Larry David Davis v. Jeanne S. Woodford, Warden, of California State Prison at San Quentin

discretion, they gubernatorial exercise of upon their verdicts they must base in the federal evidence, [they] matters that we and “evidence is what are not liberty stand and exhibits to take into consid- judiciary from the witness are at heard Prior evidence.” introduced into that were in our review of Williams’s habeas eration judge receiving jurors’ verdicts affirm the district petition. We corpus of what had occurred informed himself habe- judgment denying Williams’s court’s that the had not discussed determined district and vacate the corpus petition during threat any perceived Williams Rule denying Williams’s court’s order light of the jurors’ deliberations. 60(b) motion. profiting policy against a defendant strong IN PART AND VACAT- AFFIRMED trial and the wrongdoing at from his own ED PART. IN actions to ensure judge’s trial reasonable trial, is not conclude that Williams fair we Amend- to relief under the Sixth

entitled

ment, the district court’s and we affirm summary judgment in the state’s

grant on this claim.

favor

CONCLUSION to dis- no basis Finding constitutional Larry DAVIS, Petitioner- David or death 1981 conviction turb Williams’s Appellant, sentence, court’s we affirm the district habeas cor- judgment denying Williams’s also vacate the district

pus petition. We Warden, WOODFORD, of Cal- Jeanne S. Rule denying order Williams’s court’s Quentin, Prison at San ifornia State 60(b) court the district motion because Respondent-Appellee. motion. jurisdiction to consider the lacked No. 01-99014. necessarily holdings, we con- these With is not entitled to relief that Williams clude of Appeals, United States Court in the fed- conviction or sentence from his Ninth Circuit. however, note, that the eral courts. We not the forum for courts are federal Dec. 2002. Argued Submitted relief, may petition file and Williams Filed June 2003. of Califor- clemency Governor CONST, V, § art. 8. We nia. See CAL. Sept. 2004. Amended Peace 2001 Nobel are aware Williams’s laudable efforts

Prize for his nomination prison from his

opposing gang violence books,

cell, notably his line of children’s Against Speaks “Tookie Out

subtitled Violence,” and his creation

Gang Peace. See Project

Internet for Street Comer,

generally Tookie’s (last Feb. modified

http://www.tookie.com 2002). Although good works Williams’s since incarceration accomplishments for the

may worthy him a candidate make Dressner,

Tracy Crescenta, CA, J. La Amdur, Terry Pasadena, CA, and J. for petitioner-appellant. Bill Lockyer, Attorney General California, Anderson, State of Robert R. General, Chief Assistant Attorney Pamela Hamanaka, C. Senior Attorney Assistant General, Jorstad, F. Deputy Carol Attor- Karlin, exhausting After his California General, Deputy At- death. Louis W. ney petition he filed an amended General, appeals, state McGahey and Shawn torney court, in federal district General, corpus for habeas Webb, Los An- Attorney Deputy challenges raising multiple constitutional CA, respondent-appellee. for the geles, The the conviction and sentence. to both Having petition. denied the district court record, transcript, argu- reviewed the ments, decisions, including the prior and of the California Su- opinions extensive court, we and the district preme Court KLEINFELD, FLETCHER, B. Before affirm. McKEOWN, Judges. Circuit

BacKGround AMENDED OPINION AND ORDER conviction and sentence stem close in events that occurred from two ORDER early hours of proximity time has voted to majority panel A of the attempted rape of August 1988: the rehearing and to deny petition for by asphyxiation H. and the death Suzanne rehearing en banc. deny petition for sodomy of kidnapping and apparent grant petition Judge Fletcher votes to H.’s According Holman. to Suzanne Dawn recommends with re- rehearing for and so in a testimony, trial she met Davis bar banc, petition rehearing en spect to the 26, 1988, him and invited to meet August The in accord with the attached dissent. birthday. evening next for her her the 24, 2003, shall opinion filed on June be night, out the next She and Davis went Judge incorporate amended to Fletcher’s one of her friends. At the end along with dissent. evening, H. drove her Suzanne home, take agreed and then friend full advised of the court has been ostensibly being given by party to a rehearing rehearing en petition for they driving, a friend of his. As were judge requested no has a vote banc and road, her to a Davis directed dead-end to rehear the matter en bane. whether and be- keys ignition, took the out of the P. R.App. Fed. 35. to end his gan groping her. She first tried panel rehearing for and the petition lesbian, him she was a by telling advances rehearing en banc are denied. petition for only to excite him more. but that seemed until it The mandate shall not issue him finally persuade able to to She was whether, determined as result sex stop by telling him that she would have any judge of the court opinion, amended in in gave him a motel town. Davis rehearing to call for an en banc desires to a keys her car back to allow her to drive Order 5.4. No fur- pursuant General town, motel, trying and she drove toward accepted shall be from the petitions ther to attract the attention of unsuccessfully parties. police. town, H. Davis in Suzanne told Once OPINION going to get gas needed to before she McKEOWN, Judge. Circuit pumping gas, Davis was the motel. While cashier, told him that went to the Larry convicted of she David Davis was her, him and asked rape Davis had tried to first-degree murder and sentenced to police. to call the Davis came after her in—or partially out of—the passenger seat when drag away, telephone and tried to her but she el- the car struck the pole. “Rape!” him and screamed and he bowed The medical examiner testified that Hol- arrived, police go. let her When body man’s showed evidence sexual as- away, though removing ran not before body sault: her was found with her bra coil wire from H.’s car. Suzanne Suzanne pulled chest, down below her she was gave H. police, statement but said strangled, and her anus was dilated and participate prose- she did wish smeared with fecal matter. The medical cution, saying that returning she was to examiner also found a large number of days. New York within night, Later that sperm in her anal canal and a smaller police canal,, one of the officers had vaginal who inter- number her and noted stopped heavily viewed Suzanne H. Davis for uri- her skirt was stained with material, semen and nating public fecal loitering, suggesting but the offi- she had been speculated sodomized. He cer did not connect Davis with the Suzanne sodomy occurred after H. she suf- incident. asked what he When was injuries, fered the car crash perhaps short- doing, Davis claimed to be friends with the ly Moreover, "view, after her death. in his occupants nearby of a house. The officer if the death, sex had occurred before her house, awakened the residents of the who she would have been in too pain much Davis, knowing denied and the officer told injuries from her other engage in con- Davis to leave. sensual intercourse. He also testified that officer, After his run-in with the although injuries the crash were highly way nearby Safeway grocery made his to a disabling and could have resulted her store, and it was there that he met Dawn death, strangulation was in fact the a.m., Holman. At about 3 standing cause of her death. on the sidewalk in front of the store smok- Serological testing of the stains on Hol- marijuana man, when a later identified man’s skirt revealed that Davis was within Manson, as Emanuel came over and asked population the 1% of the that could have agreed, for a hit. Davis him asked been the source of the semen. Davis’s declined, a ride to Ventura. Manson , DNA matched the DNA found on some of later asking saw Davis for a ride from a addition, the skirt stains. a breast just woman who pulled park- had into the swab taken from high Holman indicated a ing lot. That woman was Dawn Holman. probability of saliva with the same basic ride, agreed give they She Davis a Davis’s, type blood and two hairs found left alone in Holman’s car. body on Holman’s were consistent with Finally, hair. piece a small of body was found around 5 Holman’s a.m. glass in the shirt wearing found Davis was by a greenskeeper nearby golf at a course. night on the of the incident was consistent partially Her car was in a ditch about 265 glass with broken from car. Holman’s body; feet from her the front passenger heavily damaged, appeared door was death, days Several after Holman’s two to have hit a nearby telephone pole. Ac- County-police questioned Ventura officers examiner, cording to the medical Holman questioning Davis. The focused on the' asphyxiation strangulation, died from from incident, Suzanne H. of but at end likely manual strangulation, but not before conversation the officers mentioned that suffering they extensive external and internal looking were into a homicide. Davis injuries having as a result of leaving been seated told the officers that after Suzanne Reid, Ashley who ar- boyfriend, public, one-time urinating

H., stopped he was *anonymous Manson and by somebody and taken rived with up picked and was conduct Angered by and drank. man. Holman’s truck, he sat white where back to his Davis, into Holman’s car got Davis for the assault Reid with arrested The officers got him into the into Manson’s and the others H. and booked with her on Suzanne after, jail. he was men followed Reid County Soon car. The three Ventura course, mur- them golf for Holman’s witnessed re-booked Holman to arrested and relating to both charges way, on the and then fighting the car der. Criminal Davis in Decem- against pole while telephone filed car hit a events were saw the out of the partially hanging 1988. ber Holman car. passenger side of the trial on six ultimately went (1) Holman murder of first-degree counts: of his jumped that he out Davis testified 187(a)) felony- (Cal.Penal § with Code Holman, car, up, her and ran picked ran to kidnapping circumstances for special based her, with but that golf across the course 190.2(a)(17)) 207, 209, (Cal.Penal §§ Code him guy” caught up and told the “white (CaLPenal §§ Code sodomy him. Davis left speak Reid wanted to (2) 190.2(a)(17)); sodomy of Holman lay to the Holman where she and returned (3) (Cal.Penal 286(c)); kidnapping § Code gun a at him. pointing car to find Reid (4) 207(a)); (Cal.Penal § Code of Holman hand, of Reid’s gun Davis kicked the out (CaLPenal of H. battery Suzanne sexual away, apparently was hit some sort ran (5) 243.4); § assault of Holman with Code vehicle, slapped awake the next of and was (CaLPenal sodomy Code intent to commit by shabbily-dressed old man on morning a (6) 261(a)(2), 286); assault Su- §§ tracks. Because he did not the railroad rape commit intent zanne H. with killed, anybody realize had been and be- 286). (CaLPenal 261(a)(2), §§ sodomy Code from cause he received some veiled threats Reid’s, report an associate of he did only trial, offered what can be At police. the incident to the story, a convoluted characterized as supporting a rather played which he Both Reid and a man who was identified in the events that led starring than a role guy” potentially being pro the “white He admitted that dur- death. Holman’s At night question. vided alibis for the County the Ventura ing his interview with trial, Manson refused to answer most officers, lied about his activities police questions. jury defense counsel’s murder, night and claimed guilty on all counts as found Davis his life and the he had done so because count charged, exception with the family were “threatened.” He lives of his Holman, jury sodomy of on which evening involving offered narrative guilty of the included found Davis lesser including mysterious people, extra three jury attempted sodomy. The offense of car, and Davis as the guy,” “white an extra weeks began penalty phase six later. unlikely hero. of witnesses hearing After from a number sides, Davis, left for both returned death According to he and Holman car, Supreme verdict. The California Court Safeway in her while Manson fol- affirmed Davis’s conviction and sentence parked lowed in his. The three Davis, v. 10 appeal. People Holman on automatic pot, more and then smoked some 463, 488, 826, 41 896 Cal.Rptr.2d together, left smoked some Cal.4th (1995), 119, nom. They P.2d 129 cert. denied sub more had consensual sex. dope, and 1121, 116 California, 516 U.S. by in the car Holman’s Davis v. were discovered

