*1 and cost permitting from the harassment from separate appeals of succession rulings litigation various to which a rise, entry
may give from its initiation to Cunningham v. Hamilton
judgment.” 198, 203-04, 119 S.Ct.
County, 527 U.S. (1999).
1915, 144 Absent a L.Ed.2d intent, the kind
legislative declaration or policy underlying considerations
qualified immunity jeopardy and double
exceptions, expand we should decline to encompass
the collateral order doctrine to interlocutory appeal pretrial
an from a rul-
ing application in the statute of GARA’s In the event of an errone-
repose defense. aviation manufacturer ruling, general
ous in an from a rights appeal
can vindicate its judgment. Accordingly,
final I would dis- Helicopter’s appeal
miss Bell for want of
jurisdiction. KARIS, Leslie Petitioner-
James
Appellee,
v. CALDERON, Warden,
Arthur
Respondent-Appellant. Karis,
James Leslie Petitioner-
Appellant, Calderon, Warden,
Arthur
Respondent-Appellee. 98-99025,
Nos. 98-99026. Appeals,
United States Court of
Ninth Circuit.
Argued and Submitted Dec. 1999.
Filed March *4 Hile, Sacramento, CA,
Norman C. petitioner. *5 O’Connor, Deputy Attorney Paul E. General, Sacramento, CA, respon- for the dent. HUG,
Before BROWNING KLEINFELD, Judges. Circuit HUG; Judge Partial Opinion by by Judge and Partial Dissent Concurrence KLEINFELD HUG, Judge: Circuit Pris- The of the California State Warden on, Quentin, appeals the district San granting part in the 28 court’s order corpus petition § 2254 U.S.C. habeas Karis, in who was convicted James circum- degree special first murder with stances, murder, attempted kidnaping, and granted peti- rape. The district court trial penalty phase of the tion as to investigate failure to based on counsel’s abuse and evidence of child cross-appeals the family violence. Karis petition. of the tion to the truck driver who remained near denial of the remainder district court proper- highway guide emergency person- conclude that the to We regard thereafter, claims with ly Shortly denied Karis’ ex- paramedic nel. agree further conviction of murder. We P amined Ms. and determined she provid- court that counsel with district was dead. The cause of death was one of constitutionally ineffective assis- ed Karis three bullet wounds and fracture Accordingly, penalty phase. tance at the through the base of her skull.
we AFFIRM. truck driver testified Ms. V a man with long described her assailant as FACTS green According dark hair and a car. produced The evidence at the state court Bar, an officer at Chili Ms. V described presented following trial facts. On Mexican, her as “a male assailant 5'8" 8, 1981, P July taking Ms. and Ms. V were 5'10", build, heavy with a moustache and at during midmorning a brief walk their one-day-old least a beard.” She also told Placerville, jobs break from their Cali- him “ratty that her assailant drove a old a.m., approximately fornia. At 10:30 car, color, big green two-door.” The they walking overpass, were under an accompanied officer who her in the ambu- gunpoint man ordered women hospital lance from Chili Bar to the local They enter his car. entered the back seat testified that she described her assailant and the man drove some distance out of dark, hair, having shoulder-length “as me- town, road, car, stopped drove off the moustache, eight dium-dark five foot to ten and ordered the women to walk down a tall, T-shirt, wearing inches a white blue path They dirt to a creek bed. followed jeans, possibly of Mexican descent.” the creek bed to an area where the man The officer who interviewed Ms. V the ordered the women to disrobe. *6 hospital emergency room testified that she gagged Ms. P was and her hands tied gave description a similar of her assailant raped. and Ms. was The man then V and his car. walking ordered the women to continue days Ms. V testified that one or two they down the creek bed. When reached a shooting police after the she told a detec- hole, large the man ordered women both tive that her assailant a taller “was little get reply plea into the hole. In to Ms. V’s was, ten, than I around five and that he killed, that she not be the man stated that hair, length maybe had shoulder a littlе bit he had to kill them that he would not be so hair, and longer, that was dark black away killed. The women turned from the hair, curly wavy, and it was or that man and Ms. heard five shots. She felt V had a moustache that was like a Fu Man- a numbness in her neck after the second style, chu and he hadn’t shaved for a cou- impact shot and felt the of a second bullet ple days.” She also testified that on in her neck with the fourth shot. She that same occasion she stated that she throwing the man feigned death and heard nationality, didn’t know his but it could be rocks on her and Ms. P. Mexican, Indian or Italian —that he had leave, him hearing After Ms. V waited dark skin and dark hair. way making several minutes before her Analysis of a stain on Ms. V’sunderwear flagged out to the road where she down a presence indicated the of seminal fluid. truck flagged driver who then down a car phosphoglu- The stain also tested for highway on the to take Ms. V to Chili Bar (PGM) enzyme type eomutase and for help where the sheriff and medical were trial, type. expert summoned. Ms. V described Ms. P’s loca- blood At an called a Dana that he had to take her home and that PGM was testified prosecution in body found fluids marker had to take Karis with them in genetic they type of the seminal enzyme PGM the trunk of the car because Karis was The same as Karis’. fluid was the same dealing they in cocaine. After left the was a non- that Karis expert also testified trunk, in the Kar- house with Karis hidden so, type would his AB blood secretor and joined passenger Dana and Kevin fluids such as body in other up not show of the car. Dana testified compartment only Ms. and that V’s semen or saliva a that Karis had a moustache and little bit stain. This found type blood They at that time. drove to beard 4% of the further testified that expert grandmother’s they home where Dana’s with Karis’ were non-secretors population morning, July The next spent night. the ex- cross-examination type. PGM On 9, Dana that he promised Kevin would approximately acknowledge did pert work but later told her that he drive her to population in the persons out of four one had to leave. Ten could not because Karis the source of the seminal could have been later, left. Dana’s minutes the two men husband, however, was fluid. Ms. V’s described the man who had grandmother a source of the fluid. ruled out as fairly long stayed having at her home as the car initially described Ms. V had and dark hair. She identified moustache old, as an had been abducted which she photograph of Karis. car American two-door large green trial, car testified that the make. At she day, July Around noon on car, older, two door which large, was an Peggy arrived at the home of friends Steu- green with dark light was two-tone and in Rancho Cordova. Jay Raugust ben and top. Detective South- vinyl and a interior quiet, testified that Karis was Steuben also told July that on Ms. V ern testified withdrawn, and clean shaven. Karis asked trial, At objects in the car. officers about days stay couple with them a if he could a black'cool that she had seen she testified Karis left around and Steuben refused. one a rectangular pillows, and two cushion evening. also testified 7:30 that Steuben color. bright other a dark color visited Rancho Cor- that Karis earlier had car impounded Karis’ July officers On During that visit July dova from the back pillows removed three *7 gun keeping Karis talked about she and 10, the July Ms. V was shown seat. On Karis told her “[t]hat for self-defense. they looked like the pillows and stated been, in prison, had because of where he in the car. ones she had seen that, go he would never want to you know Marden testified neighbor David to again and it was self-defense back there that, that was determined on the afternoon know, any- you to eliminate not leave a— 1981, driving up Karis July he saw to be him send back there.” body that could he had ever much faster than to the house commented During the discussion Steuben evening the him drive before. On seen horrible particularly be a would Kevin Jones and July Karis’ brother and Karis re- rape kill a victim thing to Skelton, drove to girlfriend, Dana Kevin’s any to leaving witness sponded “[t]hat he— with his moth- the house that Karis shared any he had committed testify, that —that Dana testified that after er and Kevin. anybody or else had commit- certain crime deputy to a sheriff stopped speak Kevin to sending crime would be any ted certain driveway, of the he parked at the foot it would be neces- prison, him to and back his spoke the house and to up drove sary a witness.” car told to not leave He returned to the and mother. trial, evening, driving away suffered a later that Karis hid-
