*1 Tawfeq Fleming, Saleh v. Thompson’s respect, trial. With I dissent (9th Cir.2008) (citing majority’s grant 551-52 Medeiros v. from the decision to Shimoda, Thompson’s Cir. habeas writ.
1989)). rejection majority’s The of the effect substantial
curative break in
time location between the unwarned
statements and video reenactment is thus
contrary to both Court Supreme and Ninth precedent.
Circuit
Because the video reenactment is admis- Seibert, under any sible Elstad and error Harvey HEISHMAN, III, Lee admitting postwarning the confession Petitioner-Appellant, Abrahamson, was harmless. See Brecht v. 619, 637-38, 507 U.S. (1993) (holding L.Ed.2d 353 that a Mi- AYERS, Robert L. for California
randa violation is reviewed for harmless Quentin, at State Prison San error). reenactment, In Thomp- the video Respondent-Appellee. only in great son confessed detail to No. 07-99016. murder, police step by the but showed step he how committed the crime. His earlier Appeals, United States Court of postwarning confession was therefore cu- Ninth Circuit. reenactment, mulative and its ad- mission, erroneous, even if had no “sub- Argued and Submitted June 2010. injurious or stantial effect or influence Sept. Filed 2010. determining jury’s verdict.” Id. at (internal 623, 113 quotation S.Ct. 1710 omitted).
marks
IV
Thompson numerous times admitted to
police girlfriend. he murdered his
The two confessions at issue in appeal this given
were proper after Miranda warn- both, In
ings. Thompson gave detailed
descriptions act, of the criminal and in one
Thompson is seen on reenacting video police
murder the scene of the
crime. issue Reviewing properly un- AEDPA,
der the state court’s decision that
these confessions were admissible was not
contrary to or an application unreasonable Supreme clearly Court’s established
holding in Elstad. Even reviewing the de
issue novo under Ninth Circuit and
Supreme Court precedent, both of these
confessions properly were admitted at *3 during penalty phase.
of counsel We affirm. Background
I. and Standard Review July Nancy Lugassy met Heishman invited to her Lugassy 1979. they met, night evening home the and that Lugassy crying neighbor ran her *4 him raped. Lugas- told that she had been sy photo array, Heishman from a identified charged him him police and arrested and CA, rape. and then Rotwein, Francisco, posted Heishman bail Geoffrey San 24, CA, Bolinas, appeared arraignment for on October (argued), and Michael Satris a municipal 1979. The court scheduled petitioner-appellant. for the preliminary examination for November Jr., Brown, Attorney G. Gener- Edmund 1979. California, Gillette, Chief al Dane Assis- of General, A. Attorney Engler,
tant Gerald 1, 1979, Lugassy Nancy On November General, Attorney Alice Senior Assistant yard, shot in her front and He- was dead Lustre, General, Deputy Attorney and B. eventually and ishman was arrested Supervising (argued), R. Pruden Glenn trial, charged with the murder. At the General, Francisco, Attorney San Deputy prosecution presented testimony the of CA, respondent-appellee. the gun- who Lugassy’s neighbors, had heard car
shots or the that had driven identified only away shooting, the the di- after but rect of Heishman’s involvement evidence in the came from two witnesses: killing Nancy Gentry. Cheryl and Both Miller they had testified that been involved kill plan Lugassy, and both SILVERMAN, BARRY Before G. only receiving complete after im- testified and D. RAYMOND C. FISHER MILAN munity. Gentry only was the who witness JR., SMITH, Judges. Circuit night placed at the scene on the Heishman murder, during day a Opinion; the more than Per Curiam Concurrence attor- Judge SILVERMAN. of cross-examination Heishman’s A. neys, public defenders William assistant OPINION Costain, Keep conducted a thor- and John Nevertheless, at the ough impeachment. PER CURIAM: guilt jury phase, conclusion of the III, Heishman, Lee a Harvey California guilty degree of first found Heishman death, prisoner appeals under sentence special murder with circumstances. a of a for writ of petition from denial phase of Heishman’s During penalty to 28 corpus pursuant U.S.C. habeas trial, focused on evidence pros- aggravation § claims of 2254. Heishman asserts history Lugassy’s murder and Heishman’s during