*1 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 *6 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 *7 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 *8 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 *9 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
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,
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.
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
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
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
*13
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
—
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
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 *14 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
*15
(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
*16
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.
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
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,
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. *19 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 *20 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 *21 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- *22 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,
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
*24
...
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,
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 *25 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,
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
659
at least a
doubt” as to Davis’s
problems; Thomas’s
“substantial
communication
lishes
deteriorating
Boag,
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,
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 *32 662
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,
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
*33
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.
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 *34 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
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
”
*35
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
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,
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
*36
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,
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. *37 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.