637 (1996). 932, pointment 133 L.Ed.2d 859 of Stay S.Ct. Counsel for of Exe cution, rejected California courts also Davis’s not his Amended Petition for Writ corpus for writ of habeas of petition Corpus, state Habeas before the effective filed March 1995. date of the Antiterrorism and Effective (“AEDPA”), Penalty Death Act AEDPA’s Davis initiated his federal action fil- standards of applicable review are to both Request for of Appointment Counsel procedural aspects merits and of this Stay and for of Execution with the district appeal. Garceau, See 538 Woodford 5, April court on 1996. He filed a mixed 202, 1398, 1404, 155 U.S. 123 S.Ct. L.Ed.2d petition corpus April for writ of habeas (2003) (“[W]e hold that ... a case does 22, stayed 1997. The district court Davis’s ‘pending’ not become until an actual appli pending habeas case exhaustion of the corpus cation for habeas relief is filed in unexhausted claims in state court. Davis court.”); federal see also Valerio v. Craw petition then filed second state habeas Cir.2002) ford, F.3d (ap claims, containing the unexhausted which plying appellate provisions AED- review Supreme the California Court denied after 2253(c)) PA, § 28 U.S.C. (citing Slack v. rejecting all claims on the merits. McDaniel, 473, 480-82, 529 U.S. 120 S.Ct. subsequently filed his Amended Petition (2000)). 1595, 146L.Ed.2d 542 Corpus, listing for Writ Habeas seven- claims, teen in federal court. The district AEDPA, may Under grant we ha granted court the state of mo- California’s only beas if relief the state court’s decision summary judgment, tion for denied Davis’s (1) to, contrary “was or involved an unrea partial summary judg- cross-motion for of, application clearly sonable established ment, prejudice and denied with law, Supreme federal as determined Al- petition corpus. for writ of habeas (2) ...; Court resulted in a decision though the district court denied Davis’s that was based on an unreasonable deter request eiddentiary hearing, for an it is mination of the in light facts of the evi apparent from its 173-page decision presented dence pro the State court court gave thought- the district careful and 2254(d). ceeding.” § 28 U.S.C. The first case, exhaustively ful consideration prong applies questions both to of law and treating granted each claim'. We certifi- fact, questions to mixed of law and appealability cate of on ten of Davis’s sev- 362, 407-09, Taylor, Williams v. 529 U.S. enteen claims. (2000), 146 L.Ed.2d 389 prong'applies while the second to decisions OF REVIEW STANDARD determinations, based on factual Miller-El Davis seeks two forms of relief: an evi- Cockrell, S.Ct. dentiary hearing majority on the of his (2003). 1041, 154 L.Ed.2d 931 claims and reversal of the district court’s grant summary judgment satisfy ap the state To the “Unreasonable remaining plication” portion prong, California on the claims.1 Be- of the first Request Ap- petitioner cause Davis filed his must demonstrate the state of, requests evidentiary hearing 1. Davis on: effect of errors. sum- He seeks reversal (1) ineffective assistance of counsel in the (1) following mary judgment on the bases: (2) guilt phase; ineffective assistance of coun- denial of severance of the Suzanne H. and (3) penalty phase; sel at the ineffective assis- (2) charges; sufficiency Holman of the evi- respect expert's tance of 'counsel to his dence; (3) (4) prosecutorial vouching; and (4) testimony; competence in the rights. violation of Confrontation Clause (5) bias; (6) phase; juror cumulative 638 non-capital from the related to Holman Supreme prec- Court of application

court’s only case was not of his to the facts H. charges relating edent to Suzanne violated his “objectively unreasonable.” incorrect but process rights. The California Su- due Visciotti, 19, 123 537 U.S. v. Woodford not an abuse held that it was preme Court (2002). 357, Supreme 360 “While S.Ct. court to allow all of discretion for the trial authority precedent is the Court together. to be tried counts AEDPA, look to controlling under we au- ‘persuasive case law as Ninth Circuit may grant habeas relief on a We determining thority purposes of wheth- joinder challenge only joinder “if the re an state court decision is particular aer in unfair trial. There is no sulted application” Supreme of “unreasonable ” constitutional violation unless prejudicial Cambra, F.3d law.’ Luna v. 306 Court of trial of more than one ‘simultaneous Cir.2002) (9th 954, Tran (quoting Van 960 actually petitioner’s ... rendered] fense (9th 1143, Lindsey, 212 F.3d 1154 Cir. v. hence, fundamentally trial unfair and state 2000), grounds other part overruled in on ” 63, Andrade, v. process.’ 538 123 violative of due Sandoval Cal by Lockyer v. U.S. (2003)). 1172, 1166, (9th L.Ed.2d 144 155 deron, 765, Cir.2001), S.Ct. 771-72 courts “Factual determinations state denied, 847, 112, 122 cert. 534 U.S. S.Ct. presumed correct absent clear and are (2001) denied, 151 L.Ed.2d 69 and cert. 534 contrary.” Mil convincing evidence to 322, 943, 241 151 L.Ed.2d ler-El, 1041; 123 S.Ct. at 28 U.S.C. (2001) Estelle, (quoting Featherstone 948 2254(e)(1). § A court decision state (9th Cir.1991)) (omissions 1497, F.2d 1503 on a factual determination will not “based original). requi in The and modifications grounds factual unless be overturned on only “if prejudice site level of is reached objectively light unreasonable impermissible joinder had a substantial pro presented evidence the state-court injurious or influence in deter effect Miller-El, 1041; ceeding.” 123 at 28 S.Ct. Sandoval, jury’s 241 mining the verdict.” 2254(d)(2). § U.S.C. Calderon, (citing at 772 Bean v. 163 F.3d review the district court’s de We (9th Cir.1998)). 1073, In evalu F.3d 1086 nial of evidentiary hearing of an for abuse ating prejudice, the Ninth Circuit focuses discretion, Borg, 60 Lawson v. F.3d cross-admissibility of evi particularly (9th Cir.1995), 611 and review the district danger “spillover” dence and the from grant summary judgment court’s de another, charge especially where one novo, Applied Mgmt., Risk 307 Lessard charges (9th Cir.2002). charge one or set of is weaker peti F.3d See, Sandoval, proving by tioner e.g., carries the burden than another. preponderance of the evidence that he is Bean, 772; F.3d at 163 F.3d at 1084. entitled to habeas relief. Silva v. Wood Cir.2002).

ford, 279 F.3d Supreme As the California Court noted, Davis the evi “concede[d] [that] Guilt Phase against of the offenses support dence Impermissible 1. Joinder H. Holman and Suzanne was cross-admis identity on the issues of and intent.”2 sible argues that the trial court’s denial Davis, charges Cal.Rptr.2d of his capital motion to sever the Cal.4th concession, event, Although disputes 2. rested on the code such a the court’s decision disputed argue cross-admissibility he did evidence than the admis- lack of rather and, Supreme the California Court sion.

639 Bean, 142; bility.” Evicl. 163 F.3d at 1084-85. 826, P.2d at see also Cal. The 896 , 1101(b) (evidence person com- same holds true where two § different Code prove charges joined fact other are mitted crime admissible trial. The evidence act). inci- only cross-admissible, to commit The disposition than here was but not. nature, only in occurred straightforward. dents were similar distinct The two geo- in apart, and were close joined. a few hours counts not improperly were graphic proximity. Sufficiency II. of the Evidence Pre- on Moreover, join did not “a State meditation evidentiary case with a much weak-

strong next challenges his con hope in the that the cumulation er case process grounds, claiming viction on due the evidence would lead to convictions that there was insufficient Sandoval, pre evidence 241 F.3d at 772. both cases.” meditation and deliberation to support weight of in the Holman and The evidence first-degree murder conviction. Davis roughly equivalent. H. Suzanne cases was faces considerable hurdle on this claim. entirely on cir- The Holman case turned if, jury’s finding stand evidence, “after physi- must although cumstantial viewing light the evidence in the most against including cal evidence Davis— prosecution, any favorable rational and the shard of wind- serological results trier of fact could have found the essential pocket very shield found his shirt —was beyond elements of the crime a reasonable charge H. on strong. The Suzanne rested 307, Virginia, doubt.” Jackson v. 443 U.S. testimony nar- H.’s own direct Suzanne —a (1979). 319, 2781, 99 61 L.Ed.2d 560 S.Ct. jury rative that the found more credible court, Significantly, our “faced with a rec If anything, physical than Davis’s. ord of con supports historical facts stronger made for a case on the evidence presume if flicting inferences must charges than on the non- capital Holman —even affirmatively it appear does not involving H. capital charges Suzanne record —that the trier of fact resolved fur Notably, any prejudice was prosecution, such conflicts in favor of the through an instruction direct ther limited and must defer to resolution.” Id. jury sepa each count ing the to consider 326, 99 S.Ct. 2781. Lane, rately. States v. See United 725, apply n. the Jackson stan We (1986) (concluding, explicit in a case dard “with reference to the sub L.Ed.2d 814 defendants, criminal misjoinder that a stantive elements of the offense as regarding may law.” at 324 n. “carefully limiting crafted instruction” defined state Id. law, minimum” 2781. California ver prejudice “[a] reduce “to the and S.Ct. Under ... degree of murder in the first is necessarily cannot assume that dict that”[w]e disobeyed slayer if the ‘as a result jury proper misunderstood or such killed (internal thought of consid quota weighing citations and of careful instructions” omitted)). erations; plan; judgment such as a deliberate Although tion marks coolly steadily, [especially] pose by asking can difficulties carried instructions ” design.’ Peo damaging according preconceived in to a juries “compartmentalize Caldwell, 864, 869, 279 43 Cal.2d ple formation about one defendant derived (1955) (citations omitted). counts,” joint from the instructions have P.2d must “premeditation” “Deliberation” and better chance of' effectiveness “when require “more reflection simple of each and dis be construed evidence crime involved, tinct, in the mere forma- may than be even the absence of cross-admissi- 640

tion of a intent kill.” specific People Although jury certainly v. the could have Anderson, 26, 15, Cal.Rptr. 70 Cal.2d 73 found the not crime did rise to the 550, 942, (1968). murder, 447 949 first-degree say P.2d level of we cannot under the Anderson framework that no explains reviewing Anderson that in ver rational of fact have trier could found that murder, first-degree dicts of the court the Holman murder was deliberate and (1) (2) of planning, looks to evidence mo premeditated. (3) tive, jury and facts “from which the killing could infer that the of manner was focus first the We manner of particular so and exacting that the defen killing strangulation. California Under — ‘preconceived dant must have ... a [had] law, manner-of-killing “when evidence ” design’ jury may that the infer from ei strongly suggests premeditation and delib planning. ther motive or 70 Cal.2d at 26- eration, itself, enough, by that evidence is 27, 550, Cal.Rptr. 73 P.2d 447 at 949. to sustain a first-degree conviction for Such verdicts are typically sustained White, Drayden 704, murder.” “when there is evidence of all three types”; (9th Cir.2000) Hawkins, 709 (citing 10 otherwise, there “at must be least ex 957, 636, 42 Cal.4th at Cal.Rptr.2d 897 (1) tremely strong evidence of or evidence 595). P.2d at (2) (1) conjunction of in with either The unrefuted medical evidence on this (3).”3 27, 550, Cal.Rptr. 70 Cal.2d at 73 point compelling. injuries is Holman’s 447 P.2d at 949. extremely from the crash were serious but law, with accord California the were not the cause death. of her Even judge jury trial instructed the almost ver crash, debilitating appar- after the she was batim from the California model in ently escape able to from the car. Her structions: strangula- ultimate demise resulted from unconscious,

The law does undertake measure tion. To render her time the of length period units of would had to apply pressure deliber- during the thought pon- ately steadily which must be up for to two minutes. state, it ripen dered before can into an intent Even in her weakened death to kill truly pre- strangulation which is deliberate would have taken three vary pressure. meditated. time will with dif- five of minutes continuous A varying juror ferent individuals and under cir- rational could infer that there was cumstances. The true test nothing not the casual or accidental about time, duration of but rather the death keep extent and that the intent to Holman from escaping plus reflection.... To constitute a de- from the car the stran- premeditated killing, gulation premeditation liberate and evidenced and de- slayer weigh must and consider liberation. Whether viewed isolation or question killing conjunction evidence, and the reasons for with the other and, against such a having killing choice in manner of evidence was sufficient to mind consequences, Anderson, decides to sustain the verdict. [he] See 70 550, 27, does kill. Cal.Rptr. Cal.2d at 73 447 P.2d 3. We Supreme note California prerequisites Court's ad- definitive statement monition, however, analy- proving premeditation that the "Anderson and deliberation in ev- Hawkins, sis ery People intended as a framework aid case.” 10 Cal.4th review; appellate propose Cal.Rptr.2d it did not P.2d (1995) (internal degree define quotation elements first murder citations and marks omitted). .... guidelines The Anderson ... are not a counsel, of a assistance of Davis must show preconceived that evidence (noting a motive coupled performance is sufficient that counsel’s was deficient— design verdict). is, murder objective to sustain that it fell first-degree below stan- dard reasonableness —and that “coun- observed, court this case As the district sel’s errors so serious as to deprive were the falling evidence within also involves 687, the defendant of a fair trial.” Id. at categories planning other two Anderson — 104 S.Ct. 2052. planning Evidence of arises and motive. on the assaults engineering from Davis’s Impeach A. Failure to Prosecution H. in and Holman isolated both Suzanne Witness they easily escape areas where could not juryA could also believe help. or seek Davis first attacks defense coun intending into the car to got that Davis impeach sel’s failure to Emanuel .Manson. and, re- have sex with Holman when she cross-examination, During Davis’s counsel fused, forcibly rape, so- plan a devised asked Manson whether he had been con domize, kill her. lying police victed of to a officer. Manson admitted, jury, of presence outside the the motive, discussing topic the of

