Jaturun Siripongs v. Arthur Calderon, Warden

adequate. We set aside the Forest Service’s implementation

determination that SIRIPONGS, Jaturun Petitioner- jeopardize the exis- Plan would not continued Appellant, species. of listed tence case to the district court We remand the CALDERON, Warden, Arthur

for remand to the Forest Service. The For- Respondent-Appellee. may reinitiate formal consultation est Service concerning with the FWS the current amend- No. 92-56498. Alternatively, the Forest Service ed Plan.

may propose an amendment to the current Appeals, United States Court Plan shall include an amend- amended Ninth Circuit. event, ASQ. any Forest ed In Service formally shall consult with the FWS concern- Argued and Submitted Oct. 1993. ing proposed the current or amended Plan July Decided 1994. provide it with all the data informa- 402.14(d), § required tion 50 C.F.R. in- As Amended on Denial of Petitions to, cluding, Interdiscipli- but not limited Rehearing Suggestions nary Rangers’ reports. Team and the District Rehearing En Banc Oct. 1994. opinion After the FWS issues an amended

based on its assessment of all the relevant

information, the Forest must reeval- Service

uate its determination that the current or

proposed likely Plan amended would not be jeopardize species. listed The district jurisdiction

court will retain over this case to process completed

ensure that within

six months of our mandate.

If the Forest Service concludes that the proposed jeop-

current or amended Plan will species,

ardize listed the Forest shall Service amendment,

again propose subject a new procedures above, again set out or amend likely

the Plan so will

jeopardize species. listed event, if the Forest con- Service proposed

cludes that the current amended jeopardize species,

Plan will listed the dis- jurisdiction

trict court will retain to ensure the Forest Service amends the Plan year

within a of our mandate.

We leave it to the district court to deter- preliminary

mine whether to issue limited

injunction construction, to halt road road re- elearcutting grizzly

construction and bear during

habitat this time. part,

AFFIRMED REVERSED and part.

REMANDED Halgren, Deputy Atty.

Laura Whitcomb Gen., CA, Diego, respondent-appel- San lee. Bergmann, L. Appellate

Janice California Francisco, CA, Project, San for amicus. SCHROEDER, PREGERSON, Before: FERNANDEZ, Judges. Circuit Opinion by Judge SCHROEDER; by Judge Concurrence and Dissent FERNANDEZ.

SCHROEDER, Judge: Circuit petitioner-appellant The Jaturun Siri- Thailand, pongs, a native of was convicted of first-degree murder and sentenced death robbery/double for a violent homicide in a Angeles specialty Los Asian food market. appeal petitions His state and two state collateral unavailing, relief were un- successfully sought habeas relief in the dis- trict court. appeal The critical issue in this is whether he is entitled to an hearing in the district court on his claims of ineffective assistance of counsel. undisputed It is that Siripongs’ trial coun- put guilt phase sel on no defense at the addition, the trial. trial counsel conducted investigation possibility little or no into the contending, guilt phase either at the or at the penalty phase, that the murders had been by accomplice. committed Counsel con- inquiry Siripongs’ background ducted no into Thailand, born, where years raised and lived until two before the question. crimes in undisputed It is further that counsel had capital never before tried a case, running and that counsel was for Con- gress during most of the time that he should preparing have been the case for trial. case, capital In a petitioner a habeas relief, who asserts a colorable claim to given opportunity who has never been claim, develop a factual record on that evidentiary hearing entitled to an in federal McCormick, Schilling, Donald L. Morrow and Linda court. Smith v. 914 F.2d Paul, (9th Walker, Hastings, Janofsky Cir.1990); & Costa see Hendricks v. Vas Mesa, CA, 1099, 1103, petitioner-appellant. quez, 974 F.2d Cir.

13H jewelry. 1992). help him sell some This an evi- friend has never received court, jewelry belonging hearing in or federal later was identified as dentiary claim. there- a colorable We and has raised Pat. is entitled to an hold that