Prior to Kevin Jones that he was mental- By stipulation patrol stroke. trunk of the car den the because incompetent testify, ly physically property on the which Karis assumed was portions preliminary hearing testi- of his marijuana he was culti- there because of jury. Parts of mony were read vating. significantly differed Kevin’s Karis claimed that he returned home on testimony of Karis and Dana
from trial July 9 and then decided to leave and visit that on the morn- Skelton. Kevin testified friends until he could find out what some murder, 8, 1981, day the of the ing July happening. Kevin drove Karis tо the he, their mother went to Placer- Karis and bus station and from there Karis walked to Market, Lucky a check at the ville to cash on-ramp Highway an 50 and hitched a post buy the office to and then went to they ride to Steuben’s house. When Kevin in- money order. Kevin stated to their home between 9:30 and him that police looking drove back formed the were that he morning 10:00 that and Karis moustache, for him he shaved his trimmed day except remained at home the entire sideburns, spent cut hair and his going mail and out for a checking days sleeping along next several the Amer- that Karis had beer. Kevin also stated ican River. shaved his moustache off a week before. 15, 1981, July kidnaped On two spent night claimed to have Kevin women and the son of one five-month-old Skelton,
July 8 with Dana arrived home County. of them Sonoma The women a.m., morning the next around 8:00 playing park had been tennis at a Fairfax around 9:00 driven Karis to the bus station van, they and when returned to their a.m. point ordered them inside at knife Kevin was interviewed several times be- van forced owner of the to drive north- fore trial and testified that Kevin officers ward. The women testified that he told contradictory made statements. On the murderer, them that he was a wanted for 9,1981, night July he an officer that told nothing murder and had to lose. The own- July a.m. when he woke at 10:00 on er of the van testified that she heard Karis murder, day gone. of the the car was He tell other woman to remove her clothes also told officers that Karis had a mous- but when the van owner that she said July tache shaved morning but safely could not drive if nervous and asked following morning telling it off the Kevin seat, Karis to return to the front he did so. anyone to tell who asked that he had She further testified he told her that shaved it off a week earlier. he hurt if they cooperated, would not them 8, 1981, July Karis testified that on meaning that he would not break a.m., shaved, arose at 7:30 and drove alone them, *8 Ml rape they bones or “but could to Plaeerville where he cashed his unem- live with.” The other woman in the van ployment supermarket check at the also testified about this incident. The van purchased money a order which he mailed attempting escape owner testified about have to his landlord. He claimed to re- stopped from the van when Karis to make turned home 10:15 a.m. where he re- station, phone a call at a service where she p.m. mained until 1:30 when he and Kevin managed to attract a gas station attend- Georgetown they drove to where Springs her grabbed ant’s attention before Karis drank beer and home around 3:30 returned floor, hair, p.m. flung in her to the and told her he Karis testified that Kevin left the family kill p.m. going car at about 6:30 and returned was her.
1125 and, gas Karis fled from the station to a unexhausted claims after some discov- park way ery, home where he forced his mobile amended it to add further claims. a home. The mobile home into mobile 4, 1990, September On with Karis and occupant pressed testified that Karis a parties counsel for both present, the court knife to her stomach and demanded her hearing held a to determine whether there It keys. car was there that Karis was were claims not identified in the apprehended. month, amended petition. Later that the 15, 1982, July a County parties agreed On Sacramento upon identity the of all (a) jury the convicted Karis of: first de- unexhausted claims and prоceedings those P, gree special murder of Ms. with circum- stayed pending were exhaustion of state stances of murder in the commission of remedies. Karis filed a second state habe- in kidnaping flight corpus petition July the immediate from as in 1991 and the (b) V, rape, attempted the of Ms. Supreme murder California Court ordered infor- (c) V, kidnaping the of Ms. P and Ms. and mal briefing. argued The State that Karis (d) rape the of Ms. V. He was found to had failed to explain delay raising in . in personally used firearm the com- these claims. inten- mission of each offense and to have an petition Karis filed amended which tionally great bodily injury inflicted in the included a brief explanation pro- of the of the murder and attempted commission in the ceedings district court and an addi- kidnaping offenses. tional claim not July contained in the peti- trial, Following penalty jury re- tion. explanation, Without the California September Supreme turned verdict of death. On Court treated peti- this amended 1982, 17, imposed judg- the trial court tion aas new one and the State did not file opposition ment of death sentenced Karis to an an petition. the amended In 1991, aggregate years term of 41 for the other nine-paragraph October in a minute order, allegations. offenses and enhancement Supreme California Court de- July petition. nied the The court denied 1986, In appeal Karis filed a direct from petition the amended in a in two-line order single petition the conviction and a issue February 1992. for a writ of corpus, challenging habeas 1992, trial counsel’s attempt failure to to exclude In March after Karis informed the of Karis’ brother and of a district court that he had exhausted his Kаris, remedies, officer. In police People reopened 46 state the court 612, 659, Cal.Rptr. peti- Cal.Sd 250 758 P.2d case. Karis filed a second amended (1988), denied, 3, cert. 490 tion the final April This is (1989), petition L.Ed.2d this action. an holding evidentiary hearing, without The district affirmed the recom- e.ourt Supreme California Court affirmed Magistrate mendation of the Judge to judgment and petition. denied the deny the proce- State’s motion to dismiss appellate durally Magistrate counsel withdrew from defaulted claims. The Supreme Judge granted part the case after the United an States Karis’ motion for petition evidentiary hearing. hearing Court denied a for a writ of certio- That com- In application February Magis- rari. Karis filed an menced on 1995. The appointment in federal Judge through dis- trate took evidence court *9 and, appointed May February trict court. Counsel was of the parties’ end with 26, 1990, consent, year of that and on March received in the other petition containing depositions. filed a a number of form of The submit- parties 1126 already cause been issued. probable the merits of all claims has
ted final briefs on
1997,
29,
McDaniel,
473,
May
Magistrate
and on
v.
