*1 reasons that reference majority also PHILLIPS, report Arnold pre-sentence in the Richard Louis material to the However, viewing report out Petitioner-Appellant, sufficed. social histo- the context of Summerlin’s not effective health was
ry and mental Wallace, at 1116 assistance. Cf. WOODFORD, Respondent- S. Jeanne had been inef- attorney (holding that Appellee. sen- sentencing “[t]he because fective at only glimmers of this judge saw tencing No. 98-99022. about its received no evidence
history, and Appeals, United States Court mitigating circum- significance vis-a-vis Ninth Circuit. stances”). Indeed, more may it have done of a The introduction damage good. than March Argued Submitted by gov- report prepared pre-sentence an utter failure to hardly ernment excuses 15, 2001 Filed Oct. or any mitigating evidence develop other capital any preparing time for the spend fact that hearing. The sub- sentencing under- evidence existed mitigating
stantial by Summer- prejudice
scores the suffered attorney’s failure.
lin committed crime Summerlin
The brutal the bounds of all
was heinous and outside However, it is
decent human behavior. is an ex-
equally clear that Summerlin who did not
tremely disturbed individual of mur- morning plan
awaken that with the Bailey. the amount
dering Brenna Given available, potentially mitigating evidence left with the sub-
we should not now be a death question
stantial as to whether imposed have been
sentence would attorney to investi-
Summerlin’s bothered
gate sentencing defense. concludes, majority pre-
Perhaps, as the evidence would not mitigating
sentation of But these are
have made difference. specu-
not leave to idle matters we should Thus, reversing if we were
lation. presented, I on the other issues
based and re- vacate the death sentence
would a new
mand with instructions to order
capital sentencing hearing. *4 Phillips has estab- Accordingly,
of death. lished his entitlement claims, two and we re- hearing on those remand instructions part verse court conduct such a hear- that the district reject Phillips’s remaining claims ing. We for relief. Background
I. History A. Procedural January Phillips was convicted on of Bruce degree 1980 of the first murder Bartulis, attempted murder of Ronald se, Phillips, pro Arnold Richard Louis Rose, per and the robbery, two counts of Prison, Quentin Quentin State San San use of a firearm in the commission of sonal Horvath, California, and Donald J. Adviso- jury spe the crimes. The also found the *5 Counsel, California, the ry Coarsegold, for during of murder cial circumstance petitioner-appellant. robbery of a to be true. On commission Marshall, Attorney Deputy Robert Todd 1, 1980, February following presenta General, Sacramento, California, for the phase, jurors re penalty tion of respondent-appellee. The turned a verdict of death. California affirmed convic
Supreme Court appeal, tion on direct but reversed People Phillips, v. 41 death sentence. 29, 127, 222 711 Cal.Rptr. Cal.3d P.2d 423 (1985). trial, penalty-ghase After a second verdict, years after initial some twelve FLETCHER, B. Before: Phillips again sentenced to death once REINHARDT, KLEINFELD, and Circuit 13, 1992. on March Judges. 1990, interim, through from 1987 REINHARDT; Opinion Judge seeking collat- Phillips petitions filed four by Judge KLEINFELD Dissent County Superior eral relief the Madera petitions Two of were denied Court. those REINHARDT, Judge: Circuit following evidentiary hearings, and the Ar- prisoner California Richard Louis hearings. two were without other denied Phillips appeals nold the district court’s all four to the Phillips presented petitions denial, evidentiary hearing, without an Appeal, Fifth District Court of which de- § corpus peti- his 28 U.S.C. 2254 habeas Supreme nied relief. The California Court Phillips tion. We conclude that has assert- petitions. denied review of all four ed a colorable claim that the combined 4, 1992, prior being resen- prejudicial effect -of his counsel’s ineffec- On March assistance, tenced, presenta- Phillips filed a federal habeas cor- tive the State’s testimony regarding pus petition, raising only guilt-phase tion the exis- of false plea agreement of a with its chief claims. The district court dismissed the tence witness, grounds: two requires setting findings petition prejudice aside the without petition would inter- eligible entertaining him for a sentence rendered proceed criminal B. Facts ongoing with state fere sentence, see respect to the
ings
A full
developed
statement
facts
37,
Harris, 401
Younger v.
U.S.
original
at trial can be found
deci
(1971),
and that Phil
tional claims consideration Phillips became involved in a large co- though his death guilt-phase claims even caine deal with Ronald Rose and Bruce in the Bartulis. Both agreed was still under review Cali Rose Bartulis sentence $25,000 each in purchase invest order to would be for another fornia courts—and significant amount of cocaine. Unable to years. Phillips Vasquez, five produce agreed upon amount of mon- (9th Cir.1995). 1030, 1037-38 ey, ultimately gave Phillips promis- Rose pe- thereafter filed an amended $25,000. sory amount appar- note July alleging tition on that his ently purchase housing included funds to trial rendered ineffective assis- counsel insulation in addition to cocaine. tance, prosecution knowing made later, A months few informed testimony failed to perjured use of Rose and Bartulis that he knew where to defense, to the disclose evidence favorable Phillips arranged obtain stolen insulation. *6 in destroyed that evidence bad the State Fresno, gas to meet Rose at a station in faith, factually capi- that he is innocent of California, exchange in order to cash for murder, prej- that tal and cumulative error the stolen insulation. Rose and Bartulis trial. for udiced his The State moved in drove to the station Rose’s 1977 dismissal, summary de- but its motion was an .44 mag- Ranchero. Rose had unloaded January Phillips on 1997. then nied vehicle, in am- pistol num the with some an hear- filed two motions for Phillips munition one of the seats. behind ing. preju- The first was denied without girlfriend, arrived at the station with his and the second dice on October meeting up Sharon After with Colman. 13, 1998, July along Bartulis, was denied on with in proceeded Rose and the four petition. appeal habeas This fol- in Phillips’s (Phillips Toyota; two cars and Colman a Ranchero) Rose and Bartulis in the to a lowed.1 portion appeal pending, Phillips's of which is us. 1. While this was conviction now before unique second death sentence affirmed the In view of the circumstances of Phil- was Supreme January lips's extraordinary delay Court on case and the California September proceedings, the su- occurred in the state rather than On state ruling challenge preme Phillips’s petition postpone Phillips's to court denied our Phillips con- postconviction relief. thereafter filed his conviction until the district court has issues, Phillips's sentencing preliminary filing we con- motions to a federal habeas sidered petition challenging and reverse in his sentence in the dis- sider the conviction issues now court, remand, parts majority panel part con- so that the two trict and a of the and order, may unpublished Judge Phillips’s proceeding be cluded in an with habeas consid- appeal concurring dissenting, together ered and future Kleinfeld and so challenge present sentencing will all conviction and is- habeas to the sentence constitutes part pending proceeding, of the habeas the sues at one time. where came from the direction Phil- vacant lot off of shots location-a different lot, they that Rose heard a arriving lips standing, at the was and freeway. Before station, being him where male voice close to while he gas at another stopped all the restroom. searched. Phillips used testified to
Among things, other Colman an Phillips’s counsel alibi de- presented restroom, leaving After following: testified at trial that he fense. the Ranchero and Phillips walked over to and he had fact being framed matches, during the although borrowed and then meeting been at a Sacramento (the living together they time had been the crime was during at a disco the time approximately), Phillips past two months that he lent committed. claimed the four arrived at not smoke. Once did of the Toyota “coordinator” lot, Toyo- Phillips got vacant out of Graybill, Richard who purchase, cocaine to Rose and spoke ta and for some time damaged, it to him and that he returned through the Ranchero driver-side Bartulis City pursuant fled to Lake Salt point, heard At some she shots window. Graybill. Defense counsel agreement result, up she fired and as a looked Phillips’s no corroboration for Phillips took Phillips holding gun. saw alibi, reprisal feared claiming Bartulis’s wallets which con- Rose’s and identity people he divulged he of the brought tained a total of $120 $150 had met with Sacramento. car. He then set the them back to the concedes, Phillips now as he did at his gasoline he ob- using Ranchero on fire trial, trial penalty-phase second that his Toyota. trunk tained from the testimony only deeply was not unconvinc- Rose, alive, jumped was still out of the who false, actually and that he was in ing, but realizing that burning Upon Ranchero. alleg- He fact the crime scene. alive, Phillips was still drove the Rose Bartulis was killed in a shoot-out. es that him, Toyota Rose and hit also crack- into declaration, According he fired Upon ing Toyota’s windshield. first weapon at Rose and Bartulis after again driving while finding the wallets going ‘click’ of a hammer “he heard the away shootings, Phillips from the lamented revolver”; declares that back on also finding money more than he did. *7 large a revolver in Rose’s hand “found scene, at the Rose Bartulis died but shooting.” Phillips after the contends that despite gunshot five wounds and survived by by Bartulis was killed not his bullet but large Deputies severe burns. later found Rose’s, and he will be able to establish currency in de- amounts of burned $100 given opportunity much if to devel- as Approxi- at the crime locale. nominations fact, In op evidentiary hearing. facts at an later, mately one week after warrants currently Phillips argues evidence arrest, Phillips for their and were issued and, saliently, more available to available— City to Salt Lake where Colman went supports at the time counsel of trial — appre- Colman had relatives. during contention that Bartulis was killed FBI. hended a few months later alleges shoot-out. He further Colman, trial, him, key against At in addition to testimo- witness Sharon Colman’s County Attorney ny, Rose testified that he had limited and Madera District about memory shooting actually and never David Minier both lied under oath a plea agree- saw who fired the shots. He recalled that the existence and nature of just prior gunshots Phillips to the was ment under which Colman would receive window, her tes- exchange at the driver’s side lenient treatment for alone
973 unsupported by any proof killed Bartu- timony that or offer thereof. McCormick, 1280, that he did so in the course of a Coleman v. 874 lis but F.2d (9th Cir.1989) (en banc). robbery, rendering Phillips eligible 1284 thus of the death imposition penalty. for the III. Procedural Issues factual al- Phillips’s
We discuss additional legations, they relate to his claims for as Applicability A. the Antiterrorism relief, below. and Penalty Death Act Effective (AEDPA) 1996 Granting II. Standard for undisputed It is
Evidentiary Hearing
that AEDPA’s
provisions
apply
substantive
do not
to this
appeal, Phillips
On this
asks that
appeal.