guilt misconduct ecutorial v. Heish- People of sexual violence. phase his trial and ineffective assistance man, multiple The district held evi- Cal.Rptr. 753 1993. court Cal.3d (1988). dentiary hearings tes- and issued over 200 P.2d Five women denying of decisions sexually pages tified that had been assault- before the last Heishman, 12, 2007, June prosecution ed and the sub- of Heishman’s claims on entering judgment. Heishman mitted evidence of convictions for sexual After sub- a notice of the district court appeal, assaults of two five witnesses mitted a appealability three additional victims. Id. 650. issued certificate of for the Overall, showed that we prosecution’s claims now address. July
that from December 1969 until novo a “We review de district probation, pa- either on on deny petition court’s decision to for habe in prison role or for various sexual as- Hill, corpus,” Bailey as v. saults. Id. at 666. (9th Cir.2010), although district “[t]he attorneys presented also factual findings court’s are reviewed for in mitigation, case which “pertained error,” Schriro, Stanley clear general character and back- [Heishman’s] (9th Cir.2010). 612, 617 The decision to *5 ground.” A chaplain, Id. at 650. correc- grant deny or an indigent petition habeas employers tions officers and former testi- request expert er’s for services “will be good fied as to Heishman’s character and only appeal overturned on for an abuse of habits, work ex-girlfriends and two and his Gomez, discretion.” Stubbs v. 189 F.3d ex-wife as to their positive testified and Cir.1999). (9th 1099, 1107 similarly We relationships nonviolent with Id. at him. “the admit deny review decision to or ex 650-51. His mother he testified that was pert testimony for of discretion.” baby, an requiring Rh-factor trans- blood Reed, 900, States v. 575 F.3d United 918 fusions, and family and she other members (9th Cir.2009). The Anti-Terrorism and described discovery the (AEDPA) Penalty Effective Death Act body grandmother of his she had after apply petition does to Heishman’s for committed suicide and his resultant with- corpus, habeas which filed nearly was six drawal. at 651. Id. Heishman’s sister years before AEDPA law on April became participated testified that she had in thera- 24, Murphy, 1996. See Lindh v. 521 U.S. py sessions her with brother while he was 320, 322, 2059, 327, 117 S.Ct. 138 L.Ed.2d that, in prison and when Heishman had (1997). 481 cases, prior rape talked about his he had begun crying expressed and remorse for II. Error Guilt Phase his earlier acts. Id. counsel argues Heishman first that the dis any did not present psychiatric evidence. by finding trict court erred that false testi At the of the penalty phase, conclusion the prosecution the mony failed to correct and jury sentenced Heishman to death. Brady material prosecution the failed to
Heishman pursued appeals direct culmi- was agree disclose immaterial. We with nating lengthy in a decision the Califor- the district court and that there hold is no nia Supreme affirming the convic- Court reasonable likelihood that the false testi 712, 673, tion. Cal.Rptr. See id. at 246 mony changed jury’s 753 could have the ver P.2d peti- impact 629. He filed his federal habeas dict or the cumulative 26, tion returning testimony on June 1990. After Brady false and undisclosed ma multiple state jury’s court times to exhaust state terial would the changed have ver remedies, Brown, operative Heishman filed the dict. Jackson v. (9th Cir.2008). petition 1057, 1075-77 fourth federal in October amended
1035
while
oath. See
v.
without de-
under
United States
court assumed
The district
Cir.2009)
(9th
failed
cor-
prosecution
Lopez,
the
ciding that
obligations
under the
testimony
(distinguishing
false
between favorable evidence
rect
Illinois,
Napue
v.
U.S.
produced
Brady
outlined
that must be
under
and
(1959),
and
L.Ed.2d
material
whose
re
suppression
produce
failure to
found or assumed
either
challenged
set aside
quires
court to
discovery required
of favorable
categories
sentence).
cor
Specifically,
conviction or
373 U.S.
by Brady Maryland,
recting testimony
disclosing
or
information
(1963),
1194, 10
L.Ed.2d
S.Ct.
Gentry’s
activity
criminal
would
related to
States,
v. United
405 U.S.
Giglio
history
have been
redundant
(1972).