As for years two earlier he had lied to a girl,” reportedly “a sex with dead police officer connection with a misde informant, jailhouse got get “You told judge meanor traffic ticket. The trial sus juryA body gets ‘em the cold.” before prosecutor’s objection tained the because testimony the informant’s that believed convictions are misdemeanor not admissi infer that Davis intended to kill Hol- could impeachment purposes ble for under Cali her man so that he could have sex with fornia law. Davis’s counsel could then body possibility dead or to eliminate the permission impeach have asked for reporting rape testifying her underlying conduct Manson with the support- him. Given the evidence against misdemeanor, admissible, which was but factors, all three Anderson the district Both sides acknowl he failed to do so. concluding err in that there court did not edge that this mistake constituted ineffec Spe- was sufficient evidence sustain counsel, violating tive assistance finding premeditation. cial issue prong first of Strickland. III. Ineffective Assistance of Counsel fair the mistake denied Davis a is whether trial. hold that it did not. We evidentiary hearing an on

Davis seeks of ineffective assistance of four claims impeach Defense counsel did Manson’s guilt phase. We address counsel credibility many grounds, on other includ- each in turn and affirm the district court’s testimony ing inconsistencies in his and his hearing of a because Davis has not denial inability to remember whether he had that he is entitled to relief demonstrated drinking night been on-the he saw Davis Woodford, Phillips on claim. See Safeway. Manson refused to When Cir.2001) (“A habeas in- judge questions, several answer evidentiary is entitled to an petitioner jury “you can draw what- structed the petition if in his hearing allegations [ ] credibility or regarding inferences ever would, him proved, if entitle' to re- to answer a lack of it from his refusal lief....”). answer what feel direct order from me to question in this trial.” Washington, 466 to be relevant Under Strickland that Manson’s 80 L.Ed.2d 674 The was thus on notice S.Ct. (1984), coun- credibility was at issue and defense prevail on claim ineffective highlighted

sel further through that fact C. Presentation of “Irrelevant” Tes- timony questioning. effective importantly, More it is impossi- almost The first two witnesses for the ble to believe that a jury already aware — Tammy Kay defense were Thompson and credibility that Manson’s issue— that, Taylor. Cecilia Each testified in the would have guilt phase decided the differ- spring or summer of she had been ently had it known that Manson lied man; harassed or assaulted a black connection with a traffic ticket issued a Davis, composite based sketches of each year before the murder occurred two woman testified that he could have been years before trial. We therefore incidents, however, perpetrator. Both conclude counsel’s failure to introduce in custody. occurred while Davis was De prejudice Manson’s conduct did not the fense counsel used the witnesses to em outcome of Davis’s trial. phasize that victims often make mistakes in identification. Davis claims his B.FailuRE Introduce offering counsel was ineffective for these Investigators Statement witnesses because the identification issue trial, Davis recounted his Before was argues irrelevant to his defense. He version of the tape-recorded events a that this strategy made the appear defense statement to investigators. defense At tri “desperate” opened up testimony al, Davis testified that spoken he had potshots prosecution. from the investigators, and defense counsel This claim fails under the prong first pointed out in closing argument Strickland. addition to arguing that already story” Davis “had told his and thus sex crime victims often make mistakes explanation did not invent his after hear identifying assailants,, their defense coun prosecution’s testimony. However, argued closing sel that witnesses “can defense counsel never introduced into evi also be mistaken about all kinds of other dence Davis’s statement other testi things [they] see and hear” and he mony that given. the statement had been gave examples of some of the mistakes prosecutor point thus was able to out that various might witnesses have made. in rebuttal that defense counsel’s claim presentation Counsel’s pair of this of wit was uncorroborated. part nesses was of a trial reasonable strat Whether or not counsel’s failure to intro- egy, subject albeit one to criticism and duce this evidence constituted ineffective after-the-fact second-guessing. See Siri assistance, it prejudice did not the trial. Calderon, (9th pongs 736 by As sequence documented of other Cir.1998) (holding that inqui “the relevant evidence, gave his statement to in- ry under Strickland is not what defense vestigators after hearing prosecu- both pursued, counsel could have but rather arguments preliminary tion at the hearing whether the choices made defense seeing police a report about the mur- reasonable”). counsel were der. Even if timing the statement and its evidence, were in prosecution could Peremptory D. Failure to Exercise by pointing rebutted it out that Davis Challenges already knew broad outlines of the prosecution’s case the time he made his Davis’s final ineffective assistance statement. Davis’s Strickland claim of claim counsel stems from defense coun therefore fails. sel’s challenge decision not to the seating penalty, they the death and that having per unused about jurors despite of two an Establishing approach Strick intended to the evidence with challenges. emptory juror se understanding in the context of allocation of prejudice proper land that, a result showing a requires say burdens in a criminal case. We cannot lection per failure to exercise declining of trial' counsel’s thát was deficient in counsel jury panel con challenges, the emptory challenges. peremptory exercise juror was biased. at least one who tained Quintero-Barraza, States v. United Vouching IV. Prosecutorial Cir.1995). “The Su F.3d Finally, alleges that rele suggested has that the preme Court prosecutor improperly vouched for wit juror determining test for whether

vant Moreno, credibility. ness’s Fernando juror[] had is ‘whether the is biased .... jail inmate trustee at the where Davis was opinions that could [he] such fixed trial, awaiting testified that he had housed guilt of the defen judge impartially ” in which Davis conversation with Davis Yount, Patton v. (quoting dant.’ Id. that he in implying made statements 1025, 1035, L.Ed.2d volved Holman’s murder and that he (1984)) (alterations in original). preferred apparently anal sex—the kind to the voir jurors’ The answers upon vaginal forced Holman—to inter they that did questions dire demonstrate testimony, exchange course. for his penalty not hold fixed views on the death plea agreement Moreno entered into a and guilt. professed- Each or on Davis’s a recommendation that he be al received in of innocence and presumption belief the son. lowed to attend the birth his second judge’s the instruc willingness to follow prosecution The introduced the unre- impartially. One tions and decide the case part: in plea agreement, dacted which read jurors, investigator, an FBI fraud with Fernando “Based on our interview believed in the death said Moreno, pro- careful consideration of his had under certain circumstances but in- spective testimony and that the belief it. He stated that “mixed emotions” about and provided he has is truthful formation a critic of he could be honest and could be accurate, him a like to use we would handiwork, but also said law enforcement forthcoming People in trial of witness the “a lot of admiration for the that he had added). Larry (emphasis versus Davis” various law enforcement officers.” nurse, juror, re emergency-room other an trial, law- During a recess the addicted to daughter lated that her was yer objected phrase to the “and belief months raped cocaine and had been seven is truthful provided the information he has trial, and that her son had been before acknowledged accurate.” He and years earlier. She also re raped three phrase, but jury already had heard to be ambivalent vealed “what consider the exhibit asked that it be redacted -from and feelings penalty,” about the death At the jury be in the room. that would proof “is and agreed that the burden day’s testimony, judge gave end of the in a case like ought to be on the accuser instruction, referring the to a curative this.” them, “I telling offending language just to line it out and actually going am These statements do not demonstrate Rather, disregard or delete you admonish to implied jury actual or bias. were, from the testi- jurors portion of the memorandum ap- reflect that the comments your mony [] from the exhibit from feelings their propriately, grappling with mind, by competency hearing. as evidence not to be considered We hold that be- cause trial court you parties to believed.” did not err declin- as what ing competency hearing to hold a and be- relief, prosecu To habeas warrant competent, cause Davis was in fact infect[] torial must “so misconduct district court did not abuse its discretion in to make trial with unfairness as the result declining evidentiary hearing to hold an ing process.” a denial of due conviction failing the issues and counsel did not err in 168, 181, Wainwright, Darden v. 477 U.S. request competency hearing. (1986) (cita 91 L.Ed.2d S.Ct. omitted). quotations tion internal Incompetence A. Procedural get tangled Here we need not the issue quarter century Over a of a agree of the unredacted whether use ago, we offered a succinct benchmark for vouching. Al ment rises the level precise review of the issue raised Davis: object though counsel’s initial failure to question “The be asked the review may lapse, it have been an unfortunate judge, court is whether a reasonable significant consequence. was without situated judge as was the trial court whose object in fact the next Counsel did evidentiary hearing failure to conduct an break, judge the trial redact reviewed, being should have experienced offending language ed the from the exhibit respect doubt with competency to stand gave but a curative This instruction. Enomoto, trial.” Kaplany de not a case which there was “over (9th Cir.1976) (en banc). A defen jury[would] whelming probability that the dant must show that there was “substan be the court’s instruc unable follow tial mentally evidence” that he was incom strong tions” “a likelihood that and the petent to stand trial. Moore v. United devastating effect of the evidence would be States, (9th 663, Cir.1972). 464 F.2d 666 Miller, to the defendant.” v. Greer 483 Only when “the evidence raises a ‘bona 3102, 756, 8, 766 n. 97 ” fide compe doubt’ about the defendant’s (1987) (citations L.Ed.2d 618 and internal tence to stand trial judge must a trial sua omitted). quotation marks Davis has not sponte conduct an evidentiary hearing. demonstrating pros succeeded that the Robinson, 375, 385, Pate v. 383 U.S. 86 reading plea agreement of the ecutor’s (1966). 836, S.Ct. 15 L.Ed.2d 815 “The fundamentally his trial unfair. rendered state trial appellate findings courts’ that the require compe evidence did not Penalty Phase tency hearing findings under Pate are fact to they which we must defer unless Competency I. Failure to Hold a Hear- are ‘unreasonable’ within the meaning of ing 2254(d)(2).” § 28 U.S.C. Torres v. Prunty, Davis makes three claims related to his (9th Cir.2000) (citing 1105 competency during penalty phase: the He Maggio Fulford, 111, 117, v. 462 U.S. argues that the trial court erred not sua (1983) S.Ct. (per L.Ed.2d 794 sponte holding a competency hearing at curiam)). (a penalty phase procedural the incom- petence claim); actually that he in- trial, was competent “To be to stand competent at the time of the phase defendant must ability demonstrate an (a claim); incompetence substantive lawyer consult with his awith reasonable that his trial counsel rendered degree ineffective of rational understanding and a assistance of not requesting counsel rational understanding as well as factual from the counsel table. When Davis’s Douglas him.” against proceedings judge that Davis re- Cir. counsel informed Woodford, 316 F.3d 2003). a state trial reviewing whether fused to wear civilian clothes or to sit conducted a sponte courtroom, have sua judge judge should asked Davis may consider hearing, we competency rejecting attorneys’ he was whether before the trial that was the evidence responded advice. Davis he was do- Woodford, 306 F.3d judge. Williams “I intentionally so because don’t like (“Al (9th Cir.2002); also id. see listening to lies*about me. I sitting here signal facts a defen though particular no doorway], if I feel sit over there [in suggestive evidence incompetence, dant’s T problems will be less am the[re] defehdant’s demeanor before includes the jurors] to sit over there so happy [the judge, trial irrational behavior getting here and look' at me mad don’t sit ” defendant, medical evalua and available I to the lies.... because listen competence to the defendant’s tions of judge partic- told Davis he was trial.”). judge the trial Because stand ularly concerned that Davis’s absence from evidence of not faced with substantial the counsel table would make it easier for in fact had incompetence —and prosecutor to convince the to im- that Davis was com reason to think good pose penalty. responded the death failing to hold a did not err petent —he issue, thinking had about that that he been competency hearing. Beginning problem suppose is how am I to sit Penalty Phase 1. lawyers say suppose I’m here like the is little doubt that Davis Although there face, no, like straight have a don’t show ways and acted in was recalcitrant anything.... I’m mad or It’s been hard case, his interac- were detrimental to his through all the trial to listen to these that he judge the trial indicated tions with different, I know and then people when during understood what was stake I I’m got to sit here after know still and could make informed penalty phase my for the rest of life or going prison decisions. chamber, how am I getting gas the sup: day of the penalty On the first keep straight and pose to sit here judge Davis’s counsel informed the phase, just face? I can’t do it. can’t. right to be that Davis had waived it judge acknowledged that When the the present penalty phase. for the When be‘“devastating” if Davis did some- would waiver, objected such a blanket judge to in front of the that could be thing that, judge according to his Davis told the violent, repeated that construed as Davis jail library, “[the law] research in the law problems. avoid just try “I want to and court, at not only says present I have to be trying That is all I am to do.” any time of and at counsel table at present trial.” The my hearing during the not to wear civilian Davis’s decision him to allow to sit the judge agreed doorway and to remain the clothes one of his doorway of the courtroom with facing pros- than the courtroom rather attorneys. may seem an unreason- ecution witnesses on trial for his for someone began pro- able decision day, judge The next of the risks evidently aware life. He was ceedings by soliciting getting and behavior, however, rationally and of his right of his to sit at the explicit waiver against the likelihood weighed those risks to confront witnesses counsel table and that, courtroom, if he remained in the things, dropped had had a brick on his something young, head when he was often “in would do increase further his stood daze,” and, mother, according to his “lost being chances of sentenced to death. See 378-79, 836; his mind.” Id. see Douglas, (concluding 316 F.3d at 1094 Woodford, also Odle v. defendant’s respon- “coheren[ee][and] (9th Cir.2001) 1089-90 (holding that it was understanding and sig- siveness]” “the error not to conduct competency hearing nificance ... penalty phase” during of the petitioner where had suffered severe trau trial colloquy judge indicated that ma to his brain as a result of a car accident trial). competent defendant was during x x and had a 3 piece 4-ineh of his judge conclude that the trial We did not removed, brain long subsequent and had a proceeding err in a competency without history psychiatric hospitalization hearing at beginning penalty behavior); Torres, (conclud supra bizarre phase.