fore following day purse was found in Pat’s develop the evidentiary hearing in order to dumpster some distance from the market. counsel assistance of his ineffective record on dumpster from short distance claims. Peung’s shopping complex housing in a house of additional Siripongs presents a number Siripongs. laundromat used Also require court error that of trial contentions jacket dumpster were the owned evidentiary development. We no further the letter found at Noon that had contained con- court that these agree with the district scene, shirt, crime a blood-stained corpus relief not warrant habeas tentions do articles, incriminating including other a cord judgment of the affirm the and otherwise wrapped found similar to a cord which was court. scene, Nguyen’s arm at the crime around hair, Pat’s and hair that was consistent with AND PROCEDURAL FACTS analysis Pantai Market. An items from the BACKGROUND that the of the blood stained items revealed against Siripongs evidence introduced The on the items was consistent with Siri- blood voluminous. all circumstantial but at trial was blood, although match pongs’ a conclusive opinion of are contained The details made. could be affirming the Supreme Court the California optical Siripongs, who worked as an lens People v. Siri sentence. conviction and day reported to on the grinder, had not work 729, 548, Cal.Rptr. 732- pongs, 45 Cal.3d returned to work on of the murder. He (1988), 1306, de 754 P.2d afternoon, 17th. Later that Siri- December nied, 488 U.S. purchase using a pongs attempted to make (1989). We summarize. Wattanaporn, to and credit card issued Jack (“Pat”) (“Jack”) Packovan and Surachai card which led it was a credit check on that the Pantai Market Wattanaporn owned arrest, police Siripongs’ After his arrest. Grove, Quaeh Nguyen California. Garden to Pat other credit cards issued discovered at the market December as a clerk worked Siripongs’ wallet. and Jack in p.m. on Decem- approximately 2:00 1981. At arrest, Siripongs after his Four hours Wattanaporn discovered ber Jack call, phone he to make his first allowed Quach Wattanaporn and of Pat the bodies in Thai. His conversation was conducted Nguyen of the storeroom on the floor recorder, recorded, by tape on a concealed death, strangled to market. Pat had been Siripongs next to while officer who stood multiple stab Nguyen and had died conversation, call. In the Siri- made the the market storeroom Pat had used wounds. to find Peung go to his house pongs asked jewelry. Jewelry that Pat buy and sell jewelry worn which had been and remove day of the wearing on the had been seen the Pantai Market. other items from Pat and crime scene. missing from the murders was Siripongs’ car and residence A search a letter addressed the bodies was Near descriptions jewelry matching more revealed girlfriend, Siripongs’ Sainam a sister jewelry, department store Pat’s as well as “Peung” Vecharungspri. The sister Peung bearing after her death but receipts dated Evidence at trial as “Noon.” was known her name. placed the letter that Noon had established kept Siripongs’ jacket, trial, which she affirmative Siripongs put in her forth no At house. no witnesses. Counsel’s and called defense to cross examine tactic was primary defense Peung’s at 3 Siripongs house arrived and criticize the state’s witnesses the state’s 15 with p.m. on the afternoon of December presentation at counsel’s evidence. Defense bleeding. He fingers bandaged and very brief. Counsel phase was penalty himself at work that that he had cut claimed employer, who stated called Siripongs called day. Later that afternoon worker, also good was a money the defendant and asked friend whom he owed testify Following called witnesses to that since his ar- Supreme the California Court’s rest, Siripongs prisoner. had filed, been model petition, Siripongs denial of the second presented testimony The defense from May discovery a motion to conduct friends, Siripongs’ family although Siri- pending connection with his federal habeas pongs’ present in mother was the courtroom petition. granted The district court Siri- during penalty phase. extent, pongs’ motion to a ordering limited permitted deposition that he take the convicted of murder his trial sought counsel. also him sentenced to death. The California evidentiary hearing on his claims. The state Court, appeal, on direct affirmed opposed evidentiary hearing the motion for People the conviction and sentence. v. Siri summary judgment. moved for Siri- pongs, Cal.Rptr. 45 Cal.3d pongs’ request for a supported P.2d 1306 The United States Su expert affidavits of preme denied certiorari. witnesses as to the Court inadequacy California, preparation of trial counsel’s performance guilt at both the phases proceedings. of the trial court filed a for writ of habeas and, district court did not hearing, hold a corpus, accompanying and an motion for dis- 1992, granted October the state’s motion for covery, Supreme Court, in the California summary judgment and denied all of Siri- contentions, raising, among other claims of pongs’ pending requests motions and for dis- ineffective assistance of trial counsel at the covery. granted Siripongs’ The district court guilt penalty phases. petition The request probable for a certificate of cause hearing. denied on the merits without a stayed pursuit his execution for the of Siripongs raised the ineffective assistance appeal. this claims, of counsel and several additional claims, petition in his first federal court INEFFECTIVE ASSISTANCE corpus. writ of habeas The district court OF COUNSEL stayed proceedings permit Siripongs the seeks an hear to exhaust the new claims in state court in a ing on his claims of ineffective assistance of petition second state for collateral In relief. guilt counsel at penalty phases both the petition, Siripongs the second state raised noted, previously of his trial. As these interpreter bias, judge claims of trial bias summarily claims were denied the Califor and ineffective assistance of counsel for coun- Supreme nia Court in Siripongs’ first state grounds sel’s failure to move for a mistrial on petition. court habeas juror misconduct. court, In district Siripongs’ federally ap- Supreme The California Court denied Siri- pointed greatly supplemented counsel the pongs’ hearing, second without a presented support materials request of his stating in full: evidentiary hearing. for an The materials corpus Petition for writ of habeas DE included, in deposition addition to the of trial NIED procedural both for reasons of de counsel, two detailed potential affidavits of fault and on the merits. Petitioner’s mo expert witnesses. The first affidavit was ‘post-trial discovery’ tion for is denied experienced public defender who (1990) (People v. Gonzalez 51 Cal.3d transcripts reviewed the from the trial to 1159]). Cal.Rptr. 1261 [275 800 P.2d adequacy assess prepa- of trial counsel’s parties given The and amicus curiae have performance. ration and The second affida- Supreme form of the California Court’s order anthropologist expert vit was that of an great appeal. deal of attention in this explained Thai potential culture who rele- dispute is whether the California vance of of Siripongs’ evidence culture to the regarded Court having should be foreclos- jury’s during guilt deliberations both the ed litigation federal court of the claims made penalty phases. petition by disposing the second of them independent on an adequate The district court record also included the ground. psychologist of a originally affidavit who ex- failure to do so. The nation his coun- request of trial Siripongs at amined summary judgment granted without condition. Siripongs’ mental determine sel to testify ready at forensic permitting Siripongs to conduct stood psychologist This his explains that and he penalty phase, testing. in ex- been beneficial testimony sug- in the record There also is evidence to the condition petitioner’s mental plaining person the name Char- gesting that a him likely to sentence making it less jury and in the crimes. Sakulsingh was involved tree did not call Trial counsel to death. investigating offi- at trial had told A witness phase. expert at the a call from a Thai male that he received cers appeal is principal contention kill him if testified threatened to he who evidentiary hearing to an is entitled that he might who murders. asked about the When failure trial counsel’s claim that on his call, implicated Chartree. he have made accomplices investigate the existence including addition, Siripongs, associates him of effective assistance deprived crime Noon, Peung, Peung’s sister girlfriend counsel of trial deposition of counsel. Peung’s sis- boyfriend of another of and the investigate did not that counsel establishes ters, conflicting about their stories provided accomplice possibility that an pursue murders. time of the whereabouts crime, though was involved investigator Peung police told a example, For belief, interviewing his client before crime, up picked day of the she that on the crime. trial, involved that others however, Noon, p.m. at 2:00 Noon at school affidavits, present expert Apart from the although she went police told the material the trial points to counsel ill day, and left she became school on claim of ineffective- supporting record The whereabouts a.m. before 11:00 points to physical Specifically, counsel ness. the time of the Peung’s boyfriend of sister in- that others were suggesting for. never been accounted crimes has example, strand For in the crime. volved leads, despite his own Despite and these finger of ring found on hair was of brown involved, trial accomplices belief were which, victims, according to the one of pursue leads and did not these counsel witnesses, did not match prosecution’s beyond fo- no defense whatsoever mounted Siripongs. victims or of either of the hair the state’s bur- attempts to maximize rensic blood, not be which could Similarly, hair and inconsisten- point possible out proof or den of Siripongs or belonging to identified had never Trial counsel evidence. cies its victims, dumpster which was found case, ad- he now capital before tried and robbery. from the found items police campaigning distracted he was mits that dumpster Clothing found in the federal office. belonged crime, to have which was believed optical grinding contain Siripongs, did not counsel, expert defense The affidavit on present have been material which petition, this in connection with submitted clothing to clothing if had worn the counsel competent in detail what explains shoeprints found types Five work. the accom- investigate done would have scene, never two have crime of which at the why a de- such explained plice defense both Blood was found on identified.' been counsel, fense, by competent presented if seats of Siri- and rear passenger front jury’s verdict. affected the might well kickp- car, passenger on the pongs’ as well as perfor- opines that trial counsel’s expert person late, more than one suggesting that because, among other was deficient mance crime at the time the car was testing of failed to seek forensic things, he on both Siripongs was cut was committed. evidence, wit- interview physical failed hands, according to injuries prosecu- up leads indi- follow on otherwise nesses and witnesses, have been defensive tion could involvement, failed to multiple cating actually attempted to Siripongs had cuts if the defendant complete picture of present a now claims is killings, as he prevent the penalty phase. at the meaningfully did not Trial counsel case. be borne must burden which The ultimate testing on any forensic pursue or conduct his ineffective Siripongs is to succeed expla- if evidence, any has not offered claim, assistance of counsel is to show both at least a colorable claim of ineffective assis- performance that trial counsel’s was defec- tance counsel. We note that the credibili- that, probability tive and a reasonable but for ty accuracy of the averments of the performance, the deficient the outcome of the experts materially questioned has never been proceeding would have been different. by the state or the district court. The dis- 668, 694, Washington, Strickland v. 466 U.S. trict court petitioner’s nevertheless denied (1984). 