an unreasonable determination of the facts. Accordingly, it is recommended that Claims Three and Four be denied.
In Claim Five, Petitioner asserts that the trial court‘s use of CALJIC No. 3.32 regarding consideration of Petitioner‘s intellectual disability allowed the jury to consider such only with respect to whether Petitioner committed the murder with “malice aforethought” and not with respect to whether he acted with express malice and premeditation and deliberation to support first degree murder. (ECF No. 1-3 at 236-38).
1. Background
At trial, the court instructed the jury:
Evidence has been received regarding a mental defect or mental disorder of the defendant Anthony Townsel at the time of the crime charged in Counts 1 and 2. You may consider such evidence solely for the purpose of determining whether or not the defendant Anthony Townsel actually formed the mental state which is an element of the crimes charged in Counts 1 and 2; to wit, murder.
(Doc. 29-14 at 242-43).
On appeal, the California Supreme Court concluded “the limiting version of CALJIC No. 3.32 given to the jury in this case was prejudicially erroneous, requiring reversal of the dissuading count and the witness-killing special-circumstance allegation.” (ECF No. 30-14 at 42). However, the court rejected Petitioner‘s argument that the murder convictions must also be reversed because the instruction prohibited the jury from considering the intellectual disability evidence with respect to premeditation and deliberation. (Id. at 45-51). Relying on its prior decision in People v. Rogers, 39 Cal. 4th 826 (2006), the court explained:
Jurors were instructed that “[m]urder is classified into two degrees, and if you should find the defendant guilty of murder you must determine and state in your verdict whether you find the murder to be first or second degree.” This instruction necessarily directed jurors, once they found that defendant killed with malice aforethought as charged in Counts 1 and 2 (as to which defendant does not contend the jury was not properly instructed to consider the intellectual disability evidence), to make the further determination whether he harbored the mental state required for first degree murder, a determination to which the intellectual disability evidence was thus equally relevant and applicable. The circumstance that much of the parties’ closing arguments focused not on premeditation and deliberation but on intent to kill does not alter this conclusion; nothing in those arguments expressly or impliedly directed jurors not to consider the intellectual disability
evidence on the question whether defendant premeditated and deliberated the killings as required for a conviction of first degree murder.
(Id. at 49-50).
2. Law and Analysis
Federal habeas relief is not warranted simply because a jury instruction was “allegedly incorrect under state law.” Estelle, 502 U.S. at 71-72. Rather, the relevant question is “whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process.” Id. at 72. In conducting this analysis, the instruction “must be considered in the context of the instructions as a whole and the trial record” and a court must consider “whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that violates the Constitution.” Id. (quotation marks omitted).
Here, Petitioner cannot meet his burden. Of relevance, the trial court instructed the jury that they must “[c]onsider the instructions as a whole and each in light of all the others.” (Doc. 29-14 at 228). The court advised the jury that it could not find Petitioner guilty of the murder counts unless there was evidence to support the specific intent or mental state required. (Id. at 232, 242). The court identified the elements of murder: “One, a human being was killed; two, the killing was unlawful; and three, the killing was done with malice aforethought.” (Id. at 243). The court then instructed the jury regarding determining the degree of the murder:
All murder which is perpetrated by any kind of willful, deliberate, and premeditated killing with the express malice aforethought is murder of the first degree. The word “willful” as used in this instruction means intentional. The word “deliberate” means formed or arrived at or determined as a result of careful thought in weighing the considerations for and against the proposed course of action. The word “premeditated” means considered beforehand.
If you find the killing was preceded and accompanied by a clear deliberate intent on the part of the defendant to kill which was a result of deliberation and premeditation so that it must have been formed upon a pre-existing reflection and not upon a sudden heat of passion or other condition precluding the idea of deliberation, it is murder of the first degree.