ing that district court holding erred competency hearing where court-appointed DuRing Penalty 2. Phase psychiatrist diagnosed had petitioner argues hearing also that a as having a severe (paranoid) delusional should have during been held disorder, testing peti indicated that phase because his mental status deterio tioner damage resulting had brain from during rated time. The trial court trauma, petitioner head disruptive had judge in a position gauge was whether a court). outbursts in may have been competency hearing would be in order. statements, depressed, history, but his judge The continued to interact with Davis conduct did not approach the overwhelm afternoon, every morning every asking incompetence indications of present in whether Davis still wanted to be in the Pate, Odle, and judge Torres. The doorway or if join he wanted to his attor not confronted with “substantial evidence” neys at the counsel table. Several times trial, that Davis was incompetent to stand Davis did choose to sit at the counsel table Moore, 464 F.2d at nor was there rather than in doorway, affording suggest evidence to judge that the “should judge a closer look opportunity and the experienced doubt with respect determine whether Davis was able to make trial,” competency to stand de Kaplany, rational choices participation about his 540 F.2d at 983. We therefore conclude his own trial. judge’s “ability] that the trial judge did not in declining err observe[Davis] the context of the trial” competency to hold a hearing. therefore allowed him gauge “to from [Davis’s] demeanor [that Davis] was able Incompetence B. Substantive to cooperate with his attorney[s] and to Davis’s right Sixth Amendment to understand object the nature and of the a fair trial would nevertheless have been proceedings against him.” Drope v. Mis implicated if he had actually been incompe souri, 162, 181, 420 U.S. 95 S.Ct. 43 tent during penalty phase. the See Caco (1975). L.Ed.2d 103 Demosthenes, perdo

Moreover, although Supreme the (9th Cir.1994) Court (holding that conviction of cautioned in against Pate relying on “de- legally incompetent defendant violates due meanor at trial ... dispense to with a process, but no competency hearing re hearing” on competence, at quired good unless court has faith doubt the Court was in faced that concerning competence). For much the who, case with a defendant among other same reason that the trial court had no to points Davis also a declaration Dr. incompetence, of we evidence substantial seven Vicary years the submitted after the evidence from record glean cannot he that ap- Davis’s be- trial which stated Davis’s incompetence. actual support pearance in court was “terrible” and that present he had the havior reflects that cooperation due to Davis’s lack of with He ability attorneys. with his to consult counsel, he Mr. as marginal, “viewed Davis the of proceed- also nature the understood gray competency in the area between the of weigh danger able ings; he was on incompetency.” Vicary Dr. went to add danger jury against the the absence from psychiatrists that “if had examined demeanor, several jury’s observing his during phase, Davis at penalty Mr. going he was to be he understood that few Mr. least a of them would found parole or to to life sentenced without incompetent.” Significantly, Davis to be death. however, fit to Vicary place did not see during that several events argues Davis company himself within the of few those in- penalty phase are evidence of His comments be psychiatrists. must First, insisted attend- competence. he on they specu- evaluated for what are—rank in a phase proceedings penalty than lation rather evidence. See also wheelchair, despite apparent physiologi- no (noting Douglas, 316 F.3d at 1094 the dis- Second, inability cal for his to walk. cause holding psychiatric opin- trict court’s that depression that his further he claimed years years ions rendered before and after allegedly suffered exacerbated abuse trial did not “suffice to raise ‘real and jail deputies. The evi- the hands of as to defendant’s com- substantial’ doubt” dence, however, claims to bear out his fails “in light at the time of trial of petence incom- that either fact evidenced caused objective contemporaneous and indi- other during phase. petence competence”). cations light our evaluation of substan- First, court-appointed psy- although his claim, competence Davis’s claim that tive chiatrist, Vicary, Dr. William testified attorneys ineffective as- his trial rendered hysterical conversion disor- Davis had for a failing of counsel move sistance anxiety being about der—in which Davis’s hearing the trial court also competency being a belief on trial was transferred into fails. not get could out his wheel- he jail physician that he and the chair—and II. Assistance of Counsel- Ineffective putting psychiatric Davis on

had discussed Testimony Vicary’s or. medication, Dr. Vicary gave no indication competent thought Davis was argues that defense coun In addi- participate proceedings. handling of Dr. presentation Vi sel’s tion, con- although penalty phase cary ineffective assistance constituted sultant, rap- had poor whom Davis from counsel’s counsel. His concerns date Vicary post-trial deposition put her Dr. port, stated initial decision Vicary testimony “hysterical became Dr. cautioned defense stand. that, in penalty phase the attorneys the of their and unfocusable” near end before credibility with the interviews, his to his testimony reflects that order bolster her was offer candid and anger jury, practice his to from his probably behavior resulted the her, damaging from attorneys, possibly entire information his and the towards warning, coupled with similar That compe- reflect on his stand. process. It did not public warnings several other defend- tency. from attorneys Vicary to addi- ers, request aggravating Dr. listed a number of Davis’s led elements, psychiatrist including a who to secure that Holman was tional time “innocent,” “young,” less ammunition for the and “didn’t provide deserve to would judge the trial refused prosecution. When die.” continuance, a defense counsel grant

to redirect, On defense counsel able to was Vicary forgo use Dr. rather than chose to in put Vicary’s testimony per- much of Dr. expert. any testimony psychiatric from a Vicary spective. agreed Dr. that evaluat- stand, Vicary, to ing solely On the Dr. true someone on the of the basis word, testi- malpractice. offered extensive detailed MMPI would constitute He broadly agreed subject’s mony. performance answer to several also that a 'counsel, questions worded from defense on the test could aby be affected number factors, including psychiatrist multiple the volunteered facts of his comfort with the about, murder, among things, person administering other examination. background, Vicary suggested might Davis’s criminal and his Dr. that Davis problems juvenile Vicary hall. Dr. in- have committed the his moth- murder had terpreted the of a psychological results er’s her indifference to children’s welfare Multiphasic juvenile evaluation—the Minnesota not thwarted appropriate inter- (MMPI) Personality Inventory Finally, Vicary indi- Dr. vention. testified that —as cating that Davis had Anti-Social likely helped by Person- Davis could be medi- ality (ASPD), Disorder and characterized psychological counseling cation and he intense, shallow, being impulsive, prison receive in á psychological would prone Vicary to violent Dr. episodes. medical unit. believed, even testified that he of re- out appropriate profes- Counsel exercised spect jury’s for the read- verdict and after judgment choosing put sional Dr. documents, of of pages thousands on Vicary despite prospect the stand lying Davis was and did murder Holman. might damaging that he offer information. Vicary

Dr. also provided important some the effort postpone When and unique mitigating testimony, phase bring psychiatric however. in a ex- new failed, He testified about expression pert Davis’s of quite defense counsel reason- remorse, provided psychological explana- ably a slight decided that the risk of a un- tion for Davis’s night behavior the known was preferable presenting no murder, detailed a fac- mitigating psychiatric testimony. list Precisely because tors, despite and stated that background Davis’s susceptible ASPD, in prison setting leverage abuse, he would do well poverty, as a result structure, that provided factors, him some drugs, or other needed which he could model become for other someone who put could to- nevertheless prisoners demonstrate, and even a trustee or gether teacher’s the pieces to as Dr. aide. did, Vicary entirely that Davis was not making, creature his own had cross-examination, On prosecutor psychological problems, hope and that ex- made 'some headway undermining Dr. isted for some type rehabilitation. Vicary’s positive testimony. When prosecutor Vicary asked if Dr. he wanted fact that counsel had about concerns listing “take"a crack” possible aggra- Vicary say what Dr. might the stand is factors, vating objected cry Davis’s counsel a far from kind of professional only jestingly jestingly that court incompetence by initiating evidenced con- —so did objection not even rule on the a psychiatric expert just days tact with —and Lewis, unavailing. claim is The trial, 64 irrelevant. His see Clabourne before Cir.1995) (9th (ultimately Court found that the Supreme California F.3d “representation holding testimony beyond scope that counsel’s of was neither the hearing in ev sentencing ‘amount[ed] the examination nor irrelevant. Foun- direct at all’” representation to ery respect no Vicary’s from Dr. review dation stemmed omitted) (alteration (citation original)), the on which his of materials he based his a to switch into asking defendant testimony. mitigating prose- Because the no on the stand with personality alternate under California law to cutor was entitled up, offer see Wade might what idea Dr. Vicary’s opinion aggravating elicit on Calderon, Cir. 1323-24 F.3d factors, a lodge defense counsel’s failure to 1994). Indeed, Vicary Dr. to tes allowing objection prosecutor’s ques- to the serious candidly negatives may have tify about the was of tion neither ineffective assistance credi psychiatrist’s the served enhance prejudicial. nor counsel bility on other points. Vicary job adequate Dr. did a more than the evi- Significantly, most of adverse lay taking provided by the strands the already in Vicary dence offered Dr. was weaving together sympa- witnesses a that jury. jury The knew front of psychiatric portrait. possibility The thetic juvenile had committed offenses as a Davis might that cross-examination diminish the that he been involved in domestic had testimony force of his was inevitable. Be- The had al- incidents. itself violence cause counsel made an informed conclusion that Davis ready come put Vicary choice to Dr. on the stand and Holman; what that decision was killed access materials have had that should Had penalty phase. them to the brought diagnosis, them and because alerted to his that Vicary Dr. their decision suggested Vicary provide mitigating Dr. was able to error, jury might have well was areas, testimony range across testimony. mitigating his discounted Vicary Dr. consti- decision use neither Vicary gave jurors Dr. their also assistance of counsel nor tuted ineffective able to sign might clear that Davis be substantially prejudiced outcome of the setting. well in an institutional function penalty phase of Davis’s trial. Although the committed crime nature, Vicary Dr. was brutal and sexual III. Other Ineffective Assistance could and even survive testified Counsel Claims setting provid- in a in which he was thrive Testimony sympathy. structure and ed with A. Brubaker’s Sharon diagnosis not sub- Even ASPD was called Davis’s former defense Any stantially prejudicial. psychiatrist Brubaker, officer, probation Sharon who the same that Davis used would read years report written a diversion six had to the report likely come psychological in incident on domestic violence before Counsel did a reason- same conclusion. wife, his Laura volving Davis and then ef- on job mitigating redirect able the circum Brubaker testified that King. diagnosis. fects of the one for diver appropriate was an stance sion, have been whereby Davis would Vicary’s Dr. testi- argues Davis also program domestic violence shunted mony aggravating factors was inadmis- through proceed going than formal no rather was foundation sible because there had ings, but that she recommended testimony beyond the opinion, his prior direct, was Davis not diverted due to and the evidence be scope record, including juvenile his failing incidents. counsel for to call those additional prosecutor The mitigation used Brubaker’s witnesses. reference to criminal platform Davis’s record as a to The district court chose not to hold an recount Davis’s -criminal infractions. evidentiary hearing on issue this because Davis that contends the decision to put allege Davis failed to specific mitigat- Brubaker stand constituted ineffec- pre- evidence the witnesses would have tive assistance counsel. sented. Characterizing “conclusory” Davis’s allegations regarding addition- redirect, On direct and counsel clarified al information that potential those wit- and minimized Brubaker’s potentially dam- offer, might nesses the court held that aging testimony by highlighting her views pleading Davis’s notice was insufficient. King the violence toward was more Maass, See O’Bremski F.2d King minor than reported; that the violent (9th Cir.1990). agree We and further note incidents in history Davis’s were few and that even if counsel had called the addi- between; far and that the last offense had witnesses, tional their testimony would years occurred five before Holman’s mur- have been negative either or cumulative. der. main persuaded The incident that Finally, witnesses, as to seven of the Davis Brubaker not divert Davis was one in court, failed to raise this claim in state which he broke while drunk— window is precluded pursuing therefore from it hardly an persuade offense that would here. jury impose death. Counsel also elicited on redirect Closing Argu- C. “Rude Hostile” Davis no felony had convictions as an ment adult; only adult prior his crimes to the two attorneys Davis’s defense murder were the incident which she split closing argument at the end of evaluated him and the broken window. penalty phase. maintains report supported Brubaker’s also Dr. Vi- closing argument annoyed first so cary’s argument that had been de- angered that his sentence was prived opportunities of some to turn his claim, reject affected. We his and con life around since Davis could received clude that counsel’s' neither actions consti Finally, diversion and did not. the testi- tuted ineffective assistance of counsel nor cumulative, mony partially was as King prejudiced the outcome of the already had testified about the worst inci- phase. offense, dent —the domestic it- violence attorney began first defense his jury already self—and the knew that Davis closing argument by saying, “We will start juvenile had committed offenses. The tac- right out with comment that have a

tical to call decision Brubaker cannot be strong you belief some of have al- characterized as ineffective assistance of ready phase this decided of the case to counsel. yourselves those, probably ... nothing say I can going have any B. , Failure Introduce Additional particular value.” Counsel issue took Lay Witnesses jury’s phase, decision the guilt say- During the penalty phase, ing, “I would like to talk about Davis [] counsel introduced mitigation fourteen from a standpoint wit of someone who does nesses. Defense investigators interviewed believe that the evidence this case fifteen other witnesses. Davis faults to justify] your sufficient verdict pre- acceptance ... would have concluded that sentencer viously but with rendered aggravating and way mitigating it further the balance of that the is.” Counsel that is death”). you poo-poo can and jurors, “Now circumstances did not warrant told that your me ‘BS’ give head shake Jury wish, Finally, you if and that is fine.”