2052, 2068, 104 S.Ct. 80 L.Ed.2d 674 request evidentiary for an hearing. The dis- us, however, The issue before is not whether trict court principal advanced two reasons. Siripongs actually deprived of his Sixth acceptance The first was the court’s right Amendment to effective assistance of contention the state that counsel’s deci- counsel, only but whether he is entitled to a pursue defense, sion not accomplice try in order to- to establish that investigate defense, indeed even to such a claim. justified decision, as a “tactical” because petitioner capital A in a case is enti mounting of such a defense would involve evidentiary hearing tled to an where there an admission that the defendant was at the has been no state evidentiary hearing crime scene at the time of the murders. petitioner and the raises “colorable” claim record, however, This does not contain of ineffective assistance. Smith v. McCor evidence from which it can be inferred that mick, (9th Cir.1990); 914 F.2d trial counsel’s decision not to mount a de- 1099, 1103, v. Vasquez, 974 F.2d Hendricks informed, fense at trial was the result of an (9th Cir.1992). See also Morris v. tactical decision. The Court has California, Cir.1991) 966 F.2d observed that process generally the trial case; (non-capital evidentiary remand for does properly not function “unless defense hearing required allegations peti where counsel has done investigation some tioner’s affidavit into the raise inference of deficient — performance), prosecution’s —, case and into various defense strategies.” Morrison, 121 L.Ed.2d 57 Kimmelman v. Cf. States, Shah v. United 1159- 2574, 2587, (9th Cir.) case; (non-capital accomplice defense hearing required petitioner’s where allega defense, was trial counsel’s viable tions as to counsel’s “patently advice are- existing record reflects that defense incredible.”), totally frivolous and cert. de investigate counsel did not adequately. nied, We Vasquez, held Hendricks v. on a far Smith, In the defendant this, leaner record evidentiary than that an initially pled not-guilty, but thereafter hearing required was to determine whether changed plea guilty his to and asked to be counsel’s failure to call defense witnesses put to death. We held that the defendant during guilt phase the of a penalty death was evidentiary entitled to an hearing, in a conviction performance. constituted deficient proceeding, habeas on his Sixth Amendment “[wjithout We said that the benefit of an claim that failing counsel was ineffective in to evidentiary hearing ... cannot [w]e deter- psychiatric seek a evaluation to determine if one, mine strategic counsel’s decision was a whether competent the defendant was to so, and if Smith, whether the change decision was a suffi- plea. 914 F.2d at 1170. Hendricks, ciently Hendricks, defendant, In informed one.” the 974 F.2d being after sen murdering Quoting tenced to death for at 1109. people, two Strickland v. Washington, granted evidentiary an strategic on his we observed that choices “made claim that counsel was ineffective in failing to complete less than investigation are investigate pursue impairment a mental precisely reasonable to the extent that rea- Hendricks, defense. 974 F.2d at 1109-10. professional judgment sonable supports the investigation.” limitations on Id. at 1109-10. authorities, Based on these and after re- Hendricks, inAs an viewing evidence, evidentiary hearing the is forensic the other evi- record, necessary establish, affidavits, first, dence in the in this expert the ease to deposition ease, the of trial counsel in whether pursue this counsel’s decision not we to an Siripongs presented convinced that accomplice has in defense was fact a tactical deci- of the linking Siripongs to the scene dence second, decision and, that sion, whether by counsel crime, performance any deficient sufficiently informed. jury the would prejudicial because was not Furthermore, assuming the decision accomplice defense and con- rejected an have theory at the accomplice an pursue not to actually committed cluded that one, has a tactical phase was guilt similar cir- Under violent murders himself. that counsel’s claim a colorable made at least cumstances, that if a hear- have observed we defense accomplice pursue failure to question deficient necessary on ing is performance at to deficient amounted likely a that generally it performance, ap is no There of the trial. phase penalty required for determina- be hearing also will advantage in re tactical parent conceivable perfor- alleged deficient whether the penalty tion of contending at fraining from the outcome probably re influenced may have been mance else that someone phase Hendricks, 1110. As we at murders. actual the trial. See for the sponsible 614, 619 Blodgett, case, jury only 970 F.2d found if the had stated Mak — —, (9th Cir.1992), robbery in which participated a (1993), “to occurred, L.Ed.2d the murders mitigating evidence important present fail At penalty. eligible the death have been no risk there is penalty phase in the trial, accomplice to crime an the time —if devastating as a failure as doing so—can could not a death occurred receive guilt proof of innocence present felony-murder to a penalty pursuant death phase.” commit the did not if the defendant statute kill. Enmund the intent to granting sum- murder or have court erred The district Florida, state’s of the S.Ct. on the basis mary judgment put on an not to the benefit the decision Without contention a sound tactical accomplice hearing, defense was a better and without penalty phases. guilt and strategy strength in both of this de- potential of the sense fense, a matter simply conclude as we cannot why reason The second probability reasonable there is no of law that govern- to the summary judgment granted accomplice defense would of an pursuit evidentiary hearing on ment without doubt reasonable have with left view that such was its accomplice defense murders Siripongs committed the inherently whether incredi- have been defense would they occur. to come Siripongs’ refusal or intended light ble any accomplice. It name of with the forward theory Moreover, accomplice even if however, here, affidavit phase, penalty pursued at the had been Siripongs’ claim anthropologist reinforces of a the likelihood might reduced identify Siripongs’ refusal explaining how Enmund, sentence. death Cf. im- deeply with was consistent accomplices (discussing reluctance values, including cultur- cultural bedded Thai for accom juries impose death dishonor, with concepts of shame al addition, under California liability). In plice Competent counsel religious beliefs. Thai of may provide evidence law, defendant a with defendants undertaking represent during the guilt as to his doubt” “residual an obli- backgrounds have unique cultural Johnson, 3 Cal.4th People v. phase. penalty the effect of to consider gation at least 1, 741-742, 702, P.2d 1183, 14 Cal.Rptr.2d conduct. on their clients’ background Cf. — U.S.—, denied, (1992), cert. Mak, the bene- Without at 617-19. (1993); People v. 126 L.Ed.2d con- evidentiary hearing, we cannot fit of an Cal.Rptr. Terry, 61 Cal.2d ac- identify Siripongs’ failure to clude that 379 U.S. P.2d defense counsel complices per se excused of Presentation investigating, an at presenting, or least from phase penalty evidence accomplice accomplice defense. such a doubt. well have created could af- basis for Respondent offers another assistance of ineffective The claims Respondent con- firming district court. failure to counsel’s not limited evi- counsel overwhelming light of that in tends pursue accomplice theory. an in manizing Affidavits penalty phase, evidence at the record state that counsel was well below evidentiary hearing on remarkably claims accepted failing standards to conduct more ease). similar to those in the instant cursory investigation Siripongs’ than sum, the district court should not have background making attempt and granted summary judgment govern- to the jury. him humanize before the The affida- ment Siripongs’ on claims of ineffective assis- anthropologist expert vits of the defense tance of guilt counsel at the penalty provide examples counsel of evidence which phases. Petitioner entitled to an eviden- should have been introduced tiary hearing and the resolution of these phase to humanize jury. before the claims the district court on the basis of a Mak, Among things, 970 F.2d at 619. other fully developed factual record. counsel could have introduced evidence childhood, Siripongs’ troubled his mother’s INTERPRETER BIAS keep family together, efforts to his and Siri- pongs’ any history lack of of violent crime. seeks on Similarly, culture, evidence of Siripongs’ Thai process, claim of denial of due in which he including Thai concepts of remorse and alleges interpreter that an used the trial shame, might well bridged a cultural was, counsel, unbeknownst to defense gap between the and the accused. Cf. friend of one of the murder victims her Mak, 618-19, 970 F.2d at 620. family, and against therefore was biased only explanation offered for counsel’s defendant. The district court dismissed put failure to mitigating of this evi- procedural claim on grounds, ruling that the dence, including testimony Siripongs’ claim pursued could not be in federal court present courtroom, mother who was because Supreme the California Court had counsel’s fear that such evidence would independent denied relief on grounds pro- open impeachment door to evidence of cedural default under state law. See Harris Siripongs’ prior in burglary involvement Reed, However, Thailand. the trial court ruled We must ini- therefore long that so as the mitigating evidence went tially address whether the California Su- Siripongs’ lack of a past violent and did preme Court’s decision rested on an ade- go character, to describe his moral quate independent ground so toas conviction would remain off limits as an im- preclude federal relief. peachment caveat, device. As a the court ruling tentative, noted that its This claim and that if two others were contained produced reliable evidence was showing second for writ of habe- violent, the crimes fact the court corpus, the California might Apparently, reconsider. this threat order, Court denied in a brief stating: alone was sufficient to deter counsel from Petition for corpus writ of habeas DE presenting significant the potentially mitigat- NIED both for procedural reasons of de ing evidence, though appears counsel fault and on the merits. Petitioner’s mo have failed to investigate and determine tion “post discovery” trial is denied whether the Thai involved offense violence. (1990) (People v. Gonzalez 51 Cal.3d aspects representation Few can be more 1159]). 1261 [275 Cal.Rptr. 800 P.2d critical understanding than the client’s crimi- The California Supreme Court did not ex- history. nal Counsel apparently lacked this pressly state that each of the claims were understanding. mitigating denied on independent the basis of an proce- introduce, counsel chose not to based on an bar, dural nor identify any particular did it inadequate understanding of his client’s his- procedural upon rule which it relied for de- tory, undoubtedly improved Siri- fault. pongs’ receiving chances of a life sentence “placed than penalty. great weight rather the death court on See Mak v. (9th Blodgett, Cir.1992) (affirm- respondent’s 970 opposition F.2d 614 petitioner’s to state ing district court’s finding of perfor- deficient habeas.” That opposition proce- discussed mance where counsel present to failed hu- dural denying bases for petitioner’s each of