Specifi-
existing in 1980. Delay A. Unreasonable Investigation Trial counsel’s failure to seek He Heishman argues first that trial ishman’s state mental hospital, probation failed to begin counsel the penalty phase prison and September records before 1980 mitigation investigation early enough. presents question closer a of per deficient “The failure to timely prepare penalty- a formance. Because these records were phase mitigation case is ... error.” Allen requested not September, until counsel did (9th v. Woodford, 1001 Cir. not receive them until October—when trial 2005). Thus, “preparation for the sentenc already was beginning and perhaps too ing phase of capital a case begin should late to be useful for establishing investiga early.” Allen, Id. In we that coun leads, held tive identifying witnesses inform or sel’s performance fell below professional ing Dr. Winig’s psychological evaluation. Allen, constitutionally of sources” is inade- at 1001. We need set F.3d See Smith, delay whether this constituted v. quate. Wiggins 539 U.S. determine however, because performance, 2527, 156 deficient L.Ed.2d Strick- prejudicial. was not any (2003). error (“If it
land, U.S. at S.Ct. Here, primary ap an trial counsel’s dispose to of ineffectiveness is easier of lack of sufficient ground penalty phase investigation on proach claim so, expect will be which we often prejudice, provide to ask Heishman to a list of followed.”). The schools, course should be references, experience that and work rec- advantage obtaining of these primary and then to direct their investi girlfriends provide have been to ords sooner would develop to use witnesses to gator these however, Winig, Dr. Dr. Winig. them to “to make seem hu [Heishman] information evalu- psychological further recommended not, to the Trial jury.” man counsel did reviewing Heishman even without ation of however, compile comprehensive a social delay prejudice, the the records. Absent history performed only Heishman amount to assistance does not ineffective family limited interviews of Heishman’s counsel.1 of anticipation penalty members in of the phase. Investigate Heishman’s B. Failure to Heishman, According had trial coun-
Family History and Social comprehensive conducted a more in- sel trial Heishman contends vestigation, begun penalty phase failed in counsel to conduct reasonable earlier, they might investigation have dis- family social his vestigation into his mitigation of covered additional in 1980 re tory. Professional standards (even difficult dis- childhood investigate capital quired counsel to from the address tinct sexual we relation background, family defendant’s below). A separately declaration submit- ships potential and mental condition as Lebowitz, a psy- Dr. Leslie clinical ted evidence, in order mitigation sources in con- chologist retained present “an individualized assessment habeas proceedings, nection these appropriateness pen the death aspects describes several Woodford, F.3d alty.” Ainsworth v. background been offered Cir.2001); also 876-77 see evidence, his sick- mitigation including as Stewart, v.
Smith childhood, to- ly family’s favoritism (9th Cir.1999); Lewis, Evans *8 sister infliction (9th ward his and of emotional Cir.1988); 1 ABA Stan abuse, (2d physical including whippings and for Criminal Justice 4-4.1 dards ed.1980). by and from beatings A inflicted his father superficial investigation grandfather. According Dr. Le- rudimentary knowledge his to yielding “only bowitz, history from a narrow Heishman’s “fundamental relation- of[a defendant’s] reasons, reject duty provide we an affirmative mental 1. For similar Heishman’s has provided experts argument counsel ineffec health with all information relevant to that trial conclusions.”); Wal failing provide the formulation of their tive assistance of counsel Stewart, (9th Winig ob lace v. 1117 these records to Dr. after counsel court, however, Cir.1999). agree them. and Like the district tained We prejudi provide we that the error was not with the district court that failure to conclude Winig given Winig fur Dr. defi cial that Dr. recommended these records to constituted Schriro, Stanley seeing without the rec performance. 598 ther evaluation even cient v. Cir.2010) (“[T]rial (9th counsel ords. F.3d uniformly abusive, ships terrorizing were testifying-a truly her from heinous crime. and denigrating,” damaged, and “left him Thus, even if Heishman had offered the needy to the point desperation additional evidence of his difficult upbring- In self-loathing.” comparison to the pic- ing, he has not shown a reasonable proba- painted ture Dr. Lebowitz’s declara- bility jury that the imposed would have tion, jury very heard little of Heish- See, sentence of life parole. without e.g., — man’s troubled childhood. Belmontes, Wong -, U.S. 383, 390, (2009) S.Ct. 175 L.Ed.2d (per adequately Whether trial counsel inves- curiam) (finding prejudice no where the tigated Heishman’s background under aggravation evidence “simply was over- presents standards