look IY. Claimed Bias jury, to going the “You’re counsel told instructing jury but before After the regardless any of what your make decision deliberations, the court received a note you I’d to say us like consider of here Schwartz, during from foreman R.C. the couple points.” a of the phases both of trial. note read: closing of a part These were statements Question One: If we cannot come to fifty pages. Counsel argument spanning agreement penalty unanimous on the the summarizing of his time spent most defendant, phase hap- for the what will impose to the asking jury case and the not pen next? counsel’s lan- penalty. Although death Question Two: If we decide on the jurors’ denigrate the guage appeared any is gas penalty, chamber as there decision, of his choice words guilt-phase expect that we that his reason should legitimate trial equally could have been a actually in punishment will ever occur challenging jurors recog- strategy of the California? deci- import guilt-phase nize the their If life Three: we decide on without of the determina- significance sion and the parole penalty original and our ver- as they to make. tion were about overturned, is the guilty dict of not will addition, In these remarks were prison life in actually spend defendant co-counsel, point made a countered who he later parole paroled without can be you that “I take it that telling the higher authority? some sincerely your job honestly and as as did you impact the on Four: Can describe could, you you would do you as swore (and legal system taxpayers) the which you picked were all serve earlier when likely occur for either of the two would you followed law jury, on this the words, In it penalty decisions? other I you respect And and that’s what did. death penalty said that has been added, “I ... disagree that.” He later results in millions of dollars decision Mr. so—that respectfully Maxwell— legal expense taxpayers for the of Cali- you up one of have made don’t believe appeals, et cetera. fornia due point.” your minds at this not administered. penalty end the that, acknowledge per- however We you us that this Five: Can reassure ceived, strategy may seem unusual just formality and phase legal is not Nonetheless, in the written record. view will result of our deliberation that the strong evidence seeing really significance have some argu- phase, legitimate and substantive prevail? justice will counsel, by both sec- ments made my impression It is that a death Six: efforts, mitigation we con- ond counsel’s actually result penalty sentence will closing argument clude that the does parole; parole a life without life without prejudice required under demonstrate the i.e., stick, defen- will not sentence Strickland, 466 U.S. at 104 S.Ct. 2052 you paroled. later Can dant will be (holding prejudice, demonstrate comment on this? must demonstrate “a reasonable petitioner question omitted.] that, errors, seventh [Unrelated probability absent It operation system was not clear whether the note was with the of our prison perform from will larger regard Schwartz or from some their duties in responsible correct and jury. faction of the asked manner. counsel the court in to dismiss Schwartz and to It would a violation your duty be quire any jurors whether had dis jurors you if penalty were to fix the at judge cussed case or the the law. The prison death a doubt the because of that that, request denied the and reasoned be governor authorities or the of the state cause the Court had in Supreme properly carry responsibili- California will out their similar approved situations in curative ties.

structions, it would be unreasonable to Likewise, it would be a violation of conclude that the note indicated an incura your duty jurors if you to con- were ble impropriety. jury When the convened cost taxpayers sider to the and other morning, the next to prior the final two impacts legal system on or pris- the the closing arguments, judge briefly the men system determining on appropri- the gave tioned note and jury the then the the therefore, punishment; you ate are lim- following comprehensive in explanatory properly ited to those matters which are structions, from directly People taken you in before this case which have been Hunter, 981-82, 957, 49 Cal.3d 264 Cal. brought your by to the attention evi- (1989) Rptr. 782 P.2d 621-22 the dence instructions of the (approving judge’s of a trial to decision you Court are to consider mat- questions jury answer with on instructions you ters that properly are not before commutation, sentence, the effect of a life the the evidence or instructions of the duties): jurors’ and the Court. gentlemen, you in- Ladies are ended, after Several months the trial structed that under the of Constitution a a Schwartz wrote letter Ventura California,

the of governor State a is County newspaper of approving the out- empowered grant reprieve, pardon a come the trial. Davis that alleges the or following commutation after sentence questions the judge Schwartz submitted to any the of conviction crime. in combination with his letter demonstrat- power governor Under this the in the pro ed a death Davis also bias. may modify future commute or sen- contends that use of pronoun the the “we” death tence of or a sentence of life questions raised the the inference that without possibility parole of to a lesser jury may have discussed the case be- sentence, including a in- sentence which argues fore submission. Davis therefore parole. cludes possibility of trial judge should have conducted bias, an inquiry, that the letter established A possibility sentence of life without proper remedy and that the tois remand of parole means that the will defendant evidentiary for an hearing before the dis- spend the remainder of his natural life trict court or a penalty phase. retrial of the therefore, in prison; pa- the matter of by you role is not be considered spectre The Ninth Circuit takes of determining punishment for the de- very seriously. empha- bias We have fendant. juror single partial sized “even a vio-

If upon of right consideration the evidence lates defendant’s constitutional you believe that life possibility Angulo, without fair trial.” United States v. (9th Cir.1993). of is parole proper sentence, you F.3d We have also charged must assume that those officials admonished that court confronted with “[a] trial.’ does not contend juror must under- fair Anderson of bias a colorable claim any jurors facts relied relevant on evidence investigation take Calderon, Dyer in reaching outside the record their circumstances.” Cir.1998) (en banc). verdict, nor he assert does 151 F.3d jurors actually decided the death prema to assume that Were we penalty before the case was submitted occurred, an ex such ture deliberations them. necessarily proper, change, though not Klee, (quoting Id. at 1098-99 communication, “private not as serious as 396). contact, juror ... tampering ... of the a influence during [or] trial no in Similarly, we see evidence inci “every nor upon jury,” the does press jurors any case of the relied Davis’s that juror a new require[ ] of misconduct dent in a reaching on extrinsic evidence death Klee, v. F.2d United 494 trial.” States verdict, jurors a any or of the reached .that (9th Cir.1974) (internal citations and 396 sentencing prematurely. determination omitted). is crucial marks What quotation trial, a Davis “is entitled to a fair but keep with each jurors “not that silent is one, there are no tri perfect perfect for juror case but that each other about the Inc. v. McDonough Equip., als.” Power been open an mind until the case has keep Greenwood, 548, 553, 464 U.S. jury.” Although a to the Id. submitted (1984) (internal 845, 78 L.Ed.2d 663 cita linger laid to hearing might have rest omitted). quotation tions and marks The question premature deliberations about hearing not to trial court’s decision hold a bias, circum do not construe the we juror bias is not “inconsistent with sub a then or mandating hearing as stances justice,” (quoting stantial id. Fed.R.Civ.P. suffi judge’s The instructions were now. 61), did its and the district court not abuse any possible prejudice. cient cure request in an denying the for discretion evidentiary hearing. ago, vir- years Just three we addressed v. tually the issue in Anderson identical Cir.2000).

Calderon, Clause Y. Confrontation deliberations, jurors cross-examination, Prior one During prosecu- the judge asking, to the a note submitted Vicary jail- a note from a tor showed Dr. parole possibility “Does life without informant, the admon- judge which house Anderson, un- really that? Or can mean jury for solely impeachment the was ished sentence, at some future time be note, der In re- informant purposes. ease Id. at 1098. As is the Davis, released?” “Everyone layed that he had said to that, here, although there we first noted like says you killed her because she looked may juror was some evidence you your it was your [think] wife. Did ju- other have discussed strangling?” According you were wife rors, com- it clear such “Yeah, was not whether note, it replied, should actually Id. munication had occurred. been,” prisoners laughed. two and the mis- Notwithstanding any possible juror that, note Vicary agreed assuming the Dr. however, conduct, we accurate, concluded response might be failed Anderson’s claim feeling over with his remorse inconsistent argues that the use killing Holman. Davis absolutely no evidence because there objec- counsel’s preju- of the note —over defense alleged misconduct has right his Sixth Amendment any way, much less tions—violated diced Anderson a to confront witnesses. ‘to the has not received extent procedurally claim is Because Supreme This constitutional the California Davis raised evi- held that proce barred because Court Davis’s claim was constitutional, law, objection durally barred dentiary, not under state he must Supreme prejudice noted demonstrate cause and to obtain trial. The California Court relief raising his Amend- habeas under state law. Wain that Davis was Sixth Sykes, 90-91, appeal, wright ment the first time on claim for (1977). S.Ct. L.Ed.2d 594 held that has demonstrated neither. He offers no course, is, general rule that [i]t explanation the failure to raise this relating admissibility to the questions addition, timely issue in fashion. appeal not be evidence will reviewed on already had determined that Davis specific timely of a the absence Holman, murdered heard and had testimo ground trial objection in the court on the ny damaging as the informant’s note. urged on sought appeal. to be preju Davis therefore has not established meritless, point is also since the note magnitude resulting dice of a funda admitted was not fact into evidence. “miscarriage justice.” mental Schlup provisions are not The constitutional Delo, 298, 316, 851, 513 U.S. 115 S.Ct. 130 implicated. substantially (1995). L.Ed.2d 808 Davis, 26, People 10 at 41 v. Cal.4th 531 n. 826, VI. Cumulative Error