Supreme
has held
Court
him
we direct the district court to afford
AEDPA’s
amendments
to 28 U.S.C.
evidentiary hearing
on his constitutional
§
apply only
2254
April
cases filed after
The standard
re
governing
claims.
such
24, 1996,
the statute’s effective date.
reasonably
quests establishes a
low thresh
v. Murphy,
Lindh
521 U.S.
117
A
petitioners
old for habeas
to meet.
ha
2059,
(1997);
S.Ct.
claims have not been
Court,
thus Phil-
that Phil-
prejudice
not contest
but assert
Supreme
California
is,
a “mixed”
glance,
lips
at first
“cause.”
lips’s petition
has not shown
509, 102
Lundy,
v.
455 U.S.
one. See Rose
argues
The
in its
State
brief
(1982).
1198,
Howev-
The district court determined expressly denied Phillips’s request court Phillips not afford California courts would develop facts related to the “shoot-out” hearing a merits of unexhausted on the ineffective assistance of claim. counsel claims, and therefore held that however, State, deny Phillips’s The did requirement. satisfied the exhaustion request express hearing for a on the challenge ruling State does not on and, “shoot-out” claim Ninth under Circuit appeal. precedent, the state court’s denial of that Prejudice C. Cause and hearing is sufficient for to show “cause”: hearing is not entitled to a the district court his ineffective assis- When state court denies evidentia- specifically, ry tance counsel hearing on colorable ineffective as- claim— regarding proper claim his counsel’s failure to sistance of counsel claim after defense, request, a “shoot-out” petitioner see habeas has fulfilled infra Tamayo-Reyes require- Part III —unless he demonstrates both “cause” develop Simply put, cause for his failure to this claim ment. cannot suc- state cessfully resulting prejudice oppose petitioner’s state court and request Keeney Tamayo-Reyes, evidentiary hearing, therefrom. See for a state court argue proceed- 504 U.S. S.Ct. 118 L.Ed.2d then federal habeas *9 stead, proce- they simply deny Phillips's petitions 3. The state court orders set forth no (or other) any dural indeed basis for the deni- summarily. hearing al of a on issue. In- the "shoot-out” ings petitioner should be faulted like the State he relies on particular no succeeding. state for not rule. The reason for this is evident. earlier, court, As we noted the state in its (9th Stewart) 1404, v. 137 F.3d Correll denying Phillips’s request order for a hear- Cir.1998). ing claim, on his shoot-out-based did not heavily an- Oddly, the dissent relies on rely any procedural bar. It is true that a dif- part other of Correll discusses at the time of Phillips’s request California in quot- ferent claim than is discussed procedural had certain governing rules claim, passage. ed As to other both the timeliness of claims on collateral petitioner completely failed to ask for an appeal and the filing of peti- successive evidentiary hearing state court on the tions, but the state court did not cite on which ground sought hearing he later Moreover, of them. even if the state Accordingly, in federal court. Correll held rules, court had relied on one or more such barred, the other claim unlike the claim as none of them constituted an independent to which an hearing ivas re- and adequate ground state barring federal Here, quested. Phillips specifically asked review Phillips at the time made his re- court for a hearing the state on the identi- quest for a hearing; and the district court cal issue now before us and the state court ruled, so in a holding that the State does Thus, request. portion denied his not contest on appeal. issuing its rul- quoted applicable Correll above is both ing, simply the district court followed our dispositive. precedent. This court has previously held dissent, Subsequently, the in an at in opinions controlling here California to avoid the tempt dispositive applied effect of both its timeliness rules and its Correll, argues Phillips governing petitions should have rules in an successive presented the “shoot-out” during ineffective assis inconsistent manner peri- time pertinent tance of counsel claim at one of the earlier od Phillips’s proceedings. See Calderon, hearings.4 dissenting colleague ap Our Morales v. 85 F.3d 1391- (9th Cir.1996); Calderon, pears hinting possibility to be at the of a 93 v. Siripongs claim, (9th Cir.1994). procedural Phillips’s although bar to 35 F.3d Any 1317-18 question Januaiy, supra 4. The dissent states: “The that has not conclude until 2000. See anyone reading twenty-four to occur to a case note 1. Ineffective assistance of counsel be, years 'Why Phillips old has to didn’t men- generally brought pro- claims are in collateral lie, tion before now that his alibi was a ceedings, developed. at which a record can be lawyer present- that his was a dunce for not proceed- commenced his state habeas ” ing his shoot-out Dissent defense?' at 990. ings years before direct review of his did, Obviously Phillips many years ago. appeal requested had concluded. He an evi- Moreover, the dissent fails to note that the dentiary hearing on his “shoot-out" ineffec- twenty-four years case is old because of errors approximately tive assistance counsel claim requiring made the state court new sen- years two after the initiation of his state habe- tencing proceedings, significant problems in proceedings. questions as No one that those getting sentencing transcripts, accurate trial proceedings timely were in a commenced delay and the inordinate in the state courts’ attempting manner. Given that pro- commencement and review of the new develop a host of habeas claims while his ceedings. Vasquez, See appeal, hardly case was still on direct it is (9th Cir.1995). Phillips’s death surprising that he did not raise all of his sentence was first reversed in 1985. The re- post-conviction claims in collateral his initial quired proceedings new state in the trial petition, precluded or that he is not from approximately court did not end until twelve verdict, presenting separate years petitions. See after the them initial direct re- page view of second death sentence did infra *10 trial, there is a reasonable bar to federal procedural of a intimation jury would not have probability whol- claim is therefore Phillips’s review eligible penalty— him for the death found ly without merit. guilty him of first it did when it found as not barred from Phillips was Because special circum- degree murder with the hearing on his court receiving a state that murder having stance of committed assistance of coun- ineffective “shoot-out” In robbery. of a during the commission applied state by any regularly claim sel short, that he Phillips not contend does court orders rule, state and because the have been convicted on murder could not afford for the refusal to no reason offered could not have charge, but that he evidentiary hearing he re- Phillips death-eligible. been found to be of an evidentia- the State’s denial quested, claim hearing respect with ry A. Performance Deficient Ac- Correll. “cause” under constitutes Martin “knew or Phillips alleges that of the proceed to the merits cordingly, we an uncorroborated have known that should claims. hopeless because there alibi defense overwhelming credible evidence that Assistance Counsel IV. Ineffective shooter, Phillips’s Phillips was the testimo- that his trial Phillips contends sense, Phillips no rational ny made Martin, counsel, ineffective Paul rendered credibility by wrongfully destroy his would patently mer by presenting assistance questions on cross-ex- refusing to answer jury without defense to the itless alibi what Despite amination.” charac- notably, any other investigating defenses' — nature of his “hopeless” terizes as the during that Bartulis was killed defense defense, Phillips alleges asserted alibi trial coun that “effective shoot-out—and him did not confront with obvi- Martin capital allow his client in a case cannot sel story because Mar- ous deficiencies upon advice adequate decide without tin the facts of the investigated which counsel be hopeless alibi defense did not know shooting and therefore there has been no is false.” Because lieves alternative there was a viable defense: hearing Phillips’s ineffec court state that Bartulis had killed a shoot- been claim, only question “the is wheth tiveness out, unintentionally, by probably Rose. raises a ‘colorable’ claim of [Phillips] er Rather,. simply provided Phillips Martin Babbitt v. Calder ineffective assistance.” police reports and asked copies of the (9th Cir.1998). on, him for his version events. words, an hear obtain other underscored, proved, Martin’s ineffectiveness