(Id. at 244). The jury was provided verdict forms allowing for findings of not guilty or guilty of first degree murder, second degree murder, voluntary manslaughter, or involuntary manslaughter
Considering the challenged instruction in combination with the other instructions and verdict forms provided, no error occurred. The instructions made clear the mental states that must be present to support a conviction of first degree murder and instructed the jury that it could consider the mental defect evidence in determining whether Petitioner formed the required mental state. Contrary to Petitioner‘s argument, and as concluded by the California Supreme Court, the challenged instruction did not prohibit the jury from considering the mental defect evidence in relation to premeditation and deliberation elements.
Because the California Supreme Court‘s determination of this claim was not contrary to, or an unreasonable application of, clearly established federal law, nor was it based on an unreasonable determination of the facts, the undersigned recommends that Claim Five be denied.
F. Evidentiary Issues
Multiple claims in the Petition assert challenges to the admission of evidence.
Claim Six challenges the admission of testimony from prosecution expert witness Dr. Lee Coleman regarding the reliability and relevance of intelligence testing on a defendant‘s competency. (Doc. 1-3 at 242-44). Claim Seven challenges the admission of lay witness testimony concerning whether Petitioner was intellectually disabled. (Id. at 255-57). Claim Eight challenges the prosecution‘s cross-examination of Dr. Christensen and alleges it resulted in the admission of irrelevant evidence. (Id. at 264-74).
1. Background
On cross-examination, the prosecution questioned Dr. Christensen regarding the reports of other experts that Petitioner was malingering, her own opinion that Petitioner was incompetent to stand trial and should be referred to the regional center, and whether she believed Petitioner should be released back into society. (Doc. 29-13 at 107-08, 140-45). After the defense rested, the prosecution called Dr. Coleman as a rebuttal witness to address the defense‘s expert testimony regarding Petitioner‘s IQ scores. (Doc. 29-14 at 50). Specifically, Dr. Coleman testified that “an IQ test is not a reliable judge of somebody‘s intelligence,” “a mental status examination is not a reliable guide to what a person‘s orientation or understanding or current mental state is,” and “a
Petitioner raised his challenges regarding this evidence on direct review and the California Supreme Court denied all relief. The court concluded “Dr. Coleman testified, based on the professional literature and his own study, about psychological evaluation generally—including intelligence, neuropsychological, and personality testing—and its limitations in terms of the inferences it can support in the forensic setting concerning a defendant‘s mental state at the time of an offense.” (ECF No. 30-14 at 25). This testimony was proper rebuttal to the defense experts’ testimony. (Id.). Concerning the lay witness testimony that Petitioner was not intellectually disabled, the court found no error because “two of the defense expert witnesses, Drs. Christensen and Powell, had acknowledged on cross-examination that defendant‘s intellectual disability would be noticeable to those close to him” and “[t]he prosecution was entitled to rebut their testimony with that of school personnel who had worked with defendant and not perceived him to be intellectually disabled.” (Id. at 33). As to the cross-examination of Dr. Christensen, the court concluded all topics covered were relevant to the issues at trial. (Id. at 38-41).