Cal.Rptr.2d 896 P.2d at n. 26 156 (internal quotation citations and marks Finally, urges us to consid omitted). er whether defense counsel’s various er cumulatively unfair, rors rendered his trial When, “a prisoner state has de requiring thus both reversal of his convic claim in faulted federal state court his that, tion and death It sentence. is true pursuant adequate independent to an and although may individual errors not rise to rule,” state procedural federal re habeas violation, of a the level constitutional a White, view is Vansickel v. barred. 166 of might collection errors violate a defen Cir.1999) (9th 953, (citing F.3d 957 Cole dant’s constitutional rights. Harris v. 722, 750, man v. 501 111 Thompson, U.S. Wood, 1432, Cir.1995). 64 F.3d 1438 (1991)). 2546, S.Ct. L.Ed.2d 640 115 The cumulative error doctrine does not aid Supreme opinion California Court’s was Davis, however, because we are not faced opinion a “last reasoned” state such case. As our discussion of the court, Nunnemaker, v. see Ylst 501 U.S. illustrates, ineffective assistance claims 797, 2590, 803, 111 115 706 S.Ct. L.Ed.2d Davis has not prejudice demonstrated as (1991), disposition and its of Con claims, to the individual and the nature of clearly claim frontation Clause rests on his the claims does not support conclusion of procedural in failing error to raise the prejudice. cumulative Counsel’s few mis constitutional issue below. See Harris v. steps misjudgments did not render Reed, 255, 263, 1038, 489 U.S. 109 S.Ct. unfair, Davis’s trial fundamentally and the (1989) (“[A] 103 procedural L.Ed.2d 308 district court therefore did err fail default bar does not of a consideration ing to hold an evidentiary hearing on his federal claim on either direct habeas cumulative error claim. review unless the last state court render ing a judgment ‘clearly in the case satisfy Because Davis failed to has expressly’ judgment that its states rests on AEDPA’s standard grant for habeas (citation omitted)). a state procedural relief, bar.” petition is DENIED. competen- as to his FLETCHER, and substantial doubt Judge, Circuit BETTY B. presented if those facts were not cy, even dissenting. Raines, Boag court.” to the trial majority in the originally concurred I (9th Cir.1985). capi- “In a F.2d in the denial to concur I continue opinion. case, who asserts a petitioner tal a habeas However, after close relief. guilt-phase relief, and who has nev- colorable claim peti- raised to the issues attention develop a given opportunity er been en petition panel rehearing tion for claim, is entitled to record on that factual review, of the rele- and a re-review banc evidentiary hearing federal court.” record, error. must I confess vant Calderon, Siripongs v. majority opinion. dissent from do here (9th Cir.1994). wrongly imposed. penalty was The death issue, I think there is As a threshold A B. FOR SUBSTAN- STANDARD as to whether question substantial INCOMPETENCE CLAIM TIVE penalty- time of his competent requires to stand trial Competence minimum Davis is enti- trial. At a phase have “a rational as well a defendant hearing as to his evidentiary tled to an understanding proceedings factual competence. present him” and “sufficient abili against that, review Beyond painstaking after lawyer with a rea ty to consult with itself, persuaded I am phase rational understand degree sonable prob- of counsel assistance that ineffective Moran, ing.” Godinez outcome, ju- and that a ably affected 2680, 125 L.Ed.2d 321 proceed- tainted the may bias have ror’s omitted). (1993) (internal quotation marks not that the verdict was to the extent ings competency to a deter Factors relevant decision-making. of unbiased product of irrational be mination include evidence trial; havior; prior and demeanor at Inoompetence I. Substantive Torres competence. on opinions medical that he is en- convincingly argues (9th Davis 1103, F.3d 1108-09 Prunty, v. 223 hearing on his evidentiary titled to an .2000). Cir during the incompetent claim that he was Applied to Davis’s Claim C. Standard sentencing phase. claim a “colorable” Davis has at least Evidentiary Hear- A. Standard for competency prong second under the ing1 that a defendant be requirement test —the and his with assist to communicate petitioner a is able proceeding, “In a habeas lawyers, Wil- attorneys. of Davis’s hearing One evidentiary entitled to an Maxwell, court on No- told the trial if he liam to stand trial competency issue 29, was “incom- 19892 that Davis a vember to create real sufficient facts presents omitted); ments.”) (internal 2254(e)(2) quotation marks § do 28 U.S.C. 1. The limitations of 420, Taylor, Williams diligent in see also Davis was apply in this case. not 442-43, 146 L.Ed.2d court; investiga- requests for he made state (2000) request (finding significant that it funds, hearings evidentiary discovery and tion court). Stewart, investigation was denied in state funds Jaramillo were denied. See Cir.2003) ("Absent a F.3d guilt phase ended on November diligence, petition- a 2. Davis’s showing of a lack of due began early sentencing phase compliance showing 1989. from er will be excused 2254(e)(2)'s] January 1990. require- of [§ with the balance that if During period guilt sel]. and he continued his municado” between phase penalty and the Mr. incompetency phase, state” an hear- Davis then “mental would explained not talk us.” Maxwell necessary. Maxwell also ing could become his failure to pursue competency hearing the court: reported to lay opinion possi- with the that Davis was (cid:127) “I the Court needs to know that think bly “just malingering,” but Maxwell also in mental ... Davis is state ... Mr. recognized qualified psychiatrist that a going I think is don’t he to be where “might have found that Mr. Davis’s behav- cooperate longer able to with ior at penalty phase purely not in the conduct his defense.” counsel volitional.”3 (cid:127) getting paranoid “If and he’s he’s fact, In psychiatric professionals two out that from flipping much whatever expressed opinion have that Davis’s over with him is there happening inability to communicate with counsel was attorneys even talk to his ... he can’t not purely According volitional. to Dr. problem.” have a may we real Vicary, inability cooperate Davis’s with (cid:127) problem gonna “I he’s think is fold counsel “had both a illness mental and a talk, gonna he’s not up, gorma he’s component” behavioral some part.” take Davis’s actions “had to been (cid:127) right are to—we “So we back are back product of mental illness.” Davis “was I guess in a ... can situation tell the severely anxious, depressed, agitated and this—the Court first several times I so much exhibiting signs so that he was he went to see Mr. Davis would not paranoia.” Vicary Dr. stated talk to me about the case.” “competency was a legitimate concern at signed-in declaration Max- phase” and that Davis was well indicated the situation with Davis “marginal,” “gray in a area com- between improve significantly did not before the petency incompetency.” Dr. Vicary’s phase: guilt phase “After the sentencing opinion significant compelling be- ended,- stopped cooperating Mr. Vicary cause Dr. knew the rele- me and Mr. Alvarado [Maxwell’s co-coun- vant time.4 3. questioning signed Maxwell’s statements opinion Davis's it in But 1997. the case the competency support lay Davis's claim. 1079, As a Douglas Woodford, v. 316 F.3d cites— (as person, qualified was not (9th Maxwell he rec Cir.), denied,-U.S.-, 1090 cert. 124 ognized) decide to Davis was actual whether (2003)) S.Ct. 157 L.Ed.2d 23 —involved ly unwilling simply or unable to communi psychiatrists who did not know examine Woodford, cate with counsel. See Odle 238 Douglas at the time trial. sub defendant (9th Cir.2001) (explain-' F.3d 1088-89 psychiatrists, mitted the declarations of two attorney that a because defense "is not a one Douglas years who examined seven be professional, trained mental health ... his Douglas's fore trial and one who examined competence failure to raise does petitioner's Douglas years for the first time thirteen after petitioner competent”). establish case, the trial. F.3d by this 1094. In And, below, as discussed is offers ex contrast, Vicary Dr. had extensive contact pert testimony might symptoms that his well throughout with Davis and trial sentenc malingering appeared lay per have son, as tb a ing phase. fact, although, in his conduct -was not recognized As we recently in Deere v. Wood competent What volitional. Maxwell was to ford, (9th Cir.2003), F.3d a declara helps observe understand and Davis's case— prepared petition tion for a corpus habeas communicating stopped meaningfully a petitioner doctor who knew the at the rele with counsel. compelling vant time is evidence—even if the (The 4. majority suggests Vicaiy’s prepared years that Dr. dec- declaration is after the trial. compelling Vicary laration is not (considering because Id. at signifi- 1086-87 as where, weight, they “permissible” are Vicary “did but notes that Dr. majority

The here, psychiatrist himself within has place “consulted] to not see fit who psychiatrists” reports.” few medical contemporaneous of those company But incompetent. Woodford, found Davis would Williams “gray Cir.2002). area be- cannot be a there because incompetency” competency tween Thomas, a deposition Myra The sen- fitness to of the defendant’s the context consultant, tencing-phase provides addi- trial, Vicary’s Dr. statements stand tional'support for Davis’s claim. Thomas “gray area” “marginal” and Davis was “totally changed” from testified that Davis about Davis’s question a substantial raise him the when she first met end required which is all that competence, physically trial. Davis believed he was evidentiary necessity for an trigger move;” “he couldn’t he was paralyzed; 1343; F.2d at see Boag, 769 hearing. See it;” “paranoid;” it” he “lost “out of 35 F.3d at 1310. Siripongs, also to,” get through “very became difficult by Dr. Vicary’s opinion Dr. is echoed “hysterical,” and “unfocusable towards Latz, re- psychiatrist who has Sara majority The discounts Thomas’s end.” psycho- trial and records from the viewed testimony grounds on the that Thomas and at the testing done logical evaluations and that “poor rapport” Davis had a opinion, In Dr. Latz’s of trial. time testimony reflects “[Thomas’s] “raise a seri- she has reviewed materials from probably behavior resulted [Davis’s] competency as to Mr. Davis’s question ous [Thomas], attorneys, anger towards his Dr. phase.” at the time of the incompe- not from process,” and the entire response to Max- opinions provide Latz’s does not ex- tency. poor rapport But a may have concern that Davis been well’s away Thomas’s observation plain Dr. Latz: According to malingering. significantly; Davis’s behavior deteriorated likely misinter- depression was “[Davis’s] relationship that the there is no evidence and defiance. anger others as preted Thomas and Davis worsened over between likely be petitioner was Consequently, “an- opinion’s assumption about time. rather than anti- punishment with treated of Davis’s condition as the sole cause ger” Punishment, how- depressant medication. testimony. by Thomas’s is contradicted ever, ineffective with generally would be Davis’s condition Thomas attributed was not because his behavior petitioner ... an- intermingled ... “depression entirely within his control.” ger paranoia.” need that she would recognizes Dr. Latz need for support factors Four other “proper make a com- more information to First, in this case. evidentiary hearing an determination,” her conclusion but petency sentencing during the Vicary Dr. testified about question” is a “serious that there attempted suicide that Davis had phase for the need provides support competency reported “seeping] past and that he Retrospective evidentiary hearing. for an animals, that around things, people [him] given are less competency evaluations from the relevant are based on observations a doctor who exam- cant the declaration of (“Dr. Jones’s period. Id. at 1086-87 1982 but time at the time of trial in ined Deere on his two examina- declaration ... is based signed in 1993 for his declaration who Deere, performed in which he tions of petition). What matters is habeas Deere's pleaded days when Deere several petitioner at within declarant knew the whether the therefore, is, trial, probative of Deere’s guilty. It con- that the declarant's the time of so time.”). form) (whenever at the critical put mental status in declaration clusions past petitioner’s not see.” Davis’s suicide on the claim that he had been others do suggest incompetent plead guilty. petition- hallucinations a his- to attempts and easily presented following that er Deere evi- tory of mental illness—illness (1) during psychiatric report prepared dence: a at have resurfaced could Second, the time him Judge pled guilty Letts issued an or- Deere that found phase. (2) competent; a court-appointed report prepared by that a mental a stating der (Dr. Jones) psychologist compe- would evaluate at the time Deere expert health his pled guilty which found that Deere under- tence: proceedings stood the no “evidenced request psychia- to retain Petitioner’s (3) disorders;” thought a post-plea obvious if he was competent trist to determine by declaration submitted Jones in which he penalty phase grant- stand trial at the is competency “very stated that Deere’s was being ed. funds are authorized to While questionable” although because Deere un- uncover factual petitioner sup- allow derstood the proceedings, nature he claims, port potential any questions was “bent on self-destruction” and was relating petitioner’s mental state “eooperate[] unable to in meaningful petition raised in the federal habeas will (4) counsel; way” with defense a dec- appointed be addressed a court men- (Dr. psychiatrist laration submitted expert. tal health Rosenthal) who did not know Deere at the Judge Judge read Letts’s order Tevrizian opined relevant time but that who Deere stating only Judge Letts would incompetent was pled guilty. when he if Davis appoint expert an met the “sub- Deere, 339 F.3d at 1085-86. stantial standard for an eviden- evidence” ' may Deere something have had tiary hearing. agree with Davis’s coun- does not—Dr. opinion Rosenthal’s sel, however, language Judge that the Deere incompetent when he pled stating order must be read as Letts’s guilty panel rely the Deere did on appoint expert. the court would Be- —but Dr. Rosenthal’s case, declaration because he did cause it troubling this is death not know Deere at the relevant time. majority deny See would Davis’s com- Deere, Instead, 339 F.3d at 1086. petency evidentiary claim -an without hear- panel Deere emphasized Dr. opin- Jones’s judge when the first trial court ion that competency Deere’s was “ques- consider the case indicated his intent tionable” and that Third, Deere could not commu- appoint expert. a mental health meaningfully nicate with defense counsel. there in the is evidence record that Davis (“Dr. at declaration, Id. 1086-87 may Jones’s prison abused in during been however, stands on footing[than trial. different recognized We have that in-prison Dr. It is Rosenthal’s]. based his two may significant treatment cause deteriora- Deere, examinations which per- tion in a defendant’s mental condition and formed within may days several competency be relevant to a determi- is, pleaded when Deere Stewart, guilty. It there- nation. See Comer fore, Cir.2000). probative of Deere’s mental status time.”). the critical Vicary’s Dr. declara- Finally, I that our opinion note recent in very tion case this similar- to Dr. (9th Woodford, Deere v. 339 F.3d 1084 Joneses, and, Deere, as in provides strong Cir.2003), provides support for the conclu- support petitioner’s for the claim. sion that evidentiary hearing an must be granted in a case such as this. Deere has also some evidence that Deere panel evidentiary remanded for an hearing did not: Maxwell’s declaration that estab-