529
482-
See Slack
and
Judge
Findings
(2000).
Recommen-
1595,
issued
83, 120
1127 taking time of the trial or in a Even either at the Steuben’s most recent true, v. proceeding. collateral See Hendricks they statements as have minimal if (9th 1099, 974 F.2d 1103 Cir. Vasquez, any effect on the case as she did not recant 1992). testimony, merely put her rather her com- ments of the slightly conversation Here, correctly the district court different Additionally, context. as de- unchallenged that substantial evi found above, scribed there was sufficient evi- agree that even guilt dence of exists. We dence without Steuben’s declaration to alleges proven, if the facts Karis are identify Karis as the killer and to show not be to relief on his would still entitled premeditation. A surviving gave victim and, thus, guilt phase claims the district numerous consistent descriptions of Karis deny court did not abuse its discretion positive as well as a identification himof ing evidentiary hearing Karis an for these pillows and of found in his car that she prece claims. See id. Karis relies on our recognized from the car in which she was case, capital peti that in a dent habeas abducted. The evidence showed that he whо asserts a colorable claim to tioner gunpoint, forced the victims into his car at relief, given and who has never been location, one, raped drove to a remote a factual record on opportunity develop claim, gunpoint then walked them at to a evidentiary large is entitled to an court. hole heating Siripongs federal See v. where he forced them to kneel while (9th Calderon, 35 F.3d 1310 Cir. he shot them. 1994). Notwithstanding language, assuming Even allegations Karis’ to be assuming Karis’ claim fails because even true, precluded we are from granting Kar- true, allegations they to be do not request is’ for relief on the basis of the Hendricks, him entitle to habeas relief. mere presence prosecutorial misconduct 974 F.2d without concomitant prejudice. Cardwell, Thomas v. 626 F.2d
A. Prosecutorial Misconduct
(9th Cir.1980).
if
Even Karis could estab
prosecutor
Karis contends that the
lish that
testimony
Steuben’s
at trial was
by preventing
committed misconduct
de manipulated, to be entitled to relief on that
interviewing Peggy
fense counsel from
ground he would also need to show a “rea
by manipulating
Steuben and
her testimo
testimony
sonable likelihood that the false
4, 1981,
ny.
July
testified that on
Steuben
judgment
could have affected the
of the
she had
conversation with Karis and he
jury.”
Young, 17
United States v.
F.3d
anyone
told her that he would eliminate
(9th Cir.1994)
(quoting
United
who could send him back to prison. Steu
97, 103,
Agurs,
States
clarify
ben now seeks to
of the
context
(1976)).
agree
dated Steuben
(1)
Id.3
outcome.”
her that
Karis
by falsely telling
ny
Aryan Brotherhood
of the
a member
any alleged
whether
We need not decide
kill
at Karis’
her
would
whose associates
occur, be
misconduct did
prosecutorial
(2)
influence
orders;
that he would
allegations are
assuming
cause even
Karis’
custody
child
battle
favorably
pending
her
true,
is not entitled to relief based
now
willing
testify.
to
Steuben
if she was
these claims. As described above
her not to talk to
found,
that Herman told
asserts
sub
the district court
there was
as
testified that Steu-
implicating
the defense. Herman
Karis at the
stantial evidence
Aryan
allegations
prosecu-
him
was an
Brother-
guilt phase.
ben told
Karis’
told
and that when Steuben
misconduct
neither structur
hood member
torial
especially
a
talk to Karis’
al error nor
“deliberate
him
not want to
she did
type,
error of the trial
or one
egregious
did not
Herman told her she
attorney,
pattern
prosecu-
with a
is combined
if
not
anyone
talk with
she did
have to
might
which
so infect
torial misconduсt”
want to.
war
proceeding
of the
as to
integrity
that Her
alleges
relief,
Karis further
if it
grant
rant the
of habeas
even
that he had a
jury’s
failure to disclose
substantially
man’s
not
influence the
did
Steuben,
Abrahamson,
with
v.
507
number of interviews
verdict. See Brecht
1710,
619,
9,
the influ
n.
113
123
felt that
was under
638
S.Ct.
Steuben
(1993).4
L.Ed.2d 353
drugs during some of the inter
ence of
story changed fre
views and that her
Thus, it is clear that Karis is not entitled
constituted
quently among interviews
alleged
habeas relief based on this
error
to
un
prevail
To
prosecutorial misconduct.
he can establish that it resulted
unless
withheld
government
der a claim that the
637,
Id. at
113
prejudice.”
“actual
S.Ct.
evidence, Karis must establish
exculpatory
alleged
1710. Karis’
errors warrant
such evidence withheld
if,
only
light
of the
grant of habeas relief
if
is
Evidence is material
there
material.
whole,
alleged
error “had
record as a
that, had the
probability
“‘a reasonable
injurious
or influ-
substantial and
effect
defense, the
disclosed to the
evidence been
determining
jury’s
verdict.”
ence in
have been
proceeding
result of the
would
638,
1710; Pritchett v.
Id. at
113 S.Ct.
Arave,
(6th Cir.1997)
v.
240 F.3d Pitcher,
959,
Paradis
different.’”
117 F.3d
964
(9th Cir.2001)
(quoting
subject
United
harm-
1176
misconduct
(prosecutorial
667, 682,
error);
105
41
Bagley,
Bentley
Scully,
473 U.S.
v.
F.3d
States
less
(1985)).
(2d Cir.1994)
A
harm-
(applying
L.Ed.2d 481
Brecht
87
822
prosecutorial
claim
probability
less error test
probability” is a
“reasonable
analysis
required
was con-
material
where no such
In Paradis we
that evidence is
held
review,
by
key
impeach a
ducted in state court
is foreclosed
if it could
been used to
Cambra,
F.3d
prosecution
sufficiently to undermine
in Bains v.
witness
our decision
Bains,
Cir.2000).