1317 denial presumed that the state ground, it is finding procedural requested a and claims part upon federal con- at least court The district was based toas each. default opposition, may which relief cluded, petitioner seek grounds, and on the basis Su- in the California not referred court. in federal order, Supreme that Court’s preme Reed, 255, 109 S.Ct. v. 489 U.S. In Harris had petitioner decide in fact did Court (1989), 1038, the Court ex- 308 103 L.Ed.2d the claims on each of defaulted procedurally Long presumption adopted the pressly opposition. grounds stated on Supreme Court cases. The habeas federal court when a state need to determine Thompson, 501 v. in Coleman summarized ade independent and upon rests decision 2557, 2546, 722, 734-36, 115 111 S.Ct. U.S. preclude an grounds so as state quate (1991): 640 L.Ed.2d relief, some has raised for federal application habeas, state of the last if the decision years. If federal in recent thorny problems presented petitioner to which the court petitioner require a federal are to courts pri- fairly appeared to rest seeking claims before federal remedies state court exhaust claims, court, Lundy, or to v. of those marily Rose on resolution in the federal redress 1201, 1198, claims, 515, 71 509, and did 102 S.Ct. with those U.S. be interwoven 455 courts (1982), rely then federal 379 on an inde- clearly expressly L.Ed.2d not and has de petitioner who permit a not ground, should a fed- adequate state pendent a pursue state remedies on his faulted petition. may address court eral un do so would court. To in federal claim ease, Supreme the California In this state ensuring that goal dermine the merits with both order dealt Court’s federal opportunity to address have an courts constitu procedural posture v. instance. Coleman first claims any particu identifying tional claims without 729-32, 722, 111 S.Ct. Thompson, 501 U.S. completely barred rule procedural lar Rose, (1991); 2554-55, 640 L.Ed.2d 115 opposition to the them. The state’s any of Ex 515, 102 (quoting at 1201 S.Ct. 455 U.S. bases a number different petition raised 241, 251, 6 S.Ct. Royall, U.S. parte waived petitioner had contending that the Isaac, for (1886)); Engle v. see 29 L.Ed. 868 issue, but the Cali claim at particular each n. & which, indicate did not Supreme On the Court fornia L.Ed.2d 783 n. 1570 & and ade independent denied hand, petitioner regarded been any, if has if a other than other in contrast reason This is in state court quate relief for dismissal. court reme state pursue available rested itself, failure to state had where Coleman may be petitioner dies, that a is a risk procedural there single solely upon a argument its a federal federal courts access to denied obviously accept court had state bar Congress intended corpus habeas claim Coleman, 501 U.S. argument. See its ed always It not decide. courts to federal case also This 738-44, at 2559-61. a denied why a state court easy to determine Nunnemaker, from Ylst v. distinguishable relief. petitioner 2590, 115 L.Ed.2d S.Ct. issues, these courts resolve help federal held (1991), To Court review involving direct in related situations state decision is a reasoned if there decisions, Supreme Court state court clearly denying appellate intermediate 1032, 103S.Ct. Long, 463 U.S. Michigan a subse grounds, procedural on (1983), a con adopted by the of affirmance ambiguous order quent decision that a presumption state clusive As the bar. will not lift supreme court ade independent not rest does on Aispuro, 982 in Hunter the decision ground unless quate state law — —, Cir.1992), ... it is expressly “clearly and states (1993), there is 240, 126 adequate, and separate, fide on bona based case. decision reasoned such 1041,103 S.Ct. Id. at grounds.” independent an am- upon default Basing procedural Thus, makes unless the state at 3476. clearly rest that did order biguous denying resting its decision it is clear that grounds adequate state independent and adequate state independent relief on 1318 primary goals defeat one of the of the that, We therefore conclude if even we plain statement providing rule: the state assume that Supreme the State Court did in avoiding courts a means federal court .in- rely upon fact procedural defaults assert- jurisprudence trusion into state while ensur- ined opposition state’s petition, to the ing federal court review of constitutional did not rest its decision on type of inde- questions. Long, 1041, See 463 U.S. at 103 pendent adequate state ground pre- S.Ct. at 3476. We need not decide whether cludes federal review. The state alternative- Supreme California in Court’s order ly that, appeal contends in this merits, on the case clarity rested with sufficient upon the petitioner has failed to establish a suffi-