659 at least a doubt” as to Davis’s problems; Thomas’s “substantial communication lishes deteriorating Boag, 769 F.2d at 1343. competency. Davis’s testimony about at- state; that Davis had evidence mental II. Ineffective Assistance of Counsel past; and evidence

tempted suicide paralyzed when believed he was that Davis Davis contends defense counsel was he not. fact was failing put for on additional ineffective evidence,

mitigating failing prepare for adequately Vicary’s expert for Dr. testimo- op Summary In- D. Substantive ny, delivering extremely for an hostile competence Claim closing argument. conclude that Davis is relatively meets the low Davis’s evidence evidentiary hearing to an on his entitled evidentiary an that mandates threshold claim, and that mitigating evidence acted appearances To all hearing. Dr. regarding Vicary claims and Maxwell’s during sentencing phase. irrationally closing argument developed should also be Missouri, 162, 180, 420 Drope v. See evidentiary hearing they may so that at an (1975) (a 896, 43 L.Ed.2d 103 part be considered as of cumulative error irrational behavior and de defendant’s analysis. are factors to be consid meanor at trial Torres, competence); assessing ered in A. Standard Ineffective Assis- un that “defendant’s (stating at 1109 F.3d tance Claim in the self-defeating behavior usual requirements meet two Davis must inquiry that an into suggested courtroom First, assistance. he establish ineffective Williams, required”); was competence cf. performance must show counsel’s (finding significant at 703 it it not un- “deficient”—that was reasonable not “evidence bizarre Williams did norms.” “prevailing professional der behavior”). He believed he was irrational 668, Washington, 466 U.S. Strickland wasn’t; he insisted on paralyzed when he 687, 688, 104 80 L.Ed.2d 674 S.Ct. behavior, including his re self-destructive (1984). Second, he must demonstrate table; at counsel and he turned fusal to sit at prejudice to his defense. Id. helped him might medicine that down requires showing “a rea- S.Ct. 2052. This because, Vicary, Dr. he “was according to that, but for counsel’s probability sonable not point at that that he did impaired so errors, ... the result would unprofessional help would understand that medication at different.” Id. S.Ct. have been Torres, 223 F.3d at 1109— Compare him.” prob- is a probability 2052. “A reasonable (defendant jail wearing “insisted on confidence ability sufficient undermine blues; at threatened to assault his house has outcome.” Id. I conclude Davis insisted, being ordered torney; after that burden. met well; shackled, to be handcuffed trial”). It is also continually disrupted the Mitigating B. Additional Evidence communicating that Davis was clear Claim all) (if attorneys; a defen with his well 1. Witnesses Not Called competence turns on whether dant’s sentencing con- counsel or their with coun Defense ability “the to communicate has mitigation wit- interviewed fifteen an effective defense.”sultants helping prepare sel in actu- to those witnesses in addition Woodford, 238 F.3d nesses Od le Cir.2001). sentencing phase. during the Finally, ally called the declara in- counsel was argues that defense Vicary and Latz raise Davis signed by tions Drs. two, for failing Tracy, effective to call some the those and out [Davis] turned problem two witnesses been inter- to be the children. additional who had viewed, points and from he to notes inter- says she wasn’t around [Guerrero] with those evidence of views witnesses as family enough Sandra and her see to would to really what witnesses have testified going what was on. But in the home, if called. The interview notes on which spend brief time she did in the Davis relies the addi- there to It three seemed be differences. indicate her if given positive, tional witnesses would have seemed to all the kids were misbehavior, for an testimony. disciplined non-cumulative identical got discipline, more more [Davis] First, sister, Davis, Davis’s Sherri told disciplin[e] severe than The the others. an interviewer that mother “men Davis’s sometimes, allowed to others were slide tally physically abused the kids” and get [Davis] wasn’t. seemed to [Davis] that, in opinion, got by Sherri’s “David hit Also, anger. brunt Sandra’s many mom one too No his times.” witness [Guerrero], behavior, [Davis] and his actually called testified that defense the same as In seemed the other kids. physically Davis had been as a abused words, she other could never a rea- see Instead, sister, child.5 Davis’s mother and son for Sandra be harder on [Davis]. Reynolds, although Terri oth testified account, contrast Guerrero’s Davis’s family physi er children had been Reynolds sister during Terri testified abused, cally spared. Davis was sentencing boys rarely that the phase were attorney emphasized state’s this issue in disciplined. testimony Guerrero’s would closing argument: mother de “[Davis’s is] significant thus have been because it would and, as cold scribed accord unloving why explained prob- had more Dr. Vicary, physically abusive to the lems an adult than siblings his did and Well, defendant. ... he doesn’t have Reynolds’s would have undermined Terri support daugh that.... [B]oth of account that Davis had been favored his who ... physi ters testified her never saw attorney mother. The state’s emphasized cally physically abuse but [Davis] she did Reynolds’s Terri during closing account abuse least1one of daughters.” argument: daughters “[B]oth of the who Second, Davis’s aunt Guerrero Olivia really testified ... said that it made them told, an interviewer that when she visited mad that favored the de- [Davis’s mother] ” family, she noticed that Davis and brother, fendant his Chris.... of his singled one sisters were out for wife, Davis’s second Her- Leticia Third, negative treatment: nandez, told interviewer that Davis was During California, her visits good father and husband and that had saw way [Guerrero] differences never been violent toward her. Hernan- gut treated her Sandra kids. Her feel- dez “strange attributed Davis’s occasional ing was that [Davis] was treated differ- look” “something or behavior to in his (not ently favorably), he was a past.” because Hernandez also de- confirmed the boy. She also felt Tracy was treat- story fense’s that Davis and Hernandez others, differently ed than the fight even had had a before the murder because though she was a girl. [Guerrero] Davis did not want smoking Hernandez interesting out that points what’s is that pregnant: while says she “[Hernandez] Vicary 5. Dr. testified that he learned of had was instructed not to such consider physical preparing report, abuse while but its evidence for truth. say things bad about her like he did fight night before David had and just everybody else.... David about They fought because murder.... money ciga- for give her wouldn’t Why not call her to find out what the supposed says she wasn’t rettes. She been like since she’s defendant’s known but smoking pregnant, she was because be him him? She married even after he anyway. She cigarettes her she wanted this, for she can’t was arrested so be house, or she get out of her told David to totally disloyal. police.” call the would they people So didn’t call who have recently primarily known him most testified that other witnesses Although 8, they people who him called knew back Davis was a violent they did not believe 10,12 years ago. coun- could have person, Hernandez aggravating significant the state’s tered attorney challenged the The state’s also tendency that Davis had recent evidence story why truth of the defense’s about and, generally, more spousal toward abuse fought Davis and Hernandez before attorney state’s of women. The abuse countering In murder. addition closing argu- point this in his summarized point, testimony Hernandez’s that she at- the last gotten “He’s worse. Over ment: in “something tributed Davis’s behavior to an increas- years, his life shows five ten past” provided support his would also have and violence ing pattern of misbehavior argument for the defense’s that Davis’s especial- men and women but towards both result, in part, behavior was the at least fact, attorney In the state’s ly women.” a traumatic childhood or of mental illness. failed to that the defense had emphasized 2. Deficient PeRformance argued second wife. He call Davis’s undermined other Hernandez’s absence effectively in the perform “To Davis. positive testimony about witnesses’ case, capital counsel must con phase of investigation engage sufficient duct about heard some witnesses [W]e ‘pres- preparation to be able to sufficient like at various the defendant was what explain! significance all ] ] entí times. ” May [mitigating] the available evidence.’ know And when did these witnesses (9th 915, 927 Woodford, field cases, are him? In almost all these added) Cir.2001) (en banc) (emphasis past. out of the witnesses 362, Taylor, 529 U.S. (quoting Williams v. 1495, 146 L.Ed.2d 389 120 S.Ct. you like ... doesn’t it sound So (2000); Mayfield). The Su alterations in the bottom of they’re really digging recently emphasized this preme Court something up to come the barrel Smith, Wiggins 539 U.S. point mitigating background? about (2003). 156 L.Ed.2d ABA noted that

Wiggins, the Court capital pro defense work Guidelines Well, they think about who called. assistance “should com vide that effective Mostly people past. out of reasonably to discover all prise efforts this: didn’t And then think about Who mitigating evidence evidence available call? they evidence that any aggravating to rebut Id. prosecutor.” may be introduced wife, Wiggins); see also (emphasis at 2537 They call his second Leti- didn’t Woodford, 366 F.3d Hernandez, Vicary had Allen v. although Dr. cia 662

Cir.2004) (quoting this text Wig- from girlfriend. abused another former Id. at ). gins panel 929. The en banc described the aggravating against Mayfield evidence as case, attorneys this Davis’s defense “strong.” Id. at 929. duty present available, failed their all mitigating non-cumulative Mayfield’s evidence. find lawyer put defense did on suggestion no in the a strategic record of some compelling mitigation evidence simi- explain reason to defense counsel’s failure lar to that presented in Davis’s case. See Davis, to call Sherri Olivia Guerrero id. (describing the mitigating pre- evidence Hernandez; Leticia “substantial”). the interview notes do sented the defense as not refer to significant negative put testi- The defense on Mayfield evidence that mony outweighed pos- would have child; had suffered from depression as a testimony itive apparently POP; witnesses that he was addicted to that he had given. would have Absent a sound increasingly strate- had an relationship tense with gic explanation, defense counsel’s failure to his mother as grew up; that he suffered call diabetes; witnesses who would provided from expressed that he had re- significant mitigating testimony “fell below morse for his “in ways actions different at objective times;” standard of reasonableness.” different and that the violent crime Wiggins, 123 S.Ct. at 2535 (quoting Strick- was out of character. Id. at 929-30. The land, 2052). 466 U.S. at 104 S.Ct. defense failed put on additional evidence Mayfield’s about traumatic childhood Prejudice

3. diabetes, struggle with substance abuse, as well as prejudice The test for character evidence is whether about there Mayfield’s positive is “a probability that, relationships reasonable with absent errors, friends and with ... children. Id. at sentencer 930-32. would have Mayfield panel The concluded that notwithstanding the balance of aggravating held— the strong and mitigating aggravating evidence circumstances did not war- and the Strickland, compelling mitigating rant death.” evidence the defense 466 U.S. at present 2052; 104 did Mayfield, S.Ct. there was a at “reasonable F.3d 928- —that probability (applying this standard omitted reversing evidence death would have changed the sentence because en conclusion that panel banc aggravating could not circumstances outweighed conclude “with confidence that and, mitigating hence, unanimously would circumstances have sen- the sentence petitioner] imposed.” tenced Id. at (quot- [the to death if[defense Strickland, presented counsel] had explained all of 2052). evidence”). the available mitigating Here,