2. Law and Analysis
As set forth above in disposing of other claims, federal habeas relief is not warranted based only on alleged errors in state law. Estelle, 502 U.S. at 67-68. This includes alleged errors in interpreting and applying the state evidentiary rules. Id. at 72. See Walden v. Shinn, 990 F.3d 1183, 1205 (9th Cir. 2021) (“we cannot grant federal habeas relief founded on an alleged non-constitutional state evidentiary error.“). In such circumstances, relief is only warranted if the evidence “by itself so infected the entire trial that the resulting conviction violates due process.” Estelle, 502 U.S. at 72. Thus, to present a viable claim on federal habeas review based on an error of state law, a petitioner must show that the alleged state error was “so arbitrary and
Here, Petitioner cannot establish that admission of any of the challenged evidence amounted to a due process violation. Nor, in fact, does Petitioner cite any authority for the proposition that the claimed evidentiary errors below (improper admission of expert testimony concerning referenced testing reliability and other purported irrelevant evidence) could or did arise to the level of due process violation. (See Doc. 1-3 at 242-44, 255-57, 264-74; Doc. 72 at 57-68, 60-62, 64-65). Concerning the cross-examination of Dr. Christensen, as the California Supreme Court concluded, the questions went to Dr. Christensen‘s credibility, the reliability of her report, and her conclusions that Petitioner was not malingering. As to Dr. Coleman, the jury heard testimony regarding his education and how he reached his conclusions, laying the foundation for his testimony. While Coleman testified as to his opinion that IQ testing was not relevant to the court proceedings, the trial court clearly instructed the jury that it was free to either accept or reject this opinion. (See Doc. 29-14 at 238) (“You are not bound to accept an expert opinion as conclusive but should give to it the weight which you find it to be entitled. You may disregard any such opinion if you find it to be unreasonable.“). Finally, concerning the school employees’ testimony, such was offered as direct rebuttal to statements from defense expert Frank Powell that Petitioner‘s mental retardation “[s]hould be” noticeable to teachers and counselors. (See Doc. 29-12 at 277).
Because any alleged error in admitting the evidence is (1) a matter of state law and (2) does not amount to a due process violation, Petitioner is not entitled to federal habeas relief. See Maquiz v. Hedgpeth, 907 F.3d 1212, 1217 (9th Cir. 2018) (holding admission of expert evidence that was not contrary to, or an unreasonable application of, Supreme Court precedent could not violate petitioner‘s due process rights); Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009) (noting there has been no clear ruling that the “admission of irrelevant or overtly
G. Ineffective Assistance of Counsel – Trial Evidence
Petitioner raises additional ineffective assistance of counsel claims based on evidence his counsel did or did not present at trial. Claim Ten9 challenges trial counsel‘s failure to put on evidence to rebut the prosecution‘s assertion that the September 20, 1989 letter motivated him to commit the crimes. (Doc. 1-3 at 280-82). Claim Eleven alleges trial counsel improperly provided the pretrial competency reports to defense experts, “thereby making admissible the damaging conclusions in the reports that petitioner was malingering in the competency evaluation.” (Id. at 292). Finally, Claim Twelve challenges trial counsel‘s failure to call a forensic expert to rebut the prosecution‘s evidence concerning the injuries to Mauricio. (Id. at 308-09). The California Supreme Court summarily rejected Petitioner‘s claims in his state habeas petition. (See Doc. 33-41).
1. Background
At trial, the prosecution offered into evidence a September 20, 1989 letter to Petitioner from the Madera County Justice Court informing him a criminal complaint had been filed against him. (Doc. No. 28-13 at 74). A copy of the envelope the letter allegedly came in was also admitted as evidence. (Id. at 75). The postmark on the envelope is visible but illegible in the record. (See id.; see Doc. 1-1 at 79). A former Madera Justice Court clerk testified that she could not tell for sure the day that she sent the letter out and could only assume that it went out the same day she wrote it—September 20, 1989. (Doc. 29-12 at 135). Teresa Martinez identified the September 20 letter as being inside the envelope Petitioner handed to her when he came to her home and instructed her to tell Martha “she better stay inside the house” on September 22, 1989. (Doc. 29-11 at 149-51).