(9th
panel
Id. at 1179. As
In
confidence in the verdict.
below,
ap-
does
standard
discussed
Steuben’s
this Court held that the Brecht
cases, regardless
§
even exclud-
plies
not meet this standard because
all
of the
ing
testimony altogether,
sufficient evi-
type
her
review conducted
of harmless error
reject
in the
dence remained to allow confidence
We
Karis’
the state courts.
therefore
guilty
Chapman analysis.
perform
verdict.
invitation to
Moreover,
court found these al-
the district
beyond
leged
harmless
a reasonable
argument
Chapman
errors
4. Karis’
review
Chapman.
under
beyond
doubt”
doubt
error "harmless
a reasonable
misconduct).
that,
especially egregious”
We think it clear
even
or so “combined with
true, he cannot
taking
allegations
pattern
prosecutorial
misconduct” as
*12
required showing.
make this
to “infect the
integrity
proceed-
Brecht,
ing[s].”
507
at
n.
638
113
Improper
B.
Presentation
of Testimo-
determination,
In making
5.Ct. 1710.
this
ny
we must consider whether a combination
alleges that
if
Karis
Steuben
of misconduct and error so infected the
truthfully,
testimony
her
had testified
entire proceeding
destroy
as to
fair-
its
Marshall,
would have been excluded as irrelevant
ness. Hardnett v.
25 F.3d
(9th Cir.1994).
his statements to Steuben did not
above,
because
879
As
discussed
which he
tried.
refer to the crime for
light of the substantial evidence even with-
Supreme Court concluded
The California
out this disputed testimony of identifica-
testimony
that
was admissible as
Steuben’s
premeditation
tion and
Karis does not
People
v.
evidence of Karis’ state mind.
and, thus,
such
case
we cannot
Karis,
612, 686-37,
Cal.Rptr.
Cal.3d
grant
requested
petition
habeas
on this
(1988).
659,
that absent C. Juror Misconduct testimony gen Steuben’s that Karis made eral statements would not have satisfied that, alleges Karis sometime after the exception hearsay state-of-mind to the Loftus, testimony оf Dr. his identification allegedly that this rule. He further claims juror expert, asked a librarian at the testimony improper presentation public library any whether it carried books jury due even if process.5 Again, violated juror Dr. authored Loftus. The later truth prose we assume the of this claim of reported jurors library to other that the misconduct, cutorial Karis’ failure to estab did not have such books. district prejudice precludes granting lish us from court found that this conduct occurred dur assuming him relief on this basis. Even penalty ing phase. Based on the evi occur, alleged misconduct did such er court, presented dence to the district we ror under the circumstances here is harm finding clearly conclude that this was not and, thus, less cannot warrant habeas re agree erroneous. Because we with the lief. Id. district court that Karis is entitled habe- relief the penalty phase as for based on
Finally, argues that he constitutionally ineffective assistance of alleged egregious pattern has such an counsel, we do not address the issue of prosecutorial it be misconduct that cannot juror potential prejudice In this misconduct deemed harmless error. the “unusual might sentencing.6 case” such be error “deliberate had Shimoda, argument Kealohapauole 5. Karis’ is couched in terms of 800 F.2d here claim, i.e., (9th Cir.1986). prosecutorial misconduct that Karis fails to meet this standard. but for the misconduct this evidence would have been excluded. To the extent that Karis argues evidentiary ruling that the was incor- alleges jurors Karis also one or more process, reject rect and violated due we dictionary consulted the for the definition of claim as wеll. To obtain habeas relief on "circumstantial.” The district court found such a Karis must juror claim demonstrate the evidence insufficient to establish testimony fatally admission of this so infected regarding misconduct the word "circumstan- proceedings trial fun- rendered his "so tial” and we are not convinced that this find- damentally ing clearly Accordingly, unfair to amount to a denial of we erroneous. right process." constitutional to due decline to further address this claim. [his] “a probability probability of Counsel reasonable Assistance D. Ineffective to undermine sufficient confidence Testimony 1. Kevin Jones’ Id. outcome.” ineffective that counsel was argues court found counsel’s The district of his object to failing for admission regard to the admis conduct reasonable preliminary Kevin Jones’ half-brother testimony. Karis’ lead trial sion of Kevin’s failing move testimony, for hearing that he was aware Kev counsel stated Kevin’s regarding exclusion inconsistent statements could in’s police, and for consent- statements to *13 that jury. from the He declared kept been of these statements. ing to the introduction those statements purpose put his was to hearing, preliminary at the Kevin testified per in that jury hope before he could the trial and this a stroke before but suffered part jury the to believe at least one suade Parts read into the record. testimony was testimony Karis had ar of Kevin’s Karis’ testimony Kevin’s contradicted of —that July rived home from Placerville on preliminary hearing testimony and Kevin’s 1981, by 10 a.m.—in order to corroborate easily impeached by the testimony was In closing argument, num- Karis’ defense given he had alibi. prosecution because alibi conflicting рrior attempted support of statements. ber state by pointing out that Kevin’s first for consti To establish claim sto police ment to the corroborated Karis’ counsel, tutionally assistance of ineffective ry. deposi Defense counsel testified er show that counsel “made Karis must tion that Kevin’s first statement func that counsel not rors so serious was only the available police was corroboration guaranteed the de tioning as the ‘counsel’ of Karis’ alibi. by the Sixth Amendment.” fendant (9th Furthermore, Wood, agree we with the district v. 18 F.3d Campbell Cir.1994) (en banc) by (quoting prejudiced Strickland court that Karis was not 668, 687, 104 Washington, object 466 U.S. the counsel’s failure to evidence. (internal (1984)) quo L.Ed.2d 674 probability There is not reasonable omitted). determining In tation marks testimony exclusion of this would have reasonably the ef whether Karis received the changed proceeding. the result of entitled, to which he fective assistance Abuse Substance rep determine whether counsel’s
we must
“
objective
‘fell
an
stan
resentation
below
contends that evidence
Karis also
(quoting
Id.
dard
reasonableness.’”
of
methamphetamines immedi
of his
of
use
687-688,
Strickland,
at
104 S.Ct.
466 U.S.
crime could have ex
ately preceding the
2052).
“will
sec
doing,
In
we
neither
so
flight
subsequent
the
plained his
decisions, nor
ond-guess
apply
counsel’s
County.
argues
Karis
events
Sonoma
hind
twenty-twenty
vision
fabled
that trial counsel’s failure to
this
introduce
id.,
sight,”
but will defer to counsel’s sound
evidence rendered his assistance constitu
strategy.
trial
See id.
tionally
assuming
Even
ineffective.
unrea
Karis
show that counsel
could
acted
must also show
the de
sonably,
prejudice.
not
Karis has
shown
him.
In
performance prejudiced
ficient
that he
Karis testified
fled because
so,
doing
present
he must
“reasonable
for a
as he
parole
feared arrest
violation
that,
unpro
but for
probability
counsel’s
marijuana, a claim corrobo
cultivating
errors,
proceed
fessional
the result
testi
rated
While additional
Strick
evidence.
ing would have been different.”
land,
paranoia would
mony
drug-induced
A
of a
mony under the Strickland standard.
which,
proved, may
by
if
be considered
you
light
proved
of all other
facts in
E.