Mayfield Mayfield, as provides defense support for a counsel preju- failed to put dice finding evidence of a this case. The traumatic aggravating experience childhood against evidence with physical Davis is no stronger than —here abuse, in Mayfield. opposed Mayfield Mayfield. diabetes in killed people two recognized after Ninth Circuit threatening has gun them with a fif- evi- minutes; teen dence of a wait, background traumatic lay signifi- he then armed cant at knife, penalty phase: for a person. third Id. at 920-21, 929. Mayfield had a criminal and regarding Evidence social background violent past: pled guilty he had to auto and mental significant, health is as there theft; he had gun fired a into “belief, the home of is a long held society, this one ex-girlfriend; and physically he had that defendants who commit criminal are to a disadvan- zian at given

acts that attributable least should have Davis the or to taged background emotional and opportunity either to dismiss and return to problems, may culpable mental be less stay state court or to petition his federal than defendants who have no such ex- pending another round of state habeas fil- cuse.” ings. Judge Tevrizian’s order also over- turned the law of the case. See United 1079, Douglas Woodford, 316 F.3d 1090 Alexander, (9th States v. 106 F.3d 874 (9th Cir.) (quoting Boyde California, 494 Cir.1997) (reversing district court for im- 370, 382, 108 L.Ed.2d properly overruling decision made dis- (1990)), denied, 810, 124 cert. 540 U.S. trict judge court to whom case origi- had (2003); S.Ct. 157 L.Ed.2d 23 see also nally assigned). been The inconsistency Calderon, Hendricks v. 70 F.3d Judge between Letts’s and Judge Tevrizi- Cir.1995) (holding that the failure to prejudiced an’s orders Davis: Davis rea- present physical psycho evidence of sonably relied on Judge ruling Letts’s logical prejudicial). abuse was Leticia to which of his claims were unexhausted testimony, testimony Hernandez’s like the he returned to when state court to exhaust family Mayfield, of Mends and would - his unexhausted claims. provided important “humanizing” positive relationship account of a recent event, In only the claim regarding and of self-control. Mayfield, Sherri Davis is affected the exhaustion testimony F.3d 932. Given requirement. The district court did not Davis’s first wife and closing the state’s question exhaustion of the Guerrero and argument, testimony Hernandez’s also majority Hernandez claims. Even if the key would have rebutted a element of the persists in relying on a failure-to-exhaust aggravation. state’s case in respect rationale with to Sherri Davis’s testimony, Davis should Majority’s Analysis granted be an evi- 4. The dentiary hearing as to incompetence of majority gives three reasons for counsel on based failure to call Guerrero rejecting Davis’s claim that defense coun- and Hernandez. failing sel was ineffective for put (1) mitigation additional witnesses: eonelu- C. Cumulative Error (2)

sory allegations; nega- cumulative or (3) testimony; tive failure to exhaust. Davis’s second and third ineffective as- may Given the interview notes Davis submit- sistance claims best be considered— ted, agree I do not presented only together claim regarding addition- “conclusory” allegations.6 I also do not al mitigating part witnesses —as of a cu- above, agree, for the given analysis. reasons that all mulative error See Harris v. (9th Cir.1995) Wood, of Davis’s additional witnesses would have given only negative (considering prejudicial or cumulative testimo- combined effect of errors). ny. Finally, compelling Davis makes a trial I counsel’s address the two argument rebutting the failure-to-exhaust claims in turn under Strickland’s first first, Judge rationale. Letts twice found Davis’s claim that prong: defense coun- exhausted, Judge claims prepared inadequately Vicary’s Tevrizian re- sel for Dr. second, rulings testimony, versed those without notice. the claim that Max- light Judge rulings, Judge closing Letts’s Tevri- well delivered a rude and hostile Right wrong point, Judge granting 6. on this Tevrizi- tion in not leave to amend to add an in a death case abused his discre- information from the interview summaries. during tion redirect examination.” Alvara- argument. will then address the claims second, completely unprepared do for Dr. together preju- under Strickland’s Vi- dice, cary’s diagnosis personality of antisocial prong. Obviously, Vicary’s ability

disorder. Dr. Preparation Inadequate on re-direct “explain” cross-examination Dr. 1. Testimony Vicary’s was limited this case because Alvarado negative testimony out never found what Inadequate preparation for a witness’s Vicary planned Dr. to offer or could devel- testimony may itself constitute deficient Vicary Dr. op appro- and never asked performance, even if the decision to call could not in priate questions. Alvarado ultimately could be considered witness prepare questions advance that would al- Woodford, reasonable. See Alcala v. 334 Vicary away” Dr. to “explain anything. low Cir.2003) (“We need not F.3d 890 prepare Alvardo could not and did not whether, proper prepara- determine after adequately for the rehabilitative re-direct tion, Vogel might the decision to call have fact, Vicary expected. that Dr. In accord- of professional been reasonable exercise Thomas, ing Myra Alvarado was “over- judgment. prepara- the absence of such by whelmed” and did not know to do “what tion, ... trial performance counsel’s was (cid:127) Vicary’s testimony during with” Dr. deficient.”); clearly Wiggins, see also 123 penalty phase. (“[0]ur principal at concern ... S.Ct. pre- is not whether counsel should have complete investigate failure to and Rather, mitigation Vicary’s negative sented a case. we focus for Dr. prepare testimo- investigation supporting ny devastating possibly on whether the was cannot be mitigat- not to introduce strategy.” counsel’s decision considered “sound trial Strick- reasonable.”) land, 2052; ing evidence ... was 466 U.S. at see itself (first added) Alcala, emphasis (citing Williams v. at also 890. Taylor, 529 S.Ct. Closing Argu- 2.

(O’Connor, J., concurring) (noting coun- Rude Hostile ment duty a “diligent” investiga- sel’s to conduct background)). tion into his client’s majority recognizes, attorney As the closing argument Maxwell delivered a that case, Alvarado, Jorge In this the defense at best could be described as “unusual” lawyer primarily responsible for Dr. Vi- and at worst calculated to condemn his cary’s testimony, specifically “never talked of his sample client. Here are state- Vicary] Dr. about what information [with ments: during mention cross-examina- might he (cid:127) afternoon, gentle- “Good ladies and despite the fact that Alvarado had tion”— right men. will start out with a We told, by colleagues been both Dr. strong that I comment have belief himself, Vicary, Vicary Dr. that “had a bad you already decided some have reputation for offering damaging testimo- phase yourselves this of the case to ny say things from the stand” and “would those, ... I probably nothing and to lawyers that most would be shocked say going can is particular asking Vicary about.” Instead of Dr. what value.” negative testimony planned to offer (cid:127) Davis, lawyers] about are kind of apparently Alvarado relied on “[W]e [criminal jaundiced Dr. Vicary’s .... And we’re statements “whatever he technicians cynical. said would not and that “he and we are And we have be bad” ... explain away theory could the cross-examina- talked about and we talk about we ... ma- people sentencing phase. what will outcome of the Strick- ‘bu/ land, nipulate you and we do that because U.S. at 104 S.Ct. 2052. stock trade. That is [that our] [in] Vicary’s Dr. testimony and Maxwell’s we are trained to do. ... That what closing argument profoundly were impor- lawyers get ... our is how we tant mitigation. Davis’s case in Dr. gun, speak....” notches on our so to Vicary provide did some mitigating evi- (cid:127) truly “I that murder cases in believe dence, but he also testified that he believed

general are the easiest kinds of eases lied; guilty and had testified upon get which to convictions. Now negative about the attributes of antisocial you I say have to notice did not personalities; testified that opinion prove. easiest to said the easiest to about remorse was at least somewhat un- get convictions.” dermined statements Davis made to informants; jailhouse (cid:127) testified that there “The difference between what were “no excuses” for Davis’s own “bad [you’re] being pre- asked to do and choices”; kept testified his emo- degree meditated murder in the first ” up tions bottled inside until a triggering that it ‘legal.’ we label event; testified that personali- anti-social (cid:127) “I would like to talk about [Davis] cured; truly ties could never be testified from ... a standpoint someone who predictor the best of future behavior ... does not believe that the evidence behavior; is past and testified about what in justify this case was sufficient to he believed to aggravating-fac- be several your previously verdict rendered but in tors the case. acceptance with an that that way is the Defense counsel’s attempt it is.” at redirect very waá brief and did not address at all (cid:127) you poo-poo your “Now can and shake diagnosis. the ASPD Redirect was also if give you head and me that ‘BS’ look ” by attorney conducted Maxwell rather wish, is fine.... Alvarado, by than lawyer the defense re- (cid:127) going your “You’re to make decision sponsible Vicary’s for Dr. testimony. As regardless say of what of us here explained Alvarado in April his 1997 decla- you couple and I’d like a consider ration, he Vicary’s was “shocked” Dr. points.” testimony” “harsh and “did not believe [it] I imagine Because cannot a sound reason explained away could be on redirect.” for what can best Max- be described as Vicary signed Even Dr. in declaration well’s “attack” approach, conclude that stating that “disappointed” he was closing statement was not reasonable Vicary weak apparently re-direct. Dr. “prevailing under professional norms.” counted on a successful redirect to take Strickland, at 104 S.Ct. 2052. some of the “venom” out of his earlier majority agrees, relying The rather testimony, and he noted that he was never second, prejudice, prong Strickland’s given explain per- a chance “to antisocial defeat this claim. sonality a legitimate, disorder as debilitat- Prejudice ing mental disorder.” 3. cumulatively, respect closing argu-

Viewed counsel’s errors— to Maxwell’s With ment, prepare Vicary’s the failure to for Dr. majority emphasizes tes- that Max- timony, closing argument, troubling part Maxwell’s and well’s comments were of a true, put mitigating fifty-page closing argument. the failure to on additional While confidence in majority’s approach witnesses—undermine does not take into 940(“[T]he juror remedy allegations troubling com- that Maxwell’s account the defen- partiality hearing is a which those throughout spread ments were opportunity prove actual dant has the Alvarado referred to Attorney pages. bias.”). investigation trial court’s The disagreement. statements Maxwell’s reasonably calculated to resolve must “be the statements only highlighted This not juror’s impar- the doubts raised about the highlighted the jury, but eyes tiality.” Dyer, 151 F.3d at 974-75. The the defense. disarray of “fact-finding process”

trial must be court’s “reasonably the Death III. “objective” and must ex- Bias in Favor of Juror Penalty presented.” the issues Id. 975. plore[ ] may jury favoring case, bias There have been no In this the trial court conducted hearing we cannot be investigation. Without The trial court hearing death. questions jury submitted R.C. about questioned sure. The never foreman foreman, Schwartz, indicate that jury put could his beliefs out of his whether he (1) impartial. at least to ensure mind in order be fair and he: wanted opportunity a life term without Defense counsel had no Davis would serve (2) jury probe ques- believed that foreman’s bias or to possibility parole; given impermissible if a life tion him about discussions paroled be Davis would (3) jurors. sentence; imposing with other believed in fact achieve life the death would gave The trial court a “curative” instruc- may foreman parole. without tion, that instruction was of but dubious in favor of death sen- have been biased jury trial value. The court instructed actually wanted Davis tence because “parole” it and should not consider die, a death biased in favor of but he was that it assume authorities would should it was the he believed sentence because “properly carry responsibilities,” out their parole. without only way to achieve life it also confirmed the foreman’s belief but by stating that a future modification of jury capable a “a process requires Due possible. doing Davis’s sentence was In solely case on the willing to decide the so, the trial court drew the members’ Phillips, 455 it.” Smith v. evidence before very possibility attention to the 940, 209, 217, 71 L.Ed.2d 78 102 S.Ct. issue— it them not to (1982). parole' then instructed awith color- “A court confronted —-that consider.8 juror able claim of must undertake bias and cir- investigation of the relevant facts IV. Conclusion Calderon, Dyer v. 151 F.3d cumstances.” (9th Cir.1998) (en 970, banc); reasons, For foregoing see also dissent Smith, majority’s deny decision to relief 455 U.S. at from Palmateer, (9th. theory, premature-deliberation not a bias Tracey 7. In v. 341 F.3d 1037 the- Cir.2003), Second, questioned juror court ory. juror the trial note issue in troubling potentially who conver- overheard a troubling was less than Schwartz’s Anderson jurors. id. at sation between two other See juror asked: "Does life note. The Anderson case, hearing 1039-40. this no kind possibility parole really without mean that? was conducted. sentence, Anderson, can under the at some Or Id. at It future time be released?” 1098. Calderon, majority 8. The on Anderson v. relies appears from the note in this case that (9th Cir.2000), in 1098-99 already his own con- Schwartz had reached rejecting Anderson is distin- Davis's claim. clusion. First, guishable for two reasons. Anderson petitioner’s addressed the claim Carpenters sentencing hereby phase, as to the Health Welfare Trust opinion by withdrawing my California, amend the con- for Southern sentencing phase. Plaintiff-Appellee, in the currence

Timothy Vonderharr, Defendant, Offices, Charles R. Weldon Law Defendant-Appellant. 02-57183, 03-55296, Nos. 03-55312. United States Court of Appeals, . Ninth Circuit. Argued Feb. 2004. HEALTH AND

CARPENTERS WEL- Sept. Submitted and 2004. Filed FARE TRUST FOR SOUTHERN CALIFORNIA, Plaintiff-Appellant,

Timothy VONDERHARR; Karen Von

derharr, by guardian minor her ad li

tem, Timothy Vonderharr; Lauren

Vonderharr, guardian minor her ad Timothy Vonderharr;

litem Sara Von

derharr, guardian minor her li ad

tem, Timothy Vonderharr; Charles R. Offices; Does, X,

Weldon Law Ito in

clusive; Associates, McClellan & Corporation,

Professional Defen

dants-Appellees.

Carpenters Health and Welfare Trust California,

for Southern

Plaintiff-Appellee,

Timothy Vonderharr; Karen Vonder

harr, by guardian litem, minor her ad

Timothy Vonderharr; Lauren Vonder

harr, guardian her minor ad litem

Timothy Vonderharr; Sara Vonder

harr, guardian litem, minor her ad

Timothy Vonderharr; McClellan &

Associates, Corpora a Professional

tion, Defendants-Appellants.

Case Details

Case Name: Larry David Davis v. Jeanne S. Woodford, Warden, of California State Prison at San Quentin

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Sep 21, 2004

Citation: 384 F.3d 628

Docket Number: 01-99014

Court Abbreviation: 9th Cir.