ing, Phillips’s allegations, must contends, evidence that was in by that his counsel’s a colorable claim raise trial, possession prior to as well stan Martin’s fell reasonable performance below discoverable, that, dards, easily as evidence that was as well as a colorable claim supported that would the “shoot-out” performance, ineffective for counsel’s but (1) of: That consists probability defense. evidence there is reasonable photographs of Bartulis .autopsy would have show proceedings outcome trajectory and demonstrate put appeal per To this bullet’s different. been have fired the contend that could not fatal spective, Phillips does not testi- him shot from where Rose Colman counsel would have secured effective and a standing, rath fied that he was declara- acquittal charges, on the but basic that, County Coroner been tion Madera Sheriff had a “shoot-out” defense er / *11 counsel, supports Bates that that conclu- that alleging Edward Martin was ineffec- (2) sion; police report stating that Col- tive for not using the materials in his man, witness, principal possession had told in support State’s of a “shoot-out” de- fense, parties one Dr. ReVille that “both shot at and presenting instead a defense he time, shooting each other the same out knew had no chance of success. Martin [Phillips’s] Toyota;” declaration, shield on the window then submitted a than a less (3) later, taped year interview in which in police Col- which he recanted his earlier immediately testimony man that and that said after the shoot- insisted even if he had file, Phillips truck been aware of the evidence in ing, reached into the victims’ his case he would not have considered an gun, and retrieved Rose’s thus demon- alterna- tive defense. strating Phillips that had a gun knew Rose the gun was accessible rather original Martin’s in statement the state (4) hidden; than that Graybill, evidence evidentiary hearing in sup- Phillips
who present during contends was port of a due claim process challenging shooting, companion told his Tamera alleged failure State’s to disclose ex- gone Nichols that a “business deal had culpatory evidence—a in claim that no par- sour” and that “all of a sudden both way implicated his effectiveness as a law- other,” just ties shooting started each and yer. declaration, subsequent His in con- (5) Graybill Gary evidence that told Bish- trast, prepared response Phil- another op, Phillips’s, associate of lips’s newly asserted ineffective assistance Graybill had at the crime been claim; declaration, of counsel in the same scene and that “all hell loose” and broke Martin asserted: “I did not Phil- render “lucky had been to survive.”5 lips ineffective assistance at trial.” Be- cause the district court denied
Phillips’s argument reasonably that a petition hearing, without a Martin has competent attorney who had access to the upon testify never been called under recog- above-listed evidence would have regarding contradictory oath state- viability nized the of a “shoot-out” defense ments; nor has ever been examined option discussed that with his client. regarding the nature of his consultations He has strong support for that assertion on this issue. unlikely from an Martin source: himself.
During evidentiary hearing state-court statement, Equally troubling is Martin’s January, Martin declaration, testified that he in the same that he “never putting “would have considered an al- on thought Phillips’s alibi defense had merit, ternative defense of mutu- self-defense and especially since he was adamant al shoot-out had Colman’s Decem- not present [he] he was even after he had police ber police reports statement and the read all the and other docu- report indicating Dr. Re- him.” provided [Martin] Colman told ments This state- justifica- Ville there had been mutual shoot- ment is critical because Martin’s fact, out.” In Martin investigating did have that evi- tion for not a “shoot-out” dence, theory and the state habeas court made a was that it “would be both unethi- finding permit of fact to that effect. cal knowingly Based and immoral part finding, Phillips [Phillips] perjury.” raised his to commit current claim of ineffective assistance of contends that statement about Martin’s pieces investigation by 5. The fourth and fifth of evidence come contends that “a reasonable post-trial attorney to this [sic] from declarations of Nichols Martin would have lead ' Bishop, police reports. Phillips not from evidence.” not to have been the result of reasonable the weakness of the alibi defense shows *12 Phillips’s story, professional judgment.” that he never Strickland v. believed Washington, that indeed seems to be the most sensible 466 U.S. statement; (1984). of Martin’s oth-
interpretation
However, if Martin never believed the
mum,
investigation
conduct a reasonable
defense,
explanation
then his
for fail-
alibi
him
enabling
to make informed decisions
ing
pursue
to
an alternative “shoot-out”
represent
how best to
his client.”
about
defense—that it would have been unethical
(9th
Ratelle,
Sanders v.
F.3d
perjury—
in
committing
to assist
Cir.1994)
(emphasis
original).
in the
apparent
cannot be accurate. This
contra-
Counsel’s failure to consider an alternative
diction, proven through testimony,
would
“strategic”
defense cannot be considered
inconsequential. Phillips’s
not be
ineffec-
where counsel has “failed to conduct even
upon
factu-
grounded
tiveness claim “is
his
minimal
that
investigation
would have
Martin
allegation
al
did not believe his
him to
enabled
come
an informed deci-
story.”
argument is
Martin
alibi
His
”
sion about what defense to offer....
Id.
“reasonably
rely upon
could not
informa-
tion
Martin
which
believed
be false re-
undisputed
It
that Martin
is
did
gardless of the source of such information
investigate any
not
than
defense other
because false information has zero value.”
presented
alibi defense that was
at trial.
purported
The district court
to resolve the
What makes this case a difficult one is
apparent
inconsistency in Martin’s state-
that,
doing,
simply
in
Martin
acting
so
by finding
ments
that Martin did believe
in compliance with his client’s own version
story:
Phillips’s
[state
alibi
“Martin’s
not, however,
of events. This is
the first
[recanting
declaration
his earlier
court]
occasion on which we have
called
been
testimony] implies that Martin believed upon to consider an ineffectiveness claim
added).
(emphasis
A
account”
upon grounded
petitioner’s contention
careful review of that declaration reveals
accept
that his counsel was ineffective for
Moreover,
implication.
no such
such an ing
implausible story
rather than con
implication does not constitute the kind of
ducting
investigation.
a further
John
ordinarily
statement
is
required for
(9th
Baldwin, 114
son v.
F.3d 835
Cir.
purposes
resolving
important ques-
an
1997),
petitioner’s
counsel
to in
failed
in an
denying
evidentiary
tion
order
an
vestigate
“incredibly
lame” alibi de
If a
hearing.
potentially material fact is in
petitioner]
fense
] [the
or
“confront!
dispute,
may
the district court
not rest its
story.”
with the difficulties of his
Id.
denial
hearing,
even
Instead,
presented
counsel
part,
highly
on a
implausi-
dubious—if
petitioner’s
uncorroborated defense
general
ble—inference it draws from a
rec-
he had not been
at the scene of a
itation of events
order to resolve the
rape, despite overwhelming evidence to the
disputed
question.
factual
case,
contrary. Although, as in Phillips’s
petitioner’s
has
the acts
“identified]
counsel had
or
alleged
omissions of counsel that are
defense that was consistent with his
petitioner
ficient to undermine confidence in the out-
story,
client’s
we found
[petitioner’s]
come’ of
trial.”
Id. at 840
prejudiced by counsel’s ineffec-
had been
added).
It
(emphasis
important
to note
tiveness:
granted
Johnson we
the writ and
find it anomalous that an
We do not
trial,
ordered a remand for a new
whereas
attorney
duty
fulfills his or her
who
here
we consider
whether
has
may
of a
dis-
investigate the facts
case
satisfied the far less onerous “colorable
upon
cover and need to act
information
requirement
claim”
obtaining
an evi-
contrary to that which the client has
*13
dentiary hearing. While it is
true
the
by
furnished. As the facts were found
against
in
petitioner
State’s evidence
the
courts,
[petitioner]
the state
offered
weak,”
“extremely
Johnson was
id. at
that,
an uncorroborated denial
[counsel]
point. Phillips
that is beside the
not
does
in
minimal
light of evidence that
investi-
dispute that
the evidence of his involve-
revealed,
utterly
gation would have
ment in the crime is overwhelming. How-
unconvincing.