Instructional Errors
in-
deciding
question
guilt
of his
or
argues
Karis
trial
court’s
nocence.
jury
barred the
erroneously
instructions
flight
Whether or not evidence of
shows
jury
considering
parole
from
his
status as
explanation
flight by limiting
guilt
signifi-
an
for his
its
consciousness of
jury
not direct the
These instructions did
circumstances
to such
canee attached
explanation
flight.
for his
ignore
Karis’
your determination.
for
matters
are
rejected
request
did
ren
challenged
trial court
The
instructions
not
fundamentally
rea-
possible
guilt
trial
unfair
include
der Karis’
instruction
this
thus,
and,
process.
due
sons,
guilt,
did not violate
than consciousness
other
Furthermore,
Karis could
assuming
even
at trial that he
Karis testified
flight.
not,
standard,
Kar-
which he did
meet
and de-
parole
of his
status
because
fled
error fail
es
is’ claims
instructional
jury.
this to the
argued
fense counsel
that had a
violation
tablish
constitutional
error will not
Instructional
injurious influence on the
substantial and
relief
for federal habeas
support
petition
Brecht,
507 U.S. at
jury’s verdict. See
merely that
it is shown “not
unless
1710.7
erroneous,
undesirable,
or
instruction
”
condemned,’
‘universally
but that
even
F.
Error
Cumulative
the entire
the instruction “so infected
itself
error
Although
single alleged
no
violates
resulting
that the
conviction
trial
relief,
corpus
cu
may
habeas
warrant
Naughten, 414
Cupp v.
process.”
due
may deprive
of errors
mulative effect
141, 146-147,
1133
Strickland,
ry.
credibility
Under
Karis must show ated the
of the witnesses and
performance
that his counsel’s
was defi
presented
evidence
in a well reasoned
cient,
performance
his
“fell
that is whether
page opinion.
documented 103
The
objective
below an
standard of reasonable
judge
district
carefully
stated that he
re-
Strickland,
ness.”
[E]vidence
defendant’s
jury
through
information on such abuse
ground and character
is relevant be-
belief, long
report
cause of the
held
this
of Dr. Albert
society,
that defendants who commit
guilt phase
Globus. Karis’
counsel hired
criminal acts that are attributable to a Dr. Globus to evaluate Karis’ mental sta-
*18
disadvantaged background, or to emo-
tus. Dr.
moth-
Globus interviewed Karis’
problems, may
tional and mental
be less
er,
Jones,
Mrs.
who told him that Karis’
culpable than
who
defendants
have no stepfather constantly
up
beat her
and mis-
such excuse.
get
treated and beat Karis in order to
at
370, 380,
Boyde
her.
that
California,
stepfa-
v.
494 U.S.
Mrs. Jones stated
Karis’
(1990).
gave
with. fights, and Jimmy was often there dur- work, you go off and where when get ing them. I remember one time when I know you get off. even want to when Jimmy Jim threatened to take from me ... told you go to the bathroom.” Jim again, and never let me see him I and if smoking me that he ever saw me pull Jimmy, had to little crying, from cigarette, [my] he’d “knock it clear down Jim’s arms.... Once, I throat.” was so sick of his rules Jimmy continued to see his father for I anyway, that I decided to do it visits, regular every almost single week- took one of his and started to Camels end, after our Jimmy’s divorce. behav- light up right in front of him. I had cigarette not even lit the before ior strange Jim seemed after these visits grabbed it from me. He then made me just with his Dad. When he was two or whole, just prom- swallow it like he had old, years Jimmy three began to call me I gagged coughed ised. but did not curse names that he was too young oppose dare him. I always understand himself. will be- physically Jim was abusive towards me Jimmy’s lieve that daddy Jimmy trained years. I lived fear of Jim to call me those slurs. After almost throughout marriage, our and for sever- father, every visit with his Jimmy had years al after our divorce as well. He injury legs, some kind of on his —bruises threatened to kill me and I knew not he or something else “hurt” him. only could but if I would crossed him. Once, four, age Jimmy came back unpredictable He had an temper, and seeing from his father with a circle- something angered when I said shaped burn on his hand. Jim told me him, slapped he turned and me with the that it girlfriend, was caused who mad, back of his hand. When was accidentally Jimmy had burned with a Jim hit me and knocked me around the cigarette lighter. car room, throwing me from wall to wall as reported that She she remarried when if I pool were a ball on a table. years Karis was around five old and that beg She described how him she would husband, Jones, Courtney up also beat her stop beating beyond her but he was reason they caught up all the time and that were once he Jimmy started. She stated that “exhausting cycle in an of violence.” She present during almost all of these up described first time he beat her fights. further She stated: quiet when she could not their crying I filed for divorce from Jim in Octo- bed, baby: “Courtney jumped out of ber, 1953, and our divorce became final me, grabbed threw me on the floor. Then Jimmy November when me, down, he sat top pinned me then, however, years three old. Even life, hit me all over with his not out hands fists.” my Jim was for almost years two after separated, we Jim She further stated: *20 He treated Courtney Kevin. adored style of beat- particular Courtney had spoil- doting on him and thing king, he did like a him The most common ing me. by him—either of Jimmy got to But never me close him. ing hold me pinning or treat- my Courtney clothes never love. grabbing Courtney’s and me over punch son, “you him against a wall—and called like and Jimmy ed me, threw me kicked He also over. him he called often than wop” little more down, to kill me. One and threatened Jimmy If and Kevin his name.... lit into before he Courtney threat used Courtney together, playing happily were was, you were you “I’ll make wish me in, away, and Jimmy take step would times, me feel he made Lots of dead.” wall to watch against a make him sit still that I did want and afraid powerless so toys all the played with while Kevin to die. times he came home himself.... Lots father, Jimmy’s like Kevin, She testified work, and asked picked up from “insanely jealous.” Courtney was him, you today?” your whip Mama “Did I left the me when Courtney away followed wop get that little “What did and when, where, house, and and told me to today?”