grounds procedural bar set forth in the ciently colorable claim to warrant an eviden- opposition. state’s The district court’s reli- tiary hearing. It is to this contention that grounds ance on those misplaced for we now turn. reason, another independent one foregoing analysis. In order to a establish colorable claim of process denial of due in connection The California recently has Court with the interpreter, biased Siripongs must held that procedural bars the state relied show that the bias was sufficient to render upon discretionary, and have not been the trial fundamentally unfair. Newton v. applied consistently. Clark, In re 5 Cal.4th Superior California, Court 750, 1051, 803 F.2d 509, 21 Cal.Rptr.2d 855 P.2d 729 (9th Cir.1986), denied, We have cert. recognized that proce such a state dural rule (1987); cannot act S.Ct. as a bar L.Ed.2d 873 to federal McKellar, review. This see is because Gaskins the federal courts 946- (4th upon should not petitioner, insist pro Cir.1990), as a cedural prerequisite obtaining 2277, 114 federal re L.Ed.2d 728 Siri lief, complying with a rule the state itself pongs is not entitled to hear does consistently enforce. See Harmon ing merely suggests because he a basis for Ryan, 959 F.2d Cir. bias, he must raise at least an inference of 1992); see also Johnson v. Mississippi 486 prejudice. difficulty Siripongs’ with po 578, 587, that, sition is assuming that the inter (1988) (“a procedural state preter was biased and wished to influence ground adequate is not procedural unless the the trial in a manner Siripongs’ adverse to followed.”) rule is strictly regularly or interests, Siripongs has not made any out notes, As the dissent the California Su- colorable claim the interpreter did influ preme Court, Clark, in announced strict new ence the trial or position even was in a to do determining standards for whether succes- so. sive petitions state habeas should be allowed. Here, in contrast to the claims of ineffec- Clark, Cal.Rptr.2d 855 P.2d at 760. counsel, tive assistance we have no indica- Nevertheless, although subsequent petitions tion of what might happened have differently had, prior Clark, California never been at trial had a completely interpreter neutral condoned courts, the California they been utilized. interpreter acted as an clearly permitted were often aas matter of interpreter four of the 46 witnesses discretion. 21 Cal.Rptr.2d Id. trial, called at and three of those witnesses (“on occasion, P.2d at 740 the merits of suc- principally testified English. The fourth petitions cessive have been considered re- testified as to facts that dispute. were not in gardless of whether the claim was raised on There are no any affidavits from appeal the wit- prior petition, and without nesses stating that the translation in the consideration of whether the claim could and record varies from their should recollections presented of their prior been peti- tion.”). testimony actual addition, Accordingly, Thai. while proce- Siri- California pongs dural piecemeal defaults for himself was fluent in Thai claims and had may Clark some non-discretionary, proficiency in English. pres- the strict He was standards during announced ent opinion testimony, did not and he has not guide the California courts in when identified testimony prejudicial- that was ly denied. mistranslated. prosecu the telling witness that a prosecutor testimony, Siri- of from translation Apart more knows than fact the witness upon believes the tor emphasis great places pongs or intimi not a threat appellant’s saying mistranslated she is or is translator that the to indicate dation, in Thailand counsel offered felony also record because prior rather robbery a violent the stepfather offense was not testimony that the of the the of However, the absence in theft. than a themselves. testimony of the witnesses the of- in involved violence proof that hearing or a not hold decision trial court’s as a the offense fense, treated trial court the petitioner the does not entitle call a mistrial crime, theft, a violent and not non-violent prosecutor’s the While relief. to habeas in- translator’s rejecting effectively the thus they did improper, may been have comments by mistranslation Any alleged terpretation. fundamentally so unfair the not trial render criminal defendant’s interpreter the process. See of due a denial toas constitute pro- to the immaterial was therefore record Wainwright, Darden v. ceeding. (a (1986) 2464, 2471, 91 L.Ed.2d transla- the that contention is also a There ha- not does warrant misconduct prosecutor’s information prejudicial communicated tor trial funda the unless it renders beas relief pre- the completing in officer probation the unfair). mentally infor- of that but the nature report, sentence re- identified; presentence the not is mation PHONE CALL INTERCEPTED is counsel to trial circulated port was that the contends as well. counsel habeas to his available summary judgment on granted improperly actually stated Moreover, trial court the state call recording of his tape the claim that .his report rely presentenee the not it did that illegally Peung was obtained jail to the from penalty. the death imposing the been admitted not have and should prejudicial other that contends by an was recorded conversation trial. The pro- information material, to the in addition hidden nearby with record- standing officer was contained interpreter, by the vided wire phone “tap” on the er, not use trial Because the report. presentence taping contends itself. report, presentence rely on the court did Crime Con- Omnibus III of the violated Title as rejected well. is this claim codified Act of and Safe Streets trol 2510-2521, INTIM- as his consti- as well PROSECUTORIAL §§ CLAIMED 18 U.S.C. AT WITNESSES OF and to coun- IDATION silent remain rights to tutional PHASE PENALTY sel. trial court claims that contention Siripongs’ constitutional hearing on held should tele him with delay providing that the intimidated prosecutor contention recording surreptitious and the access phone Noon, potential who were Peung and re warnings after his without Miranda in witnesses, prosecutorial and that phase and Sixth his Fifth violated counsel quest for testifying. from them prevented timidation Incriminating custodial rights. Amendment trial court informed the counsel Trial only if rendered inadmissible statements had told prosecutor he had an act response uttered they are prosecutor witnesses two the functional interrogation, or or coercion about more knew thought the witnesses Rhode Island interrogation. equivalent This conversa- telling. they were crime than 300-02, Innis, potential overheard allegedly was tion (1980). The mere 1689-90, L.Ed.2d proof, an offer stepfather. As witnesses’ make an insufficient custody fact testify stepfather have the offered to counsel Be incriminating inadmissible. statement Nei- of the conversation. nature to the interrogation coercion there cause proceedings subsequent trial nor ther at custody, fact of ease, other than in this informa- any additional Siripongs offered has Ari violation. no constitutional there was incident. tion about 528-30, Mauro, zona denied but proof the offer accepted (1987) 1936-37, face, because, a S.Ct. on its motion (permitting person in custody to enter a standing speaker next to the has not inter- situation which “possi- self-incrimination is cepted a wire merely communication because hope ble” with the that such self-incrimina- person the speaking was telephone into a tion will is not equivalent occur the functional the time of interception. United States v. interrogation). of The district properly court McLeod, (7th Cir.1974); 493 F.2d 1188 granted summary judgment on the constitu- see Carroll, also States v. United F.Supp. tional claim. (D.D.C.1971). There is no con- trary statutory authority.