[Counsel] was not enti-
earlier,
ever, as
pointed
we
out
unlike the
there,
stop
practical
tled to
but for all
Johnson,
ineffectiveness claim in
Phillips’s
purposes, he did....
Had [counsel]
depend
claim does not
being
inno-
[petitioner]
confronted
with the lack of
deny
cent.-
does not
that he was
alibi,
for his
and the
corroboration
present at the crime
and that
scene
strength of the defense that no sexual
gun
fired his
at the victims. Nor does he
occurred,
[petitioner]
intercourse had
deny
guilty
that he is
of serious offenses.
to
probably would have elected not to lie
Rather,
that,
only
he contends
had Martin
jury.
prejudice
failing
the
The
from
to
investigated
and
a “shoot-out”
investigate the alibi and confer more
defense,
probability
there is
reasonable
fully
[petitioner]
by
is not avoided
that he would not have been convicted of
fact
[petitioner]
the
the
misinformed his
degree
the ultimate offense—first
murder
attorney.
with the special
robbery—
circumstance of
at 840.
Id.
an
him eligible
offense
rendered
penalty.
The State and the dissent are correct
the death
that in
did
challenge
Johnson the State
not
dissent,
Contrary
the
in the
argument
finding
district
court’s
counsel’s
White,
the cases of Turk v.
deficient;
performance
argued
it
had been
(9th Cir.1997)
Calderon,
Bean v.
petitioner
prej-
had not been
(9th Cir.1998)
to,
apply
F.3d 1073
do not
by
deficiency.
udiced
Id. at 838.
with,
in
fact are not inconsistent
this
However, it
the language
clear
case.
with the
that Turk
agree
We
dissent
quoted
directly
above bears
on both
reasonably
held that “once defense counsel
prongs
inquiry,
of the ineffectiveness
defense,
theory
selects a
he cannot be
precedential
Johnson’s
value is not
perfor
held to
rendered
deficient
question
prejudice.
to the
limited
mance.” Dissent at 992. The dissent
necessarily
Johnson court
evaluated coun- misses, however,
necessary prerequi
(as
performance
sel’s
well as credited the
in
very
site of effective counsel noted
its
finding)
district court’s factual
determin-
quotation.
own
Turk states that defense
ing
performance prejudiced
whether such
obligation
not have an
counsel does
alternative,
petitioner.
any
there
doubt of pursue
conflicting
Were
defense
that,
by
it
dispelled
reasonably
would be
the court’s once he
selects the defense to
Turk,
objec-
116 F.3d at
present
“[T]he
conclusion:
effect Haslett’s
at trial. See
(“[0]nce
reasonably
tively
performance
trial
was ‘suf- 1267
selected
[counsel]
deficient
“stellar.”
only competent,
not
but
theory,
duty
to investí-. was
the self-defense
denying
order
defense,
Nor does the district court’s
which direct-
competency
gate
petition
contain
discussion
theory, Phillips’s
ly conflicted with
self-defense
intro-
Bean,
prejudice, beyond
single
ended.”);
possible
1978) (effective
11, 1977);
he took
now asserts. He maintains that
August
see also
Morris,
1,
the victims’
to remove their identi-
46
249 Cal.
wallets
People v.
Cal.3d
(“The
Indeed,
(1988)
843,
the crime scene.
fication from
P.2d
851
Rptr.
756
money
majority
vast
of the victims’
legisla
inescapable inference.is
—sev-
in their
eral thousand dollars—remained
fully intended that the elements of the
ture
the crime. The dis-
possession following
felony must be for
special circumstance
acknowledged that “there
Green,
[was]
trict court
mally proved”); People
Cal.3d
(1980)
imply Phillips’s
evidence here that could
P.2d
Cal.Rptr.
taking
motive in
the wallets and Rose’s
(“[T]he
attorney correctly told the
district
gun
prevent
was to
identification of Rose
jurors
charged
in order to find the
Bartulis,”
it found that there was
but
they
true
must
special circumstances
be
Phillips’s pri-
sufficient other evidence
guilty
underly
find defendant
of the
first
mary intent
to rob the victims to
was
robbery
ing
kidnaping”).
crimes of
his claim of “actual
innocence.”
defeat
Therefore,
in order for
to be
jury
Had the
found
use
charged
death-eligible
special
under the
proper-
force
unrelated to the
theft
circumstance,
jury
required
to—
ty
instead there had been a shoot-
—that
robbery,
him guilty
and did—find
as
out
which
decided to take the
after
However,
jury
well as murder.
had the
items he took—it would then have been
been
with a “shoot-out” de-
guilty
required
to find
not
of rob-
if it refused to credit his con-
fense' —even
bery, and
consequently
guilty of first
weapon
outright
tention that he fired his
degree
special
murder with a
circum-
Phillips’s contention is that it
self-defense—
case, Phillips
stance.
would have
such
him
might
guilty
not have found
of rob-
ineligible
penalty.
been
for the death
bery under section
However,
jury
even
had found
211 of the California Penal
Section
Phillips guilty
underlying
offense of
“robbery” as “the
Code defined
felonious
robbery, might
it
still have found
property
posses-
taking
personal
*16
proved
special
State had not
the
circum-
another,
from his
imme-
person
sion
or
finding
special
stance. The
circumstance
will,
presence,
against
diate
accom-
simply require
jury
does not
the
to con-
plished by means of force or
fear.”
degree
clude that a first
murder and an
1977).
§ 211 (Deering
Cal.Penal Code
felony
underlying
enumerated
have both
provision,
robbery
Under that
has not
jury
been committed. The
also con-
must
the
been committed unless
force or fear
clude that
the murder was “committed
taking
accompa-
used to commit the
”
during
underlying
the commission
the
by
nied
intent to rob.
the larcenous
“[I]f
case,
felony
robbery.
this
Cal.Penal
—in
purpose does not arise until after
force
190.2(c)(3)
1978) (effec-
§
(Deering
Code
victim,
against
has been used
there is
1977)
added).
11,
August
(emphasis
tive
‘joint operation
no
of act and intent’ neces-
Green,
sary
robbery.”
special
may
to constitute
164
A
circumstance
not be
1,
case,
Cal.Rptr.
underlying felony
983
408,
circumstances,
In view of all these
353,
Cal.Rptr.2d
966 P.2d
79
Cal.4th
we
(1998).
respect
spe
to the
has
a color-
With
conclude that
raised
robbery, the court has
prejudice,
cial circumstance of
able claim of
a sufficient show-
goal is not
Legislature’s
evidentiary hearing
“[t]he
Stated
to entitle him to an
ing
intent
... when the defendant’s
achieved
on his ineffective assistance
counsel
robbery
to kill and the
is not to steal but
proceed
claim.
next
to a
We
discussion
murder[,]
‘a sec
merely incidental to
Phillips’s
relating
presenta-
claims
to the
Green, 164 Cal.
thing to it....’”
ond
testimony by
key
prosecu-
tion of false
P.2d at 505. The rule derives
Rptr.
prosecutor
tion witness and the
himself.
“permit
unwillingness
from the court’s
doing,
In so
we note that this next claim
will
jury to
who will live and who
choose
relevant to and serve to
may also be
bol-
of whether in the course of
die on the basis
just
prejudice question
ster the
we
committing
degree
a first
murder the de
discussing.
been
ancillary
in
happens
engage
fendant
technically
constitutes rob
conduct
Perjury
V.
Claims
bery or
the other
listed felo
one of
County
contends that Madera
Id.9
nies....”
Attorney
suppressed
District
David Minier
if
Essentially, the
holds that
rule
plea agreements
evidence of two
robbery
for the
is somehow
the motivation
in
prom-
Sharon Colman which the State
of the mur
wrapped up
the commission
her
leniency
exchange
ised her
for
testi-
der,
robbery is incidental. That is to
Moreover,
mony implicating Phillips.
or
say, if the intent to rob is formed after
Phillips alleges that Colman committed
the rob
during
killing,
the course of the
perjury when she testified that she had not
finding
spe
of a
bery
support
will not
any
exchange
promised
benefit
been
application
cial circumstance for the
testimony,
committed
her
and that Minier
Musselwhite,
penalty.
People v.
death
See
that he had not
perjury when he testified
Cal.Rptr.2d
17 Cal.4th
leniency or
any promise
communicated
(1998) (“[EJstablishing
felony-
P.2d 475
Moreover,
he asserts
benefit
Colman.
includes
special
murder
circumstance
testimony by
knowingly used
that Minier
the intent
to commit the
showing [that]
to be false.