The prosecution called Dr. Jerry Nelson, the pathologist who performed the autopsy on the victims, to testify at trial. (Doc. 29-12 at 77-79). Dr. Nelson opined that based on the bullet wounds to Mauricio, he would have been “either crouched or bent forward at the waist” when he
The defense called three experts at trial—Dr. Frank Powell, Dr. Christensen, and Dr. Bradley Schuyler—to testify regarding Petitioner‘s intellectual disability. (See Doc. 29-13 at 29). During cross-examination of Dr. Powell, the prosecution asked him about the pretrial reports finding that Petitioner was malingering. (Doc. 29-12 at 267). Dr. Powell admitted that based on the pretrial reports, there was a possibility that Petitioner was malingering. (Id. at 281-82). During direct examination of Dr. Christensen, defense counsel questioned her about the malingering conclusion in the pretrial reports, eliciting testimony that the reports were written by psychiatrists who performed no testing. (Doc. 29-13 at 97). The prosecution questioned Dr. Christensen about differences in her report and the pretrial reports, specifically with regards to whether Petitioner experienced hallucinations. (Id. at 107). However, throughout her testimony, Dr. Christensen maintained that Petitioner was not malingering. (See generally id. at 107-27). Dr. Schuyler testified that there was some concern expressed to him regarding malingering but, based on the testing performed, he did not believe Petitioner was malingering on the tests administered. (Id. at 213-14).
2. Law and Analysis
These claims are analyzed under the Strickland standard such that Petitioner must show both that counsel‘s performance was deficient and that he was prejudiced by such deficient performance. Rogers, 25 F.4th at 1181. However, Petitioner cannot make either showing.
First, Petitioner cannot establish that trial counsel was deficient. As to the letter, Petitioner argues trial counsel failed to recognize and elicit testimony and evidence that the
Petitioner has also failed to show deficient performance concerning the failure to call a forensic expert. Petitioner fails to identify any evidence to support that counsel declined or neglected to consult with such an expert and that the decision not to call an expert at trial was anything but a strategic decision. This “lack of evidence is fatal to [Petitioner‘s] claim.” Atkins v. Bean, 122 F.4th 760, 773-74 (9th Cir. 2024) (lack of evidence as to “what avenues of investigation counsel followed, how much investigation was performed, or what information was uncovered” was insufficient to overcome presumption that counsel‘s conduct fell within the wide range of reasonable assistance).
Petitioner‘s challenge to trial counsel providing the pretrial competency reports to the trial experts also fails. The Ninth Circuit has “repeatedly found trial counsel ineffective for failing to adequately prepare experts or provide them with sufficient ‘informational foundations.‘” Rogers, 25 F.4th at 1185. Thus, contrary to Petitioner‘s argument, counsel actually may have been ineffective had they failed to provide the pretrial reports to the experts. Id. Further, because the prosecution had access to the pretrial reports, trial counsel could have reasonably anticipated that the prosecution would respond to the intellectual disability evidence by arguing that Petitioner was malingering, and counsel could have chosen to present the reports to the experts in anticipation of this argument. These strategic decisions cannot be said to amount to deficient
Even if counsel‘s performance was deficient as to any of these claims, Petitioner cannot show prejudice. Regarding the letter, such was relevant to support the witness-killing special circumstance and separate dissuading a witness count, which were both overturned by the California Supreme Court. (Doc. 30-14 at 66). Petitioner does not present any argument as to how evidence that the murders were not motivated by the letter, but rather that he was angry for some other reason, would result in a finding that he did not commit the murders. Concerning the expert testimony, even ignoring any discussion of malingering based on the pretrial reports, the prosecution elicited testimony concerning the inconsistent results amongst the defense experts, including the wide range of IQ scores. Thus, the prosecution had already challenged the reliability of the experts’ opinions. As to the failure to call a forensic expert witness, defense counsel cross-examined Dr. Nelson in such a way to cast doubt on his conclusions without separate expert testimony. (See Doc. 29-12 at 93-99). Considering all the evidence that was actually presented at trial with the evidence Petitioner asserts should have been presented, there was not a reasonable likelihood that the result of the proceedings would have been different.
Because Petitioner cannot show that his counsel rendered deficient performance or that he was prejudiced by counsel‘s actions at trial, the state court‘s rejection of Petitioner‘s ineffective assistance of counsel claims was not contrary to, or an unreasonable application of, clearly established federal law, nor was it based on an unreasonable determination of the facts. The undersigned recommends that Claims Ten, Eleven, and Twelve be denied.