Siripongs’ claim is that the taping phone of call interception was an Because interception of was an oral communication, of a “wire” which is unlawful communication, admissibility its pro was not if intercepted prior without consent or hibited Siripongs unless had a reasonable §§ 18 U.S.C. authorization. 2510-21. If he expectation his communication would not is interception correct that the was of a wire 2510(2). be § overheard. See 18 U.S.C. The communication, then he need not demon surrounding facts this claim developed strate that he entertained a reasonable ex pretrial at a suppression hearing and are pectation telephone that his call private. was entitled statutory to a presumption Hall, (9th cor United States F.2d Cir.1973). 2254(d). rectness. § See 28 only He U.S.C. They need show that the com are materially munication not intercepted dispute. without consent placed a warrant. without See 18 the call police U.S.C. while a officer was 2511(2)(a)(ii) (3), §§ & 2515. A standing reasonable away. three feet A cam television expectation that a communication is not sub suspended era was ceiling from the about ject interception required protection is eight feet telephone from the pointed under III if interception Title is of an phone. toward the These compel facts oral, wire, opposed as to a communication. district court’s conclusion that Id.; 2510(2). § 18 U.S.C. reasonably could not expect any privacy dur ing correctly

The treated conversation. See re John Doe an One, communication as oral (7th communication. Trader Number 894 F.2d 2510(4) § U.S.C. provides: Cir.1990); Harrelson, United States v. “Intercept” means the F.2d acquisition Cir.), aural denied, cert. the contents of wire or oral communi- 474 88 L.Ed.2d cation through any electronic, use of mechanical, or other device. 88 L.Ed.2d 578 police not “intercept” did a wire commu- Because conducted his conversa- nication within the meaning of this statute Thai, tion in argues he reasonably be- they acquired because only they what record- lieved that Officer Shave would not be able to ed saying mouthpiece, into the understand him and that this created a rea- what was transmitted over the wire. The expectation sonable privacy. Siripongs, of reason independent is no there need to estab- course, could not know for certain whether lish an expectation privacy when “wire” Officer Shave understood the conversation. intercepted communications are is because it More importantly, protects statute an presumed is persons communicating by oral communication if expect expec- wire there goes what over line will tation that private. Hall, be the communication See will not 196. But i.e., intercepted, there is no “acquired.” reason for presuming expecta- 18 U.S.C. 2510(2) privacy § tion of & statements made in pro- statute does not middle of police stations. It is tect there that clearly conversations that subject are actually conversation interception inter- merely because the conversation cepted. interception This ofwas an oral not might not be immediately understood. As a wire communication. the Fifth context, Circuit has noted in this holding

This “[mjistaking degree consistent with the Seventh of which intrusion Circuit’s decision that an probable individual eavesdroppers who over- capable is not at hears one telephone side of a conversation all thing the same believing there are no Harrelson, belonging his wallet F.2d at other credit cards eavesdroppers.” to one of the murder victims. 1170. about Finally, if there were doubt Fourth Amendment claims are not recording, the admissibility evi- cognizable proceedings habeas if a federal Noon, who because was cumulative dence petitioner full fair opportunity has had call, as to recipient of the testified

was the Powell, litigate them in court. Stone Accordingly, said. we the defendant what 481-82, 3037, 3046-47, U.S. S.Ct. of the record- that admission cannot conclude 49 L.Ed.2d 1067 had full any meaningful way. ing prejudicial was trial, hearing suppression at and does not otherwise. His contention the contend FOUND ADMISSION OF EVIDENCE appeal court on did not understand his state CAR IN SIRIPONGS’ argument misleading; Siripongs made his incriminating Moreover, argument rejected. was The state introduced and it goes Siri- Siripongs’ argument items that were found not to the blood stained fullness they opportunity litigate contends that pongs’ car. and fairness of his the they claim, found illegally were the were seized because but to the correctness of resolution, the police the where car only after told an issue which Stone v. Duran, purposes police inquired v. was when the Powell makes irrelevant. Gordon court, (9th Cir.1990). after securing the car. The district 895 F.2d sup reviewing the trial court the record of JUROR MISCONDUCT ques the hearing, concluded that

pression questions on tioning knew that his the officer penalty phase, the trial Before coun likely to elicit an of the car were location poten sel alerted the court to incident requested supple incriminating response and juror Following allega tial the misconduct. evidence briefing on whether the mental tion, the court conducted brief examination inevitably have been discovered. would jurors presence the of one of the outside the defendant. contends the that items seized If shows the state inadequate was not hearing was because he interrogation have been would as a result present. inevitably, admis discovered the despite any violation. sible constitutional The absence of a defendant at a 431, 444, 104 Williams, 467 S.Ct. U.S. Nix process only the hearing due ex violates sup 81 L.Ed.2d 377 just hearing and cannot be tent that fair to the dis plemental declarations submitted present. United held without the defendant court, disputed, are not remove trict which 522, 526, 105 Gagnon, 470 S.Ct. States v. any concerning discov the inevitable doubt (1985) (per cu- ery car found at Siripongs’ car. The was riam). counsel, Here, the of trial request arrested, Siripongs was the mall where pro an in camera the trial court conducted pocket. keys to car in his he had the the jurors ceeding with to determine one Department the Through information from any had At misconduct occurred. whether Vehicles, identification and vehicle Motor hearing, prosecutor or de the the without obtainable, easily were owner identification juror present, the stated fense counsel sought have this infor the officers would whether, when the she her mother had asked inevitably police therefore mation. The off, it table was cleared defense counsel’s and its have car would discovered resting. Accord was meant that the defense contents. juror, her ing the her mother then asked meant, attorney attorney and the what this SIRIPONGS’ WALLET