Coleman
he knew
underlying felony precedes
killing”)
trial
Colman testified
added). Here, (emphasis
a “shoot-out”
promised
had never been
benefit
she
trial, the
presented at
defense had been
Minier,
*17
testimony.
exchange
in
for her
have found that
jury might well
too,
oath that he “never
testified under
the intent to steal until after
did not form
an
with Sharon Colman
agreement
killing,
necessitating the conclu
thus
what,
190.2(c)(3)(i) concerning
anything,
she would
special
sion that
circumstance
In
case,
testimony.”
receive in return for her
Phillips.
In
apply
did not
to
such
trial,
at
closing argument
Philips’s guilt
sentenced to his
Phillips could not have been
credibility by
Minier bolstered Colman’s
death.
1978) (effective 1970). "During the
provision
(Deering
supra, a
that is iden-
9. As discussed
perpetration
“in the
of”
meaning though slightly
commission of" and
different in
tical in
temporal and causal rela-
denote the same
language may
as an alternate basis for
serve
Thus,
dis-
provi-
tionship.
California cases
first-degree
conviction. That
murder
applicable
equally
to
killing
in the text are
is murder in the
cussed
sion States that
ground for a
question
the alternate
degree
perpe-
if it is committed "in the
first
finding
first-degree
robbery.
§
murder.
Cal.Penal Code
tration of” a
agreement
“that
communicate the
to Colman.”
jury
Miss Colman
emphasizing to
testimony by
in
Minier raises serious
promised anything
re- This
has never been
questions
per-
as to whether he committed
testimony.”10
turn for her
Dunn,
jury
Phillips’s
at
trial.
Colman’s
pieces
to several
Phillips points
was,
law,
lawyer,
as a matter of
Colman’s
seriously undermine Minier’s
evidence that
agreement
agent. When Minier made
attorney, Tom Pe
account. Colman’s first
agent regarding
with Colman’s
her testi-
terson,
postconviction
testified
State
mony,
appear
it would
to follow that he did
that on December
proceedings
contrary
testimony—
to his sworn
fact—
at the Madera
was interviewed
Colman
an agreement
have
with Colman.
jail by Minier and two Madera
County
properly
The district court
characterized
that
County
nothing
detectives and told
practice
“insulating”
Minier’s
witnesses
against her.
she said would be used
“deplorable,”
as
but concluded nonetheless
testimony,
return for
Peterson
Colman’s
relief,
was not entitled to
or
testified,
orally
agreed
Minier
to a deal
evidentiary hearing.11
even to an
guilty
permit
plead
that would
Colman
Phillips’s perjury
court noted that
claim
to a violation of Penal Code Section
rejected” by
had been “considered and
murder)
(accessory
and to receive no
County Superior
Madera
after an
Court
Finally,
year
jail
more than one
time.
evidentiary hearing in 1990. While it is
specifically
re
Peterson testified
rejected
the Superior
correct
Court
communicating the details of
called
Mini-
court did not make
claim,
Phillips’s
offer to
er’s
Colman.
finding
factual
as to whether false testimo-
declaration,
In a 1990
Minier acknowl-
and,
so,
ny
proffered
if whether it was
agree-
had an
edged
might
that he
have
not,
knowingly
by Minier.
It
done
did
Peterson,
explained
with
ment
but he
fact, determine whether Colman or Minier
expressly
he was “sure that he
would
Rather,
or
perjury.
both had committed
convey the
requested Mr. Peterson not
Superior
Court based its conclusions
Colman;
my
offer to
it was
habit and
Miss
any
determination that
error was
testifying
custom that time to ‘insulate’
harmless, because the issue of Colman’s
accomplices
knowledge
from
bene-
credibility
possibility
plea
and the
of a
they
fits
Minier further
were
receive.”
agreement
already
jury.
were
before the
agreement
testified that he did have an
Thus,
underlying
allega-
the facts
attorney,
with Colman’s second
Cassandra
perjured testimony
yet
tions of
have not
Dunn, regarding the benefit that Colman
fully developed.
been
receive,
was to
noted that there had
but
“express understanding
been an
It
pre
between
is well settled that the
Dunn
Miss
and me that she would not
sentation of false evidence
due
violates
behalf,
Following
testimony
imposi-
agreement
and the
her
she had reached on her
Phillips,
tion of a death sentence on
Colmar!
plainly
duty
“keep
she
violated her ethical
charged
was not
crime.
reasonably
significant
[Colman]
informed of
*18
case,
developments” regarding her
Cal. Bus.
prosecutor
11. We note
it
that was not
6068(m),
§
and Prof.Code
and failed
"ex-
deplorable,
whose conduct
but the sec-
was
plain
reasonably
matter to the extent
[the]
attorney
ond defense
as well. If
indeed
Dunn
necessary
permit
to make in-
[Colman]
concealed from her client the existence of a
regarding
representa-
formed decisions
[her]
plea bargain
immunity agreement,
or
and al-
tion.” Model Code
Conduct
of Professional
capital
lowed her client—who faced
murder
(1983).
Rule 1.4
charges
testify
any knowledge
without
of
—to
concede, however,
Illinois,
that
does not
Colman’s
360 U.S.
Napue v.
process.
(1959)
perjurious
L.Ed.2d 1217
testimo-
allegedly
and Minier’s
79 S.Ct.
(“[A]
knowingly use false
may not
ny
non-prejudicial
State
would have been
had
evidence,
to ob
testimony,
false
including
not
ineffective.
In other
counsel
been
conviction....”);
a tainted
United words,
tain
allegedly per-
he asserts that the
(9th
LaPage,
Although argued special premeditation and the finding testimony did allegedly perjured Colman’s during of murder the com- circumstance judgment jury, of the he con- affect Had the issue at robbery. of a mission not, it appeal cedes on did because— shoot- trial the circumstances of the been wholly meritless alibi in the context shooter, identity of the ing rather than trial was only issue defense—“the little, any, have been corrob- there would shooter, and Phillips was the whether Although it account. oration of Colman’s overwhelming evidence there was the wallets undisputed took Thus, the shooter.” Phillips was shooting, he following victims jury “the would credit Col- professes, now so in order to that he did now contends testimony on this narrow issue even man’s crime from the remove their identification lied under if it aware that Colman scene; of dollars the fact that thousands bargain.” Phillips ... plea oath about her *19 sufficiently prejudicial to meet possession pro- remained in the victims’ violations is Phillips’s allegation. Thus, support vides the Townsend v. standard.13 Sain testimony, Without Colman’s State Phillips we conclude that is entitled to an hard-pressed explain would have been evidentiary hearing regard to his why Phillips, committing special in cir- claims that his counsel ineffective and robbery, left most of the cumstance of presented testimony.14 State false money behind at the scene. Col- victims’ credibility, testimony,
man’s
and thus her
VII. Other Claims
Phillips’s eligibili-
were therefore crucial to
Phillips remaining claims are without
ty
jury
for a death sentence. Had the
may
succinctly.
merit and
be addressed
that,
lawyer’s
as her first
concluded
testi-
establish,
mony strongly tends to
she lied A. Bad
Destruction
Faith
Evidence
regarding
under oath
the benefit she
Phillips contends that the
in
State acted
exchange
would receive in
for her testimo-
by permitting
bad faith
destruction
ny,
judgment might
its
well have been
the Ranchero truck
which Rose and
affected.12
shot,
Bartulis were
providing
without
no-
Considering
prejudice
might
Phillips
attorney.
tice to either
or his
well have resulted if
claim of
Phillips’s theory is that
the Ranchero
proves
ineffective assistance of counsel
might have
supporting
contained evidence
(see
IV.B.), together
be valid
discussion
his claim that Bartulis was killed
during
prejudice
might
with the
well have
shoot-out.
resulted from the use of
false
Colman’s
testimony, we
Absent a
showing
conclude
has
bad faith
presented
part
colorable claim that the com- on the
of the police,
pre
“failure to
of the alleged
potentially
bined effect
constitutional
serve
useful evidence does not
Although Phillips's
argues
12.
counsel did attack Col-
He
that his is the "unusual case” con-
credibility by arguing
ap-
man's
that there
templated by
Supreme
Court in footnote
deal,
peared
prosecution argued
to be a
Abrahamson,
nine of Brecht v.