.... Jimmy was scared with I out. When go whom I with could of all Courtney because death of restaurant, nights at a fast-food worked and threats. beatings, whippings, car, boys in the Courtney put often for cruelty grounds alleged extreme She restaurant, parked out- drove to him in March divorcing She divorced him. me. while he watched for hours side around nine Jimmy when of 1961 Courtney’s got I sick night, One so years old. I something I to do rules that decided re- declaration Douglas Dr. Liebert’s I left make him furious. knew would family members knew veals that several and went down San the kids at home court rec- Courtney’s The district abuse. whom he of mine with cousin Jose declarations from ord contains numerous house, I to our got despised.... When yet Karis’ about this abuse her and others Kev- bedroom with Courtney was powerful none of this lawyer presented the room He out of Jimmy. in and came at sen- life-saving evidence potentially of me. living daylights out and beat the of the district court tencing. opinion room, room to dragged me from He of this evidence. identified some throwing against me me and punching tes- substantial has presented Petitioner kitchen, got to the the walls. When we emotionally and timony that James Sr. floor, up a picked he threw me on the Marie. Marlene physically abused dumped it full garbage, trash can sister-in-law, knew Mrs. there, Younger, Jones’ lay I me. all over When badly. Marie treated that James Sr. kids and your take damn yelled, “Now days after- that she cared For She also testified my get out house!” my body, young. he was She wards, all over often when petitioner I had bruises father, hardly I could walk with his eyes, visits two black noted after he was different: for a week. “seemed petitioner control, and cried a easily upset, hard go after he would further stated that She Dona reason.” apparent lot for no if told her and that she Jimmy get sister, Williams, Mrs. Jones’ testified Jimmy names or stop calling Courtney to her mother she heard from him, things worse. just made whipping beating always Marie Sr. “was James Courtney favored his how recounted She brother, Karis, James Sr.’s up.” Tom Karis: son and berated own *21 Ma- recalled that “Jim was violent with Evidence of beatings severe that Karis’ rie, eyes and I saw her with black and mother received from his stepfather, many (transcript times.” refer- bruises Jones, during the time that Karis was deleted). ences older and more inclined to have vivid recol- lection, highly would be mitiga- relevant to Mrs. Jones testified counsel did not tion potentially having as a serious effect ask her about abuse and that if asked she on a child’s attitude and treatment would have testified of the abuse at of wom- penalty hearing. Marlene en as he It Younger, grew up. should at least have aunt also stated that she would have testi presented by been the mother and others Courtney fied about Jones’ abuse of Mrs. verify consider, who could it for a jury to Jones if counsel had asked her about it. even without Dr. Globus’s elaboration on persuaded by We are not argu the State’s the effect it would have on a developing performance ment that this was constitu child. tionally sufficient under 1982 standards of testimony The before the district court practice.10 beatings was severe and treatment It imagine is difficult to what kind of could legitimately have severe effects on a standard the State conceives would allow young development child’s and attitude. rely solely testimony counsel to almost Based on the testimony abundance of that Karis was artistic and had academic the evidentiary hearing regarding this case, potential present to a mitigating abuse, the district court found that Karis’ any evidence of failing present while opportunity had the to show that such jury substantial abuse to the for con- grew up “seeing regular- his mother sideration in making life or death deter- ly violently by abused men.” We mination for Karis. The defense counsel’s agree with the district court that such portrayal of Karis as intelligent without particularly evidence is compelling mitigat- any indication of his violent and abusive ing evidence in a rape case. prosecution very childhood afforded the argument. effective prosecutor empha- The Prejudice sized the fact that “bright” Karis was found, As the district court “Peti “cunning” exactly and that he “well knew provided tioner’s trial counsel has ra no what he doing.” prosecutor was fur- justification tional for his failure to pursue ther argued lacking Karis was not “so an investigation petitioner’s history into in ability” that he was “warped being into family abuse.” There no killer,” strategic rather he had all ability, “but reason offered. The dissent changed his life into that of evil believes visiting destruction and death.” strategy testimony was to end with the However, crying mother on the stand. found, As the district court counsel could bringing early out the abuse in her exami have offered wrenching “substantial and nation not have would interfered with this evidence” of Karis’ violent and abusive strategy, likely fact it would have en childhood. This information of Karis wit- hanced it. How much more effective to nessing his father and stepfather vi- brought wrenching out the abuse she mother, ciously beat his in addition to both Karis, beating men and Karis suffered and then leave the abusing is ex- tremely probative mitigating crying evidence. mother on the stand. A reasonable 10. See attorney expected evidence of the 1982 standard in foot- counsel that in 1982 an Moreover, brief, opening mitigation note 9. in its in the form of childhood guilt phase State problems. itself cites to more consequence, and of little ny was preparation witness
investigation
hands
into his
played right
importantly,
possible.
have made this
would
make,
he intended
argument
in the final
contends
further
The dissent
quoted
court
make. The district
and did
in this case
majority
by the
result reached
opinion:
in its
portion
pertinent
483 U.S.
Burger Kemp,
precluded
*22
Karis,
impover-
an
Mr.
not as
see
[W]e
(1987).
3114, L.Ed.2d 638
107 S.Ct.
individual,
somebody who was
not
ished
strategic
a
attorney made
In that case the
talents,
of
devoid
intellec-
of
who’s
void
testify
to call witnesses to
decision not
who, by
somebody
vir-
not
capacity,
tual
be-
family background
his troubled
about
individual, so
an
being
poor
of
so
as
tue
reveal his crimi-
inevitably
it would
cause
being
into
ability
warped
in
lacking
trig-
and his hair
background
juvenile
nal
hand,
No,
Mr.
on the other
a killer.
jury
the
of which
temper, both
ger violent
ability,
but
has all of the
with
This was “at odds
knowledge.
had no
visiting evil
into that of
changed his life
peti-
strategy
portraying
the defense’s
fellow human
and death on
destruction
night of the murder
actions on the
tioner’s
abilities,
Mr. Karis’
beings....
[D]espite
influ-
strong
codefendant’s]
of[a
as a result
despite
capacity,
his intellectual
despite
Id. at
upon
ence
his will.”
talents,
to
he has turned
base
all
his
in a
distinguished
been
Burger
has
mari-
grows
He
purposes.
immoral
and
on
basis
cases in our circuit
the
number of
pleasure,
rapes
He
for
juana
profit.
choice, most
strategic
of this reasonable
apprehension.
avoid
he kills to
Silva,
F.3d at 844.
recently by
failing
investigate
in
to
error
Counsel’s
case,
the
court
In Karis’
district
informa-
highly relevant
present
the
found,
putting on
was no risk of
there
childhood,
prejudi-
tion of an abusive
wrenching abuse of
of the
evidence
probability” exists
cial. A “reasonable
range
within the
It was
and his mother.
information
would find this
jury
that a
put
not to
Dr. Globus
оf reasonable tactics
the root of
understanding
important
stand,
the
not excuse
the
but that does
on
culpabili-
and his
criminal behavior
Karis’
abuse
the evidence of
present
failure to
repeatedly stressed
ty.
prosecutor
The
deci-
When the
through other witnesses.
any testimony mitigation
the absence
trial,
made,
not to
shortly before
sion was
argument.
phase
the penalty
throughout
Globus,
inves-
thorough
the lack of
call Dr.