SEARCH OF the probably meant told her that court, resting. trial was his Fourth defense Siripongs contends that juror, the questioning determined police the rights violated when Amendment Siripongs’ case. did not harm incrimina communication his elicited an searched wallet and how this Siripongs has not demonstrated not steal one credit ting denial that he did presence wallet, hearing was or that did unfair implying that he steal card in conceivably jury changed which was instructed to consider “(a) Accordingly, the the result. district court were: the circumstances of the crime of rejected properly this claim. which defendant convicted present proceeding existence of THE OF WITHER- APPLICATION special true;” circumstances found IN STANDARD SPOON/WITT “(b) presence or absence of criminal ac- DIRE VOIR tivity by the defendant involved the Siripongs next contends that the tri attempted use or use of force or or violence wrong standard on al court voir applied express implied threat to use force or prone” jurors. dire to weed out “death Siri- violence.” alleges was error under pongs Wither contends that Illinois, spoon v. California, instructed that circum- (1968) Wainwright underlying stances of offense could be Witt, 844, 412, 105 469 S.Ct. 83 U.S. L.Ed.2d aggravating considered as circum- one (1985), juror 841 which hold that a should be stance, that it it was not told that could juror’s if the views excluded cause would Siripongs’ find lack of violent criminal rec- “prevent substantially impair perfor or mitigating ord to be a factor. He claims the juror as a mance of his duties in accordance compounded by latter error was prosecu- Witt, with his and his oath.” instructions 469 ambiguous argu- tor’s in closing reference 424, U.S. at 105 S.Ct. 852. jury “past ment that could consider vio- assume, arguendo, that the trial We court conduct,” prosecution lent when the did not employ in did the incorrect standard deter identify the conduct. mining which venire members jury language in instructed that The appropriate inquiry for cause. stricken Siripongs’ mirrored the statute. counsel of- Witherspoon and under Witt is whether the clarifying instructions, fered no additional jury actually empaneled impartial. that object any by nor did he to comments Oklahoma, 86, 81, 487 U.S. Ross v. 108 S.Ct. prosecutor past concerning the criminal rec- 2277, 101 (1988). 2273, L.Ed.2d 80 ord. any to has failed demonstrate that of the jurors actually empaneled unduly prone jury The instruction to the that it “shall penalty to impose the death. It is imma impose upon finding death” aggrava that may required terial that have been ting outweighed mitigating circumstances preemptory challenges ju to use to excuse upheld by circumstances was rors that the trial court would have excused against Eighth Court chal Amendment employed proper for cause had it stan lenge Boyde 370, in California, v. 494 U.S. dard. did not all exhaust of his 1190, 108 (1990). 110 S.Ct. Siri- Moreover, preemptory challenges. the loss pongs, accompanied by Appellate California preemptory challenges pro is not due Project, slightly makes a argument different Ross, 88, cess violation. 487 108 respect with impose” the “shall instruc — 2278; Alabama, S.Ct. at J.E.B. v. see tion, pointing out California Su U.S.—,—n. 7, 1419, 114 S.Ct. 1426 n. preme consistently has interpreted Court its (1994). 7, 128 L.Ed.2d 89 require imposition Code to pen of the death alty only appropriate if “death penalty is the ERRONEOUS AT INSTRUCTIONS People under all the circumstances.” v. THE PENALTY PHASE Duncan, 273, 53 Cal.3d 281 Cal.Rptr. Siripongs raises a series chal — 131, 143-44 (1991), 810 P.2d lenges instructions, penalty jury to the death —, L.Ed.2d joined by some of amicus Cali (1992); Brown, People v. 40 Cal.3d Project. Appellate applicable fornia Under 834, 843, Cal.Rptr. (1985), P.2d law, California was to arrive at its grounds, rev’d on other weighing aggravating verdict 93 L.Ed.2d 934 circumstances, mitigating and was so in assume, arguendo, We Siripongs may § structed. See Cal.Penal 190.3. Code Two statute, of the factors liberty having enumerated have had a interest it, Siripongs IAs see required in this case. statutorily man- apply its courts California en- us to have district manner wants the same him in procedures dated Paskett, the Su- hindsight that kind of Fetterly gage See defendants. as other Cir.1993). against. See warned has preme Court however, this whole, 689- Washington, 466 U.S. as a Strickland The instructions 2065-66, improperly mechani- not mandate case did jury’s prevent the process, weighing cal Siripongs contends. of discretion exercise as a chain the state’s case viewed Counsel impose its “shall tempered The trial strategy was His evidence. of circumstantial For instructions. by other instruction death” there was showing that chain to break the into it could take jury was told example, the of the links. as to several doubt a reasonable “any factors, and that mitigating account showing that purpose for the That was sufficient, may be factor] [mitigating one scene at the was not even a decision support alone, standing non-violent, prayerful he, a killing; punishment appropriate is not the death robbery itself. part of the monk, not a ease.” this lent some developed at trial arguments aspects of Some certainly ap- theory. That support however, may be relevant regard, the circum- reasonable under pears to be his claim consideration court’s ineffective demonstrate does not stances and penal- at the of counsel assistance ineffective was But, Siripongs, there says assistance. may be relevance particular Of ty phase. it superior that was so strategy that another request' an instruction to failure counsel’s agree. I do not used. been have should crimi- prior no violent had defendant the that power Siripongs was against have The appears failing now That nal record. affirmance unanimous ful; mistak- apparently it resulted counsel’s related been by the California witnesses and any character sentence his conviction to call en refusal Siripongs, by prior People conviction. impeachment Supreme Court. fear any imperfec- that 754 P.2d Cal.Rptr. to conclude unable are Cal.3d We however, themselves, (1988), in the instructions tions together, Still, constituted or taken he now independently or- requiring us to error his hands plain constitutional that despite the fact claims that penalty to vacate the court was der the which clothing cut, was found that determination. phase his been may have blood covered with victim, the stolen he had that that of and CONCLUSION cards, victim’s credit the that he had jewelry, evidence, dismiss- the district judgment of trying to hide The was he and that corpus is VACAT- habeas accomplice, who ing the an been might have there EVI- FOR REMANDED the CASE says ED that and He murder. really the committed appellant’s HEARING DENTIARY that pursued vigorously have counsel should of counsel assistance of ineffective claims sought to course, he never Of possibility. trial. of his phases guilt the (or, by culprit supposed identify other summary granting ruling the district not accounts, still has culprits) some —he Siripongs’ remain- state on for the judgment this, and all of the face of In him. identified is ing AFFIRMED. claims of second display marvelous aon based says that Siripongs “experts,” by guessing concurring Judge, FERNANDEZ, Circuit push attempt to have been there should dissenting: phantom killing on a violent actual off on the majority opinion from I dissent accomplice would That accomplice. its As to opinion. discussed issues while dirty work did the who person been determinations, I concur. other friend his violent fighting Siripongs, Counsel. victims, got Assistance A. attempt to save a vain Ineffective accomplice defense would loot. keep the agree that an I not do essentially the same upon based have been counsel assistance regarding ineffective developed evidence that was trial Finally, but Siripongs points to the fact that placed would have Siripongs at the scene of this was counsel’s first capital case. I fail to killing. significance see that, we unless are supposed now to infer that attorneys We are also told that nothing there is incompetent they when strange try story, that their capital about first all that case, though they come clear if may had been be told that otherwise Siripongs, experienced participant was, admitted a rob- law. As it Siripongs’ bery-killing, simply was following Thai counsel public cul- had been a defender for nine religion ture and naming phantom not years and had experience. extensive trial He accomplice, who, remember, we must is the had robbery, handled rape and homicide tri- supposed killer of the victims. In other als, others, among and was certified as a words, counsel, help client, without from his specialist. criminal law To precise, was supposed to have that admitted Siri- had also taken a trial, murder case to but it pongs scene, at was phantom created a had been resolved before the trial was com- accomplice, unnamed dubbed that accomplice pleted. killer, presented actual Siripongs as an Thus, the district court required was not attempted victims, savior of the explained the conduct an evidentiary hearing explore keeping of the loot and other evidence of the issues claims show that his crime, pointed to the fact attorney incompetent.1 person was an honorable bound his cul- B. Interpreter ture religion Bias. to remain silent and stoic. Thus, said, might have saved I disagree also with contention his own life. We are also told that when that there could have thing been such as a counsel present failed to story, rather procedural default in California because the did, than the one he he was constitutionally default rules were not regularly followed. ineffective. The district court im- For proposition upon relies pressed by improbable scenario Clark, re 5 Cal.4th Cal.Rptr.2d the conclusion which is said to follow from it. (1993), 855 P.2d 729 where, a case ironically Neither Certainly am I. hindsight de- enough, the California Court at- fense not outstrip does so strategy counsel’s tempted to clear up any doubt about the as permit finding of ineffectiveness. procedural force of its default rules. The Siripongs’ subsidiary claim that counsel did court because, did so happens sometimes not understand the possible nature and use law, uncertainties and misunderstandings prior of his burglary conviction in Thailand had arisen. is, my mind, a misstatement of the trial Clark, In after first saying practice that its court It perfectly record. clear coun- reject had piecemeal been to corpus habeas sel himself convinced state trial court petitions, say the court did that procedural that the Thai conviction was not a crime of bars petitions to second had been “termed” Still, violence. counsel did not want to call discretionary prior and that “sug- cases had family attempt members to to “humanize” gested” that “may court willing Siripongs because counsel possi- wanted entertain multiple collateral bility attacks.” Id. at of having discover that there 768, 21 Cal.Rptr.2d 520, at 855 had P.2d at prior been a 740. conviction of type. As However, the court stated that it pointed out, had “never now even condoned abusive writ humanizing practice so-called repetitious evidence is “utterly un- moving.” collateral It seems attacks on a judgment.” to me final that counsel Id. could properly 769,21 at competently Cal.Rptr.2d 521, decide at that it 855 P.2d at 741. Rather, well excluding worth placed it had order restrictions upon repet- to assure exclusion itive references to attacks and had condemned them. Id. prior crime. No 774,21 hearing is need- at Cal.Rptr.2d 525, 855 P.2d at 745. ed to demonstrate that. The court say did there are certain Also, 1. I do not believe that the alleged petence. instruc- tional error demonstrates counsel's incom-