507 U.S.
otherwise,
jury
and the
was never informed
(1993),
15. Bates he was the who DOJ examiner asserts developed includ- would not have would case, that he to work on the DOJ official because, any exculpatory material in his ed Ranchero, and that never examined the opinion, none existed. accepted a car delivered DOJ would not have by towing service. *21 Phil- We need not determine whether mine whether a case should be remanded (1) lips’s factual to a allegations judge: raise a colorable different “whether orig- judge inal would reasonably expected claim of be innocence under the standard that upon remand to have substantial difficulty the Court has indicated would be neces- putting out of his or her mind previous- sary. allegations support The Phil- ly-expressed findings views or determined lips’s factual innocence claim are the same to be or erroneous based on evidence that allegations support his ineffective as- (2) rejected; must be whether reassign- process sistance counsel and due claims. ment preserve appear- is advisable to already We have determined that those (3) justice, ance of and reassign- whether allegations him a hearing entitle to on the ment would entail waste and duplication latter claims. Because the standard for proportion any out of to gain preserving obtaining relief on the basis of those claims of fairness.” Id. appearance n. considerably stringent is less than the 5. Factors two and three are intertwined standard obtaining for relief on a claim of require a weighing of Fac- interests. innocence, factual Phillips’s chances neces- tor one is independent, and enough is sarily rise or fall with his ineffectiveness standing to require alone recusal. process and due claims. If Phillips is ulti- mately entitled to some relief on account of Having reviewed the record of claims, those the factual ques- innocence below, proceedings we find no basis for If, tion need not be reached. on the other concluding that the district judge will have hand, Phillips to following fails establish an difficulty being fair impartial or that evidentiary hearing that he reassignment suffered suffi- is preserve advisable to prejudice appearance cient regarding Accordingly, his other two fairness. we claims, deny Phillips’s certainly request reassignment will not be able judge establish different his factual remand.17 innocence. Accord- ingly, we decline to decide whether Phil- VIII. Conclusion lips’s claim of factual innocence might enti- tle him We to relief. reverse the grant district court’s summary judgment to the State and re- D. Recusal on Remand mand for an evidentiary hearing on Phil- lips’s regarding claims the ineffectiveness that, if contends the dis of his trial prosecution’s counsel and the reversed, trict court’s decision is this court presentation of testimony. reject false We should order the case reassigned a dif Phillips’s remaining claims for relief. judge. ferent We have made clear that remand judge new is “not the usual REVERSED IN PART AND RE- remedy when error is found in district MANDED. proceedings. court Remand to a new KLEINFELD, Judge, Circuit
judge is reserved for ‘únusual circum dissenting: Arnett, stances.’” United States (9th Cir.1979).
F.2d Absent I concur in portions those of Part VTI of proof personal bias, three factors deter- majority opinion reject Phillips’ also prejudicial contends the cumulative bined effect of counsel's ineffective prejudicial effect of all the violations of his performance prosecution's presenta- and the rights federal constitutional which occurred’ testimony. Phillips’s tion of false remaining guilt at the 1980 trial entitles him to relief. relief, claims do not entitle him to either already We have determined that individually cumulatively. or hearing regard entitled to a to the corn- them, car them and their from set majori- rowed dissent. claims but otherwise men, despite being One of on fire. independent major and ty makes three fire, from the escaped and set on shot hearing (1) grants it errors: to his Phillips complained burning car. court, in state developed on a claim ran that he “wasn’t dead” girlfriend reversal Court’s Supreme despite the *22 car, trying yet with his down the man of a similar Tamayo-Reyes1 Keeney v. bleeding, But kill him. this again to (2) made; it treats error our court He burned, did not die. maimed man and alibi, his made at of defense counsel’s murder Phillips’ at and testified survived despite counsel’s and insistence client’s trial, Phillips’ girlfriend. along it, as ineffective against recommendation to the con- assistance, our decision despite and at- this Phillips committed murder Calderon;2 (3) it and v. 1977, in Bean trary 7, December murder on tempted assis- ineffective Phillips’ supposed treats twenty- years ago. twenty-four cumulatively as claims and perjury tance people of California ago, the years one trial hypothetical based on prejudicial convicted, tried, Phillips and sentenced occurred, evaluating instead of that never murder with the degree first for death prejudice based Phillips materiality perjury robbery. special circumstance actually place. took for penalty on the trial the death avoided has now angle His latest decades. than two more vacant area to a two men Phillips lured assis- lawyer gave ineffective his is that his a lie that ramp with freeway exit off a the he counsel because tance of exist) (who them would sell did brother on, lying to Phillips insisted alibi defense them to He told insulation. stolen some the jury, instead lawyer and the his [they] as together cash “get as much now con- Phillips has “shoot-out defense” girlfriend drove Phillips and his could.” nonsense, buys majority this cocted. The When the car, another. two men one off the Phillips punishment will stave so on the at a station stopped gas two cars years to many for juries imposed two rendezvous, Phillips supposed way to the come. from one of book matches borrowed a pre- majority is correct though he did not smoke I doubt the men even his Phillips filed applies. matches at have obtained law could AEDPA doubtless AEDPA went they stopped off after the petition When amended gas station. whether a on men But our decision Phillips shot both into freeway ramp, effect.3 adjudicated may be instantly. petition He killing post-AEDPA range, one at close petitioner when his law pre-AEDPA complained under wallets stole their differ- on pending money petition find the has a different he could not girlfriend dicta, govern- because the ent issues them. supposed to they were And and, not contest issue. ment does on them gasoline poured he Then contend does not government because had bor- he the matches probably with prop 1996). (9th for Williams stands Cir. 118 L.Ed.2d U.S. 1. 504 pre- under loses (1992) petitioner that if a osition . law, wheth need not decide the court AEDPA Cir.1998). (9th 2. 163 F.3d The applies. Id. 285-86. AEDPA er the Phil pre-AEDPA law to applied court district these majority “[i]n circum- states that 3. The majority Since lips’ petition on this basis. stances, petition Phillips' amended we treat law, pre-AEDPA Phillips under wins decides earlier, erroneously dis- part his ... as control. does not Williams law,” pre-AEDPA apply petition, and missed Calderon, citing Williams AEDPA apply, proceed, different, should I senting a conflicting story in the majority, apply like the pre-AEDPA face of his client’s insistence. The people law. of California condemned Phillips to die crimes, his not for lawyer, and we have majority holds that is enti- proper relief, no for granting basis includ- tled to an evidentiary hearing because he ing the preliminary yet relief of another has made colorable claims of ineffective evidentiary hearing, every- decades after counsel, perjury, assistance of and cumula- memory one’s and notes are stale. tive error. When talked to his trial, lawyer insisted, and went Prejudice I. Cause and advice, against lawyer’s on an alibi concedes, majority As the Phillips told says defense. now it all a lie. *23 lawyer his that he present was not even at scene, He admits that he was at the he did scene, the crime men, but was instead at a at fire, shoot the he did set on them meeting of drug dealers and he did run else. down the survivor with somewhere his He would tell trial, lawyer car. not his who or Decades after where majority his the people the at now the claimed grants Phillips meeting were. evidentiary hearing lawyer His lawyer on whether told him this incompetently his alibi failed defense did present to not have much a “shoot-out chance prevailing of Phil defense.” There is defense, lips no did except such disclose Holly- not where and with whom perhaps movies, wood action he spent because his time the law while does someone com else not permit may shoot-outs.4 mitted the One claim brutal crimes. But in Phillips “self-defense,” but even on Phillips lacks the sisted alibi lawyer and the investi chutzpah men, it, to claim gated he shot two set finding even a witness whose fire, them on and ran down the survivor gave observations the alibi a little bit of car, with his in self-defense. He only corroboration. majority Now the grants makes the more modest claim that they Phillips theory relief on the lawyer that his had a “shoot-out” and he won. should have discovered and a “shoot-out defense” instead. question The
In two litigation decades of Phillips has that has to occur to anyone reading a case presented many claims in many papers, twenty-four years be, old “Why has to including claims of ineffective assistance of didn’t Phillips mention before now that his He gets counsel. now the benefit of the lie, was a alibi and lawyer that his was a now common highly unlikely but assump- dunce for presenting his juries tion shoot-out de impose that death penalties be- Phillips fense?” knew he lying from lawyers, cause of bad than rather bad start, and demands, knew his lie crimes. gets, unsuccess and relief 1980, ful in but he says because he he had a did not claim lawyer, bad ineffective even he ground admits to assistance on this though shooting, until burning, and ten men, maiming years two perjured and after he successfully killing himself his one justification. them without And the false alibi trial. He has shown good no majority expands now failing notion “bad cause for develop to this ineffective lawyer” to include one who accepts theory court, his assistance in state so under story, it, investigates client’s and controlling even Supreme authority, Court Kee- it, finds corroboration for than pre- ney rather v. Tamayo-Reyes.5 and our decision in Bolden, People v. Cal.App.4th 71 person engaged eral rule in mutual Cal.Rptr.2d (1999) self-defense). (noting gen- may combat not claim
5. 504 U.S. 118 L.Ed.2d insufficiently petitioner who habeas Stewart,6 not entitled he is Correll court was enti- developed a claim in state theory hearing on this evidentiary federal he evidentiary hearing unless to an tled now. orderly pro- deliberately bypassed state court already had two has The held courts.7 Court cedures state hearings post-conviction evidentiary on “cause” and standard is proper hearing one He had relief. claims for only petitioner A prejudice.”8 “actual counsel, assistance of ineffective claim if he evidentiary hearing to an “entitled not know lawyer did theory that his on the develop failure his can show cause for challenges jury peremptory many how and proceedings the facts state-court In a He second available. lost. were from that fail- resulting prejudice actual Phillips claimed petition, habeas state Phillips can show The cause ure.” exculpa- to disclose failed government his develop facts for his failure (evidence Phillips claims tory evidence “shoot-out assistance ineffective defense”) “shoot-out his supports is that when in state court claim defense” perjured prosecutor girlfriend petition state habeas litigated first themselves, another got story and alibi was his ago, decade over a again. lost 1990. Phillips hearing sticking it. Nor can he was “ex- *24 already had this Phillips found court that “failure exception” narrow meet “the not de- Phillips did culpatory” evidence. proceed- court develop a claim state to claim, that present facts of his velop the mandat- hearing and a be excused ings will present failed incompetently lawyer his a funda- can show that petitioner] ed if [a defense,” in of these either the “shoot-out result justice would miscarriage mental the first mo- knew from hearings. Yet he evidentiary a hold federal from failure to he an lawyer that his ment he told hearing.”10 knew from lying, and he alibi that he lawyer presented that his
thé first moment
Stewart,
an evi-
we denied
In
v.