H. Juror Misconduct
1. Background
In Claim Fourteen, Petitioner alleges that jurors improperly discussed his failure to testify at the guilt phase of trial. (ECF No. 1-3 at 322). Petitioner raised this claim in his state habeas petition and presented declarations from two jurors in support.
In one declaration, the jury foreperson indicates that “[d]uring the jury deliberations—it may have been during the guilt phase or the penalty phase or both—some of the jurors discussed
During the penalty phase deliberations, we discussed the fact that Anthony did not testify at either the guilt or penalty phase. I recall the judge‘s instruction that we could use sympathy toward the defendant in making our decision. But because he didn‘t testify, there was no reason to feel sympathy for him. ... The evidence that was presented at the trial did not give me a reason to feel sympathy for him, which I might have if he had testified.
(Id. at 130-31). The California Supreme Court summarily denied Petitioner‘s claim.
2. Law and Analysis
In determining whether juror misconduct is grounds for habeas relief, “[t]he test is whether or not the misconduct has prejudiced the defendant to the extent that he has not received a fair trial.” Anderson v. Calderon, 232 F.3d 1053, 1098 (9th Cir. 2000). Petitioner‘s claim is similar to one presented in Raley v. Ylst, 470 F.3d 792, 803 (9th Cir. 2006). In Raley, the petitioner argued his sentence should be overturned because the jury “considered constitutionally forbidden topics,” including his failure to testify. Id. at 803. The petitioner relied on deposition testimony from two jurors. Id. The Ninth Circuit concluded the petitioner‘s failure to testify was not extrinsic evidence, explaining that “[a]lthough the jury‘s discussion of this issue clearly violated the trial court‘s instructions, what happened (or did not happen) in the courtroom was part of the trial, not extrinsic to it. We may not inquire into a jury‘s deliberations concerning the evidence at trial.” Id. Thus, the Ninth Circuit affirmed the lower court‘s denial of habeas relief on petitioner‘s juror misconduct claim. Id. at 795.
Petitioner fails to cite any Supreme Court precedent indicating that (1) the Court may consider the juror‘s declarations concerning their deliberations and (2) he is entitled to relief based on the alleged misconduct. In light of Raley and in the absence of such case law, Petitioner has not shown that there was no reasonable basis for the state court to deny relief. Harrington, 562 U.S. at 98-00. Accordingly, it is recommended that Claim Fourteen be denied.
I. Cumulative Error
In Claims Nine and Eighteen, Petitioner raises claims of cumulative error. (Doc. 1-3 at 275-279, 351-52).
“The cumulative effect of multiple errors can violate due process even where no single
Having concluded Petitioner‘s claims all lack merit, there are no underlying errors to support a finding of cumulative error. Williams v. Filson, 908 F.3d 546, 570 (9th Cir. 2018) (a court “cannot consider the cumulative effect of non-errors“) (emphasis in original). Nor does the record support that Petitioner‘s trial and amended sentence are fundamentally unfair. Accordingly, Claims Nine and Eighteen are without merit and should be denied.
IV. CERTIFICATE OF APPEALABILITY
“[A] state prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court‘s denial of his application.” Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). Rule 11 of the Rules Governing § 2254 Cases requires a court to “issue or deny a certificate of appealability when it enters a final order adverse to the applicant.” A certificate of appealability will issue “only if the applicant has made a substantial showing of the denial of a constitutional right.”
Because Petitioner has not made a substantial showing of the denial of a constitutional right, the undersigned recommends that the court decline to issue a certificate of appealability.
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For the reasons set forth above, it is RECOMMENDED:
- Petitioner be DENIED all relief on his Petition for Writ of Habeas Corpus (Doc. 1); and
- Petitioner be denied a certificate of appealability.
These findings and recommendations are submitted to the district judge assigned to this action, pursuant to
IT IS SO ORDERED.
Dated: February 27, 2025
UNITED STATES MAGISTRATE JUDGE