1325 Thus, I concur for most district court. it would “not be It said exceptions. part, part. but dissent in justification a that absent but inflexible” petitions would summary of successive denial allegations of “facts if there were

follow

which, establish that a proven, if fun- justice oc- miscarriage damental curred_” 797, Cal.Rptr.2d at Id. at & INTERSTATE FIRE CASUALTY It then went on to P.2d at 760. COMPANY, corporation, an Illinois petitioner must that a define the standard Plaintiff-Appellant, miscar- to show a fundamental

meet order 797-98, Cal.Rptr.2d at 540- riage. Id. fine, Clark cer- P.2d at 760-61. OF PORTLAND IN OR ARCHDIOCESE erasing the effect tainly justify our does not EGON, Oregon corporation; Under procedural default determina- of California Lloyd’s London, al., et sub writers at prior to I fear we for all cases Clark. tions scribing policies numbered SL 3391/ day that we did so. live to rue the

will 5843; Excess SLC 5411 SL 3831/SLC Co., Ltd., Kingdom Insurance a United that, Beyond appears to me that Califor corporation; Yasuda Fire and Marine did, indeed, interpreter dispose of the nia (U.K.), Company, a United Insurance procedural de claim on the alternative bias corporation; Kingdom Terra Nova Ins. both ground when it denied fault Co., Ltd., Kingdom corporation, a United and on the procedural default for reasons al., Defendants-Appellees. et respect I also think that we should merits. Lewis, Carriger v. that decision. See No. 91-35610. bane) (state (9th Cir.1992) (en F.2d Appeals, United States Court deny may alternatively relief on merits Ninth Circuit. even after dis constitutional claim of federal Argued Jan. 1993. and Submitted grounds), cert. missing procedural claim — —, April from Submission 1993. Withdrawn Lewis, (1993); Thomas Aug. 1994. Resubmitted Cir.1991) (claim Aug. Decided 1994. peti found that when state court defaulted Suggestion Rehearing Rehearing and though had waived all the issues tioner En Oct. 1994. Banc Denied claims); court also discussed merits Reed, 264 n. 489 U.S. Harris cf. 1044 n. 103 L.Ed.2d 308

(1989) (“Moreover, a state court need claim in reaching the merits of federal

fear very holding. By its defini

an alternative

tion, adequate independent state

ground requires doctrine the federal court holding basis a state that is sufficient

honor judgment, court’s even when

for the state law.”); court also relies on federal 1032, 1041,

Michigan Long, (1983) (“If 3469, 3476, clearly indicates

the state court decision alternatively

expressly that it is based on indepen separate, adequate, and

bona fide course, we, grounds, will not under

dent decision.”) (emphasis add review the

take to

ed). uphold Siripongs’ conviction in all

I would judgment of the

respects. I would affirm the

Case Details

Case Name: Jaturun Siripongs v. Arthur Calderon, Warden

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Oct 13, 1994

Citation: 35 F.3d 1308

Docket Number: 92-56498

Court Abbreviation: 9th Cir.