Correll
a
it was
false
jury that
alibi
his
analo-
circumstances
dentiary hearing in
ver-
from the first
he knew
defense. And
an
raised
prisoner
gous to this case.11
a lie
only
was not
alibi defense
dict that his
court
claim state
assistance
ineffective
he has
he. Yet
shown
but
unsuccessful
lawyer
that his
theory,
on one
based
develop his
current
failing
no cause for
defense,
a mens rea
developed
have
should
counsel,
ineffective assistance
theory of
lawyer
theory, that his
not on his other
but
a
presented
counsel should
defense.12
his misidentification
botched
defense,”
grant-
the state
when
“shoot-out
his
summarily denied
court
The state
evi-
second
his
first or the
him the
ed
a fed-
sought
prisoner
When the
claim.13
dentiary hearings.
ineffective
hearing on an
evidentiary
eral
the “botched
on
claim based
assistance
the Su-
Keeney
Tamayo-Reyes,
theory,” we held
defense
holding misidentification
court’s
reversed this
preme Court
11-12,
S.Ct. 1715.
112
(1992).
Id.
10.
318
Cir.1998).
(9th
F.3d
6. 137
Cir.1998).
(9th
F.3d
1411-12
11.
118 L.Ed.2d
7. 504 U.S.
at 1410.
Id.
12.
(1992).
11,
8. Id. at Id.
9. Id.
Keeney
v. Tamayo-Reyes
re-
on his other
majority
barred
claims. The
then
though
result,
lief—even
justifies
court summari-
claims Correll
state
its
quoting a
ly denied all of
different
discussing
his claims without
section
prisoner’s
claim of
hearing
he
assistance at
“had ac-
ineffective
sentenc
—because
ing
lawyer’s
to all
based on his
necessary
cess
almost total fail
information for
ure to mount a
prisoner
defense.15 The
raising this issue
for conducting
specific
had raised this
claim in
post-
state
state-court evidentiary hearing” but did
conviction proceedings, but the state court
raise
the claim when he raised his'
summarily dismissed
petition
despite
other ineffective assistance claim.14
evi-dentiary
prisoner’s
request” for an
“proper
Correll,
Like
prisoner
ng.16
We held that adequate
heari
raised an ineffective assistance claim in
cause was shown where the petitioner
state court based
theory,
on
law-
one
his
“tried and failed through no
his
fault of
yer’s ignorance about peremptory jury
own to develop the facts relevant
to his
challenges, but not
theory,
other
ineffective assistance claim at the state-
lawyer
that the
presented
should have
court
level.”17
did not fail to de
Correll,
“shoot-out defense.”
inAs
Phil-
velop
claim “through
no fault of his
lips knew the facts
needed
this
fault,
own.” He was at
because he was
theory
when he
his other theo-
sticking to his lie.
ry,
always
because he had
known he was
likewise,
lying. And
Phillips must show II.
Ineffective Assistance of Counsel
adequate
for failing
cause
to raise this
If
petitioner’s
allegations, even if
theory of ineffective assistance when he
proved, would not
relief,
entitle him to
theory.
raised his other
But
does not
raise
colorable claim and is not
cause
can
belief
show—his
entitled to an evidentiary hearing.18 Phil-
*25
lying
benefits of
outweighed the benefits of
lips’ theory that
lawyer
his
rendered inef-
telling the
adequate,
truths —is not
be-
fective assistance by failing to present his
cause trials do not exist to test which lie
“shoot-out defense” is not a colorable claim
better,
works
but to find the truth.
under the controlling precedents of Turk
majority
The
attempts to avoid Correll
v. White19 and
v.
Bean
Calderon.20 Turk
by noting that Phillips raised his “shoot
holds that once defense counsel reasonably
out
theory
defense”
in later state court
theory
defense,
selects a
of
he cannot be
petitions
granted
and was not
a hearing on held to have
perfor-
rendered deficient
it. But
begs
that
question
why
he mance under
Washington21
Strickland v.
did not raise it when he
granted
was
a
failing
for
investigate
to
present
or
an
hearing, the first time on his other ineffec
alternative defense that would have been
claim,
tive assistance
and the second time
inconsistent with the
presented.22
defense
Id. at 1412.
14.
(9th Cir.1997).
19.
Turk
that Phil-
ground
on the
and Turk
not Bean
sentation,
lawyer
does
that
and holds
defense
not select the alibi
lawyer did
lips’
alternative defense
investigate an
have
But
investigation.
on a reasonable
based
rejecting
before
it.23
investigate, and even
lawyer did
Phillips’
assistance
an ineffective
The notion that
of an
whose observation
found a witness
decision
on counsel’s
be based
claim could
making ar-
than
man other
armed
on,
the client insisted
the alibi
present
self-incriminating remarks tended
guably
defense,
laid to
was
another
instead of
sensibly
And he
the alibi.
to corroborate
Bean, as
by Bean
rest
Calderon.24
unlikely
that an alibi was
advised
lawyer
case,
lied to his
prisoner
in this
refused to
the defendant
to succeed where
was not
claiming
he
jury,
he
or with whom.
say where was
asserted
crime.25 He
the scene
disturbing
misuse
it,
majority makes
The
stuck to
lawyer, and
alibi to his
false
rely on
by purporting
precedent,
even weaker
perhaps
though it was
even
in John
We held
v. Baldwin.30
Johnson
defense in this
the false alibi
than
case.26
patently
presentation
on the
habeas relief
sought
Then
son
defendant,
rape
prejudiced
alibi
ineffec
false
lawyer rendered
that his
ground
testimony
obviously false alibi
de
because
an
by presenting
assistance
alibi
tive
scientific evi
the uncontradicted
undercut
a defense
diminished
instead of
fense
inno
factually
he was
dence that showed
lawyer rea
We held
capacity.27
reason
cent of the
defense
the alibi
sonably
present
chose to
rape.31
a dis
is
reliance on Johnson
majority’s
lawyer he
told his
the prisoner
because
precedent
turbing
misuse
accept
refused to
not
there
considering
Johnson,
expressly avoided
we
defense,
diminished
alternative
capacity.28
was defic
performance
whether counsel’s
de
capacity
the diminished
And “because
majority opinion
today’s
Yet
alibi
conflicted with
fense
would
ient.32
prece
were
though
as
it
treats Johnson
range of
the broad
theory, it
within
extraordinary defi
majority’s
dent for the
competent assistance”
professionally
state had
holding. The
performance
cient
investigate
or
lawyer
under
performance
deficient
majority
conceded
controlling, but
That is
it.29
*26
ap
in this
Strickland,
“the sole issue
it,
an intra-
so
now have
so we
to follow
fails
preju
alibi
the false
peal”
was whether
whether
authority
on
conflict
circuit
defendant,
law
not whether
by
diced
ineffective assistance
lawyer renders
investigated the
reasonably
yer
client
that the
an alibi defense
presenting
alibi.33
appeal” is
issue on
say “the sole
When we
alternative
investigating
and not
insists on
conceded,
means
B,
A is
issue
because
with alibi.
inconsistent
defenses
29.