Karis’
investigation,
counsel
proper
With
to
attorney unprepared
tigation left Karis’
jury
the
evidence
put
have
before
could
be his
he had intended to
present what
piercing ar-
contrary
prosecution’s
to the
it,
put
As he
major mitigating evidence.
gument.
Karis,
Sr.
he intended make James
Thus, as
“heavies.”
Courtney
Jones
with the weak
noteworthy that even
It is
found,
deciding
“After
the district court
presented,
evidence that was
mitigation
Globus,
coun-
petitioner’s
Dr.
put
not
days before
for three
jury
was out
consequence
little of
sel was left with
evidence of
rendering its verdict.
If
only mitigating
mitigation.
had been
and abusive childhood
violent
artistic
petitioner’s
evidence concerned
jurors
very
that some
likely
it is
offered
limited
ability,
intelligence,
his
some
particular-
have found such evidence
would
concerning
youth.”
why
understand
in order to
ly important
violently
women. As
so
towards
he acted
prosecutor
The dissent notes
belief,
noted,
“long
there is
held
we
wit-
mitigation
of the
questions
asked no
who com-
society, that
wonder,
by this
defendants
is no
nesses. This
attributable to
mit criminal acts
are
the testimo-
doubt believed
prosecutor no
disadvantaged background or to
ty phase
emotional
of the trial as modified herein and
рroblems, may
and mental
culpable
be less
denying relief as to the remainder of the
than defendants who have no such excuse.”
claims. We remand the case to the dis-
Boyde,
122 L.Ed.2d I. Ineffective Assistance
CONCLUSION Like majority, the I am by troubled the We affirm judgment the brevity of the district of the penalty phase defense. court granting petition the as to the penal- Sometimes defense is brief because coun- 11. Because our decision entitles to a S.Ct. 2733. The selection requirement is also sentencing hearing, new we do not address by satisfied an individualized determination his other phase claims error at the penalty of on the basis of the character of the individual exception with the of his chal- constitutional and the circumstances of crime. See the id. lenge sentencing of California’s scheme. California has identified a subclass of defen- claim, regard With reject this we Karis' so, deserving by dants doing of death and argument adequate- that the scheme does not meaningful has way “narrowed in the cate- ly persons narrow the eligible of class for the gory upon capital pun- of defendants whom penalty. death The California statute satisfies may Creech, imposed.” ishment be Arave v. narrowing requirement the set forth in Zant v. 463, 476, 1534, 507 U.S. 113 S.Ct. 123 862, Stephens, 462 U.S. 103 S.Ct. 77 (1993). L.Ed.2d 188 (1983). L.Ed.2d 235 special The circum- stances apply in California to a subclass of 1. 466 80 L.Ed.2d defendants convicted murder and not are (1984). vague. unconstitutionally See id. at in this case the murder committed coun- in this case But prepared.
sel is not
contin
litigated
аnd has
ago
twenty years
prepared.
investigated
thoroughly
sel
decades-long dura
This
ually since then.
investigation
the
was
problem
The
The
cases.
penalty
of death
typical
tion
shortage
The
little evidence.
up
turned
made
test,
“counsel
whether
Strickland
Karis was
was because
mitigating evidence
not
that counsel
serious
so
errors
man.
very
bad
guaranteed
the ‘counsel’
functioning as
two
makes
central
opinion
majority
The
Amendment,”7 is
Sixth
defendant
(1)
investigate
“failure
propositions:
whether
question
not a
emphatically
family members
other
through
abuse
following
trial
during the decades
of constitutional
was error
witnesses
with
up
come
expert can
lawyer or
other
(2)
investigate
“failing magnitude,”2
helped the
might have
something new
informa
highly relevant
facts “as
view the
must
We
defense.
prejud
][
childhood
of an abusive
tion
conduct.”8
time of counsel’s
errone
are
propositions
These
icial.”3
applied
general
Court
Supreme
for no such
ous,
allows
Strickland
because
in Burger
Strickland
principles
perfor
To show “deficient
absolutes.
the result
preclude
facts that
Kemp9 to
Strickland,
petitioner
under
mance”
coun
Burger, defense
In
case at bar.
*24
the
so
made errors
counsel
“that
must show
at
evidence
mitigating
no
“offered
sel
functioning
was not
that counsel
serious
stand,11
the
on
all,”10
no witnesses
put
and
by
defendant
the
guaranteed
as ‘counsel’
bar,
evi
mitigating
at
in the case
while
Amendment,”4
scrutiny
our
the Sixth
wit
through several
presented
dence was
“highly def
must be
conduct
counsel’s
evidence
mitigating
There
nesses.
counsel’s
it “from
erential,” evaluating
Burg
in
presented
have
could
counsel
that
time.”5
at the
perspеctive
peti
er,
have
that “would
disclosed
concedes
majority opinion
The
unhappy
exceptionally
had an
tioner
significant
no other
essentially
case,
is
“there was
our
In
childhood.”12
unstable
jury”
clear,
explain
evidence
as I will
mitigating
considerably less
his
that Karis and
presented
below,
for evidence
except
could
counsel
during
lawyer
his
The
both been abused
to that effect.
had
mother
more evidence
some,
majority’s
here,
the
aware
problem in
Burger,
in
as
“was
childhood.6
In
history.”13
investigat
all,
family
of this
because counsel
not
arises
but
analysis
abuse,
here,
talked with
pre
Burger,
but was
discovered
ed and
af
mother,
she claimed
though
petitioner’s
by tactical considerations
both
cluded
were
his efforts
was over that
the trial
witnesses
ter
from
cooperation
lack
lawyer
awith
also talked
He
minimal.14
it.
presenting
from
3114,
776,
97 L.Ed.2d
U.S.
107 S.Ct.
9. 483
Op.
Maj.
at 1135.
2.
(1987).
638
3.
at 1140-41.
Id.
788,
3114.
107 S.Ct.
Mat
10.
687,
Strickland,
S.Ct. 2052.
at
104
U.S.
466
4.
791,
5. Id. S.Ct. 3114. at 107 12. Id. Majority at 1136.
6.
3114.
107 S.Ct.
U.S. at
13. 483
Strickland,
2052.
at
7.
690.,
Id.
14.