a close question. hand, whelming”); Henry, On the one Rhoades v. counsel conducted some Cir.2010) investigation background, (holding into Heishman’s “that presented [petitioner’s] mitigation newly proffered some evidence of his facts ... add little, troubled childhood and offered some too aggravating evi- circum- dence designed to humanize him to the stances are strong, too to make it reason- jury. hand, On the other investigation ably probable that the sentencing decision was limited. Neither Heishman nor his would have been different but for counsel’s family were interviewed extensively about performance”). Counsel’s investigation of background, and a more complete in- background thus does not es- vestigation might have revealed additional tablish a Sixth Amendment violation.2 mitigating evidence. Winig’s C. Failure to Follow Dr. Rec- Even assuming perform counsel’s ommendation for Further Evalua- ance however, was deficient respect, this tion
we conclude that there was no constitu Heishman also contends that tional error because Heishman has not counsel provided ineffective assistance of prejudice. shown Putting aside the histo counsel disregarding Dr. Winig’s rec ry of sexual abuse separately discussed ommendation to have Heishman below, evaluated mitigation additional by Dr. Berg, Paul a psychologist. We hold have been uncovered is not performance counsel’s deficient, compelling when weighed against the case but Heishman has not prejudice. shown in aggravation. compelling The aggrava tion case included eight evidence of sexual 1. Relevant Facts assaults, and jury just had convicted Heishman of a calculated, cold-blooded Trial counsel retained Dr. Winig per- murder of another rape victim to prevent form a psychological evaluation of Heish- 2. There is also no merit to Heishman’s distorting related hindsight effects of ... and to eval- contention that unreasonably counsel disre- uate the perspective conduct from counsel’s garded flags” Strickland, “red prison, pro- at the time.” 466 U.S. at bation and state hospital mental records that S.Ct. hindsight, 2052. With the benefit of *9 prompted should have them particular given to conduct a in Heishman's disclosure of investigation more 1990, extensive into his mental childhood sexual abuse in the records sure, background. health attorney possession To be an in of trial counsel in 1980 seem to duty pursue has a investigatory to sug- point leads the possibility to of such abuse. Trial See, gested by counsel, however, a e.g., defendant's records. had neither the benefit of 526-27, Wiggins, 2527; 539 U.S. at those 1990 training psy- revelations nor Stankewitz, 365 F.3d at chology, "[a] 719-20. But fair had little reason at the time attorney performance assessment of requires suspect sexually to that Heishman had been every that effort be made to eliminate the abused as a child.
1039
requested by
testing
expert
to
whether Heishman
witnesses is
man and
determine
performed,
capital
... a
On the
not
defendant has
any mental health defenses.
had
penalty phase
not received effective
trial,
assis-
day
meeting briefly
after
with
first
counsel”);
Hendricks,
Costain,
tance of
70 F.3d
Heishman, Winig reported to
Dr.
cf.
a
counsel,
(rejecting
guilt-phase
at 1037
ineffective
that Heishman was
junior defense
claim
assistance
counsel
where counsel
“give
nothing re
“evasive” and could
us
a psychiatrist’s advice to obtain
that counsel
mitigation” but recommended
followed
evaluation).
psychological
additional
We
“psychological
obtain further
evaluation.”
turn
therefore
to whether
actions
counsel’s
Winig
psycholo-
Dr.
recommended two
justified
a
can be
as
reasonable tactical
including
Berg.
Dr. Paul
gists,
decision,
argues
as the state
and the dis-
Winig’s
response
In
to Dr.
recommenda-
trict court found.
tion,
trial counsel asked
and obtained
public
authorization from the
defender’s
The district court
concluded
Berg. But
failure
Dr. Winig’s
office to retain Dr.
counsel inex-
counsel’s
to follow
ad
a
to retain him. At the evi- vice was
reasonable tactical
be
plicably failed
decision
court,
a
a
dentiary
byproduct
in the district
Cos- cause it was
hearing
reasonable
likely
Keep,
he
on the
of counsel
part
tain testified that
advised
decision
not to offer
Winig’s
any
at
superior,
psychological
penalty-
of Dr.
recommenda-
evidence
hand,
Keep,
phase
According
the other
testified
trial.
to the district
tion.
on
court,
having
justified
if counsel
in ruling
that he
not recall Costain
were
out
could
defense, they
him.
psychological
necessarily
recommendation with
a
discussed the
justified
cutting
conveyed
that had Costain
were also
off further
Keep asserted
him,
investigation
to
he would have
of such defenses.
cannot
the recommendation
We
A
Berg.
agree
retain Dr.
assessment.
decision
instructed Costain to
present
not to
mitigating
counsel
Tactical Decision ver-
2. Reasonable
strategic
trial cannot
as
be excused
a
sus Deficient Performance
supported by
decision unless it is
reason
investigations.
v. Ryan,
able
Correll
Winig’s
to
Dr.
Counsel’s failure
follow
(9th Cir.2008).
Here,
F.3d
coun
Heishman’s mental
investigate
advice
not
psychological
sel did
know what
evi
performance
condition constitutes deficient
Dr.
evaluation
Berg’s
dence
justified
it can
as a reasonable
unless
be
Hence, their decision to rule
produced.
v. Calder
tactical decision. See Hendricks
psychological
a
defense cannot have
out
(9th Cir.1995)
on, 70
F.3d
reasonable.
been
(“[W]here
is on
that his
counsel
notice
may mentally impaired,
alternatively argues
counsel’s
The state
that we
client
be
investigate
presume
mental
that trial
made a
failure
client’s
should
counsel
as
in a
mitigating
penal
condition
factor
reasonable tactical decision
to follow
ty phase hearing,
supporting
Winig’s
without a
Dr.
recommendation
because
reason,
per
longer
constitutes
can no
remember the actu-
strategic
deficient
counsel
Calderon,
formance.”);
also Bean v.
al reasons for their actions.
need not
see
We
(9th Cir.1998)
adopt
presump-
whether to
such
decide
Mullin,
tion,
(finding penalty-phase ineffective assis
Sallahdin v.
380 F.3d
cf.
(10th Cir.2004);
v.
tance of
counsel waited
Williams
counsel where
(11th
Head,
Cir.1999);
the recommendation of
months
follow
Norris,
neu
experts
two mental
for further
Fretwell
health
*10
Cir.1998),
memory
has
testing,
Keep
because “when
because
no
ropsychological
receiving Winig’s
Ermachild,
recommendation.
nosed him with
Melody
PTSD.
Presuming
Keep
that Costain told
a trained
investigator,
habeas
was able to
recommendation that
history
Heishman be evalu-
elicit Heishman’s
appears
of what
Keep
shocking
ated and that
then
a
to be
by
made
tactical
sexual
grand-
abuse
his
(since deceased)
decision not to
Dr. Winig’s
10,
follow
advice
father
conducting
Keep’s testimony
would contradict
two-hour
rather
interviews with Heishman over a
filling
1990,
than
in
gap memory,
period
contraven-
six-month
in
using techniques
ing
Supreme
similar
Court’s admonition
to those which would have been
against adopting “a post
Berg
hoc rationaliza-
used
Dr.
in
Berg
1980. Dr.
him-
tion
rely-
of counsel’s conduct” instead of
self testified about the methods he would
an
ing
description
on
“accurate
have used
their
to extract information from He-
Wiggins,
deliberations.”
ishman
man, expert another testifying on Heish- Prejudice 3. behalf, man’s concurred in opinions. those
We nonetheless conclude that He Other evidence is to contrary, how- ishman has not prejudice. shown The dis instance, ever. For Heishman had never trict court found that Heishman would not disclosed the sexual anyone prior abuse to have revealed his sexual abuse in 1990, 1980 to despite opportunities to do so. if even counsel had referred him to Dr. For example, although Heishman under- Berg. That finding is entitled to deference. went treatment psychiatrist Frederick Woodford, 825, See Silva v. 279 F.3d 835 Boyes nearly year in he did not (9th Cir.2002) (“Our review for clear error reveal grandfather’s Similarly, abuse. deferential,’ is ‘significantly in that we Heishman underwent extensive evaluation accept must the district court’s factual psychologist Kuykendall D.L. over a findings absent a ‘definite and firm convic period five-month in 1968—“a detailed ” tion that a mistake has been committed.’ analysis twenty of more than hours of (quoting Syrax, United States v. diagnostic and therapeutic work”—without Cir.2000))); see also Strick revealing Once, this information. in land, 2052; U.S. Heishman affirmatively a pro- denied—to States, Cullen v. United 405 bation officer—that he had been abused. (2d Cir.1999) (distinguishing “a factual is also not have revealed sue, hypothetical albeit a one” from the the sexual Berg loyal- abuse to Dr. “out of ultimate prejudice). issue of We find no ty to grandmother,” his beloved who was because, clear error here as we shall ex still alive but passed who had plain, the evidence question on this away by the time Heishman revealed the equivocal. alleged 1990. Dr. Lebowitz and hand,
On one presented some evidence Dr. Jackman also testified about “patterns supports the district court a conclusion of secrecy” and a “code of silence” within Berg that Dr. would have uncovered He- family. Lebowitz, the Heishman Drs. history (the Jackman, ishman’s of sexual diag- abuse and Daniel Martell state’s ex- *11 If Heishman would prejudice argument. that men are all testified Berg pert) than abuse, sexual abuse attorneys to reveal more reticent not have disclosed the Berg also tes- Drs. Jackman women. presented not have could to prisoners about the reluctance tified juror jury, to the and no abuse or PTSD abuse based on history of sexual reveal swayed by such evidence could have been sexually be abused that will fear parole. to vote for life without Heishman’s of these factors inmates. Each other fails.3 assistance claim therefore ineffective in 1980. an obstacle presented have would court that the district emphasize We Expert IV. Strickland testimony Berg Dr. from heard the hand and was therefore first Dr. Jackman hearing the district court After weight the to assess position in the best claim, concerning the ineffective assistance Berg’s Dr. opinions. accorded their be expand moved to the record to Heishman re- weakened in several testimony was testimony expert of a Strickland include was unfamil- that he he conceded spects: to retain the and for authorization of funds family’s “code of the Heishman iar with alternative, expert. In the Heishman interviewed personally he never secrecy”; supplement the record with a moved to Heishman; and, significantly, most proposed expert. declaration from the Martell, Dr. contradicted opinion was requests, court these The district denied unlikely it was Heish- testified that who testimony that on the concluding “expert sexual abuse have revealed the man would required.” of care is not We standard in 1980. that the district court did not abuse hold the equivocal nature of evi- Given that it “in concluding its discretion dence, district say cannot that we perform evaluate counsel’s position would not finding that Heishman court’s petitioner’s proffered “that ex ance” and abuse to Dr. the sexual have disclosed court in deter pert would not assist the held, clearly Having so Berg is erroneous. mining the issues before it.” reject Heishman’s necessarily must we hearsay may posits ions on inadmissible that Heishman 3. The concurrence —Heishman’s regarding We statements sexual fabricating his claims of sexual abuse. out-of-court be though point opinions we recognize possibility, to discuss both those that abuse —and court, just underlying hearsay that we need not reach issue as out both and the prevarication is possibility of experts and that have done in these habe- 801(b). contrary weight of the evidence in the § to the proceedings. Cal. Evid.Code as See expert, Even the state’s Dr. Second, record before us. himself have testi- Martell, likely acknowledged that the abuse alleged Putting abuse. Heish- fied about 21-22, occurred, Depo. and the risks, Martell see presented have man on the stand would meaningfully challenged that state has not exposed necessarily him but would not proceedings. in these conclusion People sweeping cross-examination. Ramirez, Cal.Rptr. 50 Cal.3d speculate about how Heish- We also need not (1990) (holding that the 791 P.2d would, history alleged of sexual abuse man’s scope did not extend to of cross-examination not, jury presented to the have been or would by the defendant dur- any bad acts committed revealed the abuse to in 1980 had Heishman presented ing evi- note, however, his life where defendant jury Berg. We Dr. expe- that he dence of adverse circumstances about Heishman’s sexual could have heard First, early rather than in his childhood rienced ways. trial counsel abuse in one of two character). general good It is evidence of his expert psychological presented could have plausible that trial counsel therefore at least diagnosis testimony regarding testify so, have Heishman would have chosen to If the ex- post-traumatic stress disorder. opin- the abuse. her about pert would have been able to base *12 335-38, may A court determine federal S.Ct. L.Ed.2d 931 (2003). require it expert does not assistance analysis legal required “to understand the Calderon,
by Strickland.” Bonin v. VI. Conclusion (9th Cir.1995); see also Fed. reasons, preceding For the we hold that (directing R.Evid. 1972 Comm. Note by denying the district court did not err the finder of fact courts ask whether Napue Brady, and Strickland qualified “would be to determine intelli by claims and did not abuse its discretion gently possible degree and to the best denying an expert concerning funds for particular enlightenment issue without penalty by death defense standards or de- having specialized from those under clining opinion to admit the evidence of in standing subject of the involved expert. such an dispute”). Although judges may some find AFFIRMED. see, expert testimony helpful, e.g., Sims Brown, (9th Cir.2005) 425 F.3d SILVERMAN, Judge, Circuit (upholding denial of a Strickland claim concurring: eight experts where but testified none ad norms”), “prevailing legal dressed it is only There is living one witness to the within a district court’s discretion to ex supposedly on by inflicted Heishman proposed expert testimony clude concern grandfather, petitioner Jack Sehatt — ing legal rely standard of care and to Harvey yet Lee Heishman himself. And briefs, solely on the see LaGrand v. Stew Heishman has never testified that he was art, (9th 1253, 1271 Cir.1998); 133 F.3d n. 8 Sehatt; abused he has submitted no also Woodford, see Williams v. effect; declaration to that and his counsel (9th Cir.2004) 613 n. 17 (holding that have made proffer no avowal or that He- rejection proposed of a expert Strickland testify. ishman would ever so discretion). prejudicial was not a abuse of How, then, get did this “fact” before the Because in the district court was the best mitigation court? The answer is that spe- position to determine whether it would cialists hired Heishman’s federal habe- benefit from expert testimony concerning as counsel reported succeeded in prevailing penalty death defense stan eliciting this information from him. It was dards, it did not abuse its discretion reports their of Heishman’s out-of-court declining to payment authorize for a statements to them that came before the expert Strickland excluding the ex court, any testimony first-hand from pert’s declaration. Heishman himself.
V. Uncertified Issues Rule 703 of the Federal Rules of Evi permits experts dence opinions to render We decline to issue a ap- certificate of even if hearsay long based on so as the pealability concerning compe- hearsay is of type reasonably relied on tency or cumulative error claims. Heish- by experts in that But man has not field. that rule showing made a substantial does not convert underlying a denial of a constitutional inadmissi right based hearsay ble testimony either on the likelihood that into admissible he would not —it only opinion have disclosed makes the admissible. As childhood abuse to defense we Christensen, Inc., counsel had he been asked or on cumula- said Paddock v. Dave 2253(c)(2); 1254, 1261-2 Cir.1984), § tive error. See 28 U.S.C. see “Rule Cockrell, also merely permits hearsay, Miller-El v. 537 U.S. such or other Nevertheless, if we petition fails. evidence, an ex- habeas upon which inadmissible would have that Heishman relies, explain hypothesize admitted to to be pert things proxies to the expert’s opinion, [citations testified court basis *13 them, reasoning per allow the admission of the It does not say he told omitted.] truth of establish the reports to sound: the district court opinion curiam is finding what assert.” as a did not abuse its discretion would not of fact that Heishman matter If the law sense. just This is common grand- made his disclosure about his otherwise, use an ex- party could were if trial coun- even his father back self-serving state- a conduit pert as by Dr. caused him to be examined sel had totally avoid cross-examination. ments and reason, I concur. Berg. For fact, here— happened that is what has In newly-developed his gotten has Heishman (of he the court which story before
abuse knowl- has first-hand supposedly
alone subject himself to having to
edge) without it. about
any questions blatant though as this
And it is not and there- reliable
hearsay particularly is hearsay the residual under fore admissible VUKMIROVIC, Petitioner, Predrag Evidence 807. Federal Rule of exception of hearsay from Heish- contrary, the To the only flatly contradicts experts not
man’s Attorney Jr., H. Eric HOLDER long-standing previous General, Respondent. childhood, but was his statements about court lost his state after he had developed No. 05-75936. down United was turned
appeals, Appeals, United States Court Court, inching and was Supreme States Ninth Circuit. In other to execution. and closer closer were words, hearsay statements these April 2010. Argued and Submitted very had a Heishman at a time when made 8, 2010. Sept. Filed More- prevaricate. strong incentive to over, were not made statements these setting
clinicians for the therapeutic in a treatment, im- a situation that
purposes of trust- guarantee
parts a circumstantial Rather, they were made
worthiness. lawyers own to devel-
experts hired litigation. in aid of the
op information know whether or not
I do not The grandfather. abused
had been know is Heish-
only living who does soul
man, testified nor furnished and he neither Thus, there was no admissi-
a declaration. court that before the district
ble evidence In the ever occurred. supposed premise proof,
absence of such