Id.
23.
24. 163 F.3d 1997). (9th Cir. 30. 114 F.3d 25. Id. at 1075-76. at 838-840. 31. Id. at the mur- were found fingerprints 26. Bean’s crime to confessed the he der scene and 32. Id. at 838. Id. 1075. witness. at Id. 33. Mat 27. 1081. 1082.
28.Id. that the case does anything stand nished to him when the helpful testimony at all on A. no There is reason to think had been obtained. Because the split decision in Johnson would hearings on post-conviction petitions relief have come out the same had way deficient years events, occur after they often performance not been conceded. error account of fading introduce mem- ory majority partial
The
asserts
records.
majority
that “Johnson’s
The
errs
precedential
First,
value is not
in two ways.
limited to the
lawyer’s
hindsight
question
prejudice”
because the
subjective
court
assessment of
performance
his
“necessarily evaluated
perfor-
counsel’s
does not establish whether
rep-
“counsel’s
...
determining
mance
[prejudice]” and
objective
resentation fell below an
stan-
concluded that
performance
counsel’s
was dard of reasonableness” “as of the
time
“objectively
That
precisely
deficient.”34
Second,
counsel’s conduct.”38
even if the
wrong.
performance
Because deficient
lawyer possessed but did not review evi-
Johnson,
was
conceded
and we limited
dence supporting
defense,”
a “shoot-out
our decision what
we said was “the sole his failure to investigate the “shoot-out
issue on appeal,” prejudice,
necessarily
we
defense”
no bearing
has
on whether he
did not evaluate
performance
counsel’s
and reasonably investigated the alibi defense.
determine
it
was deficient.35 We
Turk,
Under Bean and
lawyer
does not
prejudice
found
because the false alibi de- have
investigate
alternative defenses
fense vitiated the force of the scientific
one;
instead,
and then choose
once he
defense,
evidence
alleged
two
ra-
reasonably investigates
defense,
one
his
pists who
supposed
were
ejaculat-
to have
duty to investigate any other defense
ed at least
twice
sperm
had left no
or
ends.39
semen.36
Bean is precisely analogous to
majority
this case.
also claims that Phillips’
defense,
insisted on
lawyer
his alibi
did
telling
not make a reasonable investi-
lawyer
his
he
gation
was not
he
at the
because
testified
scene of
post-con-
crime,
despite
viction hearing
lawyer’s
that he
strong rec
pre-
would have
sented the “shoot-out
ommendation that
it
unlikely
defense”
to be
possessed
documents,
certain
effective. We cannot
the lawyer’s
documents
treat
inhe
fact did possess.37
decision to
Subsequently the
the alibi defense as
lawyer
account,
corrected this
when
deficient
under
v. Washing
Strickland
recollection refreshed
additional
ton when we held the same decision was
material petitioner’s counsel had not fur-
not deficient in Bean41 In
case,
this
Phil-
Op.
(quoting Johnson,
34.
at 979
Mai.
Maj.
Op. at
n.5.
840).
F.3d at
*27
38.
Washington,
668,
v.
Strickland
466 U.S.
35.
2052,
Even if one misread
to have
104
Johnson
some
S.Ct.
lips’ trial, Phillips’ girlfriend At trial. testified actual defense, who a witness an alibi for im- alibi, he tried to murder, other so a man his contradicted the day after the that perjur- hand- was showing caliber that she by a .45 her carrying peach than ain involved from for lenience exchange he saw or was herself gun ing claimed murder. the of that at the scene he now But admits gun government. battle the a for lie, corroboration good pretty perjury the testimony That was a his alibi anything than alibi, better much to his, majority false is forced the Following Strick- in Bean had. counsel perju- alleged girlfriend’s concede “the reasonable- that land’s admonition affect bargain did not plea ry her about may be deter- actions counsel’s ness of Phillips’ response to jury’s the verdict. the substantially influenced or mined cross-examination, that she testified she actions,”42 or own statements defendant’s testimony for her “consideration” expected Turk, Bean, following held in we “benefit,” in- distinction a fine a but not investigate to have did not even counsel also testified prosecutor The deed. [defense “Once theory.43 alternative the a to deal not “communicated” he had theory, reasonably chose counsel] prac- a he had bizarre girlfriend, because repre- own Bean’s basis of on the largely counsel making deals with defense tice of di- investigate the sentations, duty to his to tell their them not instructing but de- capacity conflicting diminished rectly that, deny his witnesses This let clients. holding That is at an end.”44 fense Phil- had a deal. knowledge, they to their case, it. controls this fours with on all girlfriend and his prosecutor says the lips responsibili- some himself has A defendant theory that on the perjury, committed both representa- legal ty quality for deal, and she should be had a they really lies If defendant tion he receives.45 deal, to a wheth- agreed “deemed” it because case suffers lawyer, and his not, her it or because knew about er she lie, himself the defendant is based it. agreed had lawyer for responsibility all of some or bears error majority’s cumulative Now deficiency.46 to the gets hypothetical which
argument, Error Perjury and Cumulative wheels, III. my grandmother “if point pro- majority The be bus.” would she perjury analysis majority’s Phillips’ if assumption on the ceeds hypotheti- ato is directed cumulative error "principal reason” claim where Strickland, tance 104 S.Ct at 466 U.S. 42. " . ‘wrong’ strate defense pursued the counsel 2052. conduct, "own gy” was the defendant's Bean, at 1082. F.3d 43. charitably as lack characterized whether Aiken, lie”); Brewer v. as a or candor 44. Id. 1991) ("It (7th would be Cir. F.2d 859-60 Johnson, See, allowing e.g., Moore a rule a defendant to create absurd 1999) (5th (rejecting an ineffec testimony Cir. 605-606 succeeds perjured free if go pre on counsel's claim based tive assistance a new providing for the same time while because defen a false alibi Thus, sentation of we poor liar. the witness is trial master "presumed to be dant was per presentation of to hold that refuse his innocence and “maintained own defense" request the defen testimony at the jured *28 trial, in direct the alibi defense” and endorsed assis ineffective adequate to constitute dant proceedings). habeas appeal, state and counsel.”). tance of 732, Keane, See, e.g., Tyson v. 46. 1998) assis- (2d (rejecting an ineffective Cir.
lawyer had competent, been minimally he prejudice means actual prejudice in an trial,47 would have tried the case on the “shoot- actual opposed as imaginary prej- theory out” instead of the alibi in an udice imaginary trial. majority insisted on. Then the assumes people The of California did not sen- hypothetical this trial that never tence Phillips to death he because had a happened Phillips’ girlfriend pros- and the lawyer. bad They him to sentenced death given ecutor would have exactly the same 7, his crimes on December 1977. I
testimony about her deal. The idea is that dissent. in that trial hypothetical Phillips would have been prejudiced imagi- because the
nary perjury would prevented have him
from impeaching girlfriend’s testimony,
and that would have weakened his never-
presented “shoot-out defense” and his de-
fense that did not kill the men to rob them, only but money stole their inciden- Christopher DILLINGHAM, John tally, as afterthought, when he was Petitioner, stealing their Chutzpah identification. in- deed! IMMIGRATION AND
Phillips’ prejudice cumulative theory has SERVICE, NATURALIZATION a fatal flaw in addition to failure pass its Respondent. straight face test: prejudice happened in an imaginary case which No. 97-71038. Phillips would have supposedly presented United States Court of Appeals, defense,” “shoot-out not actually the case Ninth Circuit. tried. The prejudice claimed hap- never pened, because the case presenting a Argued and Submitted Feb. “shoot-out defense” never happened. Sept. Filed Thus the for which case the “I’m expecting testimony consideration” supposedly
prejudicial perjurious never was tried.
Materiality prejudice must occur in tried,
the case that was in an imagi-
nary case.
Who what knows might witnesses
testified how they might have been
impeached had told the truth?
A habeas petition has to be based on con-
stitutional occurred, error the trial that
not a trial that prevented by the de-
fendant’s
perjury.
own
requirement
See,
Ahrahamson,
e.g.,
Brecht v.
(1984)
507 U.S.
("Even