S.Ct. 2052
Id.
had
petitioner
who
befriended the
and a
possible
Most
defense witnesses
psychologist.15 The problem with
de posed
problems. Karis’s mother had lied
fense
psychologist
Burger was that he
for him
police,
twice to the
so cross exami-
petitioner’s
concluded that
“psychopatholo
nation was threatening. The
psy-
defense
would make
gy
him want to do wrong,”16 chiatrist,
Globus,
Dr.
reported to defense
just
problem
as the
with the
psy
defense
counsel that Karis was “involved” in the
chiatrist,
Globus,
Dr.
in our case was that
inmate,
murder of another
had “a very
very
he had
little
say
good
about Karis.
degrading opinion of
women,”
the value of
The Court
in Burger
concluded
that de
strong
had “a
urge to destroy.”
fense counsel’s
put
decision not to
anyone
As for thе abusive family environment—
“may
the witness stand
have been erro
the hook that the majority opines might
but
neous”
was “not unreasonable.”17 have gotten
enough
sympathy to
Though the
in Burger
Court
concluded turn the
jury
not,
his favor—it did
that defense counsel “could well have made Dr. Globus’s report, sound likely to arouse
thorough
a more
investigation,”18
deci
much jury sympathy for this womanhating
sion
interview no further witnesses was
repeat
(It
rapist and murderer.
sounds
not a constitutionally deficient judgment.19
great
like a
deal more in the evidentiary
Despite
majority’s
conclusion that
hearing testimony, composed decades after
Burger’s lawyer acted more strategically
trial,
the majority
great
cites at
Karis’s,
than
there
simply
way
no
to length).
mother,
Karis’s
though crying
Burger
avoid the force of
in this case.
time,
the whole
told Dr. Globus that Karis
did quite well in school until he
Defense counsel
started
was faced with a hard
cutting
in junior
classes
defend,
high.
case to
She and his
and a hard
defendant
natural
two,
father divorced when he was
get
whom to
At
sympathy.
penalty
*25
and he never saw his natural
again
father
trial,
phase of Karis’s
prosecution
the
es-
until he was sixteen. Karis himself told
tablished Karis’s previous rapes through
the psychiatrist
that “he now thinks she
the testimony of prior victims. He and
should
supplied
have
discipline”
more
another man had
a
raped
woman in
when he was growing up.
complaint
His
and he
prison
went to
until 1975. Out of
about
marriage
her
that
lasted for four
months,
prison three
raped
he
high
a
years
stepfather,
to his
from when he was
girl,
school
and
prison
went to
for another
nine,
only
“that the
was
time he received
years.
five
parole
While still on
that
for
any attention was when
did something
he
recent rape, he raped one of the
in
women
wrong and then he
usually
was
beaten.”
the case at bar.
taking
Instead of
the
stepfather
His
beat his mother and beat
from
imprisonments
lesson
his
that he
belt,
awith
often with the buckle
should
rapes,
not commit
he took the les-
end. Karis did
report any
not
recollection
son that he should not leave witnesses
to
psychiatrist
the
beatings by his
alive. After he captured the two
in
women
natural father of his mother or himself.
this case
raped
them,
and
one of
coldly
he
shot them both
keep
to
them
ever
case,
from
Defense
this
unlike in
testifying against him.
Burger,
case,
on a
put
as substantial as he
790-91,
15.
Id. at
16.
Id. at 791 n.
17.
feared that she protect would him. Fail- evidence.24 ing to ask her about the abuse on the stand, or bring it out from someone with Prejudice II. knowledge her,
less
than
might have de-
Strickland also requires that
peti
evidence,
nied
mitigating
or it might
tioner “affirmatively prove prejudice.”25
have avoided a worse
situation
which
“It
enough
not
for the defendant
the mother would destroy defense coun-
show that the errors had some conceivable
sel’s credibility with
jury by denying
effect on the outcome of the proceeding.”26
that it had occurred because she
wanted
Rather, Karis must show that there
awas
preserve her
with
relationship
stepfa-
that,
“reasonable probability
but for coun
ther. And he could not even count
sel’s unprofessional errors,
the result of
own client to back
up.
him
Karis told
the proceeding would have
differe
been
defense counsel he did not want defense
A reasonable probability is one
counsel to ask his mother about the beat-
nt.”27
“undermine[s] confidence” in the
ings.
majority quotes
extensively
jury’s
bar,
In the case at
all we
from what
the mother and others said
decision.28
have is a “conceivable” possibility that
years later,
in the evidentiary hearing,
says
Strickland
is not enough,
not
“rea
while
was on
death row. The evi-
probability”
sonable
such that confidence
dentiary hearing
place
took
long after thе
jury’s
decision is undermined.
mother’s relationship
stepfather
with the
may have evaporated.
had
Counsel
Maybe
sensi-
*27
jury
would
very
have felt
ble tactical reasons for
doing
not
sorry
more
for Karis had it learned about the
with the abuse when the
abuse,
case was tried
child
and maybe the mother would
Maj.
20.
Op. at 1134.
24.
Id.
362,
1495,
21. 529 U.S.
120 S.Ct.
146 L.Ed.2d
25. 466 U.S. at 693
23. Caro v. 165 F.3d 1999). Cir. 28. Id. basis of ineffec- again preclude admit- facts relief story her changed have it, her was counsel while she assistance of ted had asked tive counsel. stand, though she had denied
on the even testify. her to Or prepared
it when he it,
maybe would she have denied testimony counsel humanizing
ruined the on, crying about put
had with chorus And saving his life. brother’s
maybe jury have thought would not mother baby who did remember his America, UNITED STATES being before was would not beaten he two Plaintiff-Appellant, mitigate have traumatized as to been so jury have Maybe murder. would for a man had suf- mitigation found who REAL AT 2659 PROPERTY ROUND with for four beatings years fered a belt DRIVE, ALAMO, HILL CALIFOR jurors maybe Or some his childhood. Defendant-Appellee, NIA, “I
would said beaten with belt have I anyone,” haven’t killed and learned Fitzstephens; Young; Robert Wilson had explored as the issue Joseph Ippolito; Slipper; Keith Mi thought Dr. mother told Globus that he Thaler; Schwab, chael Mark Claim miti- disciplined enough. had not him ants-Appellees. best, gation speculative at especially is No. 00-16772. light multiple rapes of Karis’s merciless appre- and cold blooded murder avoid Appeals, United States Court hension. Ninth Circuit. case, In it any possible is to wonder 16, 2001.* Aug. Submitted only “if had whether done some- different,” thing the result would have Filed March been different. But neither that kind nor the can be
wondering, evidence that trial,
developed following in the is decades
enough prejudice. to show
III. Conclusion presented any
Karis has not evidence counsel, they if errors errors were all, it grave though were so “that lawyer had no at all the Sixth
Amendment sense.”29 Nor has he demon prove prejudice
strated from failure to Though
abuse of his mother and himself. case, case, jury in this as in could gone coun way, the other was not *28 and the
sel’s fault that
did not. The law
*
J.,
Caro,
(Kleinfeld,
panel unanimously
dis